JUDGMENT
Shiv Kumar Sharma, J.
1. The appellant was charge sheeted for the murder of his wife Geeta. Learned trial Court found him guilty Under Section 302 IPC and convicted and sentenced him to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer six, months rigorous imprisonment. Hence this appeal.
2. According to the prosecution version on September 15, 1999 at 2 PM the appellant had quarreled with Geeta, doused her with kerosene and set her ablaze. She was later removed to Hospital Jaipur. A statement was recorded from her by Ramesh Tiwari Police Inspector (PW. 5) on September 16, 1999 at 3.35 PM, which became the basis for the FIR later she succumbed to her burn injuries. The prosecution in support of its case examined as many as 15 witnesses. In the explanation Under Section 313 CrPC the appellant claimed innocence and stated that he did not set her ablaze, but made attempt to save her from death and he himself sustained burn injuries. Learned trial Court relied on the dying declaration and came to the conclusion that it was the appellant who set Geeta ablaze and caused her death. He was therefore convicted Under Section 302 IPC.
3. learned Counsel for the appellant contended that at the time of recording of parcha bayan, Geeta was not in a fit state to give statement. Act of Ramesh Tiwari in not obtaining the certificate of fitness from doctor creates doubt about the genuineness of the dying declaration. We were taken-through the parcha bayan (Ex. P. 9) wherein Ramesh. Tiwari stated that when the statement of Geeta was taken down, doctor came and wrote that Geeta was not in a fit state to give statement.
4. Having closely scanned the testimony of Ramesh Tiwari from the point of view of trustworthiness we find no good reason to discard the dying declaration given by the deceased regarding actual occurrence. As per postmortem report (Ex. P. 24) deceased sustained burn injury and in the opinion of Dr. Vivekananda (PW. 19( she died because of shock as a result of antemortem dry flame burn injuries.
5. It is an admitted case of prosecution that the appellant himself had sustained burn injuries which were examined by Dr. D.P. Gupta (PW. 14) vide injury report (Ex. P. 17), according to which following injuries were found on the person of the appellant:
1. Scab l cm x 0.8 cm at tip of nose margins healed up and scab just going to separate.
2. Blackish purple coloured burnt area vertical 16 cm x 7 cm at ant. aspect of left shoulder to anteromedial aspect of upper half of left upper arm.
3. Pus and peeled of cuticle and slouch found superficial ulcerd with red line demarcation over whole of left hand including wrist.
4. Pus and peeled of cuticle and slough formed superficial to muscle deep ulcers on antero medial aspect of lower end of Rt. leg in area of 10 cm x 4.5 cm.
6. From the totality of circumstances it appears that alter the quarrel with Geeta, appellant poured kerosene on he and ignited match stick but when the flames were up he suddenly and frantically made attempt to save her from the tongues of flames and himself received-burn injuries on whole of left hand including wrist, left shoulder and right leg. This conduct cannot be seen divorced from the totality of circumstances. Very probably the appellant would not anticipated that the act done by him would have escalated to such proportion that she might die. If he had ever intended her to die he would not have alerted his senses to make effort to rescue her. We are inclined to think that all that the appellant thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and went to the fatal extent. The appellant 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. In a similar situation the Apex Court in Kalu Ram v. State of Rajasthan altered the conviction from 302 to 304 IPC.
7. For these reasons, we dispose of the instant appeal in the following terms:
(1) We partly allow the appeal of appellant Chiranjee Lal and instead of Section 302 IPC, we convict the appellant Under Section 304 Part II CPC and sentence him to suffer rigorous imprisonment for seven years.
(2) The impugned judgment of learned trial Court stands modified as indicated above.