Kamal Singh vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—The appellant, Kamal Singh, by way of instant appeal filed under Section 374 of the Code of Criminal Procedure, 1973, has challenged the impugned judgment dated 28.02.2005 rendered by the Additional District and Sessions Judge (Fast Track), Chhabra, District Baran, whereby the appellant was held guilty of offence punishable under Section 302 of Indian Penal Code for having committed murder of Smt. Kavita Bai, a neighbour who had spurned the advances made by the appellant to outrage her modesty by setting her on fire.

Having convicted the appellant for offences punishable under Sections 302 and 354 I.P.C. the trial Court, by a separate order of even date, sentenced him as under:--

"For offence under Section 302 I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 100/- in default of payment of fine to further undergo one months'' simple imprisonment.

For offence under Section 354 I.P.C. the appellant was sentenced to undergo two years'' simple imprisonment and to pay a fine of Rs. 100/- in default of payment of fine to further undergo one month simple imprisonment."

Both the sentences were ordered to run concurrently.

On 23.08.2003 in the afternoon, Smt. Kavitabai had visited the appellant''s shop for purchasing detergent powder (surf). In the evening, she was rescued with burn injuries by the Sarpanch, Upsarpanch, Members of the Panchayat and by her relatives from the appellant''s shop.

From the prosecution case, two divergent stories have emerged.

Ramsingh (PW-3), Sarpanch of Village, Mangilal (PW-4), Jamna Lal (PW-5), Upsarpanch and other Villagers either have turned hostile, or have deposed that immediately when Smt. Kavitabai was rescued, she made a statement that due to shame, she had set herself on fire. Whereas, Mangilal (PW-6), the father, Shanti Bai (PW-7), the mother and Badri Lal (PW-11), the brother of Smt. Kavitabai have testified that when the deceased was rescued, she informed them that she had gone to purchase grocery from the appellant''s shop where she refused the advances made by the appellant, she was put to fire by the appellant.

The prosecution has also proved two Dying Declarations i.e. the statement of Smt. Kavitabai (Exhibit-P/35) before the Investigating Officer, which is duly attested by the Attending Doctor; and another Dying Declaration (Exhibit-P/17) made by the deceased, Smt. Kavitabai before the Judicial Magistrate, Nandkishore (PW-9).

Besides the above piece of evidence, it has come in the evidence of witnesses that immediately when Smt. Kavitabai was rescued, Panchnama, (Exhibit-P/12) duly attested by all the witnesses was prepared. The same has been withheld from the Court. Regarding the contents of the same, different versions have been given by the prosecution witnesses.

Having broadly categorized the prosecution evidence, we shall now narrate the brief facts of the case.

Ramanand Yadav (PW-17) in the Court stated that on 24.08.2003 he was posted as Station House Officer. He received a wireless message that in Village Telni, a girl has been burnt and was lying in burnt condition at the spot. Upon information received, Ramanand Yadav (PW-17) reached at the house of Smt. Kavitabai at Village Telani. She was lying in burnt condition in her house. Without asking for any information, since the condition of the injured was serious, she was brought by the Investigating Officer to the C.H.C. Hospital Chabbra where she was medico-legally examined by the Doctor. The Doctor declared her fit to make statement, therefore, in the C.H.C. Hospital, Ramanand Yadav (PW-17), Station House Officer, Police Station, Chhabra recorded her statement (Exhibit-P/35).

The said statement (Exhibit-P/35), when translated into English reads as under:--

"Statement of Smt. Kavitabai daughter of Mangilal, by caste Bheel, aged about eighteen-years, resident of Village Telni, Police Station, Bapcha, at present admitted in the Female Ward, Bed No. 1, C.H.C. Chhabra, dated 24.08.2002, time 10:25 P.M.

Stated that yesterday in the evening, i.e. third part of day (pahar), I had gone to purchase detergent powder (surf) at the shop of Kamal Singh S/o. Madan Lal, by caste Bheel, resident of Pipalakhedi. Kamal Singh was running a shop in our Village. Kamal Singh dragged me inside the shop and asked me to accompany him, to which I refused, Kamal Singh stated that from many days he was trying to find me. On refusal, Kamal Singh ignited a match-stick and had put my clothes on fire. After putting me on fire, Kamal Singh locked the door of the shop and ran away. I raised noise. Mangilal Bheel came there. Kamal Singh on seeing him, locked the door and ran away. I raised noise inside the shop. In the evening, Ram Singh, Sarpanch of Village Pipalaya and Villagers and my brother, Badri Lal etc., arrived. They brought me out from the shop to my house. Kamal Singh had put my clothes on fire with the intention to kill me and my whole body has received burn injuries.

The above statement was recorded on 24.08.2003 at 10:25 P.M."

The case was registered at Police Station, Bapcha on the same night i.e. 25.08.2003 at 12:30 A.M. (vide Exhibit-P/39). After recording the above said statement of complainant, Smt. Kavitabai, Ramanand Yadav (PW-17) approached Nandkishore Karnani (PW-9), who was then posted as Additional Chief Judicial Magistrate, Chhabra.

An application was presented before the Additional Chief Judicial Magistrate, Chhabra on 24.08.2003 at 10:25 P.M. (vide Exhibit-P/15). After obtaining opinion of the Doctor, the said Magistrate recorded the Dying Declaration (Exhibit-P/17).

The said Dying Declaration (Exhibit-P/17), when translated into English reads as under:--

"Dying Declaration on request made by Station House Officer, Police Station, Bapcha on 24.08.2003 at 10:40 P.M.

Statement of Smt. Kavitabai daughter of Mangilal, by caste Bheel, aged about eighteen-years, resident of Village Telni, at present admitted in the Female Ward, Bed No. 1, C.H.C. Chhabra on oath stated that "yesterday i.e. on 23.08.2003 in the evening (third part of the day), I had gone to the shop of Kamal Singh in my Village Telni for purchasing detergent powder (surf). I had asked for detergent powder (surf), but Kamal Singh gave abuses and said now you have come, upon which I asked him as to why he is saying so, then he dragged me inside the shop. He asked me to accompany him. I refused, then Kamal Singh poured kerosene oil from the Chimney and had put me on fire with match-stick. I was wearing a shawl upon which kerosene oil was poured and the same was put on fire. I received burn injuries on both my hands, feet, body and thighs. After putting me on fire and bolting the door of the shop, Kamal Singh ran away. Till evening, I remained inside the shop, then I was rescued by Sarpanch. Due to burn injuries, I had raised noise. My father Mangi Lal came there. He took me to my house. I remained at my house for whole night. The report was submitted to the Police. Today, I was got admitted to the hospital. I am an illiterate. We are five brothers and two sisters. Before putting on fire, Kamal Singh had caught hold of me.

L.T.I. signed A.C.J.M. Chhabra, District Baran."

It is required to be noted here that on 23.08.2003 in the afternoon, prosecutrix was set on fire. She was brought to the hospital next day i.e. on 24.08.2003 at about 10:00 P.M. Therefore, for a whole night and the day, prosecutrix remained in her Village. Thus, there is a delay of about thirty hours in reaching the hospital, and in recording of the statement of the complainant.

In the present case, prosecution has examined as many as nineteen witnesses, and the accused has examined three witnesses in defence.

We shall first notice the statements of the Sarpanch, Upsarpanch, Members of Panchayat and other relatives.

Ramsingh (PW-3) stated that he is a resident of Pipalya. He further stated that on the day of occurrence, he stayed in the house of Upsarpanch Jamna Lal (PW-5) who is a resident of Village Telni. In the night, when they had retired to bed, an information was received that one girl has received burn injuries. They went to the shop of Kamal and broke the lock of the shop. When they wanted to bring out the girl, she stated that clothes be sent inside, then mother of prosecutrix had taken clothes inside and the girl came out. She disclosed that she had put herself on fire as she felt ashamed. This witness was declared hostile by the prosecution.

This witness was cross-examined by the learned Public Prosecutor. In cross-examination, this witness stated that at the time of occurrence, Ghasilal, Mangilal (PW-4), Jamna Lal (PW-5) (Upsarpanch) and Chater Singh (DW-1) were present. Mangilal (PW-6), father and brother of Smt. Kavitabai were also present at that time. One Panchnama was prepared by Chater Singh (DW-1). Panchnama was signed by him, Jamnalal and others. This witness stated that he is not aware as to where the Panchnama, is.

This witness was cross-examined by the learned counsel for the defence. In cross-examination, this witness stated that they had reached at the shop at about 09:10 P.M. and they had written in the Panchnama "that she herself put her on fire feeling ashamed".

Mangilal (PW-4) S/o. Dhuli Lal, another eye witness of Village Telni stated that on the day of occurrence, he had seen Smt. Kavitabai in the shop of Kamal Singh. He further stated that he had not witnessed the occurrence. This witness, too, was declared hostile.

In cross-examination, this witness stated that the house of Smt. Kavitabai and the shop of Kamal Singh are in front of each other. This witness further stated that he had not seen Kamal Singh at the shop.

Jamna Lal (PW-5) stated that he was Upsarpanch of Village Telani. He stated that he had accompanied Ram Singh (PW-5), the Sarpanch to the shop. At that time, Mangi Lal, (father of girl), another Mangi Lal (PW-4) Takhat Singh (PW-12) and Kishan Lal were present. The shop was closed from the out side. It was locked. Smt. Kavitabai was raising alarm. They had opened the lock. The girl said from inside that since she is not wearing any clothes, nobody should come inside, then her mother was sent, along with the clothes. The girl stated that feeling ashamed she had put herself on fire. This witness further stated that Smt. Kavitabai had not stated that deceased made any efforts to forcibly outrage her modesty.

This witness, in cross-examination stated that after the lock was opened, Panchnama was prepared and in the Panchnama it was recorded that "girl had stated that she had herself put on fire".

Takhat Singh (PW-12) also did not support the prosecution case. He was declared hostile. In cross-examination, he stated that Panchnama was prepared and the same was written by Chater Singh (DW-1).

Mangi Lal (PW-6), the father of the deceased, has stated that he received an information that his daughter is locked inside the shop. She has received burn injuries. After clothes were provided, the girl having received burn injuries, came outside and informed that Kamal Singh had made an attempt to outrage her modesty and on refusal she was put to fire. This witness admitted that the Panchnama was prepared. This witness further stated that it is not in his knowledge that Panchnama was made. He further feigned ignorance regarding contents of Panchnama. Further this witness stated that the statement of deceased was recorded by the Police, and the Magistrate in his presence and in the presence of other relatives.

Smt. Shantibai (PW-7), the mother of the deceased, has also corroborated the testimony of her husband Mangilal (PW-6).

Man Singh (PW-1) and Abdul Mazid (PW-2) have denied recovery of the key of the lock which was put outside the shop of the accused. Man Singh (PW-1), who was posted as Home Guard, further stated that chimney and match-stick were recovered by the Police in his presence (vide Exhibit-P/3).

Ganga Ram (PW-10), being a photographer had taken photographs of the spot.

Shakil Ahmed (PW-13), Jaganath (PW-15) and Jagdish (PW-16) had attested the Inquest/Panchnama (Exhibit-P/12).

Now it is turn for us to notice the medical evidence.

Dr. K.B. Sharma (PW-8) stated that on 24.08.2003 at 10:20 P.M. he had medico-legally examined Smt. Kavitabai (vide Exhibit-P/14) This witness further stated that Smt. Kavitabai had received injuries from flame. She had suffered 55% burns and the burns were present on neck, both upper limbs, thorax, abdominal region, perineum, both the thighs, and both the hands.

In the present case, Smt. Kavitabai expired after about two months of the receipt of burn injuries and her autopsy (Exhibit-P/34) was conducted on 22.10.2003 at about 02:20 P.M. by Dr. Srilal Meena (PW-14).

Dr. Srilal Meena (PW-14) stated that ante-mortem burns were present on the body involving both upper limbs, chest, abdomen and thighs right and left and approximately, she had received about 55% burns. According to this witness, cause of death was Syncope due to ante-mortem burns.

After the prosecution closed its evidence, the statement of accused was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances and stated that he is innocent and has been falsely implicated.

Chater Singh (DW-1) stated that he had prepared a Panchnama. In the same, it was recorded that the deceased told that "she had put herself on fire due to shame".

Gordhan (DW-2) stated that after hearing noise from the shop, accused had asked Smt. Kavitabai to open the door, but she said that she will not open the door and if anybody will open the door, he will be involved for putting her on fire.

Karan Singh (DW-3) stated that on the day of occurrence at 02:30 P.M. he had gone to the shop of accused, and he was informed by the lady, who was inside the shop that if anybody will open the door, he will be involved for putting her on fire.

Mr. Arvind Kumar Gupta, the learned counsel appearing for the accused-appellant, has very vehemently assailed the Dying Declarations recorded by the Magistrate, as well as, by the Investigating Officer and the statements made by Mangi Lal (PW-6), the father of deceased, Smt. Shantibai (PW-7), the mother of deceased, and Badri Lal (PW-11), the brother of deceased, to contend that in the present case, accused and deceased were having an affair. When the deceased was caught in compromising position, she locked herself in the shop and put herself on fire and later-on to save the family from ignominy, a false story was created.

Mr. Gupta, learned counsel submitted that it has been admitted by father of the deceased that "statement of Smt. Kavitabai was recorded in C.H.C. Chhabra Hospital by Station House Officer. At that time, I and my wife were sitting there. Badri was also present. "Then Magistrate Saab arrived there. I cannot identify him. It is correct that when Magistrate Saab recorded statement of Smt. Kavitabai, I, my wife and Badri were present there."

It is further submitted by the learned counsel that all the independent witnesses i.e. Sarpanch, Upsarpanch of the Village, Members of Panchayat and others relatives have stated that immediately when Smt. Kavitaba was rescued, she stated that she had put herself on fire feeling ashamed.

Thus, it is urged before us by learned counsel that the Court should discard the dying declarations, the statements made by the relatives of the deceased and relying upon independent witnesses, we should hold that Smt. Kavitabai had committed suicide.

We have given our thoughtful consideration to the arguments advanced before us.

We cannot ignore that the appellant is a shopkeeper in the Village, therefore, independent witnesses which include Sarpanch and Upsarpanch may be under his influence and have made efforts to screen the offender.

It has come in the evidence that on the next day of occurrence, when Station House Officer had arrived at the Village, somebody had given information to the Police that Smt. Kavitabai had set herself on fire, but Sarpanch, Upsarpanch and persons who rescued Kavitabai had not lodged the report.

To us, the parents and brother will be the last persons to screen the real offender.

Furthermore, we cannot discard the dying declaration recorded by the Magistrate. The Magistrate is an independent person. He has recorded dying declaration of the deceased after obtaining the opinion from the doctor regarding fitness of the deceased.

Our opinion to place implicit reliance upon Dying Declarations is further fortified by observations made by five-judge Bench of the Hon''ble Apex Court in the case of Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 : (2002) CriLJ 4095 : (2002) 4 Crimes 42 : (2002) 6 JT 313 : (2002) 6 SCALE 135 : (2002) 5 SCALE 418 : (2002) 6 SCC 710 : (2002) 1 SCR 697 Supp : (2002) 2 UJ 1363 : (2002) AIRSCW 3479 : (2002) 5 Supreme 557 , wherein it was held as under:--

"4. "Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander and Others Vs. State of Punjab, (1998) 8 JT 211 : (1998) 9 SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.

The court also in the aforesaid case relied upon the decision of this court in Harjit Kaur Vs. State of Punjab, AIR 1999 SC 2571 : (1999) CriLJ 4055 : (1998) 3 Crimes 57 : (1999) 2 DMC 169 : (1999) 5 JT 317 : (1999) 4 SCALE 447 : (1999) 4 SCALE 417 : (1999) 6 SCC 545 : (1999) AIRSCW 2751 : (1999) 6 Supreme 390 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where-after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, AIR 1999 SC 3455 : (1999) CriLJ 4321 : (1999) 3 Crimes 150 : (1999) 6 JT 585 : (1999) 5 SCALE 451 : (1999) 7 SCC 695 : (1999) 2 SCR 328 Supp : (1999) 2 UJ 1440 : (1999) AIRSCW 3440 : (1999) 7 Supreme 640 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Another Vs. State of Gujarat, AIR 1999 SC 3695 : (1999) CriLJ 4582 : (1999) 4 Crimes 280 : (1999) 7 JT 568 : (1999) 6 SCALE 267 : (1999) 9 SCC 562 : (1999) 3 SCR 284 Supp : (2000) 1 UJ 437 : (1999) AIRSCW 3727 : (1999) 8 Supreme 717 case."

In the present case, the Magistrate, after obtained the opinion of the doctor, had recorded the Dying Declaration. To us this Dying Declarations aspires confidence. It is, therefore, a reliable piece of evidence.

Mr. Gupta, learned counsel, in alternative, has submitted that in the present case, deceased had suffered 55% burns. She had died after two months of the occurrence. Thus, it is contended before us that considering intervening period between the day the burns were received and the date of the death, considering long duration of two months for which Kavitabai survived, this Court should alter the offence.

We find merit in the alternative submission advanced by the learned counsel appearing for the appellant.

It has come in the evidence that Smt. Kavitabai received burns injuries on 23.08.2003 in the afternoon. She reached at the Government Hospital C.H.C. Chabbra on 24.08.2003 at about 10:25 A.M., then she was taken to Baran Hospital. For about thirty-hours, she was not given any treatment, she remained at home. Thus, the burns received by her were not serious.

Dr. K.B Sharma (PW-8) who examined her first and Dr. Srilal Meena (PW-14), who conducted the autopsy on her, have stated that the deceased had suffered 55% burns. They have not specified the degree of burns received.

Dr. Srilal Meena (PW-14), in cross-examination stated that deceased had suffered 9% burns each on both the hands, 9% burns on the chest, 9% burns on the abdomen, 9% burns on the private parts and 9% burns each on both the thighs. Thus, in total, she had suffered 55% burns.

The description and the seat of burns clearly reveal that the deceased had not received any burn on the vital part of the body. Furthermore, the degree of burns have not been disclosed.

It has come in evidence that the deceased was discharged from the hospital and she was again admitted. The father, mother and brother of the deceased are not consistent regarding date of re-admission. But Dr. Srilal Meena, who conducted autopsy, in cross-examination, stated that it is correct that nobody brought the deceased, rather two-four days before her death, she was readmitted in the hospital under the orders of the S.D.M. The prosecution has not disclosed that on which date she was discharged from the hospital.

Mangi Lal (PW-6), the father of the deceased, in the Court stated that she remained admitted in Baran Hospital for twelve-days. On her asking, she was got discharged.

Badri Lal (PW-11), brother of deceased, claimed that in Baran, she stayed for two-months, then we brought her back to home. Then S.D.O. Sahib called her at Chhabra Hospital where she was treated for ten-days, and then she died.

No bed-head ticket or medical record of deceased, Kavitabai has been produced by the prosecution.

As per Doctor, who conducted autopsy "cause of death was Syncope due to burn injuries."

Dorland''s Illustrated Medical Dictionary as reprinted in India, 1999, Syncope is defined as under:--

"Syncope a temporary suspension of consciousness due to generalized cerebral ischemia; a faint or swoon."

To put in layman''s word syncope means less supply of blood to the brain. It may be due to orthostatic hypotension i.e. sudden falling of blood pressure or in many cases as result of vasovagal attack. Furthermore, mediated syncope occurs when blood vessels expand and heart rate decreases inappropriately.

Mr. Gupta, learned counsel has placed reliance upon the case of Gopal Udaisingh Thakur v. State of Gujarat, 2014 (1) G.C.D. 382 , wherein Division Bench of the Gujarat High Court relying upon the case of Maniben Vs. State of Gujarat, AIR 2010 SC 1261 : (2009) 12 JT 82 : (2009) 10 SCALE 654 : (2009) 8 SCC 796 : (2009) 12 SCR 753 : (2010) AIRSCW 570 : (2009) 5 Supreme 700 in the case of 73% burns death, due to complications after six days of treatment, had converted the offence under Section 302 Part-II I.P.C.

Para 18 of the judgment of Gopal Udai Singh Thakur''s case (supra) reads as under:--

"18. In the present case, we have come to the irresistible conclusion that the role of the accused is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 6 days in the hospital and ultimately died of complications. In fact she had sustained about 73% burns. In that view of the matter, we are of the opinion that the conviction of the appellant under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code."

A further reliance has been placed upon the case of Ashok s/o. Girmaji Sontakke v. The State of Maharashtra, 2013 ALLMR (Criminal) 3139, wherein considering that the deceased sustained 45% burns and was discharged about forty-days subsequent to the incident and died one month thereafter, the Division Bench for Bombay High Court (Nagpur Bench) had converted the offence from Section 302 I.P.C. to Section 304 Part-II I.P.C.

Para 16 of the judgment in Ashok s/o. Girmaji Sontakke''s case (supra) reads as under:--

"16. Coming to the offence punishable under Section 302 of the Indian Penal Code, for which the accused is convicted, the dying declarations relied upon the prosecution themselves suggest that the accused came drunk and slapped the deceased and had a quarrel with her on a petty issue and thereafter, he took kerosene from the can in a steel Container of tiffin and poured the same on the body of deceased and set her ablaze, due to which the deceased sustained 45 % burns. Moreover, prosecution has relied upon the Discharge Card (Exh. 40) which has been admitted by the accused, which discloses that the deceased was discharged on 8.7.2008. The deceased expired on 5.8.2008 and there is absolutely no evidence as to the nature of treatment given to the deceased from 8.7.2008 till her death on 5.8.2008. Considering all these facts, we are of the considered opinion that the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable in law and appropriate conviction of the accused would be under Section 304(II) of the Indian Penal Code."

Another judgment cited before us is the case of the The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad Vs. Shaik Meera Valli, (1993) 2 ALT(Cri) 86 : (1993) CriLJ 3320 , wherein a Division Bench of the Andhra Pradesh High Court, considering that deceased died after seventeen-days of receipt of burn injuries, had converted the offence under Section 302 I.P.C. to Section 304 Part-II I.P.C.

In the present case, considering the fact that the death had taken place after about two-months of the incident and nature of the burns, especially, out of total 55% burns, 18% burns were on both the hands, 18% burns were on both the thighs, 9% burns were on the chest, 9% burns were on the abdomen and 9% burns were on the private parts and furthermore, intervening cause of death is Syncope and not burns, and especially, deceased was discharged from the hospital and was taken to home and had died after two months of the date of occurrence and relying upon the judgments, cited before us and noted above, we are of the view that in the present case also, the offence, if any, will fall under Section 304 Part-I I.P.C. and not under Section 302 I.P.C.

Consequently, we convert offence under Section 302 I.P.C. to Section 304 Part-I I.P.C., set aside the sentence of life imprisonment awarded upon the appellant and sentence him to undergo ten-years'' rigorous imprisonment for offence under Section 304 Part-I I.P.C., we also impose a fine of Rs. 10,000/-. In default thereof, the appellant shall further undergo one-year rigorous imprisonment.

However, we maintain conviction and sentence of the appellant for offence punishable under Section 354 I.P.C. As ordered by the trial Court, the sentences awarded on both the counts shall run concurrently.

With the above modification, instant appeal stands disposed of.