Judgement SUNIL KUMAR SINHA, J. :- Appellant-Lokendra Tiwari alias Kaushlendra stands convicted under Section 302, I.P.C., for commission of murder of his wife-Saroj Bala, and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for 3 months, by the Additional Sessions Judge, Bilaspur in Sessions Trial No. 246/2001 on 31st of March, 2004. Deceased-Saroj Bala was married to the appellant on 19.4.2000. She was residing with the appellant and her in-laws in village Selar. On some difference, on account of alleged illicit relations of the appellant with one Rajeshwari Raj (PW-10), the deceased left the company of the appellant and came to her parents place in village Muruwa. After sometime their marital relations resumed and both husband and wife started living separately in a rented premise of one Arjun Das Vaishnaw in Tiffra, Bilaspur. The deceased was working as a teacher and was earning Rs. 1,000/- per month. The deceased most oftenly used to quarrel with the appellant on account of alleged illicit relations of the appellant with Rajeshwari Raj. On 27.3.2001 at about 8 .00 p.m., the appellant and the deceased were in their rented premise. The appellant was in drunken condition and was keeping some more liquor with him. When he was asked to take meals by Saroj Bala, he denied to take the meals saying that Rajeshwari has instructed him for not taking the meals at house. On this, quarrel begun between the appellant and the deceased. The allegations are that during the quarrel, the appellant went to the kitchen, brought kerosene oil and poured it over the body of the deceased. Thereafter, he rubbed a match-stick on the floor and put the deceased on fire. When hue and cry was made a next-door neighbour namely Srikant (PW-6) and other persons ran over there. All including the appellant tried to extinguish the fire. But, by that time the deceased has already received burn injuries. She was admitted to Government Hospital, Bilaspur. An information regarding burn case was given by the hospital authorities to the police and a dying declaration (Ex.-P/12) of the deceased was recorded by the Executive Magistrate, P.C. Kori (PW-11) on 28.3.2001. All including the appellant tried to extinguish the fire. But, by that time the deceased has already received burn injuries. She was admitted to Government Hospital, Bilaspur. An information regarding burn case was given by the hospital authorities to the police and a dying declaration (Ex.-P/12) of the deceased was recorded by the Executive Magistrate, P.C. Kori (PW-11) on 28.3.2001. The further case of the prosecution is that in the night of 27.3.2001, elder sister of the deceased namely Aabha Pandey (PW-5) has visited the hospital and the deceased made an oral dying declaration to her. On 28.3.2001 at about 15.00 hours, a Dehatinalishi (Ex.-P/4) was also recorded at the instance of the deceased. This also contains the allegations about putting the deceased on fire by the appellant. The deceased died during the course of her treatment in the hospital on 31.3.2001. Inquest (Ex.-P/8) was prepared on the same day after giving notice (Ex.-P/7) to the Panchas and the dead body was sent for its postmortem to the concerned department of the hospital. The post-mortem examination was conducted by a team of 2 Doctors namely - Dr. T.S. Shyam (PW-2) and Dr.(Smt.) Chipde. They prepared their report Ex.-P/2. The Autopsy Surgeons opined that the cause of death was septicaemic shock due to burn. 2-3. In further investigation, the injury report of the deceased (Ex.-P) was collected, according to which, the deceased had received 95 burn injuries and was directed to be admitted in burn unit. The Investigating Officer had also seized one nylon-nighty, one bed-sheet, one container of kerosene oil, some pieces of bangles, a match-box and unburnt and half-burnt match-sticks from the place of occurrence i.e. from the house of the appellant, vide seizure memo Ex.-P/15. Site plan (Ex.-P/16) was also prepared. Appellant-Lokendra had also received injuries, therefore, he was sent for his medical examination under Ex.-P/17 on 29.3.2001 and a report Ex.-D/4 was obtained. According to the said report, he had received burn injury of 5 cm x 5 cm on the middle portion of left forearm, burn injuries on the right index, middle and ring fingers. The injuries on the right index finger were of the sizes of 1 cm x 2 cm and 1/2 cm x 1/2 cm. The seized articles were sent for their chemical examination to F.S.L. Sagar and a report (Ex.-P/25) was received. The injuries on the right index finger were of the sizes of 1 cm x 2 cm and 1/2 cm x 1/2 cm. The seized articles were sent for their chemical examination to F.S.L. Sagar and a report (Ex.-P/25) was received. According to the F.S.L. report, kerosene oil was found on the clothes etc. of the deceased. 4. After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as aforementioned. However, two other co-accused persons namely-Arjun Tiwari and Smt. Kamlesh Tiwari (in-laws of the deceased), who' were charged u/S. 498-A, I.P.C., were acquitted. 5. The conviction of the appellant is mainly based upon the dying declaration of the deceased made to the Executive Magistrate, supported by the oral dying declaration and the attending circumstances of the case. 6. Mr. Ashok Verma, learned counsel for the appellant, argued that the written dying declaration does not fulfill the test of its truthfulness and the same was unbelievable. The Sessions Court committed an error of law by holding the declaration to be true and proved. He argued that dying declaration must be tested by independent evidence that the declarant was mentally conscious and possessed memory or intelligence, sufficient to know that what she was doing and saying. He also submitted that the Doctor, who has given certificate regarding fitness of the deceased, has not been examined in this case and an adverse inference should be drawn against the prosecution. He also argued that the Executive Magistrate had nowhere said that the deceased was in a fit mental condition to give the dying declaration, therefore, in absence of evidence of the Doctor, who made an endorsement of certification, it cannot be said that the deceased was conscious and she was fit to give the dying declaration (Ex.-P/12). He also referred to the evidence of Srikant (PW-6), who was first man to reach to the room, in which, it comes that the deceased told him that she herself poured kerosene oil on her and had rubbed the match-stick to frighten the appellant due to which the fire caught her nighty. He also referred to the evidence of Srikant (PW-6), who was first man to reach to the room, in which, it comes that the deceased told him that she herself poured kerosene oil on her and had rubbed the match-stick to frighten the appellant due to which the fire caught her nighty. Lastly, he argued that even if the contents of the dying declaration are held to be proved, it appears that during a sudden quarrel and fight between the husband and the wife, out of anger, the appellant poured kerosene oil on his wife and just to show his whims of opposition or detachment, he rubbed the match-stick on the floor of the room and the nylon-nighty of the deceased, stained with kerosene oil, accidentally got fire. Therefore, the offence would be lesser than one punishable u/S. 302, I.P.C. 7. On the other hand, Mr. Ashish Shukla, Govt. Advocate, for the State, opposed these arguments and supported the judgment passed by the Sessions Court. 8. We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. 9. The principles regarding testing the veracity of the dying declaration are well settled. Since the admissibility of the dying declaration is not subject to the cross-examination of the maker, a strictest scrutiny and closest circumspection is required by the Court before acting upon it. In the matter of K.R. Reddy and another v. The Public Prosecutor. AIR 1976 SC 1994 : 1976 Cri LJ 1548, the Apex Court observed that while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It has further been observed that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. It has further been observed that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. It has also been observed that once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The Apex Court further observed that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed in night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 10. In the matter of Surajdeo Oza and Ors. v. State of Bihar, AIR 1979 SC 1505 : (1979 Cri LJ 1122) the Apex Court held that merely because the dying declaration is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. 11. In the matter of Nanahau Ram and Anr. v. State of Madhya Pradesh, AIR 1988 SC 912; (1988 Cri LJ 936) it was further held by the Apex Court that normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. 12. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. 12. In the matter of Laxman v. State of Maharashtra (2002) 6 SCC 710 : (2002 Cri LJ 4095) a reference was made to the Constitutional Bench of the Apex Court, in which, a question has cropped up as to whether the certificate of Doctor to the effect that the patient is conscious and there was no certification that the patient was in fit state of mind at the time of making the declaration makes the declaration unacceptable and the subjective satisfaction of the Magistrate recording the dying declaration that injured was in a fit state of mind at the time of making declaration cannot be relied on, is the correct enunciation of law? The Apex Court after considering the entire matter held that normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. The Apex Court further held that the dying declaration can be oral or in writing and adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It has also been stated that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. The Apex Court has further held that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. The Apex Court replied the reference in terms that "In the absence of medical certification that the injured was in a fit state of mind at the time of making declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration", is not correct enunciation of law. 13. PW-11, P.C. Kori, is the Executive Magistrate, who recorded the dying declaration. He deposed that on 28.3.2001, he had received a memo from the concerned police station for recording the dying declaration of the deceased. He reached to District Hospital at about 2.15 p.m. and made contact with the treating Doctor to know about the position of the deceased to give the dying declaration. Thereafter he obtained a certificate of the Doctor showing that the deceased was conscious and she was fit to give her statement at that moment. Such certification is in the written form at the top of the dying declaration (Ex.-P/12) showing to be given at 2.15 p.m. Thereafter, the dying declaration was recorded which bears the signature of the declarant. The Magistrate has also signed the dying declaration at 2.25 p.m. which shows that about 10 minutes time was consumed to record the declaration of the deceased. The dying declaration is in question-answer form. The Executive Magistrate has categorically deposed about the questions which he had asked to the deceased in chronological order and the answers to those questions given by the deceased. The dying declaration is in question-answer form. The Executive Magistrate has categorically deposed about the questions which he had asked to the deceased in chronological order and the answers to those questions given by the deceased. The contents of the dying declaration as also the Court deposition of the Executive Magistrate would show that the deceased deposed that her husband used to drink every day. He was having relations with a nurse due to which, they used to quarrel. When she was asked as to how the incident occurred, the deceased made the declaration in the following manner : (Vernacular matter omitted.............Ed.) On perusal of the dying declaration and the evidence of the Executive Magistrate, PW-11, it appears that such declaration of the deceased was recorded after a certification by the Doctor regarding her mental status and even if the Doctor is not examined in this case, that would make no difference in view of the judgment of the Apex Court rendered in the matter of Shanmugam alias Kulandaivelu v. State of Tamilnadu, AIR 2003 SC 209 : (2003 Cri LJ 418) in which it was held that "When the dying declaration was recorded after satisfaction of the Magistrate regarding consciousness of the deceased and his position to make the statement and the Doctor also made an endorsement on the dying declaration about the consciousness of the patient, the mere fact that the doctor in whose presence the dying declaration was recorded was not examined does not affect the evidentiary value to be attached to the dying declaration". Therefore, if the satisfaction of the Magistrate was there regarding consciousness of the deceased and his position to make the dying declaration and the dying declaration is found otherwise reliable, the instance of non-examination of the Doctor giving certificate would make no difference. 14. Mr. Ashok Verma, learned counsel for the appellant, referring to the decision in the matter of Sher Singh and another v. State of Punjab, (2008) 2 SCC (Cri) 783 : (2008 Cri LJ 2062) argued that the Magistrate has nowhere deposed in his Court evidence that he was satisfied about the mental status of the deceased, therefore, it was fatal to the prosecution. We have carefully considered the argument advanced by Mr. Verma. In the said case, there were more than one dying declarations. The Apex Court observed that "Second dying declaration was more probable and looks natural. We have carefully considered the argument advanced by Mr. Verma. In the said case, there were more than one dying declarations. The Apex Court observed that "Second dying declaration was more probable and looks natural. Although it does not contain certificate of doctor that declarant was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him". While upholding the such dying declaration recorded by the Magistrate and after considering the entire evidence on record, the judgment and finding of the High Court was confirmed. 15. The question raised before us is "whether the Magistrate recording the dying declaration should state in clear words that the declarant was in a fit state of mind to give dying declaration, or, firstly, he should give a certificate like this, then, he should begin to record the dying declaration and if they are lacking, the dying declaration will not be held to be truthful or correct? On the basis of various judgments rendered by the Apex Court in the cases, in which, either the certificate of the Doctor was obtained or it was not obtained, the final verdict is that if the Magistrate recording the dying declaration was satisfied that the declarant was in a conscious state of mind and in a position to make statement, that itself would be sufficient to rule out the possibility of recording an incorrect dying declaration on this account. If the satisfaction of the Magistrate is reduce into writing, it is well and good but if such satisfaction or certificate has not been reduce into writing merely on this ground, the dying declaration cannot be discarded if otherwise it was established on record that the Magistrate was satisfied about the consciousness and state of mind of the deceased and he was of the opinion that the deceased was in a position to make a dying declaration. We are of the considered view that the satisfaction of the Magistrate in this regard can be gathered by a Court while scrutinizing the dying declaration as also the evidence of the Magistrate and it is not necessary that the Magistrate should speak in so many words that the declarant was in a fit state of mind to record the dying declaration or he should give a certificate like this then begin to record the dying declaration. 16. In the present case, the Doctor has given certificate firstly on the top of the dying declaration, as stated above, and, then in the last portion of the dying declaration, he again made an endorsement that "patient remains conscious during giving her statement". Apart from the above, evidence of the Executive Magistrate would show that what questions he had asked to the deceased and what answers were given by the deceased to the said questions. The answers of the deceased to the questions asked by the Magistrate would show that she was properly responding to them and when she was responding to the questions asked by the Executive Magistrate, the Magistrate continued to record the declaration till end by putting subsequent questions, which were also properly replied by her in the manners she wanted to reply. This shows that when the Executive Magistrate was satisfied with the answers of the questions given by the deceased, he continued to complete the dying declaration and the subjective satisfaction of the Magistrate can be gathered from such course of action adopted by him from beginning to end while recording the dying declaration. Even in the cross-examination not a single question was asked to the Executive Magistrate that the deceased was not in a position to make the dying declaration 17. In view of all this, we do not find any infirmity in the evidence of PW-11 or in the dying declaration, on the ground that the deceased was not in a fit mental condition to record the same. 18. The aforesaid dying declaration of the deceased is corroborated by the evidence of PW-5, Aabha Pandey, elder sister of the deceased. In view of all this, we do not find any infirmity in the evidence of PW-11 or in the dying declaration, on the ground that the deceased was not in a fit mental condition to record the same. 18. The aforesaid dying declaration of the deceased is corroborated by the evidence of PW-5, Aabha Pandey, elder sister of the deceased. She deposed vide Para-4 that when she knew about the burn injury received by the deceased and her admission in the Government Hospital, she went to the hospital in the night itself, where the deceased made oral dying declaration to her that firstly abusing and quarrel took place between them and thereafter, when she asked the appellant to take meals, the appellant denied and said that nurse-Rajeshwari has stopped him to take the meals. The deceased further told to this witness that thereafter when her husband tried to take more liquor, she threw the liquor, due to which, her husband poured kerosene oil on her and rubbed a match-stick and set her on fire. This declaration was made in the night itself. Nothing has been brought in the cross-examination of this witness to impeach her credibility regarding the oral dying declaration made by the deceased. The written dying declaration is also corroborated by the contents of the Dehatinalishi (Ex.-P/4) recorded by the Investigating Officer at the instance of the deceased at 3.00 p.m. on 28.3.2001. Here also the deceased made declaration about the incident to the police officer and put her signature at the bottom of the report. 19. Apart from the above evidence, we find that Dehatinalishi and the dying declaration recorded by the Magistrate both bear the signatures of the deceased. If the deceased was not conscious or she was not able to give dying declaration, how she would be able to put her signatures on these documents. Therefore, the factum of consciousness of the deceased can also be gathered from the contents of these documents and the consistent declaration made by the deceased at 3 instances would show that the dying declaration was true and correct and the Sessions Court has rightly believed on such declarations. 20. Mr. Therefore, the factum of consciousness of the deceased can also be gathered from the contents of these documents and the consistent declaration made by the deceased at 3 instances would show that the dying declaration was true and correct and the Sessions Court has rightly believed on such declarations. 20. Mr. Ashok Verma has further argued that PW-6, Srikant, admits in the cross-examination that when he asked to the deceased as to how it happened, the deceased said that she herself has poured kerosene oil on her body just to frighten the appellant, and when she rubbed the match-stick on the floor of the room, the fire caught her. We do not believe such statement of this witness on the face of his examination-in-chief and also in the background that he was not a witness of oral dying declaration of the deceased but he was a witness, who reached to the place of occurrence and tried to extinguish the fire. It appears that since he was next-door neighbour of the appellant, he has admitted this fact to support the appellant. On face of 3 consistent dying declarations, referred to above, in appreciation, we do not give much importance to the said portion of the cross-examination of this witness. 21. For the foregoing discussions, the dying declaration of the deceased, particularly made to the Executive Magistrate, was voluntary, true and correct and the challenge made to the said dying declaration on the above arguments can be sustained. 22. We shall now consider the last argument advanced by Mr. Verma that the act of the appellant would constitute an offence lesser than one punishable u/S. 302, I.P.C. For this, Mr. Verma took us to the contents of the written dying declaration made by the deceased. He referred to the answers of the above two questions given by the deceased. The answers to question Nos. 3 and 6 would show that, in fact, the appellant has neither thrown the burning match-stick on the clothes of the deceased nor in any manner, he put the fire to the clothes of the deceased. As it is clear from the above answers that after pouring kerosene oil on the deceased, he has rubbed a match-stick on the floor of the room where the deceased was standing in kerosene-wet condition and some kerosene oil has also spread over the floor. As it is clear from the above answers that after pouring kerosene oil on the deceased, he has rubbed a match-stick on the floor of the room where the deceased was standing in kerosene-wet condition and some kerosene oil has also spread over the floor. The deceased stated that as soon as the match-stick was rubbed on the floor by the appellant, the fire caught the oil spread over the floor and then her nylon-nighty also caught the fire. The deceased has categorically stated that in the above manner only, the fire caught her nighty but she has never stated that the appellant intentionally put her to fire by a positive action on his part either by throwing the burning match-stick or by doing some action to put her on fire. If we look into the background of the incident, prior to this, a quarrel was going on between the husband and wife, the husband was in drunken condition, the reason for the quarrel was that according to the deceased the appellant was having illicit relations with Rajeshwari Raj. During the quarrel, when the deceased saw that the appellant was having more liquor with him, she threw the liquor, thereafter, the abuse and fight begun and the appellant brought kerosene oil from the kitchen and poured it over the body of the deceased. After giving thorough consideration to the entire contents of the dying declaration and the other evidence available on record, we are of the view that the offence committed by the appellant would be lesser than one punishable u/S. 302, I.P.C. Mr. Verma has argued that the death was a consequence resulting from the accident or rash and negligent act of the appellant. We do not agree with such argument advanced by Mr. Verma. "The causing of the death of a person by doing an act accompanied by intention in the two ways described in S. 299 or with the knowledge that the act is likely to cause death also described there, is distinguished from cases of deaths resulting from accident or rash and negligent act and those cases where death may result but the offence is of causing hurt either simple or grievous. Once it is established, that the act was a deliberate act and was not the result of accident or rashness or negligence, it is obvious that the offence which was committed was one under S. 304" Please see AIR 1964 SC 1263 : (1964 (2) Cri LJ 350) (Abrahim Sheikh and others v. State of West Bengal) 23. Section 304 does not constitute an offence. It provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensue. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 24. If we analyze the evidence of case on hand, it would appear that this is not a case of death resulting from an accident or rash and negligent act of the appellant. 24. If we analyze the evidence of case on hand, it would appear that this is not a case of death resulting from an accident or rash and negligent act of the appellant. On appreciation of entire evidence on record, we find that on account of the alleged illicit relations of the appellant with Rajeshwari Raj, a sudden quarrel took place between the husband and wife when the husband was in drunken condition and when the wife threw the liquor of the husband, he started abusing and a sudden fight begun, in consequence of which the husband brought kerosene oil from the kitchen and poured it over the body of the deceased. The bangles of the deceased were also broken, which were seized from the place of occurrence. Thereafter, the appellant rubbed a match-stick on the floor of the room, due to which, the fire caught the oil spread over the floor, and then, the nylon-nighty of the deceased also caught fire. All this show that the husband was having no intention to cause the death of the wife but it can safely be gathered that he was having sufficient knowledge that his act was likely to cause death or it may cause bodily injury likely to cause the death of his wife. Had the husband (appellant) an intention to cause the death of his wife, he would have straightway thrown the burning match-stick on the clothes of the wife or he would have taken some positive steps to cause her death. But, he did not do so. Even the appellant did not use the match-box for lightening the match-stick, whereas, the same was readily available with him because the match-box was also seized from the place of occurrence by the Investigating Officer along with broken pieces of bangles vide Ex.-P/15. Why the man having a match-box would rubbed the match-stick on the floor for its lightening. This negatives an element of intention present in the acts of the appellant. Further the appellant has also received burn injuries on his hands as he had also participated to extinguish the fire and had taken the deceased to the hospital. Why the man having a match-box would rubbed the match-stick on the floor for its lightening. This negatives an element of intention present in the acts of the appellant. Further the appellant has also received burn injuries on his hands as he had also participated to extinguish the fire and had taken the deceased to the hospital. In the facts and circumstances of the case, we are of the considered view that the act of the appellant would fall within the Exception of S. 300 I.P.C. and since the knowledge can well be attributed from the prevailing facts and circumstances of the case, the appellant shall be liable for punishment u/S. 304, Part-II I.P.C. 25. Accordingly, the appeal is partly allowed. The conviction and sentences awarded to the appellant u/S. 302 I.P.C. are set aside. Instead, the appellant is convicted u/S. 304 Part-II I.P.C. and sentenced to undergo rigorous imprisonment for 7 years. The appellant is in jail since 29.3.2001. Needless to say that he shall be entitled to set-off the period already undergone by him. Order accordingly.