JUDGMENT 1. 1. Pouring of kerosene upon deceased Kesar Bai, by her father-in-law (Madan Lalappellant), and hen burning her, resulted in the death of Kesar Bai and for this Offence, the appellant has been convicted. He has been convicted under section 302 IPC by the Sessions Judge, Jhalawar, by his judgment dated 26.2.91 and sentenced to imprisonment for life and a fine of Rs. 100/-. Against his conviction and sentence the appellant has referred this appeal. 2. The incident out of which this case arises occurred on 13.7.1989. It was early morning, say about 5 a.m. when Kesar Bai was grinding flour and her husband and brother- in-law were away with the cattle. At that time, the appellant Madan Lal came to her and made an attempt to rape her but she resisted. Upon this, the appellant poured kerosene oil on her and lit her with the match box. She shouted and came out whereupon certain people collected there, including the Sarpanch Bhanwar Lal (PW-11), her husband Mangi Lal (PW-1) and brother-in-law also came there, she was taken to the hospital. While narrating the incident, she also stated that Madan Lal ran away from the back side of the house. After admitting Kesai Bai in the hospital, Bhanwar Lal (PW-11) lodged the FIR (EX.P.14) at Police Station Bakani. 3. The injuries found on the person of Kesar Bai were examined on 13.7.89, which are as under: 4. Burns present over following parts: 1. Full back ---- 15% 2. Back of right arm, full forearm and full hands ---- 7% 3. Back of left arm, back of left fore arm ---- 5% 4. Back of neck and right cheek ---- 5% 5. Right gluteal region and back of right thigh ---- 5% Total ---- 40% 5. Kesar Bai was treated and according to Dr. Madan Singh Rathore (PW-9) she was referred to the S.'R.G. Hospital on 22.7.89 and she was taken from the hospital at Bakani on the understanding that she would be taken for treatment to other hospital. Kesar Bai died on 8.10.89 and her post mortem was conducted. According to the post mortem report, she died due to sepsis and mal-nutrition due to the bum wounds. 6. Learned Sessions Judge relied upon the statement of Kesar Bai herself recorded by Ishaq Mohd. Kesar Bai died on 8.10.89 and her post mortem was conducted. According to the post mortem report, she died due to sepsis and mal-nutrition due to the bum wounds. 6. Learned Sessions Judge relied upon the statement of Kesar Bai herself recorded by Ishaq Mohd. S.H.O. (PW-10) and on the version of Bhanwar Lal (PW-11) in arriving at the conclusion that it was the accused appellant who burnt Kesar Bai. However, the charge for the offence under section 376/511 IPC was not proved and the appellant was acquitted from this offence. 7. Learned Amicus Curiae, appearing for the appellant has taken us through the evidence, and first of all, he has contended that the evidence in the case is not sufficient to hold the appellant guilty for burning Kesar Bai. In the alternative, it is contended that the deceased died due to sepsis and that the burns found at the time when she was admitted to the hospital could not be said to be caused with the intention of causing death. Hence, the offence under section 302 IPC cannot be made out. 8. We have considered this contention. No doubt, the husband and the brother in law of the deceased have turned hostile and the neighbour Gopi (PW-7) has also turned hostile,- but in a case like the present, when a woman has died, it is but natural that sons of the accused-appellant would not depose against their own father. But we have to see the testimony of Bhanwar Lal (PW-11) the FIR and the statement of Kesar Bai recorded under section 161 Cr.P.C., by the S.H.O., which has been said to be sufficient for holding he accused guilty. We have gone through the statement and we see no reason to disbelieve Bhanwar Lal (PW-11) who came to the place of occurrence soon after the incident and took Kesar Bai to the hospital along with others. As far as the S.H.O. is concerned, he should have done better by getting the statement of Kesar Bai recorded by a Magistrate but he omitted to do so probably because it did not appear that Kesar Bai was likely to die due to the bum injuries. The post mortem report also reveals that sepsis had been found in the burn wounds which caused death. The post mortem report also reveals that sepsis had been found in the burn wounds which caused death. Hence, the lapse on the part of the S.H.O. in not getting the dying declaration recorded by a Magistrate may be excused but the statement of Kesar Bai made before the S.H.O. can be accepted as the statement made by a person who is no longer available and there is no reason to hold that the S.H.O. would have recorded a false statement. 9. On the basis of the evidence, we are of the opinion that it has been correctly held that it was the accused appellant who burnt the deceased Kesar Bai. 10. The next question which arises is as to what offences can be said to be made out. In the statement recorded before the court, Dr. Mohan Singh Rathore (PW-9) has stated that the bum injuries of the deceased were sufficient in the ordinary course of nature to cause death but such opinion has not been recorded on the injury report itself. He has also stated that there was no smell of kerosene. The recovery of kerosene can has also not been supported by cogent evidence. Pouring of kerosene by the appellant before burning Kesar Bai does not stand proved. Hence, if there was pouring of kerosene then his intention to cause death would have been well established. However, in absence of evidence of pouring kerosene before burning the deceased Kesar Bai, it can be said that the appellant had the knowledge that his act was likely to cause death or cause such bodily injury as is likely to cause death and as such, his offence would fall under section 304II IPC. 11. The appellant has remained in jail for about five years and a half and we feel that this punishment would be sufficient for the offence under section 304II IPC. 12. In the result, the appeal is partly allowed and conviction of the appellant for the offence under section 302 IPC is set aside. However, he is convicted for the offence under section 304 Part II IPC, and the period of sentence already undergone by him is taken to be sufficient punishment for this offence. He shall be released forthwith if not wanted in any other case. *******