M. NARAYANA REDDY, J. ( 1 ) THIS judgment, according to law, based on the legal material placed, on Record, arises out of a Criminal appeal, filed by the sole appellant, against the sole respondent-State, under sub-section (2) of Section 374, Cr. P. C. , 1973, questioning the, validity and legality, of the adjudications made by, and setforth in para 2, infra. ( 2 ) JUDGMENT, dated 4-4-1997, of the court of the Sessions Judge, Mahaboobnagar (Trial Court), made in S. C. No. 440/94, of its file. ( 3 ) PERUSED the material papers of the record. ( 4 ) ARGUMENTS were heard of the learned Counsel for the sole appellant, and the learned Addl. Public Prosecutor for the sole respondent-State. ( 5 ) THE sole appellant herein corresponds to the sole accused in the said s. C. No 440/94, of the file of the said Trial court. The sole respondent herein corresponds to the sole complainant therein, being, the State of A. P. , represented by the inspector of Police, Mahaboobnagar (Rural), police Station, pertaining to Crime No. 32/ 93 of the Police Station, Nawabpet, registered under Section 302,i. P. C. ( 6 ) THE parties are, hereinafter, referred to, with reference to their respective descriptions before the said Trial Court, in that S. C. No. 440/94, unless, otherwise, so specified. ( 7 ) THE Inspector of Police, Mahaboobnagar, rural, Police Station, filed a charge-sheet, against the sole accused, in the Committal court, being, the Court of the Judicial magistrate of First Class, Mahaboobnagar, under Section 302,i. P. C. , inter alia, averring therein, as under: (A) The sole accused is aged about 19 years. The deceased, by name, Sathyamma, is aged about 17 years. (b) On 23-4-1993, the accused brought the deceased, from her parents house in udithyal, to his village, Dayapanthulapalli. In that night, the deceased denied the accused, consent for sexual inter-course, due to which, the accused became wild, and beat her. Thereupon, she went inside the kitchen, whereupon, the accused followed her, and set fire to her, by lighting a matchstick, and throwing it, on her clothes, resulting in burn injuries to her. (c) Subsequently, the accused and his mother took the then injured (deceased), to the Government Hospital, mahaboobnagar. Thereupon, she went inside the kitchen, whereupon, the accused followed her, and set fire to her, by lighting a matchstick, and throwing it, on her clothes, resulting in burn injuries to her. (c) Subsequently, the accused and his mother took the then injured (deceased), to the Government Hospital, mahaboobnagar. (d) There, on the intimation of the Hospital authorities, the Police recorded the statement of the then injured (deceased), and registered the same, against the accused, as the said Crime No. 32/93. (e) Subsequently, the Judicial Magistrate of first Class, also recorded the Dying declaration of the deceased, in the same hospital. (f) Subsequently, the then injured (deceased), was referred to Osmania Hospital, hyderabad, and, while she was on transit, to that Hospital, the deceased died. (g) The father of the deceased took the dead body, to his village and buried. (h) On the requisition given by the Police, nawabpet, the Mandal Revenue Officer exhumed the dead body, and held inquest, in respect thereof, and, later, referred to the Medical Officer, for conducting post- mortem thereon. (i) The Medical Officer, who conducted the autopsy, opined, that, the deceased died due, to Septicemia, due to bums. (j) The said crime was duly investigated into, and, because, the investigation revealed, that, the accused committed the offence of murder of the deceased, he is liable for punishment, under Section 302,i. P. C. ; and (k) Hence, the charge-sheet is filed against him, accordingly, under the said section 302,i. P. C. ( 8 ) THE said Committal Court, after registering the said charge-sheet, as P. R. C. No. 102/93, of its file, committed the case,. to the Court of Session, Mahaboobnagar (Trial Court), which, after registering the same, as the said S. C. No. 440/94, of its sessions Division, tried and adjudicated thereupon, by its now impugned judgment, set forth in para 2, supra. ( 9 ) BECAUSE, the sole accused pleaded not guilty in respect of the sole offence and the sole charge, framed against him, and, both, punishable under Section 302, I. P. C. , the said Trial Court tried the said S. C. No. 440/ 94, following the procedure prescribed in chapter XVIII, Cr. P. C. , for trial of Sessions cases, in the process whereof, it recorded the oral evidence of P. Ws. l to 15, and exhibited the documentary evidence, by way of Exs. P-1 to P-25, and Ex. P. C. , for trial of Sessions cases, in the process whereof, it recorded the oral evidence of P. Ws. l to 15, and exhibited the documentary evidence, by way of Exs. P-1 to P-25, and Ex. D-1, and the object evidence, by way of M. Os. l and 2, and, later, after due arguments thereinto, finally, adjudicated thereupon, by its now impugned judgment, dated 4-4-1997, set forth in para 2, supra, as under: (I) Finding the sole accused, not guilty of the alleged offence, as also, the sole charge, framed against him, both, punishable under Section 302,i. P. C. ; (ii) Consequently, acquitting him, in respect thereof, under sub-section (1) of section 235, Cr. P. C. , 1973; (iii) However, finding the sole accused, guilty of the offence, punishable under section 304 (Part II), I. P. C. ; and (iv) Consequently, convicting the sol accused, in respect thereof, under sub-section (2) of Section 235, Cr. P. C. 1973, and, hence, sentenced him, under the said penal provision of Section 304 (Part II), I. P. C. , as under: " to undergo Rigorous Imprisonment, for a period of seven years". ( 10 ) AGGRIEVED thereby, and, questioning the, validity and legality, thereof, the sole accused, filed the present Criminal Appeal, as set forth in para 1, supra, read with para 2, supra. ( 11 ) HENCE, the point for consideration and adjudication thereupon, by this Appellate court, in this Criminal Appeal, will be, as under:"whether the impugned judgment, dated 4-4-1997, of the Trial Court, made in s. C. No. 440/94, and set forth in para 2, supra, as also, the conviction and sentence imposed thereby, and set forth in sub-para (IV) of para 9, supra, are, all, unsustainable, either, at fact, or, at law, and, hence, are liable to be set aside, in toto, or, modified, or, interfered with, in any manner ?" ( 12 ) NO additional, oral, or, documentary, evidence, is sought to be adduced by either party, in this Criminal Appeal. ( 13 ) ARGUMENTS were heard, as set forth in para 4, supra. ( 14 ) POINT: The brief, material, required, facts and circumstances of the case, are, all, set forth in the foregcing paragraphs. ( 15 ) P. W. I is the father of the said deceased, and father-in-law of the accused, aged about 50 years. ( 13 ) ARGUMENTS were heard, as set forth in para 4, supra. ( 14 ) POINT: The brief, material, required, facts and circumstances of the case, are, all, set forth in the foregcing paragraphs. ( 15 ) P. W. I is the father of the said deceased, and father-in-law of the accused, aged about 50 years. P. W. 2 is the wife of p. W. I, aged about 45 years. P. Ws. 3 to 7, are, all, residents of the village of the accused, and are of age groups, between 28 years to 55 years, which are not very much relevant. ( 16 ) HOWEVER, the foregoing P. Ws. l to 7, turned hostile to the prosecution, and did not depose, anything, incriminating, against the accused. Hence, they were got declared as hostile to the prosecution, and were cross- examined for the State, in respects thereof, as such. However, during their such cross- examinations for the State, also, nothing tangible, incriminating, could be elicited for the State. ( 17 ) DURING the course of such cross- examinations of the foregoing P. Ws. l to 5, their respective Police statements, recorded under sub-section (3) of Section 161, Cr. P. C. , 1973, were exhibited, respectively, as Exs. D-1 to D-5. Whether they were subsequently, duly proved by their recording Police Officer, or, not, in either case, the same will not have the factual, or, legal, effect, of substantive evidence, on Oath, before a court of Law. The statutory mode of user thereof is postulated, again, statutorily, in section 162, Cr. P. C. Hence, they cannot be made use of, than there beyond. ( 18 ) HENCE, the evidence of P. Ws. l to 5, and Exs. P-1 to P-5, as well as, that of p. Ws. 6 and 7, is of no actual, actual, or, legal, use, for the prosecution-State, to substantiate its case, against the accused. ( 19 ) P. W. 8 is the Photographer, who took the photographs of the dead body of the deceased, at the requisition of the police. The positive photos are exhibited as exs. P-7 to P-10, and their corresponding negatives are exhibited as Exs. P-11 to P-14. This material is not impeached for the accused. ( 20 ) P. W. 9 is the then Judicial Magistrate of the First Class, Mahaboobnagar. The positive photos are exhibited as exs. P-7 to P-10, and their corresponding negatives are exhibited as Exs. P-11 to P-14. This material is not impeached for the accused. ( 20 ) P. W. 9 is the then Judicial Magistrate of the First Class, Mahaboobnagar. Inter alia, he deposed about the recording of the dying Declaration of the then injured (deceased), in the Government Hospital, mahaboobnagar, and exhibited the same as ex. P-16. The requisition given to him, by the said police, to record that Dying declaration, is exhibited as Ex. P-15. He also exhibited the endorsement of the government Doctor, on Ex. P-16, as Ex. P-17. ( 21 ) THE said P. W. 9, the Judicial magistrate of the First Class, inter alia, deposed, in detail, about his recording the dying Declaration of the then surviving deceased, exhibited the said Ex. P-16, and, her condition being fit to give that declaration, etc. , and his certifying the same thereon. He also deposed about the government Doctor s endorsement thereon, by way of Ex. P-17, to the effect, that, the then surviving deceased was in a fit condition, while giving the statement. P. W. 9 also deposed, that, after recording the dying Declaration, he read over the same, and explained to the then surviving deceased, who admitted the same to be true and correct, etc. By way of cross- examination of P. W. 9, his evidence, on Oath, and the said Ex. P-16, Dying Declaration, are not impeached for the accused, much less, substantially, so as to reject the same, on any question of fact, or, law, or, in appreciation thereof, on the ground, that, the same is artificial, unbelievable, or, motivated, or, not true, or, false, and the like. P. W. 9 is a Judicial Officer, being, the Judicial magistrate of the First Class. I see no valid, or, legal, reasons, much less, tangible, to reject the evidence of P. W. 9 and Ex. P-16, and, as to why, they should not be accepted, or, acted thereupon, for recording the guilt of the accused, on such basis. ( 22 ) THE evidence of P. W. 9 and Ex. P 16, inter alia, prove, that, in that night, the accused set fire to the deceased, by lighting a matchstick, and throwing it, on her clothes. ( 23 ) THE said Ex. ( 22 ) THE evidence of P. W. 9 and Ex. P 16, inter alia, prove, that, in that night, the accused set fire to the deceased, by lighting a matchstick, and throwing it, on her clothes. ( 23 ) THE said Ex. P-16 was recorded by p. W. 9, on 24-4-1993, around 7. 45 p. m. The alleged incident occurred around 8. 00 p. m. , on 23-4-1993. ( 24 ) THERE is no valid, much less, tangible, reason, as to why, the deceased wife should tender false declaration against her accused-husband, as that, he is the cause of her burn injuries, and in the manner, in which, she sustained them, unless, the same are true and correct. ( 25 ) BY way of cross-examination of the parents of P. Ws. 1 and 2, or, otherwise, the accused could not probabilize, or, make out, much less, substantiate, the reason, or reasons, if any, as to why, either, his deceased-wife, or, her parents, as P. Ws. l and 2, or other witnesses, should tender false statement, or, evidence, against him. In fact, P. Ws. l and 2, turned hostile to the prosecution, and did not depose, anything, incriminating, against the accused. In fact, p. Ws. 1 and 2, the parents of the deceased, are innocent, because, after the death, they took the dead body, and buried the same, which was, later, exhumed by the Mandal revenue Officer, as considered, hereunder. Had they any intention to foist a false case against the accused, who is their son-in-law, then, they would have done so, even before the dead body is buried, or, cremated. It is, at the instance of the police, the dead body was exhumed by the Mandal Revenue officer, etc. ( 26 ) MERELY, because, after the burn injuries, the accused and his mother took and joined the then injured (deceased), in the Government Hospital, Mahaboobnagar, that, by itself, will not, and, factually and legally, cannot, ipso facto, exonerate the accused, of his culpability, much less, warrant any inteference, much less, recording of finding, or, rejecting the evidence of P. W. 9 and Ex. P-16, or, viewing the same, with suspicion, that, if the accused were to be the culprit, then, he would not have taken the then injured (deceased), to the Government hospital, along with his mother, and joined her there, etc. P-16, or, viewing the same, with suspicion, that, if the accused were to be the culprit, then, he would not have taken the then injured (deceased), to the Government hospital, along with his mother, and joined her there, etc. That factt itself, will not help the accused, to reject that convincing incriminating material. Obviously, in fact, for that reason, the Trial Court, as found herein, rightly, convicted and sentenced the accused, in respect of an offence, punishable, not under Section 302, I. P. C. , but, in respect of the offence, punishable under Section 304 (Part-II), I. P. C, for the reasons, set forth, in detail, in paras 19 and 21 of its impugned judgment, with which I am fully satisfied, and accept the same, as such. At the crucial and relevant time, the accused has had no mind, much less, intention, to kill his deceased wife, and, hence, Section 302, I. P. C. , is not attracted. ( 27 ) P. W. 10 is an agriculturist, aged about 47 years, of the village of Udthiyal. P. W. 11 is the then Mandal Revenue Officer of the Nawabpet Mandal. They deposed about exhumation of the dead body of the deceased, by P. W. 11, on the requisition of the Police, and, in the presence of the civil Assistant Surgeon, Government Civil hospital, examined as P. W. 12, as well as, another lady Government Doctor, by name, dr. Anasuya Reddy, etc. The panchanama, prepared, in respect of such exhumation of the dead body was exhibited as Ex. P-18. The inquest panchanama, prepared, in respect of the death, and the dead body of the deceased, is exhibited as Ex. P-19. The inquestdars opined, that, the deceased died, due to bum injuries. ( 28 ) I am not inclined to attach any significance, much less, so much, so as to reject the foregoing material, being inter alia, by way of Dying Declaration of the deceased, exhibited as Ex. P-16, and the evidence of P. W. 9, the Magistrate, on the basis of the admission made by P. W. I 1, the mandal Revenue Officer, to the effect, that, p. W. I stated before him, that, the deceased died, because of lighting fire for cooking food, and that, P. W. 1 did not state in Ex. P-16, and the evidence of P. W. 9, the Magistrate, on the basis of the admission made by P. W. I 1, the mandal Revenue Officer, to the effect, that, p. W. I stated before him, that, the deceased died, because of lighting fire for cooking food, and that, P. W. 1 did not state in Ex. P- 1, that, on account of refusal by the deceased, for sexual intercourse, the accused set fire to her, etc. ( 29 ) ADMITTEDLY, P. W. I is not an eye- witness to the incident. Even otherwise, his statement, if any, like that, cannot outweigh the evidence of the victim (deceased herself), recorded, within 24 hours of the incident, while she was still surviving. In fact, P. W. 1 1 admitted, that P. W. I stated before him that the deceased was set fire by the accused, because, she refused intercourse with her. The statement of P. Ws. 1 and 2 were recorded by P. W. ll, at the time of exhumation, on 22-5-1993. ( 30 ) THE said P. W. I2, the Government doctor, deposed about holding autopsy over the dead body of the deceased, along with the other Lady Doctor, aforesaid. He exhibited the post-mortem certificate, as ex. P-20. He opined, that, the deceased died, because of extensive burns and Septicemia. ( 31 ) P. W. 13 is the then Head Constable of the Police Station, Mahaboobnagar II- town. He exhibited about the intimation of the Hospital, as Ex. P-12, in respect of the admission of the then injured (deceased) of the burn injuries, and issue of requisition, exhibited as Ex. P-15 to P. W. 9, to recording dying Declaration. He deposed, that, after p. W. 9 recorded Ex. P. 16, he (PW. 13) himself went to the Hospital, and recorded the statement of the then injured (deceased), and read over the same to her, and obtained her thumb impression thereon, and exhibited as Ex. P-22. As to the contents of this Ex. P-22, he was cross-examined for the accused. ( 32 ) P. W. I5 is the then Sub-Inspector of Police, Nawabpet Police Station. He deposed about registration of the statement of the deceased, recorded by P. W. 13, as the said Crime No. 32/93, originally under section 307,i. P. C. , and issue of the original f. I. R. , in pursuance thereof, exhibited as ex. ( 32 ) P. W. I5 is the then Sub-Inspector of Police, Nawabpet Police Station. He deposed about registration of the statement of the deceased, recorded by P. W. 13, as the said Crime No. 32/93, originally under section 307,i. P. C. , and issue of the original f. I. R. , in pursuance thereof, exhibited as ex. P-23, he also deposed about his proceeding to the Hospital, and recording statements of P. Ws. 1 and 2, and visiting the scene of offence, and seizing M. O. 1-Polyester Saree, and M. O.-2 Petty Coat of the deceased, etc. He also deposed, that, after the death of the deceased, on 14-5- 1993, he altered the Section of Law of the said F. I. R. , to Section 302, I. P. C. , and exhibited the alteration memo, as Ex. P-24. He also exhibited the statement of the deceased, recorded by P. W. 13, as Ex. P-25. He further deposed about the requisition to the said Mandal Revenue Officer, the inquest proceedings, and later, subjecting the dead body for post-mortem examination, etc. He also deposed about the arrest of the accused, etc. , and taking of the photographs, etc. , and about the further investigation done by him. He was cross-examined for the accused. ( 33 ) P. W. 14 is the then Inspector of police, Mahaboobnagar Rural. He deposed about filing of the charge-sheet in this case, after verifying the investigation done, earlier, in the crime. ( 34 ) THE learned Addl. Public Prosecutor for the sole respondent-State relied upon laxman v. State of Maharashtra, (2002) 6 scc 710 , delivered, inter alia, interpreting section 32 of the Evidence Act, 1872, and postulating the legal principles, inter alia, in respect of, appreciation, acceptance and acting upon Dying Declaration, etc. ( 35 ) THE foregoing evidence of P. W. I 2, read with Ex. P-20, and the evidence of p. W. 9, the learned Magistrate, read with p. W. I6 and Ex. P-17, as also, the evidence of P. W. 11, read with Ex. P-18 and P-19, as well as, the evidence of P. W. 8, read with exs. P-7 to P-14, and Exs. P-22, and the evidence of the Investigating Officer, in my opinion, conclusively prove, that, the death of the deceased, and the culpability in respect of that death, being with the accused, etc. P-18 and P-19, as well as, the evidence of P. W. 8, read with exs. P-7 to P-14, and Exs. P-22, and the evidence of the Investigating Officer, in my opinion, conclusively prove, that, the death of the deceased, and the culpability in respect of that death, being with the accused, etc. ( 36 ) IN respect thereof, as set forth in sub-para (i) of para 9, supra, the said Trial court found the sole accused, not guilty of the offence, punishable, under Section 302, i. P. C, but, however, at the same time, found him guilty of the offence, punishable, under section 304 (Part II), I. P. C. ( 37 ) THE alleged incident occurred in the intervening night of 23/24-4-1993. The deceased died due to the burn injuries, on 14-5-1993. The intervening period is 20 days. The accused is aged about 19 years, at the time of the incident, and the deceased was aged about 17 years. They were, by then, newly married, and were very young. Ex. P-16, and the rest of the evidence, on record, doesn t disclose, even remotely, that, there were any earlier enmities, or, ill- wills, or, disputes between both of them, or, their parents and parents-in-law, as the case may be, and vice-versa. Ex. P-16 discloses, that, because, the deceased refused to have sexual intercourse with the accused, the accused quarrelled with her, and beat her, and when she went into the kitchen, he scratched a match, and threw it on her clothes, due to which, flames arose. The deceased came from her parents house, on the same day. The evidence of P. Ws. l and 2, the parents of the deceased, and parents-in- law of the accused, doesn t disclose, anything, incriminating against the accused, or about any earlier enmities, or, disputes, between the parties. M. O. I is a Polyester saree, which the deceased was wearing at the relevant time, which will catch fire, almost, in no time. l and 2, the parents of the deceased, and parents-in- law of the accused, doesn t disclose, anything, incriminating against the accused, or about any earlier enmities, or, disputes, between the parties. M. O. I is a Polyester saree, which the deceased was wearing at the relevant time, which will catch fire, almost, in no time. However, at the same time, it can t be said, that, the accused, who was, by then, a teenager, and, being a coolie, by profession, being a manual labourer, and who, at best, knows, only, how to sign, and nothing, there-beyond, and being uneducated, cannot be said to have knowledge, that, the saree, worn by the deceased, at the crucial time, is of such synthetic yarn make, and will, or, is likely, to catch fire, in no time, even for a spark, or, just, due to fall of a lighted match. No imputation, therefore, can be made to the accused, that, at the crucial time, he has had knowledge, that, M. O. I will catch fire, and that, for that reason, he threw the match- stick. In fact, soon after the incident, as disclosed by the evidence, on record, the accused and his mother took the then injured (deceased), to the Government Hospital, mahaboobnagar, and joined her there. This shows their bona fides, to the extent, that, inter alia, that, the accused has no mind to kill her, or, even to severely injure her. As already set forth, the deceased died, after 20 days, after the incident. ( 38 ) ON the basis of the material, set forth in the immediately preceding paragraph, and the facts and circumstance of the case, and the probabilities and improbabilities of the case, I am of the considered opinion, that, the throwing of match-stick, by the accused, upon the deceased, is due to sudden out-burst of anger, because, the deceased did not accede to his request, to have sexual intercourse, but not, due to any intention, or, knowledge, to kill her, within the, factual and legal, scope, ambit and circumspection of either of the two parts of Section 304, i. P. C. Either of them are not attracted by the legal material available, on record, and having regard to the probabilities and improbabilities of the case, also. ( 39 ) NO doubt, even though, the valuable precious life of the deceased, at a very tender age of 17 years, was lost, due to the act of the accused, the foregoing material, etc. , in my opinion, attract, only, the provisions of Section 304-A, I. P. C. , proving, only, rash and negligent act, on the part of the accused, as against the deceased. Inter alia, also, because there was no love lost between them, nor, any ill- feeling, etc. , so as to warrant the accused, even remotely, to kill his wife, or, to injure her, much less, severely, except throwing the matchstick, due to sudden out-burst of anger. ( 40 ) I, therefore, record my finding, that, the accused is guilty of the offence, punishable under Section 304-A, I. P. C, but not, under Section 304 (Part II), I. P. C. ( 41 ) HENCE, I am of the opinion, that, the impugned conviction and sentence, imposed by the Trial Court, and set forth in sub-paras (iii) and (iv) of Para 9, supra, have to be modified, from one under section 304 (Part-II), I. P. C. , to one, under section 304-A, I. P. C. , as is being done, hereunder. ( 42 ) HENCE, the High Court doth hereby adjudicate upon the Criminal Appeal, as under:"modify the impugned judgment, dated 4-4-1997, of the Court of the Sessions judge, Mahaboobnagar, made in S. C. No. 440/94, of its file, as under: i. Set aside, the judgment, dated 44-1997, of the Court of the Sessions Judge, mahaboobnagar, made in S. C. No. 440/94, but, only, insofar as the same found the sole accused (appellant herein), guilty of the offence, punishable under Section 304 (Part n), I. P. C. , and, hence, convicted and sentenced him, as set forth in sub- paras (iii) and (iv) of para 9, supra; n. However, under sub-clause (i) of clause (b) of Section 386, Cr. P. C, 1973, read with Section 222, thereof, i find the sole appellant-accused, guilty of the offence, punishable under section 304-A, I. P. C. , and, hence, convict him in respect thereof, and hence, sentence him, thereunder, as under: (a) To undergo rigorous imprisonment for a period of two years; and (b) To pay a fine of Rs. l,000. 00 (Rs. l,000. 00 (Rs. One thousand only,) and, in default of payment thereof, to undergo simple imprisonment for a period of three months. The period, or, periods, during which, the accused has been in custody, or in jail, in connection with the Crime No. 32/93 of the police Station, Nawabpet, shall be set off, under Section 428, Cr. P. C. , 1973, against the now imposed substantive sentence, covered by clause (a) of this sub-para.