JUDGMENT : DR. G. YETHIRAJULU, J.:— These two appeals are preferred by the State represented by the Public Prosecutor against the acquittal of the accused for the offence punishable under Section 302 of Indian Penal Code (IPC) and also questioning the sentence of imprisonment imposed on the accused for the offence punishable under Section 307 IPC. 2. The sole accused was charged for the offence punishable under Section 302 IPC for allegedly pouring kerosene and setting fire his concubine, by name V. Nagamani on 27-08-2001 at about 10-00 PM at her house. The case of the prosecution leading to the conviction of the respondent/accused is briefly as follows. The deceased was the wife of P.W. 1. Their marriage took place about 9 years back. They had two children. Subsequently there were differences between the deceased and P.W. 1 and the deceased was living with her children in a separate house. She was running a Tea stall. Subsequently, the deceased developed illicit intimacy with the accused. The accused used to suspect her character and beat her. On 27-08-2001 the accused entered the house of the deceased in a drunken state. The deceased asked him to go away as he is in a drunken state. The accused left that place. But when she was spreading bed on the cot, he came behind the deceased and poured kerosene and set fire to the deceased. There were 83% burns received by the deceased. She was taken to the Government Hospital and on 5-9-2001 she succumbed to the injuries. On the date of occurrence, at about 3-05 AM the dying declaration of the deceased was recorded by a Magistrate in the presence of a Doctor and on the basis of the statement given by her, the crime was registered and after conclusion of the investigation, the police laid the charge sheet. The accused pleaded not guilty of the charge and claimed for trial. 3. The prosecution in order to prove the guilt of the accused examined P.Ws. 1 to 21 and marked Exs. P. 1 to P. 26 and MOs. 1 to 4. The accused pleaded not guilty of the charge and claimed for trial. 3. The prosecution in order to prove the guilt of the accused examined P.Ws. 1 to 21 and marked Exs. P. 1 to P. 26 and MOs. 1 to 4. After completion of the trial, the lower Court found that the accused was responsible for pouring kerosene and set fire to the deceased, but convicted the accused for the offence punishable under Section 307 IPC and sentenced him to undergo Rigorous imprisonment of three months and thirteen days, the period of imprisonment already undergone, though the charge was framed for the offence punishable under Section 302 IPC. The State being aggrieved by the judgment of the lower Court preferred the above two appeals. 4. Now the point for consideration is whether the prosecution proved the guilt of the accused beyond reasonable doubt for the offence punishable under Section 302 IPC or whether the accused is liable to be convicted for any lesser offence by setting aside the conviction under Section 307 IPC. 5. P.Ws. 1 to 9, who are said to be the eye witnesses to the occurrence, turned hostile and did not support the case of the prosecution. 6. Immediately after the occurrence, the deceased proceeded in an Auto to her parents house and from there rushed to the Hospital at Vizianagaram. The Sub-Inspector of Police, who was examined as P.W. 17, recorded her statement during the same night at about 1-10 AM and registered a crime for the offence punishable under Section 307 IPC. He also recorded Ex. P. 18 - statement of the deceased. Afterwards, he sent the deceased to the Government Hospital at Vizianagaram. On the next day, he observed the scene of offence and drafted Ex. P. 10 - Observation Report. 7. Exs. P. 16 and P. 18 - statements of the deceased clearly indicate that the accused was responsible for the commission of the offence. P.W. 21 - Judicial Magistrate recorded the dying declaration of the deceased. In the said dying declaration covered by Ex. P. 26, the deceased stated that on the date of offence at about 10-00 PM, the accused came to their house in a fully drunken state and when she asked him not to attend the house in a drunken state, he went away. In the said dying declaration covered by Ex. P. 26, the deceased stated that on the date of offence at about 10-00 PM, the accused came to their house in a fully drunken state and when she asked him not to attend the house in a drunken state, he went away. Thereafter when she was arranging her bed, the accused came from her back and poured kerosene on her and lit fire to her. She raised cries and poured water on herself from a vessel, which was kept there. The accused also tried to put off the flames and gone away from the house afterwards. She went to her parents house in an auto riksha and from there to the Police Station and the police took her to the Hospital and admitted there. The statement recorded by the learned Magistrate was in the presence of the Doctor, who was examined as P.W. 20. The learned Magistrate stated that after putting the preliminary questions, he was convinced that the deceased was in a fit state of mind to give a statement and was conscious through out recording of the statement. After satisfying himself about her mental condition, he recorded the statement in the presence of the Doctor. The Doctor also made an endorsement that the patient was conscious and in a fit state of mind through out recording of the statement. There is no procedural irregularity pointed out by the learned Defence Counsel while recording the dying declaration. 8. The Doctor also as P.W. 20 deposed that after satisfying with the mental condition of the deceased, the learned Magistrate recorded the statement and he also made an endorsement that the patient was conscious and was in a fit state of mind to give the statement. 9. From the above evidence, it is clear that the deceased gave Ex. P. 26 - dying declaration in a conscious and fit state of mind. The Postmortem Examination also reveals that the deceased suffered burns to an extent of 83% and the cause of death was due to septic shock due to ante-mortem burns. 10. The prosecution also placed evidence regarding the burns received by the accused. P. 26 - dying declaration in a conscious and fit state of mind. The Postmortem Examination also reveals that the deceased suffered burns to an extent of 83% and the cause of death was due to septic shock due to ante-mortem burns. 10. The prosecution also placed evidence regarding the burns received by the accused. P.W. 15, the Doctor, who examined the accused on 28-8-2001 at 6-45 PM found the injuries, viz., superficial burns on (1) dorsum of left fore arm; (2) dorsum of left hand; (3) dorsum of right hand fingers; (4) Anterial part of right foot, and the extent of burns was 3% to 5% and the duration of burns was also mentioned as 20 to 22 hours prior to the examination. The Wound Certificate covered by Ex. P. 14 and the evidence of P.W. 15 is also lending support to the prosecution that the accused was present at the time of occurrence and the dying declaration given by the deceased confirmed that the accused was responsible for the commission of the offence. 11. The learned Sessions Judge, instead of convicting the accused for culpable homicide, convicted him for attempting to murder, which is not proper and we are inclined to set aside the same. 12. It is made out by the prosecution, that the accused was responsible for the death of the deceased. The offence took place on 27-8-2001. The deceased was treated in the Hospital for about eight (8) days and succumbed to the injuries on 5-9-2001. At the time of occurrence, the accused poured kerosene and set fire to the deceased in a drunken state. But immediately he realized that the deceased was burning, therefore, he put off the flames by covering the deceased with a blanket. This is an indication that though the accused has got the knowledge that the act committed by him is likely to cause death, there is no intention to kill the deceased. Therefore, the offence made out is a culpable homicide not amounting to murder. In the light of the above, we are inclined to convict the accused for the offence punishable under Section 304, Part-II IPC by setting aside the conviction for the offence punishable under Section 307 IPC. 13. In the result, the appeals are allowed in part. Therefore, the offence made out is a culpable homicide not amounting to murder. In the light of the above, we are inclined to convict the accused for the offence punishable under Section 304, Part-II IPC by setting aside the conviction for the offence punishable under Section 307 IPC. 13. In the result, the appeals are allowed in part. The conviction of the respondent/accused for the offence punishable under Section 307 IPC is set aside and the respondent/accused is convicted for the offence punishable under Section 304, Part-II IPC. Consequently, the sentence of imprisonment imposed by the lower Court for a period of three months, thirteen days is enhanced to five (5) years Rigorous imprisonment. The respondent/accused is entitled for set off of the period of sentence already undergone.