JUDGMENT S.C. AGARWAL, J.-The instant jail appeal has been preferred by appellant Braj Mohan Gupta convicted by judgement and order dated 9.12.2003 passed by the Addl. Sessions Judge, F.T. Court No.2, Basti, in Sessions Trial Nos. 63 of 2003 and 426 of 2002. The appellant has been convicted under sections 302, 307 IPC and has been sentenced to undergo imprisonment for life under section 302 IPC but no separate punishment was a warded under section 307 IPC. 2. In brief, the facts are that the appellant Braj Mohan Gupta is the husband and his wife Sangita is the deceased. FIR was lodged on 10th September, 2002 at 15.40 hours by one Shyam Lal Yadav (P.W.-1) (village chaukidar Rudhauli) at P.S. Rudhauli stating therein that in the morning, it came to his knowledge that the wife of accused Braj Mohan Gupta had died in the night due to burn injuries. On enquiry, the daughter of the accused disclosed that her father had burned her mother who was admitted in hospital. The incident took place on 9.9.2002. 3. On the basis of written report Ext. Ka-1, constable Jitendra (P.W.-8) recorded chick report Ext. Ka-11 and registered the case under section 307 IPC against the appellant at Crime No. 168 of 2002, and made an entry in the general diary of the police station. The investigation was handed over to S.I. Ram Suresh Rai (P.W.-10). 4. Smt. Sangita was taken to Primary Health Centre, Rudhauli by the accused Braj Mohan Gupta on 9.9.2002 at 10.30 p.m. from where, after first aid, she was referred to District Hospital Basti and police was informed at 11 p.m. vide report Ext. Ka-5. The appellant thereafter admitted his wife on 10.9.2002 at 4.30.a.m. at District Hospital, Basti. Later, on recovering health, she was discharged from the Hospital and was taken to her mother's house where she died on 2.1.2003 due to septicaemia. 5. Initially charge-sheet was submitted under section 307 IPC against the appellant, but after the death of the victim, permission for further investigation was obtained from the Magistrate and ultimately on 8.2.2003, the case was converted under section 302 IPC and Ravindra Nath Singh Chandel (P.W.-11)-the second Investigating Officer, submitted supplementary charge-sheet under section 302 IPe. 6. Charge under section 307 IPC was framed against the appellant on 24.12.2002 but after further investigation, additional charge under section 302 IPC was framed against the appellant. 6. Charge under section 307 IPC was framed against the appellant on 24.12.2002 but after further investigation, additional charge under section 302 IPC was framed against the appellant. The appellant denied the charge and claimed to be tried. In his statement under section 313 Cr.P.C., the appellant denied the allegation that he set ablaze his wife and claimed that Smt. Sangita got burnt from a dibri (kerosene lamp). It was further stated by the appellant that his wife died in her mother's house and he did not have any knowledge about the dying declaration of the deceased and his daughter Km. Priti had given her statement under pressure. 7. Prosecution had examined as well as 11 witnesses in this case. P.W.-1 Shyam Lal Yadav village chaukidar , who has lodged the FIR and he is not an eye witness. Km. Priti (P.W.-2) is the sole eye witness. Dr. Vijai Dubey (P.W.-6) is the first doctor, who had examined the deceased in her injured condition at the Primary Health Centre and referred her to District Hospital, Basti. Dr. Anurag Sahai (P.W.-3) had examined the injuries of the victim and prepared injury report and admitted her in the Hospital. Dr. V.K. Jaiswal (P.W.-S) have conducted autopsy on the body of the deceased. Rajendra Singh (P.W.-4). S.I., Chintimani Singh (P.W.-7), constable Jitendra Singh (P.W.-8) and constable Bhagwan Das (P.W-9) are the formal witnesses. Ram Suresh Rai (P.W.-10) is the first Investigating Officer, who had also recorded the statement of the victim in the case diary, which was later on treated as her dying declaration and S.O. Ravindra Nath Singh (P.W.-11) is the second Investigating Officer, who submitted charge-sheet under section 302 IPC, against the accused. 8. Shyam Lal Yadav (P.W.-1) is a formal witness, who had lodged the FIR on hearing about the incident. He is not an eye-witness but stated that Km. Priti (P.W.2)-the daughter of the deceased had told him that her father had burnt her mother, who had been admitted in the Hospital. Km. Priti (P.W.-2) is the sole eye-witness of the incident. In her examination-in-chief, she supported the prosecution case and stated that she was sleeping with her mother. Her father brought kerosene oil in a cane and poured it on her mother and set her ablaze with a match-stick. She and her mother raised alarm. Km. Priti (P.W.-2) is the sole eye-witness of the incident. In her examination-in-chief, she supported the prosecution case and stated that she was sleeping with her mother. Her father brought kerosene oil in a cane and poured it on her mother and set her ablaze with a match-stick. She and her mother raised alarm. Her father fled away, who was brought back by the villagers and thereafter on the insistence of villagers, her father admitted the victim at the Hospital. After few days, her mother recovered and came home but ultimately died due to burn injuries. 9. Doctor Anurag Sahai (P.W.-3) examined Smt. Sangita aged about 30 years on 10.3.2002 at 4.30 a.m. at District Hospital, Basti where she was brought by her husband. The following injuries were• found:- 10. Superficial to deep burn involving front of chest, back of chest, buttocks, front or whole face and neck and both, arms. Kerosene oil Smell present. General condition very low. Pulse not palpable. Conscious admitted. Police informed. Information was sent to Magistrate for dying declaration. Injury report is Ex-Ka-2. 11. After her death, autopsy on the body of Srrit. Sangita was performed on 3.1.2003 at 4 p.m. by doctor V.K. Jaiswal (P.W.-S). He found the following injuries on the person of the deceased :- 12. Body lean and thin. Old deep burn. Peripheral postal healing with pus on surface. Pus in the middle on front of chest, back of chest, both sides of the neck, on both ears and upper part of chest. Injuries on face and thighs were healing. There was bedsore on back of abdomen. There was swelling on both legs. Rigour mortis was present in both the limbs. In cross-examination Dr. Jaiswal stated that some burn injuries were healing whereas there . was pus in some of them. If the pus is found due to infection, on proper treatment, such injuries can be healed and the death was caused due to infection as a result of burn injuries. 13. The accused, however, has not adduced any evidence in defence. 14. We have heard Sri Gaurav Kakkar, learned Amicus-curiae on behalf of appellant, learned AGA for the State and perused the Trial Court's judgment and the evidence available on record. 15. Learned Counsel for the appellant submitted that the only eye-witness Km. Priti is a child witness and her statement requires very careful consideration. 14. We have heard Sri Gaurav Kakkar, learned Amicus-curiae on behalf of appellant, learned AGA for the State and perused the Trial Court's judgment and the evidence available on record. 15. Learned Counsel for the appellant submitted that the only eye-witness Km. Priti is a child witness and her statement requires very careful consideration. She was tutored by her maternal grand-mother and her evidence is not reliable at all. The stress has been laid on the fact that she deposed in her examination-in-chief that her father burnt her mother but in cross-examination she admitted that at the time of incident she was sleeping and her father did not burn her mother. The submission is that the statement of Km. Priti cannot be relied upon. 16. The next contention of learned Amicus-curiae is that the statement of victim recorded by Investigating Officer cannot be termed as a dying declaration as the victim was improving in her health and there was no apprehension that she would die and therefore, her statement recorded in the 'case diary cannot be treated as a dying declaration. It was also contended that no medical opinion was obtained by the Investigating Officer before recording the statement of victim and there was no evidence on record to show that at the time of her statement, the victim was in her full senses and the alleged dying declaration was recorded after 10 days of the incident. 17. Next contention of learned Amicus-curiae is that at all times, the conduct of the appellant has been proper and inconsistent with his guilt. It was the appellant, who took his wife to the hospital, got her medically examined and admitted her in the Hospital. It was also contended that there was no motive for the crime and the death of the deceased was accidental. The victim survived the burn injuries, got well and was discharged from the Hospital but later on' developed septicaemia due to carelessness in the treatment for which the appellant cannot be held responsible. It was also contended that the appellant was arrested by the police on 10th September, 2002. Therefore, he cannot be held responsible for negligence in the treatment of the deceased. The alleged dying declaration was recorded after 10 days and does not bear any thumb impression or signatures of the deceased. It was also contended that the appellant was arrested by the police on 10th September, 2002. Therefore, he cannot be held responsible for negligence in the treatment of the deceased. The alleged dying declaration was recorded after 10 days and does not bear any thumb impression or signatures of the deceased. At the time of alleged statement, there was no impending fear of death to the victim. The appellant did not make any attempt to flee. 18. It was further contended that the victim died after about four months from the date of incident. She had recouped and discharged from the hospital after 18 days from the date of incident and the case at the most cannot travel beyond the scope of section 304 (2) IPC. 19. Per contra, Sri Ram Milan Dwivedi, learned AGA submitted that the incident took place inside the house of the appellant. At the time of incident, the appellant, the deceased and Km. Priti (P.W.-2) were in the house and none else was there and therefore, the burden lies on the appellant to show under what circumstances his wife got burnt and this burden has not been discharged by the appellant. It was next contended that Km. Priti (P.W.-2) is the daughter of the appellant, who had specifically deposed in her examination-in-chief that her mother was burnt by the appellant by pouring kerosene oil and setting her ablaze. She was not cross-examined on that date but subsequently, in cross-examination, she changed her version and virtually turned hostile and stated that her mother was not set ablaze by her father and she did not know how her mother got burnt. She further admitted that she had given this statement in the cross-examination on the persuasion of her nani and therefore her statement given in her examination-in-chief is natural and worth reliance and her subseauent statement given on cross-examination is a tutored one to help her father and is liable to be ignored. It was urged that the statement of deceased recorded by Investigating Officer amounts to a dying declaration and is sufficient to prove the guilt of the deceased. 20. The fate of the case depends on the statement of Km. Priti (P.W.-2) and the alleged dying declaration Ex. Ka-16. Km. Priti was examined-in-chief on 7th August, 2003. At that time her age was about 9 years. 20. The fate of the case depends on the statement of Km. Priti (P.W.-2) and the alleged dying declaration Ex. Ka-16. Km. Priti was examined-in-chief on 7th August, 2003. At that time her age was about 9 years. She is the daughter of the appellant and the deceased and used to live with them. She stated that her mother died about one year ago. In the night, her mother was sleeping on a cot and she was sleeping on a chauki (small wooden bed). She saw that her father poured kerosene oil on his mother and set her ablaze with a match-stick. She and her mother raised alarm and her father ran away but villagers caught him and beat him and on the dictation of the villagers, her father took her mother to the hospital. She further stated that her dadi (later explained as nani) was not at home. Her mother got well and came home. After few days, she died due to burn injuries. Km. Priti (P.W.-2) was not cross-examined on that day. The opportunity for cross-examination was closed. Later on, she was cross-examined on 4.12.2003 wherein she stated that her mother was not beaten by the accused. She was with her mother and in the morning she found that• her mother had died. Her father admitted the deceased at the hospital. After getting well, the deceased went to her mother's house and she (P.W.-2) also started residing with her nani. Her nani is poor and therefore, could not get the medical treatment for the deceased. Her mother died after 2-3 months from the date of discharge from the hospital. She further stated In the FIR that father had not set ablaze her mother but admitted that she is now giving her statement as advised by her nani. 21. There is nothing on record to show that examination-in-chief as narrated by P.W.-2 was based on any tutoring. Immediately after the incident, the village chaukidar Shyam Lal Yadav (P.W-l) came on the spot, Km. Priti (P.W.-2) had disclosed the fact about her mother being set ablaze by her father. This fact was disclosed by P.W-l in the FIR. It is therefore, clear that after the incident, Km. Priti (P.W.-2) stated before the village chaukidar that her mother was set ablaze by her father. Priti (P.W.-2) had disclosed the fact about her mother being set ablaze by her father. This fact was disclosed by P.W-l in the FIR. It is therefore, clear that after the incident, Km. Priti (P.W.-2) stated before the village chaukidar that her mother was set ablaze by her father. Shyam Lal Yadav (P.W-1) has deposed this fact in his statement but he was not cross-examined at all. Therefore, statement of Shyam Lal Yadav (P.W-1). in this regard is wholly reliable and examinationin-chief of Km. Priti (P.W.-2) is supported by the statement of Shyam Lal Yadav (P.W-1). No doubt that P.W.-2 virtually turned hostile in cross-examination, which took place after more than about 4 months from her examination-in-chief and in the meantime something transpired, which made her changed her version. After all, the appellant is the father of Km. Priti (P.W.-2) and the parties might have come to terms and on the advise of her nani, Km. Priti (P.W.-2) changed her version in cross-examination and stated that she was sleeping at the time of incident. In these circum" stances, her statement given in the cross-examination is clearly influenced by her nani and cannot be believed. Her statement given in the examination-in-chief is not based on any kind of tutoring and is supported by statement of Shyam Lal Yadav" (P.W-l), who had not been cross-examined. 22. In view of above, we have come to the conclusion that statement of Km. Priti (P.W.-2) given in her examination-in-chief is fully reliable, otherwise there was no occasion for her to give statement in Court against her father implicating him in the murder of her mother. 23. The prosecution also relied upon the statement of the deceased Smt. Sangita recorded under section 161 Cr.P.C. In this respect Ram Suresh Rai (P.W.-10), the first Investigating Officer has stated that on 20.9.2002 he recorded the statement of Smt. Sangita Devi at Sadar Hospital, Basti and recorded the same in the case diary word by word. A Photostat copy of the statement is Ext. Ka-16. During cross-examination, he stated that at the time of recording statement of Smt. Sangita no public witnesses were present. There is nothing in the cross-examination to challenge the fact that the statement of Smt. Sangita was not correctly recorded by the Investigating Officer. 24. A Photostat copy of the statement is Ext. Ka-16. During cross-examination, he stated that at the time of recording statement of Smt. Sangita no public witnesses were present. There is nothing in the cross-examination to challenge the fact that the statement of Smt. Sangita was not correctly recorded by the Investigating Officer. 24. Learned Amicus-curiae criticized the alleged dying declaration on the ground that there was no certificate of the doctor on the dying declaration that the deceased was in full senses and was in a position to give her statement. No doubt the statement of Smt. Sangita has not been recorded on a separate sheet but has been recorded in the case diary as the statement of a witness since at that time, the case was under section 307 IPC. Smt. Sangita was admitted in hospital in burnt condition and there was no reason while Smt. Sangita would give a false statement against her own husband. It is also true that the alleged dying declaration has not been signed by any doctor and no certificate regarding mental fitness of the deceased is on record but we cannot lose sight of the fact that the statement of the victim was recorded by the Investigating Officer after 11 days from the date of incident and by that time, the deceased was recovering fast. There is no other suggestion has been given to the Investigating Officer by' learned Counsel for the defence that at the time of recording her statement of the Investigating Officer, she was not in her senses. In these circumstances, we have come to the conclusion that statement of Smt. Sangita recorded by Investigating Officer can be treated as a dying declaration as it relates to cause of death and at the time of recording statement she might have been apprehending her death as she was badly burnt. 25. In our considered opinion, learned Trial Court rightly considered the statement of Smt. Sangita as her dying declaration and the said dying declaration can be believed even if there was no medical evidence to show that at the time of recording her statement, she was in full senses. No suggestion has been given by the defence Counsel to any of the prosecution witness to show that at time of her statement recorded by the Investigating Officer, she was not in full senses. 26. No suggestion has been given by the defence Counsel to any of the prosecution witness to show that at time of her statement recorded by the Investigating Officer, she was not in full senses. 26. As far as the incident is concerned, the same stands proved by the statement of Km. Priti (P.W.-2), who is the daughter of the appellant. No reason has been shown that Km. Priti would depose against her own father. Her statement given in the examination-in-chief is also supported by Shyam Lal (P.W.-1), who was informed by Km. Priti soon after the incident that her mother was burnt by her father. The dying declaration of the deceased recorded by the Investigating Officer also supported the same. In these circumstances, the fact that at the time of incident, the appellant present in the house, has not been disputed by learned Amicus-curiae. It was the appellant, who had taken his wife to the hospital but he has not explained as to how his wife received burn injuries. When the wife of the appellant received serious burn injuries on her body, it was t 1e duty of the appellant to explain under what circumstances she received burn injuries. We have no hesitation in reaching the conclusion that it was the appellant, who set his wife ablaze causing serious injuries. 27. Now the question arises about what offence is proved against the appellant. Undoubtedly, the appellant admitted his wife in the hospital. Soon after the incident, she was taken to Primary Health Centre by the appellant from where she was referred to District Hospital, Basti where she was admitted. There was no motive for the crime. It is the dying declaration which gives an inkling as to why the incident took place. In the dying declaration, Ext. Ka-16, the deceased stated before the Investigating Officer on 9.9.2002 at about 9.10 p.m. that she had an altercation with her husband and thereafter she was set ablaze by her husband. From dying declaration, it is evident that there was exchange of hot words between the appellant and the deceased. The appellant, in a fit of anger, poured kerosene oil on his wife and set her ablaze. There was no motive for the crime. The incident took place out of a sudden quarrel. From dying declaration, it is evident that there was exchange of hot words between the appellant and the deceased. The appellant, in a fit of anger, poured kerosene oil on his wife and set her ablaze. There was no motive for the crime. The incident took place out of a sudden quarrel. After being admitted in the hospital, the appellant was arrested but condition of the deceased improved considerably and she was discharged from the hospital after about 18-20 days. Had she not improved in health, 'there was no occasion for her discharge from the hospital. After discharge from the hospital, Smt. Sangita was taken to her mother's house where due to lack of means, she could not get satisfactory and proper medical treatment and Septicaemia developed, which ultimately caused her death. 28. Though the septicaemia was caused due to burn injuries caused by the appellant, therefore, appellant cannot escape the consequence. Since the incident took place out of a sudden quarrel and exchange of hot words, in a fit or rage, without premeditation and without taking undue advantage by the appellant, the case is squarely covered by section 304, part-I IPC and the appellant could not have been convicted under sections 302, 307 IPC. 29. As regards sentences, it has come on record that the appellant was arrested on 10th September, 2002. He was never released on bail. He is in jail for a litt1e more than 8 years in jail. In our considered opinion, this period of 8 years is sufficient as punishment. 30. The appeal is partly allowed. The conviction of the appellant under sections 307, 302 IPC is altered to section 304, Part-l IPC and sentence for life imprisonment awarded by the Trial Court is reduced to period already undergone by him '(more than 8 years) in jail. 31. The appellant be set at liberty forthwith, unless wanted in some other case. 32. Copy of this judgment alongwith the record of Trial Court be sent to the Trial Court within a week for compliance.