JUDGMENT - V.M. KANADE, J.:---The appellant was charged under section 302 of the Indian Penal Code for having committed murder of his wife. The Sessions Judge, Chandrapur, convicted the accused under section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life. The prosecution case, in brief, is that the appellant/accused used to live alongwith his wife Kaushalyabai, two sons viz. Ravindra and Rajendra in a hut constructed on a plot allotted by the Government in Beghar Wasti, outside village Maregaon, in Taluka Mul. He was working as a labourer alongwith one Prakash Wakulkar and one Anil. On 13-3-1996, the accused had taken a hand loan of Rs. 25/- from Prakash Wakulkar as he had lost a bet and he promised to pay the said amount of Rs. 25/- to Prakash after returning to his house at Maregaon. When he went home along with Prakash and Anil, at that time, his wife was cooking. He asked his wife to pay an amount of Rs. 25/- to Prakash. His wife told him to wait for some time as the vegetables which she was cooking, were on the stove. After the frying of the vegetable was over, within a few minutes, the wife of the accused paid the amount to Prakash. Prakash and Anil went away. After the two had left, the accused asked his wife as to why she had not made the payment immediately and why she had taken so much time. The accused was, therefore, annoyed on account of the delay and he tried to assault his wife. However, he was caught by his two sons who were present in the house and thereafter the accused left the house and went away for drinking liquor. At about 8.00 or 8.30 p.m. the accused returned back to his house and at that time his wife was making preparation for sleeping and was spreading beddings on cots in the hut. Again the accused rushed to beat his wife. However, his elder son Ravindra obstructed him and thereafter the accused took a burning kerosene lamp and threw it in the direction of his wife. The kerosene lamp fell on his wife and she caught fire and she suffered burn injuries. The sons of the accused shouted for help and the accused ran away. His sons extinguished fire by pouring water on their mother. The kerosene lamp fell on his wife and she caught fire and she suffered burn injuries. The sons of the accused shouted for help and the accused ran away. His sons extinguished fire by pouring water on their mother. In the meantime some of the neighbours caught hold of the accused who was running away and brought the accused to the house. The wife of the accused was taken to the Police Station and a complaint was lodged being Crime No. 33/96 under section 307 read with section 309 of the Indian Penal Code and she was referred to the Medical Officer where her dying declaration was recorded by the Executive Magistrate. Thereafter, she was referred to the General Hospital, Chandrapur. She succumbed to the injuries after 12 days and died on 24-3-1996 at 9.30 p.m. in the General Hospital, Chandrapur. Thereafter the offence was changed from sections 307 to 302 of the Indian Penal Code and the police recorded the spot panchanama, seized various articles which were found on the spot and a Regular Criminal Case No. 71/96 was registered. The charge-sheet was filed against the accused. The charge was framed by the trial Court. The accused pleaded not guilty to the said change. The trial Court convicted the accused on the basis of the evidence adduced by the prosecution. 2. We have heard the learned Counsel appearing on behalf of the accused and also the learned A.P.P. appearing on behalf of the State. The learned Counsel appearing on behalf of the accused has taken us through the depositions recorded by the Sessions Court and also dying declaration and other evidence on record. We have also perused the judgment and order passed by the Sessions Court. 3. The learned Advocate appearing on behalf of the accused submitted that the prosecution had not proved that the accused had committed offence under section 302 of the Indian Penal Code. He submitted that the accused neither had an intention of causing the death of the deceased nor had a knowledge and intention to cause any bodily injury to the deceased. He submitted that the kerosene lamp accidentally fell in the struggle between the accused and his son and as a result the kerosene lamp broke and incidently the deceased received burn injuries. 4. He submitted that the kerosene lamp accidentally fell in the struggle between the accused and his son and as a result the kerosene lamp broke and incidently the deceased received burn injuries. 4. He submitted that, therefore, no offence under section 302 has been committed by the accused and at the most accused could be convicted under section 326 of the Indian Penal Code for causing grievous hurt. 5. The learned A.P.P. appearing on behalf of the State vehemently opposed the submissions made by the learned Counsel appearing on behalf of the accused. He submitted that the evidence on record clearly established that the accused had thrown kerosene lamp at his wife. He had an intention of causing the said injuries to his wife and his act was so imminently dangerous that his case would fall under section 300, Clause IV and therefore, he was rightly convicted under section 302 of the Indian Penal Code by the Sessions Court and the said findings should be confirmed. 6. We have gone through the entire evidence on record. We have read the depositions of all the witnesses. The prosecution has examined in all 6 witnesses. P.W. 1 Ravindra, the son of the accused who was an eye-witness of the said incident, has been examined by the prosecution. P.W. 2 Bablu has been examined by the prosecution to prove that immediately after the incident was over, sons of the accused had shouted that their father had burnt their mother and that they were calling the neighbours for help and also that he had heard the cries of his wife. P.W. 3 Ramdas Sherki has been examined as a panch witness to prove the spot panchanama. P.W. 4 Mustak Ali is an Executive Magistrate who had recorded the dying declaration of the deceased. P.W. 4 Mustak Ali, however, did not follow the procedure which is required to be followed for the purpose of recording dying declaration and in spite of sending requisition to Doctor, he has stated that he went to the Chamber of the Doctor and obtained the fitness certificate. This dying declaration, therefore, has been rightly discarded by the trial Court. P.W. 4 Mustak Ali, however, did not follow the procedure which is required to be followed for the purpose of recording dying declaration and in spite of sending requisition to Doctor, he has stated that he went to the Chamber of the Doctor and obtained the fitness certificate. This dying declaration, therefore, has been rightly discarded by the trial Court. However, even from this dying declaration it appears that the deceased had stated that when she was serving food to her husband in the house, at that time her husband threw kerosene lamp on her person, as a result of which her sari was burnt and she caught fire. P.W. 5 Prakash Wakulkar did not witness the said incident. However, he heard the shouts of the sons of the accused and, therefore, he rushed towards the accused and he caught accused while he was trying to run away. From perusal of this evidence, it clearly shows that the accused did throw kerosene lamp towards his wife. P.W. 1 Ravindra has stated that the kerosene lamp hit the wooden wall, fell on the ground and the lamp broke and the kerosene caught fire as a result of which sari of the deceased caught fire and also the blanket which was lying on the ground caught fire and thereafter both the sons of the deceased had extinguished the fire. From this evidence, in our view, it can not be said that the accused had an intention to kill his wife. It is clear that undoubtedly though he had thrown the kerosene lamp towards his wife it can not be said that he had no intention to cause any injury to the deceased. He certainly had the knowledge that if any injuries were caused due to the burning lamp, it was likely to cause her death. It is not the prosecution case that the accused poured kerosene on his wife and set her ablaze. It is the specific case of the prosecution that the accused had thrown that kerosene lamp at his wife. However, from the evidence of P.W. 1 Ravindra who is the son of the deceased has clearly stated that the lamp had hit the wooden wall and the glass was broken after it fell down and as a result kerosene caught fire and along with it the clothes of the deceased also caught fire and she received burn injuries. However, from the evidence of P.W. 1 Ravindra who is the son of the deceased has clearly stated that the lamp had hit the wooden wall and the glass was broken after it fell down and as a result kerosene caught fire and along with it the clothes of the deceased also caught fire and she received burn injuries. The deceased survived for almost 12 days. Thereafter, she succumbed to the injuries. Under these circumstances, in our view, the case of the accused would fall under section 304 Part I and not under section 302 of the Indian Penal Code. We are unable to accept the findings of the trial Court that the case of the accused would fall under section 300, Clause IV of the Indian Penal Code. The findings of the Sessions Court that the case of the accused would fall under section 300, Clause IV of the Indian Penal Code is, therefore, set aside and quashed. The conviction of the accused under section 302 of the Indian Penal Code is, therefore, set aside. 7. In the result, the appeal is partly allowed. The conviction of the accused under section 302 of the Indian Penal Code is altered to that of under section 304 Part I of the Indian Penal Code and he is sentenced to undergo R.I. for 10 years. The accused is in custody since 13-3-1996 till today. It is clarified that the sentence which he has already undergone shall be adjusted while calculating his total sentence awarded by this Court. Appeal partly allowed. -----