Judgment KS Jhaveri, J.—The present appeal, under section 374 of the Code of Criminal Procedure, 1973, is directed against the judgement and order dated 06.07.2007 passed by the Additional Sessions Judge, Fast Track Court, Anjar-Kutch in Sessions Case No. 31 of 2005 whereby the accused-appellant has been convicted of the offence under section 302 of Indian Penal Code and is inter alia sentenced to life imprisonment and is ordered to pay fine of Rs. 5000/-, in default, to undergo rigorous imprisonment for one year. 2. The gist of the prosecution case is that the deceased was residing in Khambra village along with her husband and sons. On 19.03.2005, at around 10.00 am while the deceased was washing clothes, the accused-husband came there and demanded money from her for the purpose of gambling. When the deceased refused to give him money by saying that she didnt have any, the accused-appellant got irate and in a fit of anger poured kerosene over her. The deceased started shouting for help and the accused immediately set her on fire with a matchstick. On hearing such screams, the sons came out of the house and tried to extinguish the fire. She was then taken to hospital for treatment. However, she succumbed to the burn injuries the next date. 3. To sustain its case, the prosecution adduced following oral evidence : (i) P.W. 1 – Kanubha Tejmalji Jadeja Ex. 09 (ii) P.W. 2 – Gitaba Kanubha Jadeja Ex. 18 (iii) P.W. 3- Mahipatsinh Jadeja Ex. 22 (iv) P.W. 4 – Surajba Jadeja Ex. 24 (v) P.W. 5 – Kanjibha Jadeja Ex. 25 (vi) P.W. 6 – Chandulal Chhabhaiya Ex. 27 (vii) P.W. 7 – Girishbhai Maheshwari Ex. 29 (viii) P.W. 8 – Ishwarbhai Muljibhai Ex. 31 (ix) P.W. 9 – Harisangji Chauhan Ex. 32 (x) P.W. 10 – Navneet Gurjar Ex. 34 (xi) P.W. 11 – Jashubhai Patel Ex. 40 (xii) P.W. 12 – Dr. Samshuddin Damani Ex. 43 (xiii) P.W. 13 – Dr. Mohmadiqbal Khatri Ex. 47 (xiv) P.W. 14 – Hamirbhai Baradia Ex. 51 (xv) P.W. 15 – Dr. Narendrakumar Thwait Ex. 57 (xvi) P.W. 16 – Narendrasinh Zala Ex. 59 (xvii) P.W. 17 – Bharatbhai Ahir Ex. 60 (xviii) P.W. 18 – Bhaveshgar Goswami Ex. 62 (xix) P.W. 19 – Sattar Osman Luhar Ex. 67 (xx) P.W. 20 – Surendrasinh Jadeja Ex. 68 (xxi) P.W. 21 – Jungbahadur Gurkha Ex. 51 (xv) P.W. 15 – Dr. Narendrakumar Thwait Ex. 57 (xvi) P.W. 16 – Narendrasinh Zala Ex. 59 (xvii) P.W. 17 – Bharatbhai Ahir Ex. 60 (xviii) P.W. 18 – Bhaveshgar Goswami Ex. 62 (xix) P.W. 19 – Sattar Osman Luhar Ex. 67 (xx) P.W. 20 – Surendrasinh Jadeja Ex. 68 (xxi) P.W. 21 – Jungbahadur Gurkha Ex. 70 (xxii) P.W. 22 – Swarupsinh Jadeja Ex. 74 (xxiii) P.W. 23 – Rashmikant Parmar Ex. 77 (xxiv) Pursis Ex. 86 3.1 The prosecution also relied upon the following documents: (i) Police Yadi Ex. 35 (ii) Dying Declaration Ex. 36 (iii) Report by FSL Ex. 41 (iv) Medical Certificate of deceased Ex. 44 (v) Refer Note Ex. 45 (vi) Post mortem note Ex. 48 (vii) Certificate of death Ex. 49 (viii) Police yadi for post mortem Ex. 50 (ix) Panchnama of scene of offence Ex. 52 (x) Indoor treatment record of deceased Ex. 58 (xi) Inquest panchnama Ex. 61 (xii) Panchnama of clothes of deceased Ex. 63 (xiii) Arrest panchnama Ex. 64 (xiv) Map of scene of offence Ex. 69 (xv) Police report for registering compliant Ex. 71 (xvi) Police Yadi Ex. 72 (xvii) Complaint Ex. 78 (xviii) Forwarding Letter by FSL Ex. 79 (xix) Dispatch letter Ex. 80 (xx) Forwarding letter Ex. 81 (xxi) FSL Report Ex. 82 (xxii) Serological report Ex. 83 (xxiii) Forwarding letter by FSL Ex. 84 (xxiv) Biology analysis report Ex. 85 3.2 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 4. Mr. Madansinh Barod, learned advocate appearing for the appellant submitted that the prosecution failed to prove the case against the accused-appellant beyond reasonable doubt. He contended that the prosecution has failed to prove the intention and motive of the accused to set the deceased on fire beyond reasonable doubt. He submitted that the story that the appellant was demanding money from the deceased for gambling is false and fabricated. 4.1 Mr. He contended that the prosecution has failed to prove the intention and motive of the accused to set the deceased on fire beyond reasonable doubt. He submitted that the story that the appellant was demanding money from the deceased for gambling is false and fabricated. 4.1 Mr. Barod further submitted that the trial court ought to have considered the marriage span of the deceased and husband and the fact that there were no previous incidents of such sort between the deceased and appellant. He submitted that the trial court has grossly erred in appreciating the evidence of the so-called eye witnesses who are not trustworthy. 4.2 Mr. Barod further contended that there are contradictions in the post mortem note and inquest panchnama. The panchas have turned hostile and have not supported the case of the prosecution. 4.3 In the alternative, Mr. Barod submitted that even if everything is assumed against the accused and the offence alleged to have been committed by the accused is treated as culpable homicide, in view of the absence of any strong intention or motive to kill the victim, charges under Section 304(I) ought to have been attracted. He submitted that the incidence happened in a spur of moment, without any premeditation and the accused did not come with an intention of killing the victim. He submitted that considering the fact that the accused-appellant is in jail since March 2005 and the fact that the incident happened in a fit of rage and without any premeditation, taking a sympathetic view of the matter the sentence awarded by the trial court may be reduced to ten years. 4.4 In support of his submission, Mr. Barod has relied upon the decisions of the Apex Court in the case of State of U.P. vs. Lakhmi reported in AIR 1998 SC 1007 and Rampal Singh vs. State of Uttar Pradesh reported in (2012) 8 SCC 289 . 5. Ms. Chetna M. Shah, learned APP has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and come to the conclusion that the appellant is guilty of the offence so convicted of. She has submitted that considering the barbaric act committed by the appellant in setting his wife ablaze after pouring kerosene, the trial court has rightly convicted the appellant. She has submitted that considering the barbaric act committed by the appellant in setting his wife ablaze after pouring kerosene, the trial court has rightly convicted the appellant. She also submitted that the sentence imposed upon the appellant is just and proper and does not deserve to be reduced. Ms. Shah has placed reliance on a recent decision of the Apex Court in the case of Rakesh and Another vs. State of Haryana reported in (2013) 4 SCC 77 . 6. We have gone through the judgement and order passed by the court below. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocates for both the sides. 7. The trial court has examined the evidences on record in detail and has come to the conclusion that the appellant is guilty of the offence under section 302 of Indian Penal Code. The trial court has considered the dying declaration and complaint given by the deceased, the medical evidence and the panchnamas to come to the conclusion that the deceased was done to death by the accused-appellant by pouring kerosene over her and setting her on fire. 8. The main question that falls for our determination in this appeal is as to whether the accused-appellant could have been convicted for the offence of murder punishable under Section 302 IPC. 8.1 It is not in dispute that the deceased Chandaba sustained burn injuries at the house of the accused Tejmalji Jadeja where they were living. The incident occurred at around 10.00 am on 19.03.2005 and she was admitted in the hospital on 19.03.2005 at around 11.40 am. 8.2 Now, let us consider the dying declaration, its contents and the procedure followed while recording the same. It is borne out that after knowing the condition of the deceased, the police authorities vide Ex. 35 sent a police vardhi to Mr. Navneet Gurjar, Executive Magistrate (P.W. 10) for recording the statement of the deceased. It is also borne out that before recording the statement of the deceased, the Magistrate (PW 10) asked for the opinion of the duty doctor about her condition that whether she was fit to make a statement. 35 sent a police vardhi to Mr. Navneet Gurjar, Executive Magistrate (P.W. 10) for recording the statement of the deceased. It is also borne out that before recording the statement of the deceased, the Magistrate (PW 10) asked for the opinion of the duty doctor about her condition that whether she was fit to make a statement. The record shows that after receiving the opinion of the doctor that she was fit and conscious enough to record the statement, the Executive Magistrate (PW 10) at 03.05 pm started recording the dying declaration of the deceased. 8.3 The victim-Chandaba has clearly stated in her dying declaration that while she was washing clothes the accusedappellant demanded money from her. She has stated that he did not work and therefore in order to gamble, he used to demand money from her and when she refused to give the same, he poured kerosene on her and set her ablaze. She has further stated in the dying declaration that her sons had brought her to Anjar Hospital and thereafter to Bhuj Hospital for treatment. The victim has appended her right hand thumb impression on the said statement after the recording of dying declaration was over at around 03.20 pm. 9. In order to strengthen the above statement, the prosecution examined Dr. Narendrakumar Thwait (PW 15) who certified the condition of the deceased. In his evidence, he deposed that on 19.03.2005, an application was moved before him seeking opinion regarding fitness of Chandaba for making a statement. P.W. 15 declared her fit to make a statement and basing on this certificate the Executive Magistrate recorded her statement. 10. P.W. 10, Mr. Navneet Gurjar is the Executive Magistrate who recorded the dying declaration. According to him, the police had moved an application before him for recording the statement of Chandaba and he had visited the hospital where Chandaba was admitted and contacted the duty doctor for his opinion about her fitness to make a statement. He asserted that the doctor declared Chandaba fit to make a statement and that thereafter he recorded the dying declaration. P.W. 10 has reiterated the very facts as mentioned by the deceased in her complaint and dying declaration. This witness has deposed that the victim Chandaba could speak and infer the questions put forth to her by him. 11. He asserted that the doctor declared Chandaba fit to make a statement and that thereafter he recorded the dying declaration. P.W. 10 has reiterated the very facts as mentioned by the deceased in her complaint and dying declaration. This witness has deposed that the victim Chandaba could speak and infer the questions put forth to her by him. 11. In the complaint given on 19.03.2005, the victim has reiterated the facts as mentioned in the dying declaration. She has mentioned that on that very day at around 10.00 am while she was washing clothes in the backyard, her husband had come there and started demanding money. When she refused to the give the same her husband-appellant grabbed a can of kerosene which was kept in the backyard and poured kerosene on her. 11.1 In the complaint, she has further stated that after kerosene was poured, she started screaming. The husband immediately took out a match-box from his pocket and lit it as a result of which she was set ablaze. She has stated that on hearing the screams, her two sons and other people who were nearby rushed to the scene of offence and tried to extinguish the fire by wrapping her in blankets. The husband of the deceased fled away from the scene of offence on seeing people who had gathered. She has mentioned that her husband was in the habit of gambling and therefore demanded money for the same to which she had refused. 12. The statement of the deceased in the form of dying declaration is fully acceptable since on receipt of intimation from the police, the Executive Magistrate (PW 10) reached the hospital and after satisfying himself through the statement of the duty doctor that the deceased was conscious and fit to make a statement, recorded her statement in the form of question and answer. In the dying declaration as well as the complaint, as mentioned aforesaid, the deceased Chanduba has specifically stated that her husband had set her on fire as he was angry on her refusal to give money to him as demanded by him. 13. The two sons and daughter-in-law of the deceased and accused are examined as P.W. 1, 3 & 4 respectively. Each of them have supported the prosecution case intoto. 13. The two sons and daughter-in-law of the deceased and accused are examined as P.W. 1, 3 & 4 respectively. Each of them have supported the prosecution case intoto. They have stated that on hearing the screams when they rushed to the scene of offence, they saw that the accused was lighting match stick and by the time they reached the accused had set the deceased ablaze. 13.1 P.W. 5, Kanjibha Jadeja is the deceased’s nephew who in his testimony vide Ex. 25 has stated that he was called by P.W. 1 who had told him that his father (accused-appellant) had set his mother (deceased Chanduba) on fire and therefore asked him to accompany him. He has deposed that while accompanying the deceased to hospital in autorickshaw he inquired about the incident and the deceased had told him that as she refused to give money to the accused-appellant as per his demand, the accused-appellant got angry and set her on fire after pouring kerosene. 13.2 The prosecution also examined an independent witness, Chandulal Mulji Chhabhaiya as P.W. 6 who has stated in his testimony (Ex. 27) that while he was working in the factory a lady who had been set ablaze came running on to the street. He has deposed that her two sons, Kanubha and Mahipatsinh came on to the street with blankets to extinguish the fire. He has also deposed that he saw the accused-appellant run away from the scene of offence and the deceased being accompanied by her sons to hospital in an autorickshaw. 13.3 P.W. 8 is another independent witness who was examined by the prosecution and this witness has also supported the prosecution case. The panchnama of scene of offence also corroborates the say of witnesses and prosecution case. From the panchnama of scene of offence it is borne out that the deceased was actually in the course of washing clothes. The water tub (tagara) being used for washing clothes also contained traces of kerosene. The water in it smelt of kerosene. 14. Thus, it is clear that the appellant is guilty of pouring kerosene over his wife and putting her on fire. The versions of these witnesses is also supported by the dying declaration of the deceased which cannot be lost sight of. We are of the opinion that this is clearly a case of culpable homicide. 14. Thus, it is clear that the appellant is guilty of pouring kerosene over his wife and putting her on fire. The versions of these witnesses is also supported by the dying declaration of the deceased which cannot be lost sight of. We are of the opinion that this is clearly a case of culpable homicide. A contention is raised by learned advocate for the appellant that there was no intention or motive for the alleged offence. We are of the view that this contention is not worth much consideration inasmuch as it is clear that the incident happened as the deceased Chanduba had denied to give money to the accused and he got angry. But the fact remains that it is the accused-appellant who had committed such a brutal act of homicide. 15. Even if it is assumed that the incident happened at the spur of moment, the fact that he escaped from the scene of offence cannot be justified. Moreover, any layman would know the after-effects of pouring kerosene and igniting a person. Not only that, when the accused-appellant saw his sons coming towards them, he immediately set her ablaze by igniting the matchstick. This shows his determination to do her to death. 16. In the case of State of U.P. (Supra), the Apex Court considering the fact that the accused seeing something lascivious between his wife and other persons just when he entered house from field, in a spur of moment had committed murder of his wife, gave him benefit of exception I to Section 300 and altered the sentence accordingly. 16.1 In the case of Rampal Singh (Supra), the Apex Court observed that though the offence was not committed with any premeditation and intention to kill, however the same was committed with intent to cause a bodily injury which could result in death of deceased and accordingly altered the offence that the appellant had been guilty of, from that under Section 302 of the Indian Penal Code to the one under Section 304 Part I of the Code. 16.2 The decisions cited by learned advocate for the appellant can in no way be of any assistance to the appellant as far as the present heinous offence of burning his own wife with whom he had two sons and spent over fifteen years of life is concerned. 16.2 The decisions cited by learned advocate for the appellant can in no way be of any assistance to the appellant as far as the present heinous offence of burning his own wife with whom he had two sons and spent over fifteen years of life is concerned. The facts that the petitioner having not taken any steps for saving the life of his wife and/or arranging for medical treatment for her and on the contrary ran away are self eloquent. 16.3 In a recent decision of the Apex Court in the case of Rakesh (Supra), the Apex Court has in Para 21 observed as under: “21. Though the learned counsel for the appellants contended that in view of the conduct of A-1 taking the deceased to the hospital and he also sustained injuries on his hand prayed for altering the conviction from Section 302 to Section 304 Part I, in view of our earlier discussion, we are not in a position to accept the same. It is not in dispute that the occurrence took place in the house of the accused where Kailash was residing, and unfortunately, even after having four children, she died at the matrimonial home due to burn injuries at the instance of the accused appellants. There is no valid ground to alter the conviction as pleaded by the counsel for the first appellant.” 17. Looking to the evidence of witnesses, the panchnama and the post mortem notes, the dying declaration, the burn injuries to the extent of 90% sustained by the deceased, we are of the considered view that the offence committed by the appellant-accused is quite brutal in nature and the same can in no way be considered under Section 304(I) of the IPC. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellant-accused. The prosecution has been able to prove the case against the appellant-accused and therefore we see no reason to interfere. 18. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court. 19. 18. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court. 19. For the reasons stated aforesaid, we do not find any merit in this appeal and the same is accordingly dismissed. The judgement and order dated 06.07.2007 passed by the Additional Sessions Judge, Fast Track Court, Anjar-Kutch in Sessions Case No. 31 of 2005 is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the appellant may be considered by the appropriate authority in accordance with law.