JUDGMENT A. P. LAVANDE, J. :- By this appeal, the appellant/accused takes exception to the judgment and order dt. 26.2.2009 passed by the Sessions Judge, Chandrapur in Sessions Case No.100 of 2008 convicting the accused for the offences punishable under Sections 302 and 498-A of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months respectively. 2. Briefly stated, the prosecution case is as under: During the intervening night of 25.5.2008 and 26.5.2008, Head Constable Safdarkhan Ahamadkhan Pathan (PW-12) was on duty at Police Chowky, General hospital, Chandrapur. He received requisition (Exh.17) from the Medical Officer in the hospital for recording statement of the patient namely Kalpana Ashok Sontakke - the deceased. On receiving such requisition, he went to Burn Ward No.6 and made an enquiry with Dr. Ajay Wasade (PW-8) as to whether Kalpana was fit to give her statement. Dr. Wasade examined the patient and informed him that she was fit to give her statement. He recorded her statement as per her say. She informed that her husband used to suspect her character and quarrel with her on this count. On 25.8.2008, at about 8.00 p.m., the accused asked her to prepare tea for him. Thereafter, the accused said to Kalpana that she was not paying attention to him. The deceased told him that she had just returned to house from the marriage after attending the marriage. The accused in response, said that the deceased was always giving one reason or the other to avoid the work. Thereafter, there was a quarrel between the accused and the deceased. The accused took out kerosene from the kerosene Can in a steel Container of tiffin, poured it on the body of deceased and set her ablaze by means of a match stick. After sometime, the accused poured water on her body and extinguished the fire. Thereafter, the accused opened the door of the house and left the house. Head Constable Safdarkhan Pathan (PW-12) recorded the statement of deceased (Exh.70) as per her say. 3. On 25.6.2008, ASI Ganga Shankar Dubey prepared Spot panchanama (Exh.63) in the presence of two panchas. After sometime, the accused poured water on her body and extinguished the fire. Thereafter, the accused opened the door of the house and left the house. Head Constable Safdarkhan Pathan (PW-12) recorded the statement of deceased (Exh.70) as per her say. 3. On 25.6.2008, ASI Ganga Shankar Dubey prepared Spot panchanama (Exh.63) in the presence of two panchas. From the spot, one kerosene Can (Article 5), one Steel Container (Article 6), pieces of bangles (Article 7), burnt pieces of clothes of deceased (Article 8), plain soil (Article 10) and kerosene mixed soil (Article 11) were seized vide Exhs. 64 and 65. On the same day, Naib-Tahsildar Sampat Pandurang Khalate (PW-3) received requisition letter (Exh.27) from the police chowky to record statement of Kalpana. He proceeded to the General Hospital, Chandrapur. He recorded the statement (Exh.28) of Kalpana as per her say in the presence of Medical Officer Dr. Roshan Bhiwapurkar (PW-11). On the basis of the said statement, API Gawai (PW-9) registered the offence under Section 307 of the Indian Penal Code on 26.5.2008 vide printed F.I.R. (Exh.55) and sent case papers to Police Station, Rajura for further investigation. On the same day itself, in the evening, PSI Manish Bansod (PW-10) proceeded to General Hospital, Chandrapur and collected the clothes of patient under seizure panchanama (Exh.59) in the presence of two panchas. The said clothes were saree and blouse (Articles 1 and 2). On the same day, the accused was arrested under Arrest panchanama (Exh.34) and clothes of the accused (Articles 3 and 4) were seized under panchanama (Exh.60). On 28.5.2008, PSI Bansod recorded statement of Kalpana (Exh.61). Thereafter, statements of several witnesses were recorded and all the seized articles were sent to the Chemical Analyser for chemical analysis. Kalpana succumbed to the injuries on 5.8.2008. Therefore, Section 302 of the Indian Penal Code was added and the dead body of Kalpana was referred for post mortem. Dr. Anil Mundhada (PW-1) conducted post mortem and submitted post mortem report (Exh.15). On the same day, PSI Pal prepared Inquest panchanama (Exh.18) on the dead body of Kalpana. After completion of investigation, charge sheet was filed in the Court of the Judicial Magistrate, First Class, Rajura. Since the offence of murder was exclusively triable by the Court of Session, the case was committed to the Court of Session, Chandrapur. 4. On the same day, PSI Pal prepared Inquest panchanama (Exh.18) on the dead body of Kalpana. After completion of investigation, charge sheet was filed in the Court of the Judicial Magistrate, First Class, Rajura. Since the offence of murder was exclusively triable by the Court of Session, the case was committed to the Court of Session, Chandrapur. 4. In Sessions Case No.100 of 2008, prosecution examined twelve witnesses and produced several documents in support of the charge under Sections 302 and 498-A of the Indian Penal Code, which was explained to the accused, to which the accused pleaded not guilty. Defence of the accused is of total denial. The accused did not lead any defence evidence. 5. The learned trial Court, upon appreciation of evidence, held that the prosecution had been able to establish both the offences beyond reasonable doubt against the accused and consequently, convicted and sentenced the accused, as above. The learned trial Court accepted the three dying declarations recorded during the course of investigation and held that the offences for which the accused was charged were made out against him. 6. Ms F.N. Haidari, learned Counsel for the appellant/accused submitted that the three dying declarations do not inspire confidence and as such, no reliance can be placed upon the same. The learned Counsel further submitted that the accused is entitled to be acquitted of both the offences for which he has been convicted and sentenced. The learned Counsel further submitted that there is absolutely no evidence led by the prosecution in respect of Section 498-A and therefore, conviction of the accused for the said offence is unsustainable in law. The learned Counsel further submitted that conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable in law and even if the case of the prosecution is accepted in toto, at the most, the offence punishable under Section 304 (II) of the Indian Penal Code is made out against the accused. In support of her submissions, the learned Counsel relied upon the judgment of the Apex Court in the case of Maniben Vs. State of Gujarat reported in (2009) 3 SCC (Cri) 952 : [2010 ALL SCR 580]. 7. Per contra, Mr. In support of her submissions, the learned Counsel relied upon the judgment of the Apex Court in the case of Maniben Vs. State of Gujarat reported in (2009) 3 SCC (Cri) 952 : [2010 ALL SCR 580]. 7. Per contra, Mr. A.S. Sonare, learned A.P.P. for the respondent/State supported the impugned judgment insofar as conviction of the accused under Section 302 of the Indian Penal Code is concerned, but fairly submitted that the evidence led by prosecution is not sufficient to prove the offence under Section 498-A of the Indian Penal Code against the accused beyond reasonable doubt. The learned A.P.P. submitted that the three dying declarations recorded in the course of investigation inspire confidence and are truthful and as such, conviction of the accused cannot be faulted. 8. We have carefully considered the rival submissions, perused the record and the judgment relied upon b¥ the learned Counsel for the appellant. 9. There is no serious dispute that deceased Kalpana died on account of burn injuries. This is proved by the prosecution through the evidence of Dr. Anil Mundhada (PW-1), who conducted post mortem on the dead body of Kalpana on 5.8.2008. He found 45% burn injuries on the dead body of the deceased, which were ante mortem and he opined that the death of deceased was due to septicemia due to burns. He identified the signature on the post mortem report (Exh.15) and confirmed its contents too. In the cross-examination, he admitted that if a person receives 50% burn injuries and proper medical treatment is given to him, there are chances of his survival and if no proper treatment is given, it is possible that the said person may die. He denied the suggestion that Kalpana died since no proper care was taken. The evidence of Dr. Anil Mundhada which is not shaken in cross-examination clearly proves that deceased Kalpana died on account of burn injuries on 5.8.2008. 10. In order to prove complicity of the accused, prosecution has relied upon three dying declarations – The first dying declaration (Exh.70) recorded by Head Constable Safdarkhan Pathan, Second dying declaration (Exh.28) recorded by Naib-Tahsi]dar Sampat Khalate and Third dying declaration (Exh.61 ) recorded by Investigating Officer PSI Manish Bansod. 11. Insofar as the dying declaration (Exh.28) recorded by Naib-Tahsildar Sampat Khalate is concerned, perusal of his evidence discloses that he had recorded the statement of accused after Dr. 11. Insofar as the dying declaration (Exh.28) recorded by Naib-Tahsildar Sampat Khalate is concerned, perusal of his evidence discloses that he had recorded the statement of accused after Dr. Bhivapurkar examined Kalpana and certified that she was fit to give her statement. His evidence further discloses that deceased Kalpana had told him that her marriage had taken place about 17 years back with the accused and the incident had occurred on 25.5.2008 at about 8.00 p.m. The accused came in drunken condition. He was suspecting her fidelity and there was a quarrel between both of them. The accused slapped her 2-3 times and thereafter, poured kerosene on her body and set her ablaze. Thereafter, the accused closed the door of the room from outside and soon thereafter, entered the room and extinguished the fire by pouring water on her. He further stated that the statement of deceased was recorded as per her say and the same was read over to her. In his cross-examination, nothing tangible has been brought on record to discredit his testimony. His evidence is corroborated by dying declaration (Exh.28) and also by the evidence of Dr. Rosh an (PW-11), who had given fitness Certificate. The evidence of Dr. Roshan (PW-11), which is also on the similar lines as that of Naib-Tahsiidar Sampat Khalate (PW-3), has not been shaken in the cross-examination. Therefore, we have no hesitation to accept the dying declaration (Exh.28) recorded by Naib-Tahsildar Sampat Khalate (PW-3). 12. The other two dying declarations Exhs.61 and 70 fully corroborate the dying declaration (Exh.28). The evidence of Head Constable Safdarkhan Pathan (PW-12) has not been shaken in the cross-examination insofar as the dying declaration (Exh.70) is concerned. Moreover, the evidence of Head Constable Pathan is corroborated by the evidence of Dr. Ajay Wasade (PW-8), who had certified that Kalpana was fit to give her statement. We have absolutely no hesitation to accept the dying declaration (Exh.70) recorded by Head Constable Pathan (PW-12), which is corroborated by the evidence of Dr. Wasade (PW-8). 13. The third dying declaration (Exh.61) was recorded by PSI Manish Wasade (PW-10) on 28.5.2008 after Dr. Bukkawar (PW-7) certified that she was fit to give her statement. The dying declaration (Exh.61) recorded by PSI Bansod (PW-10) also corroborates the dying declaration Exh.28 recorded by Naib-Tahsildar Sampat Khalate (PW-3). 14. Wasade (PW-8). 13. The third dying declaration (Exh.61) was recorded by PSI Manish Wasade (PW-10) on 28.5.2008 after Dr. Bukkawar (PW-7) certified that she was fit to give her statement. The dying declaration (Exh.61) recorded by PSI Bansod (PW-10) also corroborates the dying declaration Exh.28 recorded by Naib-Tahsildar Sampat Khalate (PW-3). 14. Thus, the three dying declarations recorded in the course of investigation clearly implicate the accused as the person who set the deceased ablaze after pouring kerosene on her and they are also corroborated by spot panchanama (Exh.30). 15. The next question which arises for our consideration is what offences are proved against the accused. Insofar as the offence punishable under Section 498-A of the Indian Penal Code is concerned, we find that the concession made by the learned A.P.P. that the said offence is not made out deserves to be accepted inasmuch as the prosecution has not led any evidence to prove the ingredients of Section 498-A of the Indian Penal Code. Therefore, in our view, conviction of the accused for the offence punishable under Section 498-A of the Indian Penal Code deserves to be quashed and set aside. 16. Coming to the offence punishable under Section 302 of the Indian Penal Code, for which the accused is convicted, the dying declarations relied upon the prosecution themselves suggest that the accused came drunk and slapped the deceased and had a quarrel with her on a petty issue and thereafter, he took kerosene from the can in a steel Container of tiffin and poured the same on the body of deceased and set her ablaze, due to which the deceased sustained 45% burns. Moreover, prosecution has relied upon the Discharge Card (Exh.40) which has been admitted by the accused, which discloses that the deceased was discharged on 8.7.2008. The deceased expired on 5.8.2008 and there is absolutely no evidence as to the nature of treatment given to the deceased from 8.7.2008 till her death on 5.8.2008. Considering all these facts, we are of the considered opinion that the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable in law and appropriate conviction of the accused would be under Section 304 (II) of the Indian Penal Code. 17. Considering all these facts, we are of the considered opinion that the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable in law and appropriate conviction of the accused would be under Section 304 (II) of the Indian Penal Code. 17. In the case of Maniben, [2010 ALL SCR 580] (supra) relied upon by the appellant, the deceased had suffered 60% burns and she had expired after eight days on account of septicemia. In the said case, the accused had thrown burning tonsil, which was preceded by the quarrel between the accused and the deceased. The Apex Court set aside the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code and restored conviction of the accused for the offence punishable under Section 304(II) of the Indian Penal Code. Although the facts in the said case are not identical with the facts in the present case, as stated earlier, the circumstantial evidence led by the prosecution is sufficient only to make out the case under Section 304 (II) and not 302 of the Indian Penal Code. Therefore, in our view, the accused deserves to be convicted for the offence punishable under Section 304 (II) of the Indian Penal Code and is entitled to be acquitted of the offence punishable under Section 498-A of the Indian Penal Code. 18. For the reasons aforesaid, the conviction of the appellant/accused for the offences punishable under Sections 302 and 498-A of the Indian Penal Code and the sentences imposed on him by the judgment and order dt.26.2.2009 passed by the Sessions Judge, Chandrapur in Sessions Case No.100 of 2008 are quashed and set aside. The accused is acquitted of the offence punishable under Section 498-A of the Indian Penal Code. The accused stands convicted for the offence punishable under Section 304 (II) of the Indian Penal Code and sentenced to undergo R/I. for six years and to pay a fine of Rs.1,000/-, in default to undergo R/I. for three months. The accused is entitled to set off the period of detention in terms of Section 428 of the Code of Criminal Procedure. The order passed by the learned trial Court insofar as disposal of the property is concerned is maintained. The appeal stands accordingly disposed of. Ordered accordingly.