Judgement Brij Kishore Dube, J [1] Feeling aggrieved by the judgment of conviction and order of sentence dated 28.08.09 passed by the learned Additional Judge, Mungaoli, District Ashok Nagar, in Sessions Trial No.110 of 2009 (State of Madhya Pradesh Vs. Gudda and another), convicting the appellants under Section 449 of IPC and thereby sentencing each of them to suffer rigorous imprisonment for ten years with fine of Rs.1,000/ , in default of payment of fine further one year rigorous imprisonment, further convicting appellant, Maan Singh under Section 302 of IPC and Gudda under Section 302 read with Section 34 of IPC and thereby sentencing each of them to suffer rigorous imprisonment for life and fine of Rs.1,000/ in default of payment of fine further one year imprisonment, with further stipulation that the jail sentences shall run concurrently, the appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. [2] Prosecution story, in brief, may be narrated as under: (i) That, in the intervening night of 23 rd and 24 th June, 2006, the complainant, Anita Bai (since deceased) alongwith her children was sleeping in the court yard while her husband was sleeping inside the room of her house. On 24/06/2006 at about 03.00 hours in the morning, both the accused, Gudda and Maan Singh came to her house, enquired about her husband. She replied that he went to village Leharai and did not return back. On this, Maan Singh told the other accused, Gudda to lit fire over her then, she abused them. At that juncture, Gudda caught hold of her and Maan Singh poured kerosene from a CHAMPA (small can) and with an intention to kill her, Maan Singh lit the match stick, as a result of which she started burning, then she screamed for help. On hearing her shriek, her husband, Ramesh (P.W.1), Devar, Sevaram (P.W.4) and Bhatija (brother's son), Sher Singh (P.W.3) rushed to the scene of occurrence and they extinguished the fire and during the course of extinguishing the fire, her husband received burn injuries on his hand. Three days prior to the date of the alleged incident, there was some heated exchange of words between her and Maan Singh. On this issue, both the accused persons have burnt with an intention to kill her. Three days prior to the date of the alleged incident, there was some heated exchange of words between her and Maan Singh. On this issue, both the accused persons have burnt with an intention to kill her. (ii) That, Anita Bai was brought in burned condition by her husband, Ramesh at Police Station, Mungaoli where she lodged the report of the incident; (iii) That, on the basis of the aforesaid report, FIR was registered at Crime No.108/06 (Exhibit P/16) under Section 307/34 of the IPC by Praveen Asthana, Station House Officer, (P.W.12). The injured, Anita Bai was sent to for medical examination and treatment at Community Health Centre, Mungaoli and simultaneously, requested the Tehsildar, Mungaoli to record her dying declaration. Radheshyam Shrivastava (P.W.6), Executive Magistrate/Tehsildar came to the hospital and recorded her dying declaration (Exhibit P/8) after obtaining the necessary certificate of her physical and mental condition from the Doctor; (iv) That, Dr.Dinesh Tripathi (P.W.7), Medical Officer, Community Health Centre, Mungaoli examined Anita Bai and vide medical report, Exhibit P/9 found that almost her whole body burnt except the body from both knees upto toes and, therefore, looking to her serious condition referred her to the District Hospital, Guna for further treatment from where she was referred to Bhopal but on the way she succumbed to the burn injuries. After the death of the deceased, the case was altered from Section 307/34 to Section 302/34 of the IPC; (v) That, V.S.Gautam, Assistant Sub Inspector (P.W.11) has prepared the map of scene of occurrence (Exhibit P/ 2); seized necessary articles from the place of occurrence and the seized articles were sent for FSL examination. The Investigating Officer held inquest on the dead body and sent it for post mortem examination. Dr. V.K. Sharma (P.W.8) conducted post mortem at the Community Health Centre, Mungaoli and opined that mode of death was septic shock as a result of extensive burn on body; and (vi) That, the Investigation Officer recorded the statements of the witnesses who were acquainted with the facts of the offence and arrested the accused/appellants. On completion of the investigation, a charge sheet was filed against the appellants, before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the learned Trial Court for the trial. On completion of the investigation, a charge sheet was filed against the appellants, before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the learned Trial Court for the trial. [3] The learned Trial Judge on the basis of the material placed on record framed charge punishable under Sections 449, 302 against the accused, Maan Singh and under Sections 449 and 302 read with Section 34 of IPC against the accused, Gudda. The appellants/accused denied the charge and claimed to be tried. The defence of the appellants is of false implication. The deceased has a illicit relationship with one Yadav of Village Ruhana and the same was informed by the accused to the husband of the deceased. On this, a quarrel took place between the deceased and her husband and, therefore, the deceased herself poured kerosene and ablazed her and the same defence set forth in their statements recorded under Section 313 of the Code of Criminal Procedure, 1973. [4] To bring home the charge, the prosecution has examined as many as 13 witnesses and placed Exhibits P/1 to P/17, the documents on record. The accused have not examined any witness in their defence. [5] The learned Trial Judge on the basis of evidence placed on record came to hold that charges have been proved against the accused/appellants as a result of which convicted them and passed the sentence as mentioned hereinabove. [6] In this manner, this appeal has been preferred by the appellants assailing the judgment of conviction and order of sentence passed by the learned Trial Court. [7] Legality and propriety of the impugned judgment of conviction has been challenged by the appellants on the ground of mis appreciation of the evidence on record. Learned counsel for the appellants, Shri A.K.Jain has submitted that there was no cogent evidence to establish the ingredients of offence under Sections 499 and 302 of IPC. The so called eye witnesses have not supported the prosecution case. By putting a deep dent on the dying declaration (Exhibit P/8) recorded by the Executive Magistrate,Radheshyam (P.W.6), it has been argued that the deceased was not in a position to speak properly, and therefore, it would be highly doubtful to place reliance on the dying declaration (Exhibit P/8). The so called eye witnesses have not supported the prosecution case. By putting a deep dent on the dying declaration (Exhibit P/8) recorded by the Executive Magistrate,Radheshyam (P.W.6), it has been argued that the deceased was not in a position to speak properly, and therefore, it would be highly doubtful to place reliance on the dying declaration (Exhibit P/8). The learned Trial Court erred in convicting the appellants, hence, this appeal be allowed and the appellants be acquitted from the charge. [8] An alternative submission has also been put forth by the learned counsel that there was no intention or pre plan of the appellants to kill the deceased and the alleged incident occurred all of sudden on account of some dispute, on 24.04.2006 and the deceased had died after 17 days, i.e., on 12.05.2006, due to septicaemia, therefore, it cannot be conclusively said that the alleged burn injuries were sufficient to cause her death and therefore, at the most the case would rest under the ambit of Section 326/34 or Section 304 Part II of the IPC. He prayed for reducing the jail sentence to the period already undergone by them. He has placed reliance on the following decisions: (1) B.N.Kavatakar and another Vs. State of Karnataka, 1994 Supp1 SCC 304; (2) Harish Kumar Vs. State (Delhi Administration), 1993 AIR(SC) 973; (3) Kishan Chand and another Vs. State of Punjab, 1994 AIR(SC) 32; (4) Pirthi Vs. State of Haryana, 1994 AIR(SC) 1582; (5) Dev Raj Vs. State of Punjab, 1992 AIR(SC) 950; (6) Antram Vs. State of Maharashtra, 2007 AIR(SCW) 7156; (7) Chhabiram & Others Vs. State of Madhya Pradesh, Cr. Appeal No.648/03 decided on 18/03/2009, (8) Omwati Bai & Others Vs. State of M.P., Cr. Appeal No.833/05 decided on 19/01/09; and (9) Premsingh and another Vs. State of Madhya Pradesh, 2007 1 MPHT 86 [9] On the contrary, Shri Vivek Khedkar, learned Public Prosecutor has supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited. [10] In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. [11] In the present case, the conviction is mainly based on dying declarations of the deceased, Anita Bai. [10] In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. [11] In the present case, the conviction is mainly based on dying declarations of the deceased, Anita Bai. It is settled principle of law that dying declaration is substantive piece of evidence and an order of conviction can be safely recorded on the basis of dying declaration. For relying upon the dying declaration, the Court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement. [12] The deceased herself lodged the FIR (Exhibit P 16) on 24.4.2006 at 7.35 AM at Police Station Mungaoli. The Town Inspector, Praveen Asthana (PW 12) SHO, who recorded the FIR has proved the report (ExhibitP 16) of the deceased. After death of the deceased, this document would become her dying declaration, as envisaged in Section 32 (1) of the Evidence Act. It has been stated by the Town Inspector, Praveen Asthana (PW 12) that on 24.4.2006, the deceased, Anita Bai has lodged report at the Police Station Mungaoli. On this, FIR (Exhibit P 16) was recorded by him and he himself put his signature on it. It is further deposed by this witness that after recording the FIR, it was read over to Anita Bai and thereafter she put her thumb impression on it. [13] The FIR (Exhibit P 16) reads as under: xxx xxx xxx [14] The MLC report of the deceased was Exhibit P 9 which was proved by Doctor Dinesh Tripathi (PW 7). On bare perusal of the testimony of the MLC Doctor Dinesh Tripathi as well as MLC report Exhibit P 9, we find the following injury on the person of the deceased: Except below both the knees, entire body had completely burnt. Blisters present at different places and at different places the skin is coming out. The smell of burning and kerosene was coming out from the body. The injured sustained 80% burns and such burns were dangerous to life. Burnt within 24 hours. According to Doctor Dinesh Tripathi, PW 7 looking to the serious condition of Anita Bai, she was admitted in the hospital and thereafter, on 26.4.06, she was referred to the District Hospital, Guna for further treatment. The injured sustained 80% burns and such burns were dangerous to life. Burnt within 24 hours. According to Doctor Dinesh Tripathi, PW 7 looking to the serious condition of Anita Bai, she was admitted in the hospital and thereafter, on 26.4.06, she was referred to the District Hospital, Guna for further treatment. [15] In view of the serious condition of Anita Bai, she was further referred to Bhopal but on the way, she succumbed to the burn injuries. After the death of the deceased, the post mortem of the dead body was conducted on 12.5.06 at 1.10 PM by Doctor V.K. Sharma (PW 8) and his post mortem report is Exhibit P 11. According to Doctor V.K. Sharma (PW 8), the following injuries were found on the person of the deceased:- About 77% burn over body with different stages of healing. Burnt wound present anteriorly whole face, whole neck, chest, upper 2/3 rd of abdomen, right anterior thigh and left anterio medial thigh, both fore arms except fingers. Posteriorly neck, back, both fore arms and anterior upper right thigh and left medial thigh and knee. Periphery of wound having healing and central part thick crest with puss and granulation tissue underneath. According to Doctor V.K. Sharma, (PW 8), the deceased had died due to septicaemia which was caused due to ante mortem burns. Hence, the FIR Exhibit P16 is corroborated by the medical evidence. [16] Exhibit P 8 is the dying declaration recorded by PW 6, Radhe Shyam Shrivastava, Tehsildar. Radhe Shyam Shrivastava, Tehsildar categorically stated that on 24.4.06, he got a request letter from the Police Station, Mungaoli, for recording the dying declaration of Anita W/o Ramesh Ahirwar. Therefore, he went to the hospital, Mungaoli and found that the injured, Anita was admitted there. Before proceeding to record the dying declaration, an enquiry was made about the condition of the patient, then, the duty doctor certified that the injured was able to give her statement, thereafter, he recorded her dying declaration. PW 6, Radhe Shyam Shrivastava, while proving the dying declaration, Exhibit P 8 of the deceased had stated that the injured told this witness that accused Maan Singh and Gudda poured kerosene from Chappa on her and lit a fire as a result of which she burnt. PW 6, Radhe Shyam Shrivastava, while proving the dying declaration, Exhibit P 8 of the deceased had stated that the injured told this witness that accused Maan Singh and Gudda poured kerosene from Chappa on her and lit a fire as a result of which she burnt. After recording her statement, he again got certification about the condition of the deponent (deceased) from the duty Doctor who had certified that she was in a good condition to give her statement. PW 6 Radhey Shyam Shrivastava is totally independent witness. The question remains why this witness would tell lie and why his statement should be disbelieved. There is no reason to disbelieve him. Doctor Dinesh Tripathi (PW 7) has also deposed that on 24.4.06 Tehsildar, Mungaoli has recorded the dying declaration (Exhibit P 8) of Anita Bai, in the hospital. Before and after recording the dying declaration, he certified that the patient was conscious and was able to give the dying declaration. [17] The dying declaration (Exhibit P 8) is to the following effect:- xxx xxx xxx [18] According to PW 1, Ramesh, who is the husband of the deceased that on the relevant point of time his wife Anita Bai along with children Krishna Pal and Sunny Kumar was sleeping in the court yard, while he himself was sleeping inside the house. At about 2.30 hours in the night, he wake up on hearing the shriek of his wife and saw that his wife was burning in the court yard. He rushed there and extinguished fire by pouring water on her. During extinguishing the fire, he also received one injury in his hands. His brother, Sewa Ram (PW 4), Nephew, Sher Singh (P.W.3) and mother, Brijiya Bai were also reached on the spot. His wife, Anita Bai told that Maan Singh and Gudda fled away after ablazing her. Thereafter, he alongwith others took his wife in burned condition to Police Station, Mungaoli, where his wife lodged report, wherefrom, his wife was sent to for medical examination and treatment to hospital Mungaoli. After some time, she was sent to District Hospital, Guna. After getting treatment for 16 17 days, his wife was referred to Bhopal for further treatment, but on the way to Bhopal she died. Then, he went to the Police Station, Mungaoli and informed the police accordingly. After some time, she was sent to District Hospital, Guna. After getting treatment for 16 17 days, his wife was referred to Bhopal for further treatment, but on the way to Bhopal she died. Then, he went to the Police Station, Mungaoli and informed the police accordingly. Nothing could be illicited in the cross examination so as to suggest that this witness was interested in securing the conviction of the appellant on absolutely false ground. [19] Therefore, looking to the dying declarations and other evidence on record, according to us, the learned Trial Court has not committed any error in holding that the deceased had died on account of causing burn injuries by the appellants and we do not want to deviate ourselves from the reasoning arrived at by the learned Trial Court. [20] We shall now advert ourselves to the alternate submission putforth by the learned counsel for the appellants. After careful consideration of this aspect of the matter, we are unable to accept this argument. Firstly, that the appellants entered into the house of the deceased in the night at about 3.00 A.M., with some ulterior motive knowing that they have rivalry with deceased. Secondly, the act of pouring kerosene on the person of the deceased and setting her on fire, in our opinion, necessarily implies an intention on the part of the appellants to cause her death. In the case of B. Ventateshwarlu Vs. State of A.P., 1974 AIR(SC) 2363, it was held that when one of the accused poured kerosene on the body after which the appellant lighted a match and set fire to his clothes, the intention was to cause death of that boy and there was no doubt about that intention. In the case of State of Madhya Pradesh Vs. Ram Prasad, 1968 CrLJ 1025 , the accused had poured kerosene oil on his wife and then set her clothes on fire. The Apex Court held that it was obliviously that the accused must have known that he was running the risk of causing death of his wife or such bodily injury which was likely to cause her death. The Apex Court held that the act could even be covered under clause fourthly of Section 300 of the IPC. It was, therefore, held that his offence was culpable homicide amounting to murder. The Apex Court held that the act could even be covered under clause fourthly of Section 300 of the IPC. It was, therefore, held that his offence was culpable homicide amounting to murder. [21] Thirdly, as per MLC report (Exhibit P 9) and the testimony of Doctor Dinesh Tripathi (PW 7), the deceased had sustained 80% burns and such burns were dangerous to life meaning thereby that her survival was impossible, and lastly, Autopsy Surgeon, Dr. V.K. Sharma, (PW 8) deposed that the cause of death of the deceased was septicaemia which was caused due to ante mortem burns. [22] The medical evidence on record establishes that septicaemia was the direct result of the burns injuries suffered by the deceased, Anita Bai. No material has been brought on record that septicaemia in the instant case was not the result of the burn injury. [23] After examining the entire relevant evidence on record, we are satisfied that burn injuries suffered by the victim resulted in her death and septicaemia which developed later on was also due to infection of burns sustained by her. Thus, the burn injuries had caused death of the victim and the same were caused by the appellants. When the intervening cause is totally unrelated to the original injury caused by the act of the accused persons, one can possibly contend that the death was not the direct or proximate result of the act of the accused. We have, therefore, no hesitation in holding that it was the act of the appellants which resulted in the death of the deceased. Hence, the offence under Section 302 of the IPC is clearly made out. In this context, we have profitably placed reliance on the decision of the Apex Court in the case of Amar Singh MunnaSingh Suryawanshi Vs. State of Maharashtra, 2007 15 SCC 455, wherein, the accused took out kerosene from the lamp, poured it on the deceased and set her ablaze as a result of which the deceased had suffered superficial to deep burns being to the extent of 43 45%. She breathed her last on 22.6.1990 i.e. about 15 days after the incident. She died due to septicaemia with shock due to extensive burns. The Apex Court held that the fact remains that the kerosene was put on her body and fire was lit. She breathed her last on 22.6.1990 i.e. about 15 days after the incident. She died due to septicaemia with shock due to extensive burns. The Apex Court held that the fact remains that the kerosene was put on her body and fire was lit. We, thus, cannot accept the plea of the learned counsel appearing on behalf of the appellants that there was no intention on the part of the accused to cause her death. They must be held to be aware that such an act was likely to cause death in the ordinary course of nature. [24] In the case of B.N. Kavatakar and another , the injuries were caused by lethal weapons. The medical officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicaemia secondary to injuries and peritonitis. The deceased died after five days of occurrence in the hospital. Looking to the over all scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer, the Apex Court held that the offence would be one punishable under Section 326 read with Section 34 of the IPC. In the case of Harish Kumar, the accused had inflicted injury by sharp edged weapon, which caused death. Deceased died 2 days after infliction of injury. In that circumstances, the Apex Court held that though, injury resulted in death of the deceased, it cannot be conclusively said that it was sufficient to cause his death, therefore, the accused convicted under Section 304 Part II and not under Section 302 of the IPC. In the case of Kishan Chand and another , the accused inflicted single blow on the deceased. Injury caused was not capable to cause death. The deceased died after two weeks of the incident due to intervening cause. The Apex Court held that the accused was guilty of culpable homicide not amounting to murder. In the case of Pirthi , a quarrel took place between accused and deceased. Accused, kicked the deceased on his testicals. No medical treatment was given to the deceased for two days. Medical opinion was that death was due to Toxaemia because of gangrene which could be result of injury to testicle. The Apex Court held that injury to testicles was not direct cause of death, therefore, offence under Section 323 of the IPC was made out. No medical treatment was given to the deceased for two days. Medical opinion was that death was due to Toxaemia because of gangrene which could be result of injury to testicle. The Apex Court held that injury to testicles was not direct cause of death, therefore, offence under Section 323 of the IPC was made out. In the case of De raj , the accused caused gun shot injuries to the deceased and the injured died nearly one and half month of the incident. In between, he was operated and for purpose of surgeries several incised wounds were made. Second haemorrhage resulting death, took place on day when right arm of the deceased was amputated. The Apex Court held that accused liable to be convicted for grievous hurt under Section 326 and not under Section 302 of the IPC. In Mohabbat, the Trial Court convicted the accused appellant under Section 302 of the IPC on the ground that he poured kerosene on the person of the deceased, lighted match and set up ablaze. This Court held that the death had occurred after two and half months. Initially, doctor noticed only 32% burns later on in the hospital, 38% burns were noticed. Under these circumstances, it was held that it would be most hazardous to hold that the death had occurred on account of the burns caused by the appellant in the incident, the accused was held liable to be convicted under Section 326 instead of 302 of the IPC. In the case of Prem Singh and another there was land dispute between accused persons and deceased. The accused had beaten the deceased thereafter pressurizing her for compromise but she refused. Thereafter, when she was sleeping, one accused gagged her mouth and another poured kerosene on her and lit fire, she got 49% burn injuries after 11 days of the incident she died due to septicaemia/infection. She was got discharged from the hospital by her husband against the permission of the doctor at his own risk and thereafter she died at her house. This Court convicted the accused under Section 304 Part II of the IPC after setting aside conviction under Section 302 of the IPC as the cause of the death was not because of the direct result of injuries sustained by her. This Court convicted the accused under Section 304 Part II of the IPC after setting aside conviction under Section 302 of the IPC as the cause of the death was not because of the direct result of injuries sustained by her. In view of the facts and circumstances of the present case, the aforesaid decisions are not helpful to the appellants. [25] We have also gone through the reasonings assigned by learned Trial Court convicting the appellants and we do not find any illegality or infirmity in it. The conviction is based on correct appreciation of the evidence on record. Hence, we extend our stamp of approval of the reasoning, findings and conviction recorded by the learned Trial Court. [26] For the reasons hereinabove, we do not find any merit in this appeal. The appeal is hereby dismissed. Appeal dismissed.