JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the judgment and order dated 30.12.2016 passed by Second Additional Sessions Judge, Manendragarh, District Korea in Sessions Case No.23/2014, by which the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.2000/- and in the event of non-payment of fine amount, to suffer additional Simple Imprisonment for 3 months. 2. Case of the prosecution, in brief, is that on 19.12.2013 at about 1:30 p.m. at his house, the appellant lightened matchstick on the body of his wife Jyoti by which she suffered 70% of burn injuries and later she died on 21.12.2013 during the course of her treatment in the Community Health Centre, Manendragarh. At the hospital, her dying declaration was recorded vide Exhibit P-15 by the Executive Magistrate, PW-18 Amit Kumar Gupta after PW-13 Dr. D.K. Singh certified that the deceased was in a fit mental and physical state to give her dying declaration and which implicated the appellant for the burn injuries caused to his wife Jyoti resulting in her death on 21.12.2013. Post-mortem was conducted by PW-17 Dr. Vikas Kumar Poddar vide Exhibit P-21A in which the cause of death of deceased Jyoti has been opined to be due to shock following burn injuries and the mode of death was asphyxia. Merg Intimation was recorded vide Exhibit P-11 and the F.I.R. was registered vide Exhibit P-18. Spot Maps were prepared vide Exhibit P-19 & P-20. Statements of the witnesses who were conversant with the facts of the incident were recorded under Section 161 of CrPC. Seizure proceeding was made and the seized articles were sent for chemical examination to F.S.L. Raipur. In F.S.L. report (Exhibit P-24), particles of kerosene have been found on the seized jerry-cane (B) and matchsticks (C). 3. After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Section 302 of IPC before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Baikunthpur and after committal, the matter was transferred to the Court of Second Additional Sessions Judge, Manendragarh for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial. 4. 4. During the course of the trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 24 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the accused/ appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5. After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 30.12.2016, on appreciation of the oral and documentary evidence available on record, found the appellant guilty of the offence of murder punishable under Section 302 of IPC and accordingly convicting him for the said offence, sentenced him to undergo Life Imprisonment and to pay fine of Rs.2000/-with default stipulation, being aggrieved of which the present appeal has been filed by the appellant. 6. Ms. Reena Singh, learned counsel appearing for the appellant, would make a solitary submission that since the deceased herself had poured kerosene oil on her body and the appellant on the spur of the moment had only lightened the matchstick, at best, the case of the appellant would fall under Part-II of Section 304 of IPC and the sentence of the appellant may be reduced to the period already undergone as he is in jail since 20.12.2013, i.e. more than 10 years, and the appeal may be allowed accordingly. 7. Mr. Arvind Dubey, learned Government Advocate, per contra, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and looking to the manner in which the appellant has committed the offence, the Trial Court has rightly convicted him for the offence under Section 302 of IPC. As such, it is not a case where the conviction of the appellant can be altered and the appeal as such is liable to be dismissed. 8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 9. The first question, as to whether the death of deceased Jyoti was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-17 Dr. 8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 9. The first question, as to whether the death of deceased Jyoti was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-17 Dr. Vikas Kumar Poddar who has proved the post-mortem report (Exhibit P-21A) in which the cause of death of deceased Jyoti has been opined to be due to shock following burn injuries and the mode of death was asphyxia, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court. 10. Now, as regards the next question as to whether the appellant has caused death of his wife Jyoti, the Trial Court has relied upon her dying declaration (Exhibit P-15), according to which, on the date of incident the appellant had come to home after consuming liquor and on account of which, a quarrel took place between them and the appellant had kicked her which made her angry and on the spur of the moment out of anger, she herself poured kerosene oil on her body and the appellant had lightened the matchstick and set her on fire, which implicated the appellant for the burn injuries caused to his wife Jyoti resulting in her death on 21.12.2013. The said dying declaration of the victim was recorded by the Executive Magistrate, PW-18 Amit Kumar Gupta after PW-13 Dr. D.K. Singh duly certified that the victim was in a fit mental and physical state to give her dying declaration. As such, we are of the considered opinion that the finding recorded by the Trial Court that the appellant has caused death of his wife Jyoti is also correct finding of fact based on evidence available on record. Accordingly, we hereby affirm the said finding of the Trial Court as well. 11. Now, the question would be, as to whether the case of the appellant would fall under Part-II of Section 304 of IPC, as contended by learned counsel for the appellant? 12. Accordingly, we hereby affirm the said finding of the Trial Court as well. 11. Now, the question would be, as to whether the case of the appellant would fall under Part-II of Section 304 of IPC, as contended by learned counsel for the appellant? 12. In this regard, learned counsel for the appellant has relied upon the decision of the Supreme Court rendered in the matter of K. Ravi Kumar v. State of Karnataka, (2015) 2 SCC 638 wherein their Lordships have held in para - 16, 17 & 18 as under :- “16. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any pre-determined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the post-mortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness. 17. In the light of the aforementioned reasons, which, in our opinion, emerge from the evidence on record, we are of the considered view that these reasons are sufficient to give benefit of Exception 4 to Section 300 IPC to the appellant and enables the Court to hold that the offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence punishable under Section 304 part II IPC. 18. In the result, we allow the appeal but only to the extent that instead of Section 302 IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and accordingly sentenced to undergo rigorous imprisonment for a period of 10 years. The conviction and sentence imposed under Section 498-A as also the fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered which shall run concurrently.” 13. The conviction and sentence imposed under Section 498-A as also the fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered which shall run concurrently.” 13. Reverting to the facts of the case, it is quite vivid that on account of the appellant consuming liquor on the date of incident, a brief altercation took place between the appellant and his wife, the deceased, and then appellant kicked her with his legs on account of which, she became angry and on the spur of the moment, out of anger, she herself poured kerosene oil on her body and the appellant only ignited the matchstick and she suffered burn injuries resulting in her death during the course of treatment. As such, there was no premeditation on the part of the appellant to cause death of his wife but in a heat of passion and on the spur of the moment, he ignited the matchstick. Thus, it is quite established that though the appellant had no intention but he must have had knowledge that the act committed by him is likely to cause death of his wife. Therefore, in light of K. Ravi Kumar (supra), case of the appellant would fall under Exception 4 to Section 300 of IPC and his conviction under Section 302 of IPC can be altered to Part-II of Section 304 of IPC. 14. Accordingly, we set aside the conviction of the appellant for the offence punishable under Section 302 of IPC and the sentence of Life Imprisonment awarded thereunder as well. Instead, we convict him for the offence punishable under Section 304 (Part-II) of IPC and sentence him to undergo rigorous imprisonment for a period of 10 years, affirming the fine amount with its default clause. 15. As the appellant is stated to be in jail since 20.12.2013 thereby he has already completed 10 years of imprisonment. We therefore direct that he be released forthwith, if his detention is not required in connection with any other offence. 16. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 17. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and also to the concerned Jail Superintendent for information and necessary action, if any.