Judgment VISHNU SAHAI, J. ( 1 ) THROUGH this appeal, the appellant challenges the Judgment and order dated 3-10-1996 passed by the 11th Additional Sessions Judge, Pune in Sessions Case no. 177/1996 whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- in default to undergo 6 months R. I. for the offence under section 302, Indian Penal Code. ( 2 ) SHORTLY stated the prosecution case runs as under :- The deceased Jayshree was the daughter of Malti Kanade pw 3 and Gajanan Kanade PW 7 and wife of the appellant. The marriage between the appellant and the deceased took place about 8 to 9 years prior to the incident. They had a daughter called Chaitrali aged about 8 years. For about 7 to 8 years, their married life was smooth but, from a year prior to the incident, the appellant started consuming liquor and ill-treating the deceased. On the date of the incident i. e. 3-4-1996 Jayshree chaitrali and the appellant were living in Shaniwar Peth, pune and the appellant who was serving in Union Bank had not gone to the Bank. That day, Jayshree took Chaitrali to the tuition classes of one Mrs. Bhise. At about 2. 45 p. m. when she and Chaitrali came back, they found the appellant inside the house. The appellant did not open the door. Consequently, Jayshree opened it and entered inside with chaitrali. She reprimanded the appellant for not going to the bank, consuming liquor, abusing her and beating her. She threatened that she would go to her mother s place with chaitrali. The appellant asked her not to go. Thereupon jayshree told him that she would do something with her life. At that juncture, the appellant told her that in case she did not want to live, he would burn her and saying this, poured kerosene oil on the punjabi dress which she was wearing. He thereafter, took out a match stick, ignited it and set her on fire. In the meantime Jayshree started crying. Hearing her cries her immediate neighbour Swanand arole PW 11 reached there along with his mother and grand mother. They found Jayshree burnt. Swanand s mother and grand mother extinguished the fire. Sadanand sent for kashikar PW 2 brother-in-law of the landlord. In the meantime Jayshree started crying. Hearing her cries her immediate neighbour Swanand arole PW 11 reached there along with his mother and grand mother. They found Jayshree burnt. Swanand s mother and grand mother extinguished the fire. Sadanand sent for kashikar PW 2 brother-in-law of the landlord. Kashikar PW 2 immediately came on the place of the incident and on the request of Arole, informed the police control room. Swanand Arole PW 11 also informed Gajanan kanade PW 7, the father of the deceased. In the meantime, two ladies accompanied by Chaitrali went and informed Jayshree s mother Malti Kanade PW 3 that the appellant had burnt her after pouring kerosene. On receiving the said information, Jayshree s mother malti Kanade arrived and when she asked Jayshree as to what had happened, she told her that the appellant had poured kerosene oil on her and set her on fire. ( 3 ) THE evidence of Gajanan Kanade PW 7 shows that on 3-4- 1996 at about 2. 30 to 2. 45 P. M. he received a phone call from Swanand Arole that Jayshree had been set on fire. Consequently, he reached the house of the appellant. At that juncture, Jayshree was being brought near the ambulance. Consequently, he and his wife Malti also boarded the said ambulance. Theambulance along with them and Jayshree proceeded towards Sasoon Hospital. On the way, Gajanan asked jayshree how she was burnt and she replied that the appellant had set her on fire. ( 4 ) THE evidence of Dr. Shilpa Sane PW 8 shows that on 3- 4-1996, at about 4 P. M. while she was working in the burns ward of Sasoon Hospital, Jayshree was brought to the ward. She had sustained 41% burns. ( 5 ) THE evidence of H. C. Gulab Pathan P. W. 4 shows that on 3-4-1996 at 4. 45 p. m. while he was working as Duty Amaldar in police chowky Dattawadi, he was informed by Duty Amaldar, swargate, that Jayshree had sustained burns and was admitted in the Sasoon Hospital. Consequently, he rushed to the said hospital. He reached the said hospital at 5 p. m. At that time Dr. Sane PW 8 was present. He asked Dr. Sane whether she was conscious and fit to make a statement to which the doctor replied in the affirmative. He thereafter, recorded the statement of Jayshree in Marathi. Consequently, he rushed to the said hospital. He reached the said hospital at 5 p. m. At that time Dr. Sane PW 8 was present. He asked Dr. Sane whether she was conscious and fit to make a statement to which the doctor replied in the affirmative. He thereafter, recorded the statement of Jayshree in Marathi. Since the said statement is the FIR in the instant case, and is the primary piece of evidence on which the conviction of the appellant is founded, we are reproducing its English translation in entirety. It reads thus :-I, Jayshree Sardesai, aged 39 years, Occupation : Household, reside at 2028, Sadashiv Peth, Tilak Road, Pune. I am fully concious today and at 5 p. m. and in ward No. 27 of Sasoon Hospital where I am admitted. As the police came for recording my statement, I am giving the statement. On the above address, I was staying with my husband Madhavrao Sardesai and my daughter Chaitrali aged 7 years. My husband works in Bank and for the last four years, is not attending to his duties. He consumes liquor and sometimes beats me and quarrels with me for domestic reasons. Today, at 2. 45 p. m. I returned with my daughter from my daughter s tuition classes. My husband had locked the door from inside. I asked him to open it. But, he declined to open it. Hence, I opened it. I entered my house with my daughter. I told him that since you do not go to the office; consume liquor; abuse and harass me I want to go to my mother s place with my daughter. He said do not go. I told him that I would do something with my life. Whereupon, he said that if you do want to live, I shall burn you. Saying this, he poured kerosene oil on the punjabi dress which I was wearing. When I reached the door, for going out, he took out a matchstick ignited it and threw it on my punjabi dress. I started burning. I went outside. Arole stays in front of my house. He put a quilt around my body and extinguished the fire. Then his son called my parents. They came and took me to the Sasoon Hospital for treatment. I have sustained burns on face, throat, both hands, chest, abdomen, thighs and partly on back. I started burning. I went outside. Arole stays in front of my house. He put a quilt around my body and extinguished the fire. Then his son called my parents. They came and took me to the Sasoon Hospital for treatment. I have sustained burns on face, throat, both hands, chest, abdomen, thighs and partly on back. My husband poured kerosene oil and burnt me by igniting the matchstick. Hence, I have a complaint against him. ( 6 ) THE evidence of H. C. Gulab Pathan PW 4 who recorded the FIR and that of Dr. Sane PW 8 who told him that she was in a fit condition to give the statement shows that throughout the time, the statement of Jayshree was being recorded, Dr. Sane was present. It is pertinent to mention that the statement of jayshree (Exhibit 18) contains two endorsements dated 3-4- 1996 made by Dr. Sane; one at 5 p. m. and the other at 6 p. m. The endorsement at 5 p. m. reads that : Patient was fully conscious. When she narrated the above story and that of 6 p. m. reads : Patient was conscious, when the police took the history from her. It is pertinent to mention that both these endorsements have been made at the end of Exhibit 18. ( 7 ) THE evidence of Dr. Sane shows that on 3-4-1996 at 9. 30 p. m. Jayshree was discharged from Sasoon Hospital against medical advice. The evidence of Jayshree s father Gajanan Kanade PW 7 shows that she was shifted to Jehangir Hospital where she succumbed to her burns on 13-4-1996. ( 8 ) THE autopsy on the corpse of Jayshree was conducted on 13-4-1996 and a perusal of the Autopsy Report shows that she sustained 68% burns which were caused on her face, trunk, back and both lower limbs. It also shows that jayshree died on account of sceptic shock following burns and viscera was preserved. ( 9 ) AFTER the usual investigation, the appellant was charge sheeted for the offence under section 302, Indian penal Code. ( 10 ) THE case was committed to the Court of Sessions in the usual manner where the appellant was charged for the offencepunishable under section 302, Indian Penal Code to which charge, he pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 12 witnesses. ( 10 ) THE case was committed to the Court of Sessions in the usual manner where the appellant was charged for the offencepunishable under section 302, Indian Penal Code to which charge, he pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 12 witnesses. One of them, namely Chaitrali, the daughter of the appellant and the deceased was examined as an eye witness. Two of them namely Malti PW 3 and Gajanan PW 7, mother and father of the deceased respectively were examined to prove the oral dying declaration made by the deceased to them and the two of them namely H. C. Pathan PW 4 and Dr. Sane PW 8 were examined to show that Jayshree made the statement (Exhibit 18) which was treated as FIR. The learned trial Judge disbelieved the ocular account furnished by chaitrali and the oral dying declarations but, believed jayshree s statement Exhibit 18 which is the FIR and convicted and sentenced the appellant in the manner stated in para 1 above. ( 11 ) WE have heard learned counsel for the parties and perused the entire evidence on record. We make no bones in observing that the learned trial Judge acted correctly in rejecting the ocular account furnished by Chaitrali and the oral dying declarations made by Jayshree to Malti and gajanan. In our view, the learned trial Judge was justified in rejecting Chaitrali s evidence because, in her cross- examination in para 2, she stated as under :-MY grand parents are coming to the Court since last couple of days. My grand parents, maternal uncle and aunt used to discuss about the Court proceeding after coming back to house from Court. They used to talk about my father. My grand parents told me as to how and what should be told to Court. As per the say of my grand parents, I have stated before the Court. Before coming to the Court hall, I had been to Advocate (attention of the witness is drawn towards Zende, APP while asking above question ). Advocate has read over to me as to what I should state before the Court. A perusal of the said para would show that she was tutored by her grand parents and had deposed in court as tutored by them. Advocate has read over to me as to what I should state before the Court. A perusal of the said para would show that she was tutored by her grand parents and had deposed in court as tutored by them. It would also show that the Advocate had read over to her as to what she should state before the court. In view of the said admission by Chaitrali, the trial court was justified in rejecting her evidence. The learned trial Judge was equally justified in rejecting the oral dying declaration made by Jayshree to malti because, the latter in her cross examination admitted that when she reached and questioned Jayshree, she did not reply and was not conscious. He was also justified in rejecting the oral dying declaration made by her to Gajanan because, the same is not mentioned by him in his statement recorded under section 161, Criminal Procedure Code. ( 12 ) BUT we have no reservations in observing that the learned trial Judge acted correctly in accepting the dying declaration in the form of FIR Exhibit 18. We have earlier set out the English translation of the FIR in entirety. The same in unequivocal terms shows that the appellant poured kerosene oil on Jayshree and set her on fire. We have also mentioned earlier that prior to recording it, H. C. Pathan PW 4 asked Dr. Sane PW 8 whether she was conscious to make it and on her replying in the affirmative, he recorded her dying declaration in the presence of Dr. Sane. We have also seen earlier that at the end of the statement (Exhibit 18) there are two endorsements dated 3-4- 1996 made by Dr. Sane. One of them which is made at 5 p. m. shows that Jayshree was fully conscious when she narrated the above history and the other which is made at 6 p. m. shows that she was conscious when the police took the history from her. We have also earlier mentioned that the evidence of H. C. Pathan and Dr. Sane shows that the latter was throughout present when the statement was recorded. It is also pertinent to mention that although H. C. Pathan and dr. Sane were subjected to extensive cross-examination but, nothing could be extracted therefrom which could impair the truthfullness of this dying declaration. Sane shows that the latter was throughout present when the statement was recorded. It is also pertinent to mention that although H. C. Pathan and dr. Sane were subjected to extensive cross-examination but, nothing could be extracted therefrom which could impair the truthfullness of this dying declaration. It is pertinent to mention that H. C. Pathan categorically denied the defence suggestion that Jayshree was not in a conscious condition to make the statement. It should be remembered that both H. C. Pathan and Dr. Sane had no rancour or enmity against the appellant and in the absence of the same, would not have been parties to a cooked up dying declaration attributed to Jayshree. 12-A. For the said reasons, in our view, the learned trial Judge acted correctly in accepting this dying declaration. The Supreme Court in the oft-quoted case of kushalrao vs. State of Bombay reported in AIR 1958 Supreme court page 22 has in paras 15 and 16 categorically laid down that there is no impediment in law in recording/sustaining a conviction on a uncorroborated dying declaration if the same inspires confidence. We have earlier mentioned the reasons as to why the said dying declaration inspires confidence. In our view, on the said solitary dying declaration, the conviction of the appellant can be sustained. ( 13 ) THE question is can it be sustained for the offence under section 302, Indian Penal Code. After the utmost circumspection, we are of the Judgment that the conviction of the appellant cannot be sustained for the offence punishable under section 302, Indian Penal Code. We say this because, the act of the appellant would not fall in any of the four clauses ofsection 300, Indian Penal Code, the breach of which is punishable under section 302, Indian penal Code. Section 300, Indian Penal Code reads thus :-300. We say this because, the act of the appellant would not fall in any of the four clauses ofsection 300, Indian Penal Code, the breach of which is punishable under section 302, Indian penal Code. Section 300, Indian Penal Code reads thus :-300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly - It is done with the intention of causing bodily injuries the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly - If the person committing the act knows that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. ( 14 ) A perusal of clause firstly would show that it can be invoked if an act is done with the intention of causing death and of secondly would show that it would be attracted if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death. The question whether an act is committed with the intention of causing death or intention of causing such bodily injury as is likely to cause death, is a question of fact and not one of law. Whether there is the requisite intention in terms of the first two clauses of section 300, Indian Penal Code, would depend on circumstances like motive and the factual matrix in which the incident took place. In the instant case, the incident occurred all of a sudden. When the deceased questioned the appellant as to why did he not go to work and threatened to leave the house with her daughter Chaitrali, the appellant asked her not to leave. At that juncture, the deceased replied that she did not want to live and it was only thereafter that the appellant told her that in case she did not want to live, he would burn her. At that juncture, the deceased replied that she did not want to live and it was only thereafter that the appellant told her that in case she did not want to live, he would burn her. It was thereafter that he poured kerosene oil on her and set her on fire. When the aforesaid circumstances are considered in the light of the fact that the appellant and the deceased had been married for 8/9 years, it would be hazardous to hold that when the appellant poured kerosene oil on her and set her on fire, he had either the intention to kill her or the intention to cause such bodily injury, which he knew was likely to cause her death. At any rate, the cause of death spelt out in the post mortem report is sceptic shock due to burns and by no stretch of imagination, can it be said that the appellant intended to inflict injuries which were likely to cause sceptic. For the said reasons, clauses firstly and secondly would not be applicable. ( 15 ) CLAUSE thirdly of section 300, Indian Penal Code would also not be applicable. A perusal of the said clause would show that before it can be invoked, two pre requisites have to be satisfied, namely :- (A) there should be intention to inflict the bodily injury which has been inflicted in contra distinction to its being accidental; (b) the bodily injury inflicted should be sufficient in the ordinary course of nature to cause death. We make no bones in observing that neither pre-requisite (a) nor pre-requisite (b) are satisfied. Pre-requisite (a) is not satisfied because, although the appellant had the intention to cause burns which he caused to the deceased but, it cannot be said that he had the intention to cause sceptic burns. The post mortem shows that these sceptic burns led to the death of the deceased. In the postmortem report, the cause of death is mentioned as sceptic shock due to burns. In this connection, it is pertinent to refer to the evidence of Dr. Sane PW 8 that contrary to her advice, the deceased was discharged on the same day. It is not clear from the evidence whether she was directly taken to Jehangir hospital or first taken home and thereafter to the said hospital. In this connection, it is pertinent to refer to the evidence of Dr. Sane PW 8 that contrary to her advice, the deceased was discharged on the same day. It is not clear from the evidence whether she was directly taken to Jehangir hospital or first taken home and thereafter to the said hospital. In such a situation, the possibility of burns becoming sceptic either in transit to Jehangir Hospital or in the hospital itself cannot be ruled out. Pre-requisite (b) is also not satisfied. In the instant case, since the genuineness of the post mortem report has been admitted by the defence under section 294 Criminal procedure Code the Autopsy surgeon has not been examined. Dr. Sane PW 8 who is the solitary doctor who has been examined in the instant case did not state that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. At this juncture, we would like to emphasise that since the genuineness of the postmortem report has been admitted by the defence, it cannot be ipso facto concluded that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. The burden of so proving would always rest on the prosecution and would have to be discharged by it unless of course a naked perusal of the injuries shows that they are sufficient in the ordinary course of nature to cause death. Our view is fortified by the observations contained in para 5 of the decision of the Supreme Court which are to the same effect; made by it in the case of Brij Bhukan vs. State of U. P. reported in AIR 1957 Supreme Court 474. In the instant case, a perusal of the ante mortem burns suffered by the deceased does not per se lead to the inference that they were sufficient in the ordinary course of nature to cause death. It should be borne in mind that the deceased succumbed to her burns 10 days after the incident. For the said reasons, clause thirdly would be inapplicable. ( 16 ) IN our view, clause fourthly would also not be applicable. It should be borne in mind that the deceased succumbed to her burns 10 days after the incident. For the said reasons, clause thirdly would be inapplicable. ( 16 ) IN our view, clause fourthly would also not be applicable. A perusal of clause fourthly would show that it would be attracted if a person who commits a act knows that it is so imminently dangerous that it must : (A) in all probability cause of death or (b) such bodily injury as is likely to cause death. Layman invariably and man of law often proceed on a erroneous premise that if a person has the knowledge that the act committed by him is imminently dangerous, then he would be liableunder the said clause. Nothing can be farther from truth. Knowledge simplicitor on the part of a person of an act being imminently dangerous would not invoke the application of clause fourthly. Its application would only be invoked if coupled with the said knowledge, there is the knowledge that the said act either in all probability would cause death or such bodily injury as is likely to cause death. In the instant case, the evidence is that the deceased died 10 days after the incident not on account of burns simplicitor but, due to sceptic shock resulting from burns. It is true that there was direct nexus between the appellant s act and the burns suffered by the deceased but, in our view there was no direct nexus between the act of the appellant and the burns turning sceptic. As we have mentioned earlier, the evidence of Dr. Sane shows that the deceased took her discharge on the date of the incident itself from Sasson Hospital, contrary to medical advise. We have also mentioned earlier that there is no clear evidence whether from Sasoon Hospital she was first taken home or taken directly to Jehangir hospital. It may be that burns of the deceased may have turned sceptic either prior to her being admitted in Jehangir Hospital or in Jehangir hospital itself, sceptic may have set in her burns. In such a factual matrix even though the appellant can be attributed the knowledge that his act was imminently dangerous but, no knowlege can be fastened to him that it would in all probability cause death or such bodily injury as was likely to cause death. In such a factual matrix even though the appellant can be attributed the knowledge that his act was imminently dangerous but, no knowlege can be fastened to him that it would in all probability cause death or such bodily injury as was likely to cause death. Hence, clause fourthly would not be applicable. ( 17 ) BUT, we hasten to add that even in the factual matrix of this case, bearing in mind that the incident happened on the spur of the moment, there is no getting away from the fact that when the appellant poured kerosene oil on jayshree and set her on fire, he had the knowledge of her death contemplated by clause thirdly of section 299, Indian penal Code the breach of which is punishable under section 304 (2), Indian Penal Code. In our view, an offence under section 304 (2), Indian Penal Code is made out against the appellant. Coming to the question of sentence, we feel that considering the over all circumstances, a sentence of 7 years R. I. would be conducive to the cause of justice. ( 18 ) BEFORE parting with the Judgment, we would like to mention that the defence of the appellant as emerging from his statement under section 313 Criminal Procedure Code is per se unacceptable. In his said statement, in answer to question No. 43 which was Do you want to state anything regarding the case : he stated that at the time of the incident, he was at the house. In the noon as the gas had finished Jayshree was making meals on kerosene stove. He heard her shouts and on reaching the kitchen, found her in flames. He thereafter put a quilt on her and tried to extinguish the fire. We find this defence to be a tissue of lies for the reasons enumerated hereinafter :-FIRSTLY had it been true then the Investigating Officer would have found some utensils on the stove on which jayshree was preparing food. In the instant case, a perusal of the spot panchanama shows that although the Investigating officer found a stove but, he did not find any vessel containing food on it. Secondly, had it been true, then the appellant would not have come out with it for the first time on 9-9-1996, the date when he made the statement under section 313 Criminal procedure Code. Secondly, had it been true, then the appellant would not have come out with it for the first time on 9-9-1996, the date when he made the statement under section 313 Criminal procedure Code. In our view, when he was apprehended by the investigating Officer, he would have informed him about it. Thirdly, this defence is incompatible with the report of the Chemical Analyst who found on the clothes of Jayshree presence of kerosene oil. Fourthly, had this defence been true, then in our view jayshree who had been married to the appellant for nearly a decade and had a daughter aged 8 years from him, would not have stooped so low to falsely implicate him on a murder charge. ( 19 ) IN the result, this appeal is partly allowed. Although we acquit the appellant for the offence under section 302, Indian Penal Code and set aside his conviction and sentence of life imprisonment and fine of Rs. 2,000/- imposed thereunder but, we find him guilty for the offence under section 304 (2), Indian Penal Code and sentence him to undergo seven years R. I. for the said offence. The appellant is in jail and shall serve out the sentence. In case the appellant has deposited the fine of Rs. 2000/- the same shall stand refunded to him. Appeal partly allowed.