Mrs.A.Subbulakshmy, J.; According to the prosecution On 26.12.1992 at about 7.30 p.m. at door No.111, Dr.Besant Road, Royapettah, Chennai-600014, the accused due to the wordy altercation with his wife, poured kerosene on her, set fire on her and caused death to her and so, the accused is liable to be punished under Sec.302, I.P.C. Charge was framed under Sec.302, I.P.C. against the accused by the Sessions Court. 2. The case of prosecution on the evidence of P.Ws. is as follows: P.W.1 is the brother and P.W.2 is the father of the deceased. The accused is the husband of the deceased. The accused and the deceased got married in 1990 and they were residing at door No.111, Dr.Besant Road, Royapettah, Chennai-600014. They got one male child. There was no cordial relationship between the accused and the deceased and there used to be frequent quarrel. P.W.1’s parents used to compromise and then send the deceased to her husband’s house. P.W.4 also used to medidate their quarrels. The reason for the quarrels is that the deceased refused to live along with the parents of the accused and the accused treated her cruelly catching hold of her hair and attacked her previously about two years prior to the occurrence with mixie jar and caused injuries on her head. The deceased gave complaint in the Ice House Police Station on that. The occurrence had happened on 26.11.1992 in the house of the accused. The house of P.W.1 is at a distance of 100 meters away from the house of the accused. On the date of occurrence, at about 6.00 p.m. the accused came to the house of P.W.1 and told him that his wife Kalaivani, since deceased was giving trouble and he asked him to come and medidate that. P.W.1 asked the accused to go to his house and stated that he would come later. The accused left that place. P.W.1 went to the house of the accused at about 7.30 p.m. on the date of occurrence. P.W.1 saw crowd with noise in front of the house of the accused. P.W.1 pushed the crowd and went inside the house and found the deceased Kalaivani coming out with flames throughout her body. P.W.1 asked the accused as to why she did like that. The accused threatened P.W.1 that if he goes nearer, he would pour kerosene on him and set fire on him also. P.W.1 pushed the crowd and went inside the house and found the deceased Kalaivani coming out with flames throughout her body. P.W.1 asked the accused as to why she did like that. The accused threatened P.W.1 that if he goes nearer, he would pour kerosene on him and set fire on him also. P.W.3, a plumber who came there to do some repair work also saw the deceased burning. P.W.6, on hearing the noise in the house of the accused, went to the house of the accused and found one lady coming out with flames. He immediately took the deceased to the hospital. P.W.2, who came to know about the occurrence through his grandson, visited the scene of occurrence and came to know that the deceased was admitted in the hospital, P.W.5 came to know about the occurrence and went to the Government Hospital, Royapettah and saw the deceased with burnt injuries. The deceased told P.W.5 that her husband set fire on her. P.W.12, doctor, on 26.12.1992 at about 7.55 p.m. admitted the deceased in the hospital brought by her husband and found burnt injuries throughout her body. The deceased told P.W.12 that only her husband poured kerosene on her and set fire on her. P.W.12 sent the deceased to the ward for burnt injuries after giving first aid. He has issued accident register copy Ex.P-11, P.W.9, on 26.11.1992 at about 7.30 p.m., while he was in Ice House Police Station received the intimation from the Royapettah Government Hospital that one lady by name Kalaivani was admitted in the hospital for burnt injuries. P.W.9, immediately went to the hospital examined the deceased and found her to be conscious, recorded her statement Ex.P-6 and obtained her thumb impression in that since she was not in a position to sign and brought Ex.P-6 to the police station at about 9.30 p.m. and registered it in Crime No.1789 of 1992 under Sec.307, I.P.C. and prepared F.I.R. Ex.P-7. P.W.11, the XVI Metropolitan Magistrate, George Town, on receipt of requisition for recording the dying declaration, went to the Government Hospital, Royapettah, examined the deceased Kalaivani to find out whether she was conscious, asked her name, her husband name and address and after satisfying himself that the deceased was conscious, he introduced himself to the deceased and asked her as to what happened. The deceased had narrated the occurrence to P.W.11. The deceased had narrated the occurrence to P.W.11. He recorded her statement, the dying declaration as per her narration and obtained her thumb impression in the dying declaration Ex.P-11. The doctor P.W.10 was present when P.W.11 recorded the dying declaration of the deceased. P.W.10 gave certificate Ex.P-8 stating that the deceased was conscious throughout her giving the dying declaration. When the dying declaration was read over to her and when shed affixed her thumb impression, P.W.8 was present. After the death of the deceased, on receipt of death intimation Ex.P-13, the case was altered to one under Sec.302, I.P.C. by P.W.13 and he prepared the express F.I.R. Ex.P-14, took up investigation, examined the witnesses, drew rough sketch Ex.P-12, prepared observation mahazar Ex.P-2, seized the plastic cane M.O.1, burnt skirt, M.O.2 and match box M.O.3. under Mahazar Ex.P-3 in the present of witnesses. P.W.13 held inquest on the dead body of Kalaivani, prepared inquest report Ex.P-15, examined me witnesses and gave requisition Ex.P-4 to the doctor for conducting post mortem and sent the dead body of Kalaivani through P.W.8. P.W.7 doctor who conducted post mortem on the dead body of Kalaivani found on her the burnt injuries and there was smell of kerosene. He found second grade burnt injuries on the face, neck, breast, back, stomach, hands and legs and issued post mortem certificate Ex.P-5. He has given opinion that the burnt injuries sustained by the deceased are sufficient to cause death. The accused surrendered before the XVIII Metropolitan Magistrate on 30.11.1992. P.W.13 sent M.Os. along with requisition Ex.P-16 for sending the M.Os. along with requisition Ex.P-16 for sending the M.Os. for chemical analysis. The M.Os. were sent for chemical analysis along with the court letter Ex.P-17 and the chemical analysis report is Ex.P-18. After completing the investigation, P.W.13 laid charge sheet against the accused. 3. Learned Sessions judge who conducted the trial, at the conclusion of the trial, found the accused guilty under Sec.302, I.P.C. and convicted and sentenced the accused to imprisonment for life which is challenged in this appeal. 4. Point for consideration is whether the conviction and sentence passed by the learned Sessions Judge is sustainable. 5. The accused is the husband and the deceased is his wife. P.W.1 is the brother of the deceased. P.W.2 is the father of the deceased. 4. Point for consideration is whether the conviction and sentence passed by the learned Sessions Judge is sustainable. 5. The accused is the husband and the deceased is his wife. P.W.1 is the brother of the deceased. P.W.2 is the father of the deceased. The accused and the deceased got married in 1990 and they were residing separately and they have got one male child. The evidence of P.Ws.1 and 2 shows that there was no cordial relationship between the accused and the deceased and there used to be frequent quarrel and P.W.1’s parents used to compromise and then send the deceased to her husband’s house. The reason for the quarrels is that the deceased refused to live along with the parents of the accused and the accused treated her cruelly catching hold of her hair and attacked her previously about two years prior to the occurrence with mixie jar and caused injuries on her head. The deceased gave complaint in the Ice House Police Station on that. With regard to meditation regarding quarrels between the accused and the deceased has been spoken to also by P.W.4, P.W.4’s evidence shows that the accused and the deceased used to quarrel due to some family dispute and his wife used to medidate their matter. On the date of occurrence on 26.11.1992 at about 7.3.0 p.m., the deceased came to P.W.4’s house to see his wife for mediating their matter. The accused had also accompanied the deceased to P.W.4’s house. At that time P.W.4’s wife was not in the house. So, P.W.4, sent them back stating that he cannot do anything. Then the accused took the deceased to his house and beat her. After some time, P.W.4 heard some noise and came to know about the occurrence. 6. P.W.1’s house is at a distance of 100 metres away from the house of the accused. The occurrence had happened on 26.11.1992 at about 7.30 p.m. Prior to that occurrence, at 6.00 p.m. on the same day, the accused went to the house of P.W.1 the brother of the deceased and told him that his wife Kalaivani, since deceased was giving trouble and he asked him to come and medidate that. P.W.1 asked the accused to go to his house and stated that he would come later. The accused left that place. P.W.1 asked the accused to go to his house and stated that he would come later. The accused left that place. P.W.1 went to the house of the accused at about 7.30 p.m. on the date of occurrence. P.W.1 saw crowd with noise in front of the house of the accused. P.W.1 pushed the crowd and went inside the house and found the deceased Kalaivani coming out with flames throughout her body. P.W.1 asked the accused as to why she did like that. The accused threatened P.W.1 that if he comes nearer, he would pour kerosene on him and set fire on him also. P.W.1 had seen the deceased with flames on her body. P.W.6 who had come there on hearing the noise, saw the occurrence, He took the deceased and the person who brought her to the Government Hospital. P.W.1 had stated in his evidence that while he was taking her to the Government Hospital, the deceased told him that only her husband the accused set fire on her. P.W.2 is the father of the deceased who had also come to know about the occurrence went and saw the deceased in the hospital with burnt injuries. P.W.3 a plumber who went to the house of the accused to do some repairs, had also seen the occurrence. The accused is staying in the first floor. P.W.3 saw the accused is staying in the first floor. P.W.3 saw the accused beating his wife and dragging her to his floor. P.W.3 heard the noise from the house of the accused and he went there and fund the deceased with flames on her body. P.W.3 had also seen P.W.1 who had come there and put out the fire. The evidence of P.Ws.1, 3 and 6 proves that the deceased was found in the house of the accused with flames and P.W.6 took her to the hospital. P.W.5, who heard about the occurrence visited the hospital and found the deceased with burnt injuries. The evidence of P.Ws.1 to 5 proves that the deceased was found with burnt injuries in the house of the accused. P.W.5’s evidence is that the deceased was found in a dangerous condition she told him that only her husband the accused set fire on her. The evidence of P.Ws.1 to 5 proves that the deceased was found with burnt injuries in the house of the accused. P.W.5’s evidence is that the deceased was found in a dangerous condition she told him that only her husband the accused set fire on her. So, the evidence of P.W.5 proves that the deceased has stated to P.W.5 that only her husband set fire on her and this amounts to dying declaration. P.W.12, doctor, who admitted the deceased in the hospital found burnt injuries on the whole body of the deceased. Immediately on admission, the deceased had told P.W.12 the doctor that only her husband poured kerosene on her and set fire on her. So, the statement given by the deceased before the doctor P.W.12 also amounts to dying declaration. P.W.9, on receipt of information about the occurrence, went to Government Hospital, Royapettah, examined the deceased and recorded her statement, P.W.9, states that the deceased was conscious while she gave statement and affixed her thumb impression in the statement Ex.P-6. In Ex.P-6 the deceased has stated that her husband abused her, beat her and poured kerosene on her and set fire on her. Even before the police officer P. W.9, the deceased had given her statement Ex.P-6 that only her husband the accused poured kerosene on her and set fire on her. This also amounts to dying declaration. The Magistrate, P.W.11, on receipt of requisition to record the dying declaration of the deceased Kalaivani, visited her in the hospital, examined the deceased Kalaivani to find out whether she was conscious, asked her name, her husband, name and address and after satisfying himself that the deceased was conscious, he introduced himself to the deceased and asked her as to what happened. The deceased had narrated the occurrence to P.W.11, He recorded her statement, the dying declaration as per her narration and obtained her thumb impression in the dying declaration Ex.P-10. The doctor P.W.10 was present when P.W.11 recorded the dying declaration of the deceased. P.W.10 gave certificate Ex.P-8 stating that the deceased was conscious throughout her giving the dying declaration. In Ex.P-10, the deceased had stated that only her husband poured kerosene on her and set fire on her and she shouted. The doctor P.W.10 was present when P.W.11 recorded the dying declaration of the deceased. P.W.10 gave certificate Ex.P-8 stating that the deceased was conscious throughout her giving the dying declaration. In Ex.P-10, the deceased had stated that only her husband poured kerosene on her and set fire on her and she shouted. So, there are four dying declarations of the deceased available in this case, one oral dying declaration made before P.W.5, one before the doctor P.W.12, one before P.W.9 under Ex.P-6 and the fourth one before the Magistrate under Ex.P-10. In the accident register copy of Ex.P-11, P.W.12 has also stated that the deceased had stated before him that her husband poured kerosene on her and burnt her. Ex.P-11 shows that the deceased had told before P.W.12 that he husband poured kerosene on her and burnt her and it is a verbal; document. Ex.P-11 also shows that the patient was conscious. All the dying declarations available in this case clearly prove that only this accused was responsible by pouring kerosene and setting fire on her. 7. Learned counsel for the appellant submitted that the deceased was under the influence of her brother and she would have been tutored to say like that implicating the accused with the occurrence and much weight cannot be attached to the dying declarations. He further submitted that the Judicial Magistrate, P.W.11 has not certified that he was satisfied that the deceased was in a fit state of mind to give dying declaration and in such circumstances, the dying declarations given by the deceased cannot be given much weight. 8. P.W.1 even though came to the scene of occurrence and questioned the accused with regard to the occurrence, he did not accompany the deceased to the hospital, he also clearly speaks in his evidence that he does not know personally with regard to the dying declarations given by his sister the deceased and he also does not know what statement she gave. As per the doctor’s evidence, the deceased was conscious throughout her giving the dying declaration. P.W.1 was not at all in the picture when the deceased gave the dying declaration. So, it cannot be said that the deceased was tutored by P.W.1 to give such a dying declaration. In such circumstances, I find no force in the argument of the defence counsel in this aspect. P.W.1 was not at all in the picture when the deceased gave the dying declaration. So, it cannot be said that the deceased was tutored by P.W.1 to give such a dying declaration. In such circumstances, I find no force in the argument of the defence counsel in this aspect. With regard to the other contention raised by the defence counsel that the Magistrate has not certified that the deceased was in a fit state of mind, the evidence of P.W.11, the Magistrate and Ex.P-10 prove that P.W.11 put relevant questions to the deceased to test her consciousness and she has answered properly all the questions and after satisfying himself that the deceased was conscious, he started recording the dying declaration of the deceased. P.W.11 clearly speaks in his evidence that when he put questions to the deceased she answered properly and only after satisfying himself that the deceased, was conscious, he proceeded to record the dying declaration. The evidence of P.Ws.11 and Ex.P-10 prove that P.W.11 was fully satisfied about the mental condition of the deceased. The answers given by the deceased also show that the deceased was in a fit condition to make the statement. In Bolem Bhaskara Rao v. State of A.P., 1996 S.C.C. (Crl.) 49, the Apex Court has held that the Magistrate who recorded the dying declaration stating that he was fully satisfied about the mental condition of the deceased and answers given by the deceased also showing that he was in a fit condition to make the statement and in the circumstances omission on the part of Magistrate to question the deceased regarding his state of mind could not be a ground to reject the dying declaration outright. 9. The doctor P.W.10 also issued certificate Ex.P-8 that the deceased was conscious throughout recording the dying declaration. The Supreme Court in State of Rajasthan v. Kishore, 1996 S.C.C. (Crl.) 646, has held that, “Dying declaration of a married woman sustaining 80 per cent burn injuries-Magistrate waited for the doctor for 40 minutes, but nobody turned up-hence the dying declaration recorded in the absence of any doctor without taking a certificate of mental fitness-Answers given by the deceased showing that she was in a mentally fit condition-deceased having been left unattended possibility of tutoring rules out”. In the case on hand, the doctor has also certified with regard to the conscious state of mind of the deceased under Ex.P-8. So the evidence of P.W.11 and Ex.P-10 coupled with the medical certificate Ex.P-8 issued by P.W.11 go to establish that the deceased was in a fit state of mind to give dying declaration. Under the dying declaration stated above, the deceased had specifically stated that only her husband poured kerosene and set fire on her. The dying declarations were given by the deceased on the verge of her death and as borne out by evidence, the deceased was in a mentally fit condition to give such declarations. So, the dying declarations made by the deceased are entitled to much credence and much weight can be attached to them. The Apex Court has held in State of M.P. v. Mohan Lal, 1996 S.C.C. (Crl.) 906, that the dying declaration can form the sole basis of conviction if it is found to be true and voluntary. In the case on hand, on a perusal of the evidence, if P.W.11 coupled with Exs.P-5, P-6 and P-9 to P-12, it can be safely concluded that the deceased was conscious and her mental condition was alright and she was in a fit state of mind to make the dying declarations and much weight can be attached to the dying declarations which are found to be true and voluntary and they can form basis for conviction. Apart from the circumstantial evidence, in this case, the deceased had come from the house of the accused with flames on her body which was witnessed by P.Ws.1, 3 and 6 and P.W.3, prior to that occurrence had seen the accused dragging his wife the deceased to his floor and beating her. All these things coupled with the dying declarations given by the deceased cumulatively go to establish that only this accused poured kerosene on the deceased and set fire on her and caused death to her. There is unimpeachable evidence on the side of prosecution to prove that only this accused poured kerosene on the deceased and set fire on her. 10. Counsel for the appellant submitted that D.W.1, Murali was present in the scene of occurrence, but, he was not examined as a witness on the side of prosecution and this also creates doubt with regard to the genuineness of the prosecution case. 11. 10. Counsel for the appellant submitted that D.W.1, Murali was present in the scene of occurrence, but, he was not examined as a witness on the side of prosecution and this also creates doubt with regard to the genuineness of the prosecution case. 11. Even in the dying declaration Ex.P-10, the deceased has stated that while her husband was setting fire on her, her husband’ aunt’s son Murali, D.W.1 was outside keeping child. So, it is seen that D.W.1 was not in the scene of occurrence and he was only standing outside. As D.W.1 was not considered to be a witness on the side of prosecution, the prosecution has not examined D.W.1 as a witness on the prosecution side. So, the argument advanced by the counsel for the appellant that D.W.1 was not examined as a witness on the side of prosecution does not hold good. The defence has also examined D.Ws.2 and 3. D.W.2’s evidence is that P.W.1 was present and he was tutoring the deceased and asking her to say that only her husband set fire on her and only if she tells like that, after her recovery, her husband would be kind to her. D.W.2’s evidence is that the deceased was in the habit of attempting to commit suicide often and once she was attempting to commit suicide, himself and some others saved her. But, it is borne out by evidence of P.W.1 that he was not at all present at the time of occurrence and he also did not accompany the deceased to the hospital and there was no opportunity available for P.W.1 at all to talk to the deceased. So, at no stretch of imagination, it can be stated that P.W.1 tutored the deceased and on his instruction, she gave the dying declaration like that, The evidence of D.Ws. is not at all helpful for the defence. The quarrel had taken place between the husband and wife and during the wordy altercation, enraged at the wordings uttered by the deceased, the accused had poured kerosene and set fire on her. 12. A perusal of the evidence of P.Ws. proves that this case does not fall within the ambit of Sec.302, I.P.C. and it comes under the exceptions. The quarrel had taken place between the husband and wife and during the wordy altercation, enraged at the wordings uttered by the deceased, the accused had poured kerosene and set fire on her. 12. A perusal of the evidence of P.Ws. proves that this case does not fall within the ambit of Sec.302, I.P.C. and it comes under the exceptions. In her dying declaration Ex.P-10, the deceased had stated that the accused abused her and she also talked much and the accused got enraged and when the deceased went to drink water, she stated that her presence or absence does not make such difference, and the accused took the kerosene bottle, poured the kerosene on her and set fire on her and she shouted. The deceased herself has stated in her dying declaration that on her talks, the accused got angry and due to that accused suddenly took the bottle containing kerosene, poured the kerosene on her and set fire. P.W.1’s evidence also proves that prior to the occurrence, there was some quarrel between the accused and the deceased and the accused had approached him and asked to medidate that matter and even prior to his visit to the house of the accused, the accused had committed the offence. P.W.3 has also stated that he saw the accused beating his wife and taking her to his floor and within a short time, he heard the noise of the deceased and he found the deceased with flames. The evidence of P.Ws. and the dying declarations given by the deceased prove that only during the course of wordy altercation between the accused and the deceased, due to sudden provocation the accused took kerosene bottle which was nearby, poured it on her and set fire. So, it cannot be inferred that the accused has pre-planned and with the intention to kill the deceased, poured kerosene on her and set fire on her. Only suddenly enraged at the wordings uttered by the deceased, the accused took the kerosene, poured it on the deceased and set fire. So, even though the act of the accused and the burn injuries caused to the accused are sufficient to cause death to her, it cannot be stated that the accused had intention to kill her and with that intention, he poured kerosene on her. So, even though the act of the accused and the burn injuries caused to the accused are sufficient to cause death to her, it cannot be stated that the accused had intention to kill her and with that intention, he poured kerosene on her. The Supreme Court in Sunder Singh v. State of Rajasthan, A.I.R. 1988 S.C. 2136, has held that, “It is not in dispute that there was a dispute as to the turn by which the water pumb should be operated between the parties. It was not a premediated or preplanned fight. The prosecution has not established by evidence that it was the turn to draw water by the complainant. Nor is there clear evidence that it was the turn of the appellant. Each was asserting that it as his turn and not of the other. In this circumstances, it would not be wrong to assume that the appellant in the exercise to his right got enraged and tried to prevent the mischief by the deceased. It seems to us that the action of the accused could reasonably be brought under Sec.304, Part I, I.P.C.” In the case on hand, during the wordy altercation between the accused and the deceased, enraged at the wordings uttered by the deceased, the accused took kerosene bottle which was nearby, poured the kerosene on the deceased and set fire on her and due to sudden provocation, the accused committed the offence and caused death to her. The act of pouring kerosene on the deceased and setting fire on her which committed by the accused proves that the accused, with the intention of causing death, has done that due to sudden provocation during the wordy altercation between the accused and the deceased. The act committed by the accused clearly false within the ambit of Sec.304, I.P.C. and the act of the accused does not constitute an offence under Sec.302, I.P.C. Hence, we find that the accused is guilty under Sec.304, Part I, I.P.C. 13. Accordingly, we allow the appeal in part and alter the conviction from one under Sec.302, I.P.C. to Sec.304, Part I, I.P.C. and reduce the sentence of imprisonment of life to R.I. for seven years.