Judgment :- M. CHOCKALINGAM, J. 1. Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court No.I, Thanjavur, dated 24.11.2009, made in S.C.No.106/2009, whereby the appellant, shown as accused No.1, along with another accused ranked as accused No.2, stood charged under Section 302 IPC, on trial, found guilty thereunder and sentenced to undergo life imprisonment and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for six months. However, accused No.2, who stood charged under Section 302 read with Section 34 IPC, on trial, found not guilty and acquitted of the said charge. 2. The short facts necessary for the disposal of the appeal can be stated as follows: (a)The appellant/accused No.1 is a widow and accused No.2 Rengarasu is the husband of one Chandra, the deceased in this case. Their houses situate on the back of each other and all of them were living in South Street, Orathanadu South Natham, within the jurisdiction of the respondent police. Accused No.2 developed illegal intimacy with accused No.1, the appellant herein and it came to the knowledge of the deceased and she was quarrelling often with both of them. As Chandra was found to be a hurdle by accused Nos.1 and 2, they took a decision to finish her off and, accordingly, at 4.00 a.m. on 10.03.2008, after quarrelling with Chandra, accused No.1 poured kerosene on Chandra and set her ablaze by litting fire and accused No.2, the husband of Chandra, did not make any attempt either to quench the fire or to go to the rescue. This was witnessed by P.Ws.1 to 6. Immediately, the injured Chandra was taken to Thanjavur Medical College Hospital. (b)On 10.03.2008 at about 6.15 a.m. P.W.7 Dr.Sampath was on duty in the Thanjavur Medical College Hospital. He admitted Chandra, who was brought with 60% burn injuries, as an inpatient and gave treatment to her. Ex.P-3 is the copy of the Accident Register given by P.W.7, where the statement given by Chandra has been recorded. (b)On 10.03.2008 at about 6.15 a.m. P.W.7 Dr.Sampath was on duty in the Thanjavur Medical College Hospital. He admitted Chandra, who was brought with 60% burn injuries, as an inpatient and gave treatment to her. Ex.P-3 is the copy of the Accident Register given by P.W.7, where the statement given by Chandra has been recorded. (c)P.W.9, the Head Constable attached to the respondent Police, on receipt of intimation at about 8.00 a.m. on 10.03.2008 as to the admission of Chandra as an inpatient in the Thanjavur Medical College Hospital, proceeded to the hospital, enquired Chandra and recorded her statement, read it over to her and obtained her LTI, returned to the Police Station and handed over the same to the Sub-Inspector of Police at 1.00 p.m.. Ex.P-5 is the statement given by Chandra. P.W.10, the Sub-Inspector of Police attached to the respondent police station, on receipt of Ex.P-5 Statement registered a case in Crime No.116/2008 under Section 307 IPC and prepared Ex.P-6, the first information report. He despatched the same to the Court and the copies to the higher police officers. (d)P.W.11, the Judicial Magistrate No.II, Thanjavur, on receipt of Ex.P-7 Intimation from the Tahanjvur Medical College Hospital, proceeded to the hospital, reached the hospital at 12.30 p.m. on 10.03.2008 to record the dying declaration of Chandra and after getting due certificate from the duty doctor Dr.Elangovan about the fitness and state of mind of the victim for giving dying declaration, P.W.11 recorded the dying declaration of the victim Chandra. Dr.Elangovan was present throughout the recording of dying declaration and after recording he also certified about the condition of the patient during recording of dying declaration. The said Dying Declaration is marked as Ex.P-8. (e)On receipt of a copy of Ex.P-6 FIR on 10.03.2008, P.W.12, the Inspector of Police, proceeded to the place of occurrence, made an observation in the presence of P.W.4 and another and prepared Ex.P-1, the observation mahazar and also drew Ex.P-9, the rough sketch. From the place of occurrence, P.W.12 recovered M.O.1 - a Plastic Can, M.O.2 - a piece of saree, M.O.3 - a match box and M.O.4 - a burnt match stick under Ex.P-10 Mahazar attested by the same witnesses. He examined witnesses and recorded their statements. From the place of occurrence, P.W.12 recovered M.O.1 - a Plastic Can, M.O.2 - a piece of saree, M.O.3 - a match box and M.O.4 - a burnt match stick under Ex.P-10 Mahazar attested by the same witnesses. He examined witnesses and recorded their statements. On receipt of intimation on 20.03.2008 that the injured Chandra died at 11.15 p.m. on 19.03.2008, P.W.12 converted the case under Section 302 IPC and amended FIR Ex.P-11 was despatched to the Court. Thereafter, P.W.12 proceeded to the Hospital and conducted inquest on the body of the deceased Chandra between 9.30 hours and 11.30 hours in the presence of panchayatdars and witnesses and prepared Ex.P-12, the inquest report. Thereafter, he sent the body for postmortem through P.W.9, the Head Constable. (f)P.W.8, the Doctor attached to Thanjavur Medical College Hospital, conducted autopsy on the body of the deceased Chandra at 12.30 p.m. on 20.03.2008. On completion of postmortem, P.W.8 issued Ex.P-4, the postmortem certificate, opining that the deceased would have died due to the effects and complications of extensive burns. (g)Pending investigation, P.W.12, the Inspector of Police, arrested accused No.2 at 12.00 Noon on 22.03.2008 and when enquired in the presence of P.Ws.5 and 6, accused No.2 came forward to give voluntarily a confessional statement and the same was recorded by P.W.12. Thereafter accused No.2 was sent for judicial custody. On the same day, P.W.12 arrested accused No.1 and sent her for judicial custody. He examined witnesses and recorded their statements. Since P.W.12 got transferred, his successor P.W.13 took up the further investigation in the case. He examined P.W.s.7 to10 and recorded their statements. On completion of investigation, P.W.13 filed final report against both the accused under Sections 302 and 302 read with Section 34 IPC on 26.11.2008. 3. After committal proceedings, the case was taken on file by the Sessions Court in S.C.No.106/2009 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 13 witnesses as P.Ws.1 to 13 and marked 12 documents as Exs.P-1 to P12 and produced M.Os.1 to 4. On completion of the evidence on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let it. On completion of the evidence on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let it. The trial court, after hearing the parties, took the view that the prosecution has proved the charge against accused No.1 beyond reasonable doubt, found her guilty under the charge of murder, convicted her thereunder and awarded life imprisonment along with a fine of Rs.500/-, with default sentence. In respect of accused No.2, the trial judge has recorded an order of acquittal, since he formed an opinion that the prosecution has not proved its case against accused No.2 beyond reasonable doubt. Hence this appeal at the instance of accused No.1. 4. Advancing his arguments on behalf of the appellant/accused No.1, the learned counsel Mr. M.Karunanithi would submit that in the instant case the prosecution came with a specific case that on the date of occurrence i.e. 10.03.2008 at about 4.00 a.m. accused No.1 poured kerosene on the deceased Chandra and set her ablaze by litting fire and the same was witnessed accused No.2. and though accused No.2 was the husband of the deceased Chandra, he was standing only as a passive spectator and did not go to the rescue or quench the fire but, however, the trial judge was not ready to believe the case of the prosecution in respect of accused No.2 and acquitted him. Learned counsel would further submit that the prosecution has examined six witnesses as eyewitnesses to the occurrence but, they turned hostile and thus their evidence was not useful to the prosecution. Added further learned counsel, despite lack of evidence on the side of prosecution, the trial judge has found the appellant/accused No.1 guilty as per the charge of murder and therefore it is the contention of the learned counsel that in the instant case the prosecution has miserably failed to prove the guilt of the appellant/accused No.1. 5. Fortifying the above contention, the learned counsel for the appellant raised the following points. 5. Fortifying the above contention, the learned counsel for the appellant raised the following points. (a)Admittedly, the deceased Chandra was taken to the hospital immediately after the occurrence and she was examined by P.W.7 Dr.Sampath at about 6.15 a.m. on 10.03.2008 and the Doctor has noted the injuries found on the body of the deceased in Ex.P-3, the Accident Register and a reading of Ex.P-3 would clearly indicate that Chandra has stated before the Doctor that both accused No.1 and accused No.2 have committed the offence by pouring kerosene and litting fire on her. But, on the contrary, according to the learned counsel, P.W.9, the Head Constable attached to the respondent Police Station, would claim that he went to the hospital and found Chandra was conscious and oriented and she gave a statement and the same was recorded by him and the said statement has been marked as Ex.P-5 and a perusal of Ex.P-5 would clearly indicate that it could not have come into existence at all as put-forth by the prosecution because, according to P.W.11, the Judicial Magistrate No.2, Thanjavur, who has recorded the dying declaration of the deceased Chandra, both her hands were actually burnt and hence the left thumb impression of Chandra could not have been obtained in Ex.P-5 and foot impression alone must have been obtained and if to be so, the claim of P.W.9, the Head Constable, that her statement was recorded and that she put her left thumb impression in Ex.P-5 could not have taken place at all and thus it would be indicative of the fact that the alleged statement Ex.P-5, said to have been recorded by P.W.9, the Head Constable, from Chandra in the Hospital could not have come into existence as put-forth by the prosecution. Apart from that, according to the learned counsel, a very look of Ex.P-5 would clearly indicate that it is only a concocted document for the purpose of prosecution case. (b)Insofar as accused No.2 is concerned, even assuming that Ex.P-5 document has come into existence as put-forth by the prosecution, the averments found therein goes against the prosecution case. According to Ex.P-5, accused No.1 has poured kerosene and set her ablaze and while accused No.2 stood only as a passive spectator. Thus the averment found mentioned in Ex.P-5 is contrary to Ex.P-3, the Accident Register. According to Ex.P-5, accused No.1 has poured kerosene and set her ablaze and while accused No.2 stood only as a passive spectator. Thus the averment found mentioned in Ex.P-5 is contrary to Ex.P-3, the Accident Register. (c)Added further the learned counsel, insofar as Ex.P-8, the dying declaration is concerned, there are so many infirmities in it. P.W.11, the Judicial Magistrate, has categorically admitted that all the questions were actually in typed-form and the question pointing to the guilt of the accused is also found typed. Added further, in that Ex.P-8, apart from the accused persons, the name of another man by name Dhanapal is also mentioned but the said Dhanapal was never interrogated or added as an accused and what has happened to him remained unknown till the trial was over and thus this Ex.P-8 is contrary to Exs.P-3 and P-5 and thus these three statements, which were relied on by the prosecution, are inconsistent to each other. It is the further submission of the learned counsel that in a given case like this where the Dying Declaration or multiple Dying Declarations are there and those dying declarations are inconsistent to each other, all documents must be rejected and accused is entitled for an order of acquittal and in the instant case except the above three documentary evidence, namely Exs.P-3, P-5 and P-8, which are discrepant and inconsistent to each other, the prosecution has no other evidence to offer. (d)Learned counsel would further add that Dr.Elangovan, who is said to have certified before and after recording of the dying declaration about the fit state of mind of the victim, was not examined before the Court and all would clearly indicate that the prosecution has miserably failed to prove its case as against the appellant/accused No.1. (e)Added further in his second line of argument, learned counsel would submit that if the Court accepts the factual position put-forth by the prosecution that it was the appellant/accused No.1 who poured kerosene and caused injuries to the deceased, the act of the appellant would not attract the penal provision of murder. (e)Added further in his second line of argument, learned counsel would submit that if the Court accepts the factual position put-forth by the prosecution that it was the appellant/accused No.1 who poured kerosene and caused injuries to the deceased, the act of the appellant would not attract the penal provision of murder. In the instant case, the injured was taken to the Hospital immediately after the occurrence and admitted there at 6.15 a.m. on 10.03.2008 and she died on 19.03.2008, i.e. after nine days, and P.W.8, the postmortem doctor, has given opinion in Ex.P-4, the Postmortem certificate, that the deceased would appear to have died due to the effects and complications of extensive burns and further pointing to the said fact the learned counsel submitted that it is a fit case where the prosecution is duty bound to produce the case sheet pertaining to the deceased for the treatment given and also should have examined the doctors in that regard but not done so and all would clearly indicate that in a given case like this, while documentary evidence was absent as to the treatment given, the act of the accused cannot be brought under Section 302 IPC and in order to fortify this contention, learned counsel relied on the following two Division Bench decisions of this Court. (i) 2001-1 L.W.(Crl.) 354 -Nammalwar vs. State, etc.; and (ii)2002-2 L.W. (Crl.) 826 - Kothandapani & others vs. State, etc. 6. The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellant and paid its anxious consideration to the submissions made on either side and perused the materials on record. 7. It is not in controversy that one Chandra, wife of accused No.2, following an incident that had taken place on the morning hours on 10.03.2008 was taken to Thanjavur Medical College Hospital and admitted by P.W.7, the Doctor, at 6.15 a.m. and given treatment and in order to prove the said fact the Accident Register has been marked as Ex.P-3, apart from examining the Doctor who gave Ex.P-3 as a witness and thereafter a case came to be registered under Section 307 IPC by P.W.10, the Sub-Inspector of Police, attached to the respondent police. Despite the treatment, Chandra died on 19.03.2008 and therefore the case which was originally registered under Section 307 IPC, on her death altered to under Section 302 IPC and the investigation was taken up by P.W.12, the Inspector of Police. After inquest and preparation of Ex.P-12, the inquest report, by P.W.12, the body of the deceased was subjected to postmortem by P.W.8, the Doctor, who, in Ex.P-4, the postmortem certificate, has opined that the deceased died due to the effects and complications of extensive burns and the said fact that Chandra died due to the burn injuries was not a disputed fact. 8. In order to substantiate the charges levelled against the appellant/accused No.1 that it was she who poured kerosene and set the deceased ablaze and accused No.2, the husband of the deceased, who facilitated the commission of crime, the prosecution had examined six witnesses as eye-witnesses to the occurrence but, unfortunately, all the six witnesses have turned hostile. Under such circumstances, the prosecution rests its case on three documents, namely, Ex.P-3 -copy of Accident Register in respect of the deceased which was issued at the time of admission by P.W.7, the Doctor. The 2nd document relied on by the prosecution was Ex.P-5, which was the statement said to have been recorded from the victim Chandra by P.W.9, the Head Constable attached to the respondent Police Station, in the Hospital where Chandra was taking treatment. The third document is the Dying Declaration recorded by P.W.11, the Judicial Magistrate No.II, Thanjavur, in the presence of one Dr.Elangovan, as found in Ex.P-8. 9. Learned counsel for the appellant brought to the notice of the Court the inconsistencies found in all these three documents. The first document Ex.P-3 when perused would indicate that both accused No.1 and accused No.2 were responsible for the incident. Insofar as this document is concerned, the Court is unable to agree with the contention raised by the learned counsel for the appellant, since even as per the prosecution, accused No.1 and accused No.2 were present at the time of occurrence, out of whom accused No.1 had poured kerosene and set the deceased ablaze and while accused No.2, who is the husband of the deceased, was witnessing the act of accused No.1 as a passive spectator. It should not be forgotten that when she was taken to the hospital the grip under which she was put and hence Ex.P-3 cannot be rejected. 10. Insofar as the 2nd document Ex.P-5 is concerned, the Court has to necessary agree with the contention put-forward by the counsel for the appellant. It is highly doubtful whether Ex.P-5 could have come into existence as put-forward by P.W.9, the Head Constable. From the evidence of P.W.11, the Judicial Magistrate, it becomes clear that P.W.9 could not have obtained the left thumb impression of Chandra, since her hands were actually burnt and under such circumstances, P.W.9 could not have obtained the thumb impression in Ex.P-5 as found in Ex.P-5 and hence this document Ex.-5 has got to be rejected in toto and no legal consequences flow out of it and if what are found mentioned in Ex.P-5 cannot be taken into account, then no question of looking into any discrepancies would arise. 11. The next document available to the prosecution is Ex.P-8, the Dycing Declaration, recorded by Judicial Magistrate NO.II, Thanjavur, who was examined before the Court as P.W.11. According to P.W.11, on receipt of Ex.P-7 Intimation, she proceeded to the hospital and she got the certificate from one Dr.Elangovan that Chandra was in a fit state of mind to give declaration and thereafter she recorded the declaration given by the victim and the victim was conscious enough and in a fit state of mind while recording the declaration and the said Doctor was present all through and at the end of the process the doctor has also certified about the state of mind of the patient while recording of the declaration. It is true that the said Dr.Elangovan was not examined. The court is of the considered opinion that it cannot be a ground to reject the dying Declaration recorded by Judicial Magistrate. Learned counsel for the appellant brought to the notice of the Court that all the questions put to the victim were found already typed and taken to the Hospital. This contention of the learned counsel for the appellant cannot be accepted. Learned counsel for the appellant brought to the notice of the Court that all the questions put to the victim were found already typed and taken to the Hospital. This contention of the learned counsel for the appellant cannot be accepted. Though, a perusal of Ex.P-8 would reveal that the questions put to the victim were found typed, the answers given by the victim have been recorded by the Magistrate herself in ink and more particularly the vital part in the declaration as to how the occurrence has taken place, there was a specific question and answer was found written by the Judicial Magistrate, where it has been categorically stated that it was the act of the 1st accused who poured kerosene and set her ablaze and the husband was in the house and Dhanapal, the brother of accused No.1, came there after the occurrence was over and he left the place by saying out of the two, either the victim has to live or accused No.1 has to live and thus his presence has been shown only after the occurrence was over and hence there is no need to include him as an accused. 12. In the instant case, it is true that Ex.P-8 has been recorded by Judicial Magistrate after obtaining a certificate from the Doctor that the victim was in a fit state of mind to give declaration and that too in the presence of Dr.Elangovan. The said doctor has also certified at the end of the statement as to the state of mind of the patient at the time of her giving declaration. Now it is well settled principle of law that in such cases even the presence of doctors or their certificate is not necessary if the Magistrate is satisfied that before/during the time of recording the declaration the victim was in a fit statement of mind and oriented and it would satisfy the requirement of law. In the instant case, Dr.Elangovan was present all along and he has certified about the fitness and state of mind of the victim before recording the declaration and after the recording of the declaration was over and the same is found in Ex.P-8 and the Judicial Magistrate has also deposed before the court to that effect. In the instant case, Dr.Elangovan was present all along and he has certified about the fitness and state of mind of the victim before recording the declaration and after the recording of the declaration was over and the same is found in Ex.P-8 and the Judicial Magistrate has also deposed before the court to that effect. It is pertinent to point out that no question or suggestion was made to the Magistrate denying that part of the evidence and hence the evidence has got to be accepted. Though contentions are put-forth by the learned counsel disputing Ex.P-8, so long as Ex.P-8 is true, genuine and inspires the confidence of court, the Court has to act upon the same and find the appellant/accused No.1 guilty. Therefore, the trial Judge was perfectly right in acting upon Ex.P-8 and recording a finding that accused No.1 was guilty of pouring kerosene on the deceased and setting her ablaze and accordingly it has got to be confirmed. 13. Now, coming to the 2nd line of argument advanced by the learned counsel for the appellant that the act of the accused would not attract the penal provision of murder, the Court has to necessary agree with the contention put-forth by the learned counsel. In the instant case, the victim was taken to the hospital immediately after the incident and admitted in the hospital at 6.15 a.m. on 10.03.2008 by P.W.7, the Doctor and given treatment and Ex.P-3 is the Accident Register issued in respect of the deceased. The deceased was in the hospital under treatment till 19.03.2008 when she died. P.W.8, the postmortem Doctor, has given opinion in Ex.P-4, Postmortem certifcate, which reads as follows. "The deceased would appear to have died due to the effects and complications of EXTENSIVE BURNS. (Viscera were not preserved as the deceased in the hospital under continuous treatment for more than Nine Days)". 14. From the reading of the above, it is quite clear that she died due to the effects and the complications of extensive burns. When this is actually noticed by the Doctor, a duty is cast upon the prosecution to produce the case sheet pertaining to the deceased and also to examine the doctors who attended her during the relevant period. From the reading of the above, it is quite clear that she died due to the effects and the complications of extensive burns. When this is actually noticed by the Doctor, a duty is cast upon the prosecution to produce the case sheet pertaining to the deceased and also to examine the doctors who attended her during the relevant period. It is pertinent to point out that there was an occasion for this Court to consider similar situation in the case reported in 2001-1-L.W.(Crl.354 and the Division Bench found that the act of the accused therein would not attract the penal provision of Section 302 IPC but, would only fall under Section 304(i) and accordingly after finding the accused guilty under Section 304(i) IPC awarded a punishment of seven years rigorous imprisonment. This Court is unable to see anything to deviate from the reason adduced by the earlier Division Bench in the above referred to decision in coming to the said conclusion and hence it has got to be followed. Accordingly, in the opinion of the Court, in the instant case, the act of the appellant/accused No.1 would not attract the penal provision of murder and instead it would fall under Section 304(i) IPC and imposing a punishment of seven years rigorous imprisonment would meet the ends of justice. 15. In the result, the appeal stands disposed of as under: The conviction and sentence imposed on the appellant/accused No.1 under Section 302 IPC are set aside and instead, she is convicted under Section 304(i) IPC and sentenced to undergo seven years rigorous imprisonment. The sentence of fine imposed by the trial court under section 302 IPC is ordered to be treated as one imposed under Section 304(i) IPC. The period of sentence already undergone by the appellant/accused No.1 is directed to be given set-off under Section 428 IPC.