S. K. KULSHRESTHA, J. ( 1 ) THE appellant assails the Judgment dated 22nd June, 2005 of the learned Sessions Judge, mandleshwar, in Sessions Trial No. 57/2005 by which the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life. ( 2 ) THE appellant was indicted for commission of the murder of his own wife by burning her. Accordingly to the prosecution, on 3-12-2004, in Maheshwar, Ward No. 8, accused demanded money from his wife -Mayabai for liquor and on her pleading inability, he quarrelled with her and stating that he would bring the matter to an end, he poured over her kerosene and lighted a match and set her ablaze. Mayabai raised an alarm which attracted her mother gendabai and other persons from the neighbourhood namely, Munna s/o Surpal, rajesh s/o Champalal and others. Seeing that persons from the neighbourhood were coming, the accused ran away. Mayabai was taken on a handcart by Munna (P. W. 7) and rajesh (P. W. 6) to the Hospital. A report of the incident was lodged at Police Station, maheshwar, and on that basis case under sections 307 and 498-A of the Indian Penal code was registered against the accused. ( 3 ) THE first report with regard to the incident which was made by the deceased was ex. P/1, which was recorded by P. S. Mandloi (P. W. 12), on the basis whereof offence Ex. P/9 was registered at the Police station. Arrangement was made for recording of her dying declaration and Kailash chandra Jain, Tehsildar (P. W. 8) was requested to record the same. After obtaining due certificate from the attending Doctor, dr. Daulat Singh Chauhan (P. W. 10), dying declaration (Ex, P/5) was recorded. In further investigation, spot map (Ex. P/12) was prepared. From the spot half burnt pieces of clothes, one blue colour plastic: Can, one match box. two burnt match sticks, one swab soaked in kerosene and simple cotton were seized under panchnama Ex. P/3 and the accused was arrested vide panchnama ex. P/13. On learning about the serious condition of Mayabai, she was sent to m. Y. Hospital. Indore for treatment where she was treated from 4-12-2004 to 19-12-2004 as per Exs, P/19 and P/20, as deposed to by dr. Ankit Gupta (P. W. 14 ). P/3 and the accused was arrested vide panchnama ex. P/13. On learning about the serious condition of Mayabai, she was sent to m. Y. Hospital. Indore for treatment where she was treated from 4-12-2004 to 19-12-2004 as per Exs, P/19 and P/20, as deposed to by dr. Ankit Gupta (P. W. 14 ). ( 4 ) ON being discharged from M. Y. Hospital, mayabai succumbed to the burns while she was Irt her house. Accordingly, marg was recorded vide Ex. P/4 and inquest report Fx. P/2 was prepared. The body was sent for postmortem vide requisition Ex. P/10 sent to the Community Health centre, Maheshwar, where It was examined by dr. K. K. Kansotia (P. W. 13) who gave postmortem report Ex. P/17. On account of her death, the case was converted to one u/s. 302 of the IPC. The articles seized were sent for examination to the Forensic Science laboratory wherefrom report Ex. P/15 was received. After completion of the investigation, the accused was prosecuted, ( 5 ) THE accused was charged for offence u/s. 302 of the IPC. The accused pleaded that he was innocent and had been falsely implicated. However on trial, the accused was found guilty and convicted and sentenced as hereinabove stated. The accused has, therefore, appealed to this Court. ( 6 ) THE learned counsel for the appellant submits that, the conviction of the appellant is unsustainable as The child witness Amit, aged 10, ought not to have been believed by the learned trial Court and the other evidence with regard to the dying declaration were also not reliable. His further contention is that if the deceased had been given proper treatment, she would have survived and, therefore, for the failure of the prosecution to give proper treatment to the victim of the offence, the accused could not have been convicted u/s. 302 of the IPC. Learned counsel for the respondent- State submits that Amit (P. W. 4) is corroborated by his maternal uncle Santosh (P. W. 2) as also by the two dying declarations namely; ex. P/5 recorded by Kailash Chandra Jain, tehsildar (P,w. 8) and Ex. P/11 Dehati nalish recorded by P. S. Mandloi (P. W. 12), which clearly refer to the felonious act of the appellant and, therefore, his conviction does not call for any interference whatsoever. P/5 recorded by Kailash Chandra Jain, tehsildar (P,w. 8) and Ex. P/11 Dehati nalish recorded by P. S. Mandloi (P. W. 12), which clearly refer to the felonious act of the appellant and, therefore, his conviction does not call for any interference whatsoever. ( 7 ) WE have heard the learned counsel for the parties and examined the record. ( 8 ) THE prosecution evidence in the case comprises eye witness Amit (P. W. 4), a minor aged 10 years, son of the appellant, the evidence of the dying declaration contained in Ex. P/5, recorded by Kailash Chandra jain, Tehsildar (P. W. 8), on the date of the incident itself and the report Dehati Nalish (Ex. P/11) was lodged by the deceased on the date of the incident and recorded by P. S. Mandloi, SDO (P) (P. W. 12 ). It would firstly be advantageous to deal with the ocular version of the incident as projected by the prosecution through the child witness. The prosecution has examined Arnit (P. W. 4) who is aged 10 years. He is a student of Class IV and goes to Boarding House School. From the preliminary questions put to him, it is manifest that he is of fairly matured understanding. He has stated that his father had demanded money for liquor from his mother and thereafter he had poured kerosene over her and set her ablaze. He has also stated that thereafter, Munna Mama and Rajesh mama had arrived and they had taken her to Maheshwar hospital. The allusion to munna Mama and Rajesh Mama is apparently to Rajendra alias Munna (P. W. 7) andrajesh (P. W. 6 ). ( 9 ) LEARNED counsel for the appellant has severely criticised the testimony of this witness on the ground that he is only aged 10 years and he is telling lies on being tutored by the relatives of his mother. It is clear from the testimony of Santosh (P. W. 2), brother of the deceased, that in the beginning itself he had stated that when he had learnt about the incident and rushed to the house of the deceased, on reaching he was told by Amit (P. W. 4) that his father had poured kerosene on his mother and caused burns to her. Under these circumstances, it cannot be said that the evidence of Arnit (P. W. 4) were subsequently brought into being after the deceased died. The evidence is also to be seen in the light of the evidence of Rajesh (P. W. 6) and Rajendra alias Munna (P. W. 7)both of whom have deposed that on alarm being raised they had rushed to the place and found that Mayabai was ablaze and she was in her underwear and she had thrown her clothes away. ( 10 ) IMMEDIATELY after the incident when the Police had started investigating, P. S. Mandloi (P. W. 12) was given Dehati Nalish (Ex. P. 11) of the incident. In this Dehati nalish, Mayabai has duly stated that at about 4. 00 p. m. , her husband - Mohabhat came and demanded money for liquor and when she said as to from where she should bring money, he started quarrelling with her and stated that he would finish her, he poured kerosene over her and lighted a match to set her ablaze. When she shouted, gendabai, Munna, and Rajesh rushed to the place but by that time the accused had ran away. P. S. Mandloi (P. W. 12) has duly stated that Mayabai had told him that her husband had poured kerosene over her. Not only that, there is Ex. P/11-dying declaration, there is also recorded dying declaration Ex. P/5. This dying declaration was recorded by kailash Chandra Jain (P. W. 8) who was posted as Tehsildar. Dr. Daulat Singh chauhan (P. W. 10) was the Doctor at the time this dying declaration was recorded. He has certified in portion 'c' to 'c' before recording began that she was in a fit condition to give statement and again in portion 'e' to 'e', that she was through out in such condition. Kailash Chandra Jain (P. W. 8) has deposed that when she was in her house, her husband had come drunk and had quarrelled with her and after pouting kerosene over her. he had set her afire. ( 11 ) FROM the testimony of Amit (P. W. 4), son of the accused, as corroborated by santosh (P. W. 2) and the attending circumstances, deposed to by Rajesh (P. W. 6) and rajendra alias Munna (P. W. 7) and the two dying declarations namely, Ex. he had set her afire. ( 11 ) FROM the testimony of Amit (P. W. 4), son of the accused, as corroborated by santosh (P. W. 2) and the attending circumstances, deposed to by Rajesh (P. W. 6) and rajendra alias Munna (P. W. 7) and the two dying declarations namely, Ex. P/11 Dehati nalish recorded by P. S. Mandloi, (SDO (P) (P. W. 12) and the recorded dying declaration ex. P/5, recorded by Executive Magistrate kailash Chandra Jain (P. W. 8) and duly certified by Dr. Daulat Singh Chauhan (P. W. 10), the attending Physician, it is amply proved by the prosecution that insofar as pouring of kerosene over the deceased and setting her ablaze was concerned, it was the appellant and the appellant alone who was the person responsible for the said act. Even if the Dehati Nalish (Ex. P/11) and Dying declaration (Ex. P/5) are ignored on account of the view that we propose to take that the prosecution has failed to prove that her death occurred on account of the burns sustained in this incident, the statement of eye-witness Amit (P. W. 4) amply proves the complicity of the accused. ( 12 ) THE next question that arises for consideration is as to what is the offence committed by the appellant. The question essentially hinges on the medical evidence as in the present case though the incident dates back to 3-12-2004, the death occurred on 17-2-2005, much after the discharge of the deceased from the Hospital on 19-12-2004. The deceased was first taken to the community Health Centre, Maheshwar, where she was examined by the Medical officer, Dr. Daulat Singh Chauhan (P. W. 10 ). As per his report (Ex. P/8) she had sustained 4% burns on head and neck, 10% on chest and abdomen front, 9% on back, 2% on right upper limb and 7% on left upper limb. Thus, she had sustained total 32% burns. In his estimation, her general condition was good. In fact, it is on the basis of this observation that he has certified in Ex. P/5, dying declaration, that she was in a fit condition to make a declaration and that she remained fit throughout during the period her dying declaration was recorded. It, therefore, shows that Mayabai had not sustained very severe or high degree of burns. She was thereafter examined by Dr. P/5, dying declaration, that she was in a fit condition to make a declaration and that she remained fit throughout during the period her dying declaration was recorded. It, therefore, shows that Mayabai had not sustained very severe or high degree of burns. She was thereafter examined by Dr. Ankit Gupta (P. W. 14)when she was transferred to the M. Y. Hospital, Indore. Dr. Ankit Gupta (P. W. 14)has deposed that she was hospitalised from 4-12-2004 to 19-12-2004 of which the treatment sheet was Ex. P/19 and the summary was Ex. P/20. In his cross-examination he has admitted that Mayabai had only 38% burns. In his summary report Ex. P/20, he has given the break-up of the 38% burns found on deceased Mayabai. ( 13 ) IF the evidence of Dr. K. K. Kansptia (P. W. 13) is examined in the light of the evidence of Dr. Daulat Singh Chauhan (P. W. 10) and Dr. Ankit Gupta (P. W. 14), it becomes at once clear that while the first Doctor, Dr. Daulat Singh Chauhan (P. W. 10) has recorded that she had sustained 32% burns and later Dr. Ankit Gupta (P. W. 14) recorded that she had sustained 38% burns, in the death which occurred after 2 months of the incident, the autopsy surgeon noticed 70% burns. She had voluntarily left the hos-pital on 19-12-2004 without being discharged and continued to remain in her house till 17-2-2005. The question that arises, as rightly posed by the learned counsel for the appellant, is, what was the supervening circumstance which is responsible for the additional 32% burns. Apparently, it cannot be said that she had died of the burns she had sustained in the incident dated 3-12-2004. The doubt expressed by the learned counsel appears to be reasonable and genuine. It is a case where death has occurred after 2 months. Initially the doctor noticed only 32% burns and later in the m. Y. Hospital, only 38% burns were noticed by Dr. Ankit Gupta (P. W. 14 ). It is a mystery, that the degree of burns increased to 70% when the autopsy was performed by Dr. K. K. Kansotia (P. W. 13 ). It is not known where the subject sustained burns once again during the intervening period of two months. It was for the prosecution to explain this discrepancy. Ankit Gupta (P. W. 14 ). It is a mystery, that the degree of burns increased to 70% when the autopsy was performed by Dr. K. K. Kansotia (P. W. 13 ). It is not known where the subject sustained burns once again during the intervening period of two months. It was for the prosecution to explain this discrepancy. There is a gray area as nothing is known about the period from the date 19-12-2004 till she died on 17-2-2005. Had it been a case of consistent opinion that the degree of burns and their extent had remained unaltered and the death had occurred, perhaps, there would have been no difficulty in accepting the opinion of the autopsy Surgeon that the mode of death was cardio-respiratory failure due to shock and cause of death was old burns. But in the present case, the extent of burns stated by the autopsy Surgeon being far in excess of the burns found at the inceptive stage, it does not indicate any corelation with the original burns. One can only, therefore, speculate whether it is the burns sustained in the incident that have caused the death or perhaps the burns that may have been sustained subsequently. ( 14 ) UNDER these circumstances, it would be most hazardous to hold that the death had occurred on account of the burns caused by the present appellant in the incident on 3-12-2004. He cannot, therefore, be held guilty u/s. 302 of the IPC. The question that, however, survives for consideration is as to what offence is committed by the appellant if he is not guilty for the offence of murder for which he was charged. We have already observed above that the eye-witness account rendered by Amit (P. W. 4), son of the appellant, duly corroborated by the medical evidence projected through Dr. Daulat Singh Chauhan (P. W. 10) and Dr. Ankit Gupta (P. W. 14), clinchingly prove that appellant on being refused money for liquor, poured kerosene over his wife-Mayabai and lighted a match and set her ablaze causing her burns. By causing her burns, he caused severe injuries which "caused her hospitalisation till 19-12-2004. The testimony of Dr. Daulat Singh Chauhan (P. W. 10) indicates that burn injuries had caused singeing of her hair and burn of eye-brows. By causing her burns, he caused severe injuries which "caused her hospitalisation till 19-12-2004. The testimony of Dr. Daulat Singh Chauhan (P. W. 10) indicates that burn injuries had caused singeing of her hair and burn of eye-brows. There were also burns on head and neck as also on chest, stomach and other parts of the body. This shows that the burns had affected the face and obviously it was a case of disfiguration. Even otherwise, the burns were dangerous to life and, therefore, it can safely be concluded that the accused had committed offence of causing grievous hurt punishable u/s. 326 of the IPC. ( 15 ) ACCORDINGLY, while acquitting the accused for offence u/s. 302 of the IPC, he is convicted u/s. 326 of the IPC and sentenced to rigorous imprisonment for 5 (five)years and fine of Rs. 1,000/- (Rs. One thousand ). In default of payment of fine, he shall suffer further rigorous imprisonment for three months. Order accordingly. .