JUDGMENT 1. The sole accused who was charged for the offence punishable under Section 302 of IPC has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and sentence passed in S.C.No.207/07 on the file of the Presiding Officer, FTC-II, Bangalore Rural District. 2. The relevant facts leading to the filing of this appeal are as follows: The deceased Shankaramma married the accused about ten years prior to the incident and they had two sons. The accused was in the habit of drinking liquor since from the beginning and he was not working and earning for the family. Therefore, deceased Shankaramma was maintaining the family by doing tailoring work. The accused was always insisting his wife to give money for drinking liquor and he used to beat her whenever she refused to give him money. On 28.1.2007 at 11.30 a.m. the accused again asked the deceased to give money for drinking liquor. When she stated that she does not have money, the accused assaulted the deceased. Therefore, in order to pose a threat to the accused, the deceased Shankaramma took a kerosene can and poured kerosene on herself and threatened the accused that if he continues ill-treating her, she will commit suicide. Then the accused pushed deceased Shankaramma, who as doused in kerosene on the burning stove stating that “It is better you die, than living alive”. The deceased Shankaramma suddenly caught fire from the burning stove and sustained severe burn injuries. On seeing Shankaramma in the midst of flames, the accused went away. On hearing the screaming of deceased Shankaramma, the neighbours rushed to the spot and shifted her to Anekal Hospital. From there she was shifted to Victoria Hospital, Bangalore. On the basis of the information given by the Medical Officer. Victoria Hospital. P.W. 14-Shivarajaiah. Head Constable attached to Attibele Police Station visited the hospital at about 12.30 P.M. and recorded the dying declaration of Sharkamma in the presence of PW13-Dr.Vijayashree, on the basis of which the case in Crime No.41/07 was registered for the offence punishable under Section 307 IPC. Subsequently, on 30.1.2007 at 3.25 P.M. the deceased succumbed to the injuries while undergoing treatment. On receipt of death intimation from the hospital authorities, the offence was altered from Section 307 to 302 of IPC. Subsequently, on 30.1.2007 at 3.25 P.M. the deceased succumbed to the injuries while undergoing treatment. On receipt of death intimation from the hospital authorities, the offence was altered from Section 307 to 302 of IPC. The Investigating Officer- P.W.21 conducted inquest over the dead body of the deceased and thereafter visited the scene of offence and seized M.Os. 1 to 3-plastic can, pump stove and langa. After that the dead body was subjected post mortem. The Medical Officer who conducted post mortem examination over the dead body of the deceased issued Ex.P14-Post mortem report, opined that the death of the deceased was due to septicemia as a result of burn injuries sustained. After completion of investigation, the Inspector of police filed the charge sheet. 3. After hearing the learned Public Prosecutor and the counsel for the accused, the trial Court framed charge under Section 302 IPC against the accused. The plea of accused is one of denial. 4. In order to substantiate the charge under Section 302 IPC. Against the accused, the prosecution examined P.Ws. 1 to 21 and relied on Exs.P1 to P15 and M.Os. 1 to 3. 5. Considering the evidence of P.Ws.13, 14, 4, 5 and 6 Ex.P9 the dying declaration, the learned trial Judge found the accused guilty of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/- and in default to pay fine to undergo further imprisonment for a period of one year. Aggrieved by the judgment of conviction and sentence, the accused has filed this appeal. 6. We have heard Sri. H.P. Leeladhar, learned Counsel for accused and Sri. N.S.Sampangiramaiah, learned Government Pleader for the State. We have been taken through evidence and the impugned judgment. 7. Admittedly, there are no eyewitnesses to the incident. The prosecution is therefore relying on Ex.P9 – dying declaration and evidence of PW’s.4, 5, 6 and 13. 8. PW.4-Chinnappa is the brother of deceased who visited Anekal Government hospital immediately after he coming to know about the incident. He enquired the deceased as to how she caught fire and he was informed by the deceased that the accused pushed her over the burning stove, therefore, she sustained burn injuries. PW.4 has further deposed; that immediately after the marriage, the accused was not looking after the welfare of the deceased and the family. He enquired the deceased as to how she caught fire and he was informed by the deceased that the accused pushed her over the burning stove, therefore, she sustained burn injuries. PW.4 has further deposed; that immediately after the marriage, the accused was not looking after the welfare of the deceased and the family. He was always harassing her and demanding money, which she was getting by doing tailoring work. 9. PW.5-Yallappa, father of the deceased also supported the case of prosecution. PW.5 has deposed; that the accused was not in the habit of doing any work and he was absolutely depending on the income of the deceased and he was always demanding the deceased to give money for his vices. He has further stated that, after coming to know of the incident, he went to Victoria hospital and found the police recording the statement of the deceased. He was stated before the police that, the accused had picked up quarrel and instigated her to douse kerosene on herself and pushed her over the burning stove. Therefore, she sustained burn injuries. 10. PW.6-Shivanna who is an independent witness and neighbour of the deceased. He has also supported the prosecution case. According to him, on 28.01.2007, at 3.00 p.m., he came to know that decease Shankaramma sustained burn injuries. Therefore, he went to Victoria Hospital to see her. When he enquired the deceased as to how she sustained burn injuires, she informed him that her husband picked up quarrel with her, he was in a drunken state: he demanded her to give money for drinking for which she refused. In order to threaten him that she would commit suicide she took kerosene can and the kerosene fell on her body. Then, the accused pushed her on the burning stove and that she received the burn injuries. 11. The prosecution has examined PW.13-Dr. Vijayashri who treated the injuries found on the person of the deceased and who was present at the time of recording Ex.P9-dying declaration of the deceased by PW14-Head Constable of Police. 12. PW.13-Dr.Vijayashri has deposed: that on 28.01.2007 she was on duty as a Casualty Doctor at Victoria Hospital. At about 4.30 p.m., the deceased Shankaramma was brought to hospital with burn injuries. 12. PW.13-Dr.Vijayashri has deposed: that on 28.01.2007 she was on duty as a Casualty Doctor at Victoria Hospital. At about 4.30 p.m., the deceased Shankaramma was brought to hospital with burn injuries. On enquiry, the deceased has stated before her that, at about 11.00 a.m., on the same day, her husband quarreled with her and in order to pose threat to her husband, she doused kerosene on herself and her husband pushed her on a burning stove, therefore, she sustained burn injuries. PW.13 has further stated that immediately she made an entry in the admission register and on the same day, she informed the police about the incident. She has deposed that, PW.14-Shivarajaiah. Head Constable of Victoria hospital police station visited the hospital and requested her to certify whether injured Shankaramma was in a fit mental and physical condition to give statement. When she certified as per Ex.P8 stating that the injured Shankaramma was mentally fit to give statement, then PW.14 recorded the dying declaration of deceased as per Ex.P9. She gave certified as per Ex.P8 stating that the deceased was in a fit condition to give the statement. 13. PW.14-Shivarajaiah, Head Constable attached to Victoria hospital police station stated in his evidence that, after receiving intimation from the Victoria hospital, he visited the hospital at 6.40 p.m., on 28.01.2007 and met PW.13-Dr. Vijayashri and requested her to certify whether the injured Shankaramma was mentally fit to give statement. PW.13 gave certificate as per Ex.P8 stating that Shankaramma was in a fit mental condition to give statement. Therefore, he recorded Ex.P9 dying declaration of the deceased Shankaramma on the basis of which crime was registered against the accused. 14. PW.20-Jagadish, Sub-Inspector of police, Attibele P.S., who conducted inquest over the dead body of deceased also stated in his evidence that he also recorded one more statement of the deceased Shankaramma. 15. PW.21-Ramaiah, Circle Inspector of Police, Attibele has conducted further investigation and filed charge sheet. 16. The learned counsel for accused submitted that the prosecution has not filed the statement recorded by PW.20-Jagadish. Sub-Inspector of Police. As it was suppressed, the dying declaration as per Ex.P9 cannot be believed and does not inspire confidence. 17. In the evidence, PW.20 has stated that he also enquired the deceased about the incident, the deceased has stated the same set of facts as mentioned in Ex.P9, dying declaration. Sub-Inspector of Police. As it was suppressed, the dying declaration as per Ex.P9 cannot be believed and does not inspire confidence. 17. In the evidence, PW.20 has stated that he also enquired the deceased about the incident, the deceased has stated the same set of facts as mentioned in Ex.P9, dying declaration. Generally, if a superior officer takes up investigation in the crime after the Head Constable or any other officials recorded the statement of victim or witnesses who have stated on the same lines, there is no need to record the statement again. 18. PW’s.4, 5 and 6 immediately reached the hospital after receiving information and who have enquired the deceased as to how she got fire. They were informed by the deceased that when she doused kerosene on her to give threat to the accused, the accused pushed her on the burning stove and she caught fire. 19. In a decision reported in AIR 2011 SC 604 (in the case of Chirra Shivaraj Vs. State of Andhra Pradesh) the Supreme Court has held:- “Where immediately after the incident, the deceased was taken to the Government Hospital and upon getting information with regard to the offence, Sub-Inspector had rushed to the Government Hospital and the deceased had made her statement before him and thereafter she had made her dying declaration before a Judicial Officer and the said statement was scrupulously recorded by the Judicial Officer who had found the deceased to be conscious and fit to make statement. The dying declaration was trustworthy and reliable and can be sole basis for conviction of accused for offences punishable under section 304 Part-II IPC.” 20. In this case in Ex.P9-dying declaration, the deceased had clearly stated that, on 28.01.2007 at about 11.30 a.m., the accused demanded money from the deceased for drinking liquor. When the stated that she is not having money, the accused assaulted her. Therefore, in order to pose threat to the accused, she herself doused kerosene on her stating that if he continues ill treatment, then she will commit suicide but, the accused pushed her on a burning stove stating it is better you die, than living. Then deceased caught fire from the burning stove and sustained burn injuries. The contents of Ex.P9-dying declaration and the evidence of PW’s.4, 5, 6 and 13 is consistent and corroborative regarding the involvement of the accused in the crime. 21. Then deceased caught fire from the burning stove and sustained burn injuries. The contents of Ex.P9-dying declaration and the evidence of PW’s.4, 5, 6 and 13 is consistent and corroborative regarding the involvement of the accused in the crime. 21. As could be seen from the tenor of cross-examination on behalf of accused, the accused had taken a plea that the incident took place accidentally and in the next breath he has taken a plea that the deceased caught fire due to burse of stove. During examination under Section 313 Cr.P.C., the accused has not stated that the deceased caught fire due to the accidental fire or due to the burst of stove. PW21 the Investigating Officer did not notice any stove burst. The evidence on record clearly indicates that immediately after the deceased caught fire, the accused left her without taking any steps to shift her to hospital for treatment. It is the neighbours who immediately informed the police and shifted the deceased to hospital for treatment. 22. The learned trial judge considering the dying declaration as per Ex.P9 and evidence of PW.4, 5, 6 and 13-medical officer, believed Ex.P9-dying declaration and found the accused guilt of an offence punishable under Section 302 I.P.C. 23. The next point for consideration is whether the act of the accused pushing the deceased on a burning stove constitute an offence under Section 302 I.P.C. 24. Admittedly, the evidence on record indicates that there is no intention on the part of deceased. If the deceased had not doused kerosene on herself, posing threat to the accused, this unfortunate incident would not have occurred. It is clear by the above facts and circumstances that the accused had no pre meditation or intention to kill the deceased. The evidence on record does not disclose the position of the stove or the place where the deceased had doused kerosene on herself. As the house in which the deceased and accused were living is very small, the accused had the knowledge that if the deceased was pushed, she is likely to fall on the burning stove and catch fire. The evidence on record does not disclose the position of the stove or the place where the deceased had doused kerosene on herself. As the house in which the deceased and accused were living is very small, the accused had the knowledge that if the deceased was pushed, she is likely to fall on the burning stove and catch fire. The evidence on record clearly indicates that some altercations took place between the deceased and the accused when the later demanded some money and the incident happened all of a sudden when the deceased refused to pay money, doused kerosene and posed threat to commit suicide if the accused did not stop ill-treatment. Therefore, in view of the peculiar facts and circumstances of the case, we are of the view that the offence committed by the accused, attract the provisions of section 304 Part-II but no under section 302 IPC. Therefore, the conviction of the accused is altered to one under section 304 Part-II IPC. Regarding sentence: 25. The learned counsel for accused submitted that the accused has 3 children and there is none to take care of them. Having regard to the facts and circumstances of the case, we deem it proper to sentence the accused to undergo imprisonment for a period of 4 ½ years and pay a fine of Rs.25,000/- for an offence punishable under Section 304-II I.P.C. 26. Therefore, we pass the following: ORDER The appeal is accepted in part. The judgment of conviction and sentence passed against the accused for an offence punishable under Section 302 I.P.C. is set aside. The accused is convicted for an offence punishable under Section 304 Part-II I.P.C. The accused is sentenced to undergo imprisonment for a period of a 4 ½ years and pay a fine of Rs.25,000/-. In default, to undergo simple imprisonment for a period of six months for an offence punishable under Section 304-II I.P.C. The period of detention undergone by the accused during trial and also during pendency of this appeal is given set off as provided under Section 428 Cr.P.C. Office is directed to send back the records with a copy of this judgment to the trial Court.