JUDGMENT - SINHA D.D., J.:-The criminal appeals are directed against the judgment and order dated 7-6-1999 passed by the Sessions Judge, Akola in Sessions trial No. 183/1998 whereby appellants are convicted for the offence punishable under section 302 read with section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs. 2000/- each, in default to undergo further rigorous imprisonment for three months. Both these appeals are heard together and disposed of by this common judgment. 2. Shri Deshpande, learned Counsel for the appellant/accused Sanjay, states that case of the prosecution is primarily based on the evidence of dying declaration given by deceased Sheikh Hussain and recorded by P.W. 2 Deoman (Naib Tahsildar). It is contended that dying declaration is not free from suspicion and is a result of tutoring particularly in the light of evidence of P.W. 1 Sheikh Iqbal (father of deceased Sheikh Hussain) wherein it has come that neighbours, who had gone to hospital to see deceased Sheikh Hussain came out of hospital room and told P.W. 1 Sheikh Iqbal that they had instructed deceases Sheikh Hussain as to how he should make a statement. It is submitted that evidence of P.W. 2 Deoman reveals that deceased was a Hindi speaking child. However, P.W. 2 Deoman has recorded the dying declaration in Marathi which was not the language known to the deceased and, therefore, entire dying declaration recorded by P.W. 2 Deoman is not free from suspicion. 3. Learned Counsel Shri Deshpande submits that dying declaration (Exh. 23-A) recorded by P.W. 2 Deoman stands falsified in view of evidence of P.W. 4 Shahanajbi, mother of the deceased, who in her deposition, has stated that when she asked her son deceased sheikh Hussain about cause of incident, he informed her that he burnt himself. It is contended that in view of this categorical admission in the cross-examination by P.W. 4 Shahanajbi, evidence of dying declaration (Exh. 23-A) becomes doubtful and, therefore same cannot be relied on. It is further contended that so called oral dying declaration made by deceased Sheikh Hussain to his father P.W. 1 Sheikh Iqbal is not truthful and consistent P.W. 1 Sheikh Iqbal in his deposition has admitted that police had instructed him as to what he should depose before the Court. 23-A) becomes doubtful and, therefore same cannot be relied on. It is further contended that so called oral dying declaration made by deceased Sheikh Hussain to his father P.W. 1 Sheikh Iqbal is not truthful and consistent P.W. 1 Sheikh Iqbal in his deposition has admitted that police had instructed him as to what he should depose before the Court. This admission in the cross-examination of this witness destroys his ocular testimony and, therefore, evidence of oral dying declaration is also concocted piece of evidence and cannot be relied on. It is submitted that in the deposition, P.W. 1 Sheikh Iqbal has stated that after his son deceased Sheikh Hussain was admitted in the hospital, Police recorded the statement of deceased Sheikh Hussain at about 1 p.m. in the hospital. However, no such statement is placed on record by the prosecution and in absence thereof, doubt is created about authenticity of ocular testimony of P.W. 1 Sheikh Iqbal. 4. Learned Counsel Shri Deshpande further states that P.W. 4 Shahanajbi stated in her deposition that on the date of incident at about 11 a.m. when she was at work at flour mill of Lukman, some children of the locality came to the flour mill and informed her that he son (deceased Sheikh Hussain) was burnt. It is contended that this circumstance corroborates the theory that deceased Sheikh Hussain burnt himself and children of the locality, who had witnessed the incident, informed P.W. 4 Shahanajbi that her son was burnt. It is submitted that statement of this witness in her cross-examination that when she asked her son about the cause of incident, he informed her that he burnt himself completely destroys the ocular testimony of this witness. 5. It is further contended by learned Counsel Shri Deshpande that a strange procedure is adopted by the trial Court by giving permission to the Public Prosecutor to cross-examine P.W. 4 Shahanajbi half way through the cross-examination, which was conducted by the Counsel for the defence. The trial Court has given complete go by to the procedure contemplated in law in this regard. It is submitted that prosecution no doubt can seek permission from the Court to declare its witness hostile to the prosecution and is also entitled to seek permission to cross-examine the said witness. The trial Court has given complete go by to the procedure contemplated in law in this regard. It is submitted that prosecution no doubt can seek permission from the Court to declare its witness hostile to the prosecution and is also entitled to seek permission to cross-examine the said witness. However, prosecution is entitled to do so while recording examination-in-chief of its witness and if such witness is not supporting the prosecution case disclosed by him in his statement before the Police. Once examination-in-chief is over and cross-examination is commenced, Court is not empowered to grant such permission sought by the prosecution for declaring its witness hostile. The authenticity of the ocular testimony of the prosecution witness is required to be considered on the basis of cross-examination of such witness and defence can show that prosecution evidence is not true or authentic only on the basis of cross-examination of such witness. It is, therefore, contended by the learned Counsel that once cross-examination is commenced and it prosecution witness deviates from the prosecution case disclosed by him in the statement before the police, in such situation, the Court is not empowered to grant permission to the prosecution to cross-examine its own witness at that stage. 6. It is alternatively contended by learned Counsel Shri Deshpande that incident in question took place on 8-7-1998. However, Sheikh Hussain died on 12-8-1988, i.e. more than a month after the incident. It is submitted that as per post-mortem report deceased Sheikh Hussain suffered 48% burn injuries and therefore, death of Sheikh Hussain was not the direct result of burn injuries received by him in the incident. It is contended that on the basis of percentage of burn injuries suffered by deceased Sheikh Hussain, it is evident that appellants never intended to commit murder of the deceased Sheikh Hussain and hence, conviction under section 302 of Indian Penal Code is not sustainable in law. At the most, offence would fall within the ambit of section 304 Part II of Indian Penal Code. 7. Shri Daga, learned Counsel for appellant/accused Suresh, adopted the arguments advanced by learned Counsel Shri Deshpande. It is, however, contended by learned Counsel Shri Daga that case of accused Suresh stands on and different footing. From the recitals in Exh. At the most, offence would fall within the ambit of section 304 Part II of Indian Penal Code. 7. Shri Daga, learned Counsel for appellant/accused Suresh, adopted the arguments advanced by learned Counsel Shri Deshpande. It is, however, contended by learned Counsel Shri Daga that case of accused Suresh stands on and different footing. From the recitals in Exh. 23-A, i.e. dying declaration, it is evident that deceased Sheikh Hussain had borrowed rupees five from accused Sanjay and as per prosecution case, alleged quarrel had taken place on the date of incident because deceased Sheikh Hussain failed to repay rupees five to accused Sanjay. It is contended by learned Counsel Shri Daga that accused Suresh, even as per prosecution case, had no concern with the transaction of loan, which was surely between deceased Sheikh Hussain and accused Sanjay and, therefore, there was no occasion for accused Suresh to participate in the crime in question and he has been falsely implicated in the offence and prosecution has completely failed to establish offence against accused Suresh. 8. Learned Counsel Shri Daga alternatively submits that prosecution evidence on record does not disclose that the appellants intended to kill deceased Sheikh Hussain particularly in view of percentage of burn injuries sustained by him and, therefore, conviction under section 302 read with section 34 of Indian Penal Code is not sustainable in law. 9. Shri Mujumdar, learned Additional Public Prosecutor for the respondent, supported the judgment and finding of conviction recorded by the Court below against the appellants for the offence punishable under section 302 of India Penal Code. It is contended that case of the prosecution is that on 8-7-1998, P.W. 1 Shaikh lqbal and P.W. 4 Shahanajbi took their meals at about 9 a.m. and thereafter went to their respective places of work leaving deceased Shaikh Hussain alone in the house, At about 11 a.m., P.W. 4 Shahanajbi was informed by the children of the locality that her son was burnt. She informed the incident to her husband P.W. 1 Sheikh lqbal. P.W. 1 Sheikh lqbal, P.W. 4 Shahanajbi and P.W. 8 Lukmansha carried deceased Sheikh Hussain in an auto-rickshaw to the hospital. On way to Hospital, deceased Sheikh Hussain informed P.W. 1 Sheikh lqbal that accused Sanjay and Suresh came to his house at about 10 a.m. on the day of incident and both of them beat him. P.W. 1 Sheikh lqbal, P.W. 4 Shahanajbi and P.W. 8 Lukmansha carried deceased Sheikh Hussain in an auto-rickshaw to the hospital. On way to Hospital, deceased Sheikh Hussain informed P.W. 1 Sheikh lqbal that accused Sanjay and Suresh came to his house at about 10 a.m. on the day of incident and both of them beat him. Accused Suresh caught hold of deceased and accused Sanjay poured kerosene on his person and set him on fire. Deceased Sheikh Hussain also informed P.W. 1 Sheikh lqbal that kerosene which was poured on his person by accused Sanjay was from the stove, which was in the house of deceased Sheikh Hussain. Deceased Sheikh Hussain was admitted in the District General Hospital, Akola. P.W. 2 Deoman (Naib Tahsildar) recorded the dying declaration of deceased Sheikh Hussain in the hospital (Exh. 23-A) wherein he has specifically state that accused Suresh caught hold of the deceased while accused Sanjay poured kerosene on his person and set him on fire. Before recording the doing declaration, deceased Sheikh Hussain was examined by Dr. Jamal (P.W. 3), who certified that Sheikh Hussain was in a fit condition to give dying declaration. 10. It is contended by the learned Additional Public prosecutor that deceased Sheikh Hussain made on oral dying declaration to his mother P.W. 4 Shahanajbi wherein he had clearly implicated both the accused persons. It is submitted that evidence of dying declaration of deceased Sheikh Hussain (Exh. 23-A) and two oral dying declarations made to P.W. 1 Sheikh lqbal and P.W. 4 Shahanajbi, corroborate each other and they are further corroborated by the medical evidence. It is submitted that in the instant case, prosecution has succeeded in establishing the offence charged against the appellants beyond reasonable doubt and trial Court was justified in recording the finding of conviction against the appellants for the offence punishable under section 302 of Indian Penal Code. 11. Learned Additional Public Prosecutor Shri Mujumdar further submits that discrepancies pointed out in the evidence of prosecution witnesses by the defence are not very significant so as to destroy the prosecution evidence and, therefore, they are rightly ignored by the trial Court. It is contended that in the instant case, document of post-mortem report is admitted by the defence, which reveals that deceased Shaikh Hussain suffered 48% burn injuries in the incident. It is contended that in the instant case, document of post-mortem report is admitted by the defence, which reveals that deceased Shaikh Hussain suffered 48% burn injuries in the incident. It is contended that evidence of prosecution witness is truthful and acceptable and has been rightly accepted by the trial Court. 12. We have considered the contention canvassed by the learned Counsel for the parties and carefully perused the evidence on records in the instant case, an important place of evidence is in the form of dying declaration of deceased Sheikh Hussain (Exh. 23-A). The incident in question had taken place on 8-7-1998 at about 11 a.m. and deceased Sheikh Hussain was admitted in the Hospital by his father P.W. 1 Sheikh lqbal, mother P.W. 4 Shahanajbi and P.W. 8 Lukmansha. The requisition was sent to the Executive Magistrate, Akola on the same day for recording dying declaration of deceased Sheikh Hussain. It is pertinent to note that P.W. 2 Deoman (Naib Tahsildar) recorded the dying declaration of deceased Sheikh Hussain on 8-7-1998 at 5.30 p.m. in the hospital, i.e. almost immediately after the incident in question. The recitals in the dying declaration are thus : "My father had gone for Hamal's work and mother had gone to the flour mill. I was sitting along in my house. Suresh Thekedar (Contractor) came and caught hold of my (illegible). Sanjay took out kerosene from the stove and poured it on my person. Sanjay sat me on fire with a burning matchstick. I fell down, Thereafter my mother came and admitted me in the hospital Sanjay and Suresh together set me on fire. I was owing Rs. 5/- to Sanjay. They set me on fire for money." 13. It is important to note that P.W. 3 Dr. Jamal examined deceased Sheikh Hussain before recording his dying declaration and certified that he was conscious and in a fit condition to make a statement. It is, therefore, evident that deceased Sheikh Hussain, who was young boy of eleven years of age at the time of giving dying declaration, was fully conscious and in a fit condition to give dying declaration. We cannot lose sight of the fact that deceased Sheikh Hussain was a teenager of eleven years. It is, therefore, evident that deceased Sheikh Hussain, who was young boy of eleven years of age at the time of giving dying declaration, was fully conscious and in a fit condition to give dying declaration. We cannot lose sight of the fact that deceased Sheikh Hussain was a teenager of eleven years. There is nothing on record to show that he had any kind of dimity or animosity against appellants/ accused nor there is evidence of prosecution showing any kind of feelings of hatred between families of deceased Sheikh Hussain and appellants. In the dying declaration (Exh. 23-A). which was recorded without lapse of time, deceased Sheikh Hussain has specifically not only implicated the appellants, but also stated the role played by each one of them. According to deceased Sheikh Hussain, accused Sanjay poured kerosene on his person while accused Suresh caught hold of him and accused Sanjay after pouring kerosene, set him on fire it is no doubt true that in the evidence of P.W. 2 Deoman, it has come that he has recorded dying declaration of deceased Sheikh Hussain in Marathi. However, there is nothing in his cross-examination to show that deceased Sheikh Hussain was not knowing Marathi though he was Hindi speaking child and in absence thereof, it will not be possible to brush aside the evidence of dying declaration on this count. It is no doubt true that questions, which are put to deceased Sheikh Hussain and answers, which are recorded by the Special Executive Magistrate should be in the language known to the deceased and in a given case, if there is evidence on record to show that language in which questions were put and answers were recorded by the Special Executive Magistrate was not known to the deceased, in such situation entire dying declaration would lose its authenticity. However, in the instant case, as we have already observed hereinabove, there is nothing to suggest that deceased Sheikh Hussain was not either knowing or understanding Marathi. This aspect, in our view, would necessarily depend upon facts and circumstances of each case and it is difficult to carve out a common yardstick in this regard in all situations and circumstances. It is ultimately for the Court, in a given case, to appreciate evidence of dying declaration on the basis of facts and circumstances of that case. 14. The dying declaration of Sheikh Hussain (Exh. It is ultimately for the Court, in a given case, to appreciate evidence of dying declaration on the basis of facts and circumstances of that case. 14. The dying declaration of Sheikh Hussain (Exh. 23-A), in our considered view, appears to be truthful and consistent with material particulars of the prosecution case, which is also corroborated by the medical evidence. As per the post-mortem report deceased Sheikh Hussain suffered burn injuries to the extent of 48%. Apart from the dying declaration (Exh. 23-A), there are two oral dying declarations made by deceased Sheikh Hussain to his father P.W. 1 Sheikh Iqbal and mother P.W. 4 Shahanajbi. On the day of incident, P.W. 1 Sheikh Iqbal was informed about the incident at about 11 a.m. by his wife P.W. 4 Shahanajbi. Both of them thereafter carried deceased Sheikh Hussain to the hospital in an auto-rickshaw. P.W. 8 Lukmanshah was also with them. Deceased Sheikh Hussain on way to the hospital informed P.W. 1 Sheikh Iqbal that at about 10 a.m. accused Sanjay and Suresh both beat him at his house and thereafter while Suresh caught hold of deceased Hussain, Sanjay poured kerosene on his person and set him on fire. It is pertinent to note that above referred disclosure was made by the deceased to his father P.W. 1 Shaikh Iqbal almost immediately after the incident while he was taken to the hospital in auto-rickshaw wherein he has clearly implicated both the appellants in the crime in question. This piece of evidence after death of Shaikh Hussain, is treated as oral dying declaration of the deceased, which in our view, rightly so, and it completely corroborates the dying declaration of deceased Sheikh Hussain (Exh. 23-A). 15. It is no doubt true that in the testimony of P.W. 1 Sheikh Iqbal, there is a passing reference that neighbours, who had gone to see deceased Sheikh Hussain in the hospital, when came out from the room of the deceased informed this witness that they had instructed Sheikh Hussain as to how he should make a statement. It is relevant to mention here that oral dying declaration was already made by deceased Sheikh Hussain before the neighbours met him and therefore, the above referred fact does not have any bearing on the said oral dying declaration, rendering that piece of evidence acceptable. It is relevant to mention here that oral dying declaration was already made by deceased Sheikh Hussain before the neighbours met him and therefore, the above referred fact does not have any bearing on the said oral dying declaration, rendering that piece of evidence acceptable. The contention canvassed by the learned Counsel for the appellants in this regard is, therefore, misconceived and cannot be accepted. Similarly, though it has come in the cross-examination of P.W. 1 Sheikh Iqbal that police had recorded statement of deceased Sheikh Hussain in the hospital, however, this is neither the prosecution case nor Investigating Officer is cross-examined on this issue by the defence. In absence thereof, this admission in the cross-examination is of no consequence and does not affect ocular testimony of P.W. 1 Sheikh Iqbal. 16. In the instant case, no doubt in the cross-examination, P.W. 4 Shahanajbi has stated that deceased Sheikh Hussain informed her that he burnt himself. The defence has made much capital of this admission. However, we cannot lose sight of the fact that P.W. 4 Shahanajbi is a rustic witness and while appreciating testimony of rustic witness, the Court must keep in mind that such witness many a times is incapable of understanding repercussion of his answers to the questions put to such witness in the cross-examination and, therefore it is highly unsafe to brush aside entire prosecution evidence on the basis of such solitary admission. The contention canvassed by the learned Counsel for the appellants in this regard is devoid of substance. Similarly, P.W. 4 Shahanajbi in her examination-in-chief has merely stated that at about 11 a.m., she was informed by the children that her son was burnt. That, in our view, does not mean that children wanted to convey that deceased Sheikh Hussain burnt himself. The fact that deceased Hussain was burnt in the incident was only communicated to P.W. 4 Shahanajbi by the children of the locality, which does not indicate that he burnt himself nor the appellants did not burn him. In the situation like this, it will not be proper to derive such meaning from the above referred statement. The contention canvassed by the learned Counsel for the defence in this regard is also incorrect and same is rejected. In the situation like this, it will not be proper to derive such meaning from the above referred statement. The contention canvassed by the learned Counsel for the defence in this regard is also incorrect and same is rejected. The evidence of P.W. 4 Shahanajbi further reveals that while they were taking deceased Sheikh Hussain to the hospital in the auto-rickshaw deceases Sheikh Hussain informed to P.W. 1 Sheikh Iqbal that he was owing Rs. 5/- to accused Sanjay and, therefore, quarrel had taken place. Accused Suresh caught hold of him and accused Sanjay poured kerosene from the stove on his person and set him on fire. This information was disclosed by deceased Shaikh Hussain to his father P.W. 1 Sheikh Iqbal in the presence of P.W. 4 Shahanajbi. 17. It is no doubt true that permission was granted to the prosecution to cross-examine P.W. 4 Shahanajbi by the trial Court during her cross-examination by the defence it is well settled that there is no hard and fast rule as to when a witness can be called as adverse or hostile and it can be broadly stated that the Court can allow a party to cross-examine its witness when his temperament attitude or demeanour in the witness box shows a deliberate hostile feeling towards the party calling him or when he makes a statement contrary to what he was called or expected to prove. Hostility may appear either during examination-in-chief or cross-examination and Court is empowered to grant such request made by the prosecution even during cross-examination of such witness, if in the opinion of the prosecution, witness has gone back from his earlier statement or is not speaking truth or has exhibited an element of hostility or changed the side. The Apex Court in para (8) of the judgment in (Dahyabhai Chhaganbhai Thakkar v. State of Gujarat)1, A.I.R. 1964 S.C. 1563, has observed thus : "Section 137 of the Evidence Act given only the three stages, in the examination of a witness, namely-examination-in-chief cross-examination and re-examination. This is a routine sequence in the examination of a witness. The Apex Court in para (8) of the judgment in (Dahyabhai Chhaganbhai Thakkar v. State of Gujarat)1, A.I.R. 1964 S.C. 1563, has observed thus : "Section 137 of the Evidence Act given only the three stages, in the examination of a witness, namely-examination-in-chief cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under section 154 of the Evidence Act that is governed by the provisions of section 154 of the said Act, which confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing Court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the Court cannot, during the course of his cross-examination (sic re-examination) permit the person calling him as a witness to put questions to him, which might be put in cross-examination by the adverse party. To confine the operation of section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an even the Court certainly, in exercise of its discretion will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The Court, therefore, can permit a person who calls a witness to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief." 18. In view of the above referred observations of the Apex Court, it is evident that in the instant case, permission which is granted by the trial Court to the prosecution to cross-examine its own witness Shahanajbi during the course of cross-examination by the defence, in our considered view, is perfectly legal and sustainable in law. The contention canvassed by the learned Counsel for the appellants in this regard is not only misconceived, but same is also devoid of substance. 19. It is also well settled that where a witness turns hostile and is cross-examined by the party calling him, evidence of such witness need not be rejected in toto. It is a question for the Judge to decide whether inspite of witness having been discredited on one point, his testimony may be considered on the other point. The Court must keep in mind that evidence of a hostile witness is not to be rejected either wholly or in part and the whole evidence so far as it affects both the parties favourably or unfavourably must be considered whatever worth it is. Similarly, merely because witness is turned hostile, does not necessarily mean that he is a false witness and, therefore, his entire statement need not be discarded. Similarly, merely because witness is turned hostile, does not necessarily mean that he is a false witness and, therefore, his entire statement need not be discarded. The rule of prudence is that statement has to be considered with due care and caution and explicit reliance cannot be placed upon him, but if he is duly corroborated by the other evidence his statement can certainly be availed of in favour of the prosecution or in favour of the accused as the case may be. 20. We have appreciated the evidence of P.W. 4 Shahanajbi keeping in view these legal parameters and found that in the cross-examination conducted by the Public Prosecution, sufficient material is elicited to lend authenticity to the prosecution case disclosed by this witness in her statement before the police as well as in her examination-in-chief and therefore, though we do not completely rely on evidence of this witness, it cannot be ignored since it corroborates material particulars of the prosecution case. 21. The contention of learned Counsel Shri Daga that deceased Sheikh Hussain was owing an amount of rupees five to accused Sanjay and since quarrel had taken place on this count, there was no need for accused Suresh to participate in such crime and, therefore, learned Counsel wants us to hold that this aspect creates doubt about authenticity of the prosecution evidence. It is difficult to accept the contention canvassed by the learned Counsel because human mind is so complex that it is very difficult to appreciate or anticipate exactly how it would act in a particular situation and therefore, merely because cause for quarrel though attributable to accused Sanjay, that does not necessarily convey that accused Suresh cannot participate in such quarrel. The Court has to decide the case on the evidence adduced by the prosecution and is not expected to indulge in assumptions and presumptions and is required to act on the basis of legally admissible evidence adduced by the prosecution in the instant case we have already recorded that evidence adduced by the prosecution is adequate to prove the case of the prosecution for the offence charged against the appellants and therefore, we are not inclined to accept the contention canvassed by the learned Counsel Shri Daga in this regard. 22. Similarly, in the instant case, the charge against the appellants is under section 302 read with section 54 of Indian Penal Code. 22. Similarly, in the instant case, the charge against the appellants is under section 302 read with section 54 of Indian Penal Code. There is evidence to show that accused Suresh had caught held of deceased Sheikh Hussain which facilitated accused Sanjay to pour kerosene on the person of deceased Sheikh Hussain and set him on fire. In the circumstances of the present case, the overt act of catching hold of deceased Sheikh Hussain by accused Suresh demonstrates that he shared the requisite common intention with accused Sanjay for committing crime and, therefore, both are liable for same punishment in law. 23. Though the prosecution succeeded in proving that appellants are perpetrators of crime, however, important question is whether the crime committed by the appellants falls within the ambit of section 300 or section 304 Part II of Indian Penal Code. In the instant case the conduct of accused Suresh is relevant in this regard. Accused Suresh in his examination under section 313 of Code of Criminal Procedure, in answer to question No. 14, has stated that he tried to extinguish fire of deceased Sheikh Hussain. Similar, P.W. 10 L.P. Mirge, Investigating Officer, in his cross-examination, has admitted that accused Suresh tried to extinguishing fire by pouring water on deceased Sheikh Hussain. Deceased Sheikh Hussain sustained 48% burns and died after more than a month from the date of the incident. Similarly, since the post-mortem report is admitted by the accused, prosecution did not examine the Doctor who had performed autopsy on the dead body of Sheikh Hussain and therefore, failed to establish conclusively that the burn injuries sustained by deceased Sheikh Hussain were sufficient in the ordinary course of nature to cause death. 24. So far as provisions of section 304 Part II of Indian Penal Code are concerned, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or such bodily inquiry as is likely to cause death, the same would come within the purview of section 304 Part II of the Indian Penal Code. In the instant case, the conduct of accused Suresh of extinguishing fire, considerable time lapsed between date of incident and date on which Sheikh Hussain succumbed to injuries as well as absence of positive opinion of the Doctor that burn injuries were sufficient in the ordinary course of nature to cause death, in our view, would bring the crime in question within the purview of section 304 Part II of Indian Penal Code. 25. In the result, we set aside the finding of conviction recorded by the trial Court for the offence punishable under section 302 read with section 34 of Indian Penal Code as well as sentence of imprisonment for life. The appellants are convicted for the offence punishable under section 304 Part II read with section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and sentence of fine is confirmed. Since it is not in dispute that the appellants are in jail for more than five years, they be released on the basis of sentence already undergone, if they are not required in any other criminal case. The appeals are partly allowed. -----