JUDGMENT 1. - This appeal is filed by the accused-appellant challenging the judgment dated 11.2.1998 passed by Sessions Judge, Jodhpur in Sessions Case No. 186/96 convicting the accused-appellant under Section 302 I.P.C. and sentencing him to undergo rigorous imprisonment for life and a fine of Rs. 5000/-, in default of payment of fine to further undergo for simple imprisonment of three months on the grounds mentioned in the memo of appeal and as also canvassed before me. 2. With the assistance of the learned counsel for the accused-appellant and learned Public Prosecutor we have scrutinised the record and re-appreciated the evidence on record. 3. The prosecution story as it emerges from re-appreciation of the evidence of record is that; on 24.9.1996 at 12:50 PM, PW-10 Adeem Bux, the Sub-Inspector, Police Station Pratap Nagar recorded the statement Ex. P-4 of Smt. Jeenat Aara, wife of Shri Riyaz Khan, at Burn Unit of Mahatma Gandhi Hospital, Jodhpur and she stated in her statement that she was got married with Riyaz Khan in the year 1987, she gave birth two babies, aged 8 years and 7 years. She is working as a Teacher in the Government Primary School Baldev Nagar, Jodhpur. 4. She further stated in her statement that due to some ailment in her abdomen the Doctor removed her 'OVARY', which culminated into the infertility. Thereafter, her husband desired for second marriage, but she opposed the same. On 24.9.1996, at 9.30, her husband said that he will give the divorce to her within three days. At that time she replied that "you are harassing me and I will die". At that moment, her husband told that "I burn you", and he brought the Jarikan of kerosene and poured on her. At that time she gave the matchbox to her husband and told 'lit the fire'. Thereafter, her husband lit the fire. 5. When she caught the fire, her husband poured 2-3 Bucket of water on her and ran away. Then her mother came there and took her to the hospital. 6. On the basis of above statement Ex. P-4, the Police registered a case under Section 498-A and 307 I.P.C. and started the further investigation. 7. During the course of investigation, the police inspected the site, prepared the site inspection memo which is exhibited as Ex. P-1, Ex. Then her mother came there and took her to the hospital. 6. On the basis of above statement Ex. P-4, the Police registered a case under Section 498-A and 307 I.P.C. and started the further investigation. 7. During the course of investigation, the police inspected the site, prepared the site inspection memo which is exhibited as Ex. P-1, Ex. P-9 is the site Map, in which statements of various prosecution witnesses were recorded under Section 161 Cr.PC. The Magistrate recorded the Dying Declaration of Smt. Jeenat Aara which is exhibited as Ex. P/13, and the accused appellant was arrested and produced before the concerning Judicial Magistrate. After the interrogation, he was sent to judicial custody. 8. During the course of investigation, Smt. Jeenat Aara, died on 28.9.1996, at 9:30 AM. The Medical Board was constituted and the Post Mortem of the dead body was conducted and the Police collected the Post Mortem report Ex. P-7, and prepared the Ex. P-2 Inquest report. 9. After completion of the investigation the Police submitted a charge-sheet against the accused appellant for offence under Section 498-A and 302 I.PC. in the Court of Additional Chief Judicial Magistrate, Jodhpur, who committed the case of the Court of Sessions Judge, Jodhpur, according to law. 10. The learned Sessions Judge, Jodhpur framed the charges against the accused appellant for offence under Section 498-A and 302 I.PC. 11. The evidence on the basis of conviction was recorded by the learned trial Judge is that the deceased was burnt and was hospitalised where she died after four days. The police has recorded two dying declarations, one immediately on admission of the deceased to the hospital and another following completely the procedure established by law. After about 3 hours from the earlier statement both are duly proved. The other evidence is also corroborative of these statements. 12. PW-1, Shakil is witness to the spot Panchnama. He described the spot and proved the Panchanama. He has deposed that he saw match box, kerosene teen, burned cloths, hair, skin etc. lie on the floor and has stated that all these were recorded in panchnama. 13. PW-2, Barkat is neighbour of the deceased and accused. He want to the house of the accused and deceased and saw Jeenat deceased lying in burnt condition and the door was closed from outside. The police came on the next day, prepared the sport panchnama. lie on the floor and has stated that all these were recorded in panchnama. 13. PW-2, Barkat is neighbour of the deceased and accused. He want to the house of the accused and deceased and saw Jeenat deceased lying in burnt condition and the door was closed from outside. The police came on the next day, prepared the sport panchnama. The witness was present when the Panchnama was prepared. He also saw kerosene teen, Match box, cloths, hair, skin etc. lying on the floor. 14. PW-3, Chand Bibi is mother of the deceased stayed in the neighbourhood. In the night of 24th Sept., 1996 at about 9:30 AM she heard noise of her daughter and, therefore, went to her house to find that death was caused and the daughter Jeenat was crying and praying for being saved. She has then deposed that Jeenat told her that Riyaj Khan the accused put kerosene on her and burnt her. Ultimately Jeenat died on 28th. The witness has stated that the deceased was alive and conscious, when she told her that she was burnt by her husband Riyaj. 15. PW-4, Chand Khan is the witness to the Panchanama of dead body Ex. P9. 16. PW-5, Mohd. Kasam is the witness to the Panchnama of dead body who was present when the deceased was taken to the hospital. 17. PW-6, Khatun is the neighbour of the accused and deceased. On the date of incident she heard cry and saw the accused Riyaj running away from his house and deceased shouting. She saw Chand Bibi mother of the deceased opening the door from outside and entered the room along with mother when the deceased was shouted that she has been burnt by Riyaj after pouring kerosene on her body. 18. PW-7, Mohd. Jakir is neighbour of the accused and the deceased saw the accused running away, when he reached the house of the deceased. She was being brought out from the house and taken in taxi to hospital. 19. PW-8, Gaj Singh is Assistant Inspector of Police and was incharge of police station Pratap Nagar on 24.4.1996 when at 4:30 PM crime No. 536/96b was registered. He proves the necessary papers making the entries. 20. PW-9, Atik Ahemad is brother of the deceased. She was being brought out from the house and taken in taxi to hospital. 19. PW-8, Gaj Singh is Assistant Inspector of Police and was incharge of police station Pratap Nagar on 24.4.1996 when at 4:30 PM crime No. 536/96b was registered. He proves the necessary papers making the entries. 20. PW-9, Atik Ahemad is brother of the deceased. He was told by another cousin when he was in school that his sister Jeenat has been burnt by Riyaj and she is in hospital. He, therefore, went to the hospital and saw his sister and asked her how was she burnt. He has deposed that she told him that she has been burnt by Riyaj. 21. PW-10, Alim Bux was Sub-Inspector in Police Station, Pratapnagar on 24.9.1996. He was Station House Officer, Incharge of that station. He received the information by telephone stating that the burnt case is recently admitted. He, therefore, went to the hospital and recorded statement of the victim. He has proved the statement and he registered offence under Section 498A and 307 I.PC. 22. PW-11, Rasid Ahmed is father of the deceased He heard from his wife and other that his daughter Jeenat has been burnt by her husband Riyaj. His daughter Jeenat also told the same thing in the hospital. 23. PW-12, N.S. Kothari is the Doctor who conducted the Post Mortem of the deceased Jeenat on 28.9.1996. He has deposed that body was burnt to the extent of about 95% and death was caused due to burning. He also had examined the accused Riyaj and found left hand and fingers of the accused superficially burnt. 24. PW-13, Murlidhar Kiradu was Station House Officer of Police Station Pratap Nagar forwarded the papers to Mahila Police Station for further action. 25. PW-14, Samdar Singh was incharge of Mahila Police Station, Jodhpur at the relevant date. During the course of execution of spot Panchnama he seized the articles lying there and has proved all the documents which were executed by him during the course of investigation on that day. 26. PW-15, Atul Badwa is the Doctor who was on duty at Mahatma Gandhi Hospital, Surgical Ward, Burn Unit and was present when the Magistrate recorded the statement of the victim around 3:30. 26. PW-15, Atul Badwa is the Doctor who was on duty at Mahatma Gandhi Hospital, Surgical Ward, Burn Unit and was present when the Magistrate recorded the statement of the victim around 3:30. he has declared that when the Magistrate came to record the statement, the victim was in a position to talk and was conscious, The witness has been exclusively examined on the question whether a person who has been burnt to the extent of about 95% can remain conscious particularly when 10 kilos and high potential are administered The witness deposed that he has made the entry Ex.p. 14 stating that the patient was conscious, well oriented and patient was fit for statement. He has proved this entry and reiterated the statement that 1 according to him, victim Jeenat was in a position to make statement at the time when deceased enquired. 27. PW-16, Laxmandat Kiradu was the Judicial Magistrate, First Class, Jodhpur who recorded the statement of deceased Jeenat. He reached the hospital about 8:30 PM and enquired from Dr. Atul Bhadwa regarding the s health of the deceased. He has proved the statement recorded by him and has stated that the statement was recorded is presence of Dr. Atul. He has also deposed that he personally was satisfied at the time of recording of the evidence that Jeenat was conscious and in position to make statement. Ex.P 13 (page No. 283 of the record) is the dying declaration of Jeenat recorded by 2 the Judicial Magistrate, First Class, PW 16 in presence of Dr. Atul PW 15. Statement was recorded at 3:45 PM and on 24.9.96 i.e. about 6 hours after the victim was taken to the hospital. She was candidly answered the question put to her in the statement, she has stated that she was burnt by her husband Riyaj. She has answered the queries put to her by learned Magistrate. 28. It is on the basis of this dying declaration accompanied by other circumstantial evidence and attending circumstances that the learned Judge came to the conclusion of guilt and convicted the accused as aforesaid. 29. Learned counsel appearing on behalf of the accused very strongly contended that even if the entire prosecution case is accepted it cannot be said that the accused had intention to kill the deceased. 29. Learned counsel appearing on behalf of the accused very strongly contended that even if the entire prosecution case is accepted it cannot be said that the accused had intention to kill the deceased. Pointing out from the first dying declaration he argued that he was provoked by the deceased herself in putting her to fire. The entire evidence proves beyond doubt that there was a disagreement between husband and the wife and the husband/accused did mentally tortured the wife which prompted to her to say 4C what she had said about burning. We have considered both the dying declarations. Factually, there is nothing inconsistent between two and there is no reason why either would be disbelieved. It is obvious, therefore, that the accused was promoted to dowsed wife with petrol, kerosene and put to fire. He has admitted to put to fire immediately thereafter, and has reasonable 45 superficial fire injury which are proved by Doctor who examined the accused also. In the circumstances, it cannot be said that lightening of Match at the instigation of the wife in the circumstances amounted to intentional killing by husband. The learned counsel relied upon on almost identical case in Supreme Court reported in 2000 SCC (Cri.) 86, Kalu Ram v. State of Rajasthan appellant claimed that it is a case of culpable homicidal not amounting to murder. The decision in Kalu Ram's case cited above is really skin to this case. The Supreme Court has observed in para No. 7 as under- "7. But then, what is the nature of the offence proved against him? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the flames were up he suddenly and frantically poured water to gave her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have altered his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. It would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder." 30. Taking into consideration the above observations, we are also of the opinion in the present case that the conviction and punishment should be for culpable homicidal not amounting to murder. 31. In the result, therefore, the appeal is partly allowed. The conviction and sentence under Section 302 is set aside instead the accused is convicted under Section 304 part II I.P.C. and following the above judgment, we also feel that the accused who suffered rigorous imprisonment for a period of 7 years, the appellant is already in jail, there is, therefore, no question of any further order in this regard. *******