JUDGMENT R. K. PATRA, J. — The appellant has been convicted under Sec. 302 of the Indian Penal Code (for short, ‘I.P.C.’) and sentenced to suffer rigorous imprisonment for life for having committed the murder of his wife Alima by pouring kerosene on her person and setting her aflame. 2. Case of prosecution as emerging from the F.I.R. and the evidence on record is as follows : The appellant is a resident of Bhandisahi in Koraput town and has left out some of his rooms to P.Ws.2 and 3 on monthly rent. On 5.9.1991 in the evening the appellant quarrelled with his deceased wife, snatched away Rs. 2/- from her and left the house. At about 6.30 p.m. he returned home being drunk and asked his deceased wife who was sitting in front of the kitchen to pay him some money. When the deceased refused to pay him any money, the appellant poured kerosene on her body and set fire by a lamp (Dibiri) which was burning. The deceased came out of the house burning and shouted that her husband, the appellant, set fire to her body by pouring kerosene and fell down in front of the house. The neighbours rushed to the spot, poured water on the burning body of the deceased and removed her in a rickshaw to the Dis¬trict Headquarters Hospital, Koraput for treatment. The doctor (P.W.1) admitted the deceased as an indoor patient in the hospi¬tal and sent written report stating therein that the deceased had been admitted to the hospital with extensive burn injuries on her person. He also stated that it was the appellant who did it. The said written report was treated as F.I.R. and police initially registered a case under Sec. 307, I.P.C. and took up investiga¬tion. The deceased, however, succumbed to the burn injuries on the next day morning at about 4.55 a.m. Following the death, the case was treated as one under Sec. 302, I.P.C. and the appellant was placed on trial. 3. The plea of the appellant was one of denial. 4. Prosecution in order to establish its case examined thirteen witnesses. P.W.11, the minor son of the appellant, was examined as an eye-witness. He, however, turned hostile when he stated that his mother herself poured kerosene on her body and set fire with the help of a burning lamp. 3. The plea of the appellant was one of denial. 4. Prosecution in order to establish its case examined thirteen witnesses. P.W.11, the minor son of the appellant, was examined as an eye-witness. He, however, turned hostile when he stated that his mother herself poured kerosene on her body and set fire with the help of a burning lamp. According to him, his mother committed suicide by burning herself. P.Ws.2 and 3 who were tenants of the appellant stated that the deceased came out of her house stating that her husband set fire to her by pouring kerosene. P.W.1 is the doctor who admitted the deceased in the Hospital for treatment. He has recorded the dying declaration (Ext.3) of the deceased. P.W.4 is another doctor who conducted postmortem examination P.W.12 is the Investigating Officer. 5. It is not disputed that the deceased was the wife of the appellant who died having sustained burn injuries on 6.9.1991 at 4.55 a.m while undergoing treatment at District Headquarters Hospital, Koraput. P.W.1 deposed that the deceased was brought to the hospital with extensive burn injuries on her person. At 6.50 p.m. on 5.9.1991 he admitted her in the hospital as an indoor patient and sent a written report to the Officer-in-charge, Koraput Town P.S. After her admission into the hospital, he found the following injuries as per injury report Ext. 2. (i) Existence of burn injuries all over her body except back of the left fore-arm, lower abdomen, left buttock, back of left thigh and front of right thigh. (ii) Scalp hair in front of head was burnt. P.W.4 who conducted postmortem examination on the deadbody of the deceased found the following external injuries. (i) Superficial and deep burn extending about 90% of body sur¬face, present on most part of the body except parts of back, of left fore-arm, lower abdomen, left buttock, back of left thigh, front of right thigh etc. He stated that death was caused due to burn injuries which were ante-mortem in nature. Thus, taking into consideration the afore¬said evidence, it can be safely held that the deceased had a homicidal death. 6. The next question is whether the appellant caused the death of his wife by pouring kerosene on her person and setting her aflame. Since the sole eye witness P.W.11 has turned hostile, we need not refer to his evidence. Thus, taking into consideration the afore¬said evidence, it can be safely held that the deceased had a homicidal death. 6. The next question is whether the appellant caused the death of his wife by pouring kerosene on her person and setting her aflame. Since the sole eye witness P.W.11 has turned hostile, we need not refer to his evidence. From the following evidence, it can be conclusively held that it was the appellant who poured kerosene on the body of the deceased and set fire. (i) Evidence of P.Ws.2 and 3 that the deceased came out of the house with her body burning and naming the appellant to have done the said act corroborated by the evidence of P.W.6 : (ii) The dying declaration made by the deceased which was record¬ed by the doctor, P.W.1, supported by his oral evidence and P.W.6, the neighbour of the appellant. P.Ws.2 and 3 are the tenants of the appellant. They are in occupation of one room each adjacent to the room which was in occupation of the appellant and his family. P.W.2 stated that on the date of occurrence which was Thursday in the evening the deceased shouted that her husband set fire to her body by pouring kerosene. She (P.W.2) came and poured water on the burning body of the deceased when she was lying in front of her house. She stated that the deceased was taken to Koraput hospital in a rickshaw for treatment. P.W.3 also testified that in the evening of the date of occurrence, she was inside her room. There was hot exchange of words between the appellant and the deceased in the house. After some time the deceased came out of her house while the wearing apparels on her body were burning and she was shout¬ing that her husband set fire to her by pouring kerosene. She fell down in front of her house. P.W.3 came and poured water to extinguish the flame. There is absolutely no reason to discredit or discard the evidence of P.Ws.2 and 3. We accordingly hold on the basis of their evidence that the deceased in the evening of the date of occurrence came out of her house while the wearing apparels on her body were burning and she was shouting that her husband has set fire to her by pouring kerosene. 7. We accordingly hold on the basis of their evidence that the deceased in the evening of the date of occurrence came out of her house while the wearing apparels on her body were burning and she was shouting that her husband has set fire to her by pouring kerosene. 7. Regarding the evidence relating to dying declaration, we may refer to the evidence of P.W.1, the doctor. He deposed that the deceased was brought to the hospital at 6.50 p.m. on 5.9.1991 with extensive burn injuries on her person. He admitted her as an indoor patient. P.W.1 stated that the deceased stated before him at the time of admission in the hospital that her husband set fire to her after pouring kerosene. He reported this matter to the Officer-in-charge, Kerosene Town P.S. as per Ext. 1 wherein there is clear mention to the following effect : “Patient tells that her husband set her fire after pouring kerosene. She had extensive burns and her condition is serious.” P.W.1 further stated that on the same day at about 8. p.m., he recorded the dying declaration of the deceased as per Ext. 3 He deposed that he did so after satisfying himself that she was able to understand things properly and her mental condition was good. P.W.6, the neighbour of the appellant, has corroborated the evidence of P.W.1 by stating that the doctor recorded the dying declaration by putting questions. The written dying declaration is in the form of questions and answers. To the question as to how her body was burnt, the reply was that it was her husband who put kerosene and set her on fire. The declaration was made in the presence of P.Ws.6 and 8. 8. There is nothing on record to suggest that the deceased was not in a position to speak about the cause of her death. The evidence of the doctor (P.W.1) finds corroboration from the evidence of P.W.6, a neighbour of the appellant. He deposed that in the evening of the date of occurrence at about 6 p.m. he found the deceased lying in front of her house with burn injuries. He along with Deblal and others removed her in a rickshaw to Koraput hospital for treatment. The doctor admitted her into the hospital immediately. On being asked by the doctor, the deceased stated that the appellant by pouring kerosene set fire to her body. He along with Deblal and others removed her in a rickshaw to Koraput hospital for treatment. The doctor admitted her into the hospital immediately. On being asked by the doctor, the deceased stated that the appellant by pouring kerosene set fire to her body. The doctor recorded the aforesaid statement of the deceased and he put his signature on it as Ext. 3/3. There is absolutely no reason as to why the doctor P.W.1 and P.W.6 would falsely impli¬cate the appellant in the commission of the crime. In the circum¬stances, we accept the contents of Ext.3 as true and hold that the deceased made the dying declaration. 9. Shri Narasingh, learned counsel for the appellant, rely¬ing on a Bench decision of the Bombay High Court in Babu Sadashiv Jadhav v. State of Maharashtra, 1986 Crl. L.J. 739 contended that the appellant never intended to cause the death of his wife and it all happened because he was intoxicated and there was hot exchange of words between the appellant and the deceased over payment of money and the offence committed by the appellant would be culpable homicide not amounting to murder punishable under Part-1 of Sec. 304, I.P.C. 10. The facts of Babu Sadashiv (supra) are similar to the present case. There the appellant under the influence of liquor beat his wife and after pouring kerosene oil on her person set her on fire with a lighted match-stick who later succumbed to the burn injuries sustained by her. Considering the facts, the bench held that the accused did not intend to cause the death of his wife but from his act of pouring kerosene oil and setting her on fire, it can be inferred that he intended to cause burn in¬juries to her which were likely to cause death. Accordingly the conviction of the accused under Sec. 302, I.P.C. was altered to one under Sec. 304 Part-I, I.P.C. It is in the evidence of P.W.1 who was a tenant under the appellant that the latter was fre¬quently quarrelling with the deceased prior to the date of occur¬rence, appellant's, deceased wife was innocent and was not quar¬relsome and was leading a sorrowful life. She also stated that the appellant accompanied his wife (the deceased) to the hospi¬tal. She also stated that the appellant accompanied his wife (the deceased) to the hospi¬tal. P.W.3, another tenant under the appellant, stated that at the time of occurrence she was inside her house and there was hot exchange of words between the appellant and the deceased wife in their house. After some time the deceased came out of her house while her wearing apparels were burning. She also stated that the appellant was frequently quarrelling with his wife. P.W.6, also stated that the appellant was sitting by the side of his wife in the hospital. The minor son of the appellant examined as P.W.11 although was declared hostile by the prosecution stated that at about 6 p.m. of the date of occurrence P.W.2 came to their house and paid Rs.2/- to her deceased mother after taking some medicine from her. After the departure of P.W.2, the appellant came to the house and asked the deceased to give him Rs.2/-. When his deceased mother refused to give it to the appellant, the latter quarrelled with her and took Rs.2/- from her and went away. He again came back home after 6.30 p.m. being drunk. The appellant again asked her to pay him some amount and his deceased mother expressed her inability to pay. On the analysis of the evidence made above, it would appear that the appellant never intended to cause the death of his wife. He came in a drunken state and wanted more money from his deceased wife. In course of exchange of words on refusal to pay money the appellant seemed to have infuriated and poured kerosene on the body of the deceased and set her ablaze. He also realised the folly of his act and accompanied his deceased wife to hospital along with others. He was found sitting by the side of his deceased wife. The incident triggered over a petty quarrel when the appellant demanded money which was refused by the de¬ceased. In the circumstances, by taking into account all the attending circumstances, the appellant’s preceding and subsequent conduct, we are inclined to hold that the appellant did not intend to cause the death of his wife and intended to cause burn injuries which were likely to cause death. In the circumstances, by taking into account all the attending circumstances, the appellant’s preceding and subsequent conduct, we are inclined to hold that the appellant did not intend to cause the death of his wife and intended to cause burn injuries which were likely to cause death. The offence committed by the appellant is, therefore, of culpable homicide not amount¬ing to murder punishable under Part-I of Sec. 304, I.P.C. is a consequence, while acquitting the appellant of the charge under Sec. 302, I.P.C., we hold him guilty under Part-I of Sec. 304, I.P.C. and convict him thereunder. Ends of justice would be met if he is sentenced to rigorous imprisonment for seven years. 11. In the result, the conviction of the appellant under Sec. 302, I.P.C. and the sentence imposed thereunder are set aside and instead he is convicted under Sec. 304 Part-I, I.P.C. and sentenced to suffer rigorous imprisonment for seven years. The appeal is allowed in part. If the appellant has in the meantime suffered the sentence awarded by us, he may be set at liberty forthwith if his deten¬tion is not required in connection with any other case. C. R. PAL, J. I agree. Appeal allowed in part.