JUDGMENT A.P. LAVANDE, J. By this appeal, the appellants (hereinafter referred to as "the accused), take exception to the Judgment and order dated 29.11.2008 passed by the Additional . Sessions Judge-1, Achalpur, in Session Trial no. 34/2007, convicting the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing each one of them to undergo imprisonment for life and to pay fine of Rs.100/- in default to suffer rigorous imprisonment for 15 (fifteen) days. 2. The appellants are accused nos. 1 and 2 in Session Trial No. 34/2007. Accused No.3 Sau. Sindhu Pralhadrao Kale died during the pendency of the Sessions Trial. 3. Briefly, the prosecution case is as under: Accused no. 1 Subhash Sonone is the husband of accused no.2 Sangita Sonone and deceased accused no.3 Sau. Sindhu was the sister of accused no.1. They were residing at Indira Nagar Zopadpatti, Path rot just near the house of deceased Ranjana. 4. On 7.3.2007 at about 10.30 p.m. Ranjana came to the Police Station, Pathrot with burn injuries and lodged report against the three accused stating that her marriage was solemnized with one Balkrushna Hiwrale. She was having one son viz. Shubham but she was divorced and was staying alone and near her house the accused were staying. She further stated that on the same day at about 9.30 to 10.00 p.m. she was sitting in front of the shop of one Madhu Wani. At that time, all the three accused came and started making allegations against her that she was calling boys. Thereafter, accused nos. 2 and 3 caught her and accused no.1 put kerosene on her person and ignited match stick and set her ablaze. She sustained burn injuries. At that time. Madhu Wani, Bhaskar, A fsarbai and many other persons were present. The report (Exh.- 91) was recorded by A.S.I., K.S. Tankar. On the basis of the report, offence punishable under Section 307 read with Section 34 of the Indian Penal Code was registered against all the three accused. The investigation of this case was handed over to P.W. 14 P.S.I., G.S. Dhere. Ranjana was referred to the Primary Health Center, Pathrot where she was examined by P.W.13 Dr. Parnali Deshmukh at about 10.15 p.m. on the same day. On the body of Ranjana she observed 50% burn injuries which were fresh. The investigation of this case was handed over to P.W. 14 P.S.I., G.S. Dhere. Ranjana was referred to the Primary Health Center, Pathrot where she was examined by P.W.13 Dr. Parnali Deshmukh at about 10.15 p.m. on the same day. On the body of Ranjana she observed 50% burn injuries which were fresh. Ranjana was referred to Sub District Hospital, Achalpur. Dr. Parnali Deshmukh issued certificate Exh.- 57. P.S.I., Dhere in presence of two panchas conducted spot panchanama (Exh.- 35). He also recorded the statements of the witnesses and arrested the accused vide arrest panchanamas Exh. 61 and 62. He seized the clothes of accused nos. 2 and 3 vide panchanamas Exh. 28 and 29. He also recorded the statement of Sangita on 9.3.2007 vide Exh.- 63. Sangita also produced one lamp of kerosene which was seized vide Exh.- 64. 5. During further investigation, on 18.3.2007, P.S.I., Dhere again directed P.S.I., Dhiraj to go and record the statement of Ranjana, which was recorded on 19.3.2007 at Sub District Hospital, Achalpur. Ranjana made statement, which was in consonance with the First Information Report lodged by her. Same was recorded at Exh.- 74. Since Ranjana was having severe burn injuries, she was shifted to General Hospital, Amravati for further treatment. In the said Hospital, at the request of the police, P. W.4 Rajkumar - Special Executive Magistrate, Amravati recorded the statement of Ranjana after she was examined by Dr. Jitendra Achintanwar, who certified that Ranjana was fit. Ranjana made statement in consonance with the First Information Report. The statement of Ranjana was also recorded by P.W. 11 Ajay Special Executive Magistrate vide Exh.- 51, in which she stated that she was caught by all the three accused and Subhash poured kerosene on her person and set her ablaze. While the treatment was going on, Ranjana expired on 23.6.2007. Inquest panchanam Exh.- 43 was conducted on the dead body and the same was sent for post mortem. P.W.10 Dr. Kanchan conducted post mortem on the dead body of Ranjana. She found 42% bum injuries which were antemortem. She opined that the cause of death was septicemic shock due to 42% burn injuries. The investigating officer sent all the seized property for chemical analysis. The chemical analysis report Exh. 68, which was received by the investigating agency, discloses that kerosene was found on the clothes of Sangita and Sindhu. She found 42% bum injuries which were antemortem. She opined that the cause of death was septicemic shock due to 42% burn injuries. The investigating officer sent all the seized property for chemical analysis. The chemical analysis report Exh. 68, which was received by the investigating agency, discloses that kerosene was found on the clothes of Sangita and Sindhu. After completion of the investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Achalpur. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court. 6. In the Session Trial No. 34/ 2007, charge was framed against the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused pleased not guilty to the charge and claimed to be tried. The defense of the accused was of total denial and false implication. It was also the defence of the accused that Ranjana committed suicide by setting herself ablaze. 7. In order to prove the charge, the prosecution examined 17 witnesses. The accused examined D. W.1 Sk. Isa in support of their defence. 8. The learned trial Judge, upon appreciation of the evidence led by the prosecution and the accused, held that the offence of murder was made out against both the accused and consequently convicted and sentenced them as above. 9. Mr. Thakkar, learned counsel appearing for the accused submitted that the learned trial Court ought not to have placed reliance on the First Information Report as dying declaration (Exh.- 31) recorded by A.S.I. Tankar. He further submitted that the trial Court having been rejected the two dying declarations ought not to have placed reliance on the other two dying declarations to hold the accused guilty of murder. According to the learned counsel, the dying declarations relied upon by the prosecution are not truthful and do not inspire confidence and as such the conviction of the above accused is not sustainable in law. The learned counsel further submitted that Ranjana, at the time of lodging First Information Report, had given names of the several persons who had witnessed the incident and the prosecution having not examined all of them, the conviction of the accused is unsustainable in law. The learned counsel further submitted that the prosecution evidence has probabalized the defence of the accused that deceased Ranjana committed suicide. The learned counsel further submitted that the prosecution evidence has probabalized the defence of the accused that deceased Ranjana committed suicide. The learned counsel further submitted that the deceased was admitted in Sub District Hospital at Achalpur from 7.3.2007 to 20.3.2007 and from 21.3.2007 to 23.6.2007 at Irwin Hospital, Amravati and there is absolutely no evidence led as to what treatment was given out to her in both these hospitals and as such the offence of murder is not made out against the accused. The learned counsel further submitted that deceased Ranjana had suffered 42% burns and, therefore, in no case the offence of murder can be said to have been proved against the accused. The learned counsel further submitted that even if the case of the prosecution is accepted in toto, at the most an offence punishable under Section 304 (II) of the Indian Penal Code is made out against the accused and considering that the accused no.2 has four minor children, lenient sentences deserve to be imposed on both the accused and more particularly the accused no.2 who is a woman. The learned counsel for the accused placed reliance on the Judgment in the case of Kannayya @ Kanna Vishnu Vidhatc vs. State of Maharashtra, reported in 2010 AllMR (CRI.) 31 in support of his submission. 10. Per contra, Mr.T.A.Mirza, learned APP appearing for the State, supported the Judgment and order of conviction and submitted that no interference is warranted with the Judgment and order of conviction passed by the learned trial Court, inasmuch as the learned trial Court has relied upon two dying declarations which clearly implicate both the accused in commission of the crime. He further submitted that the First Information Report which is to be treated as dying declaration was lodged within a hour of the incident by deceased Ranjana herself and as such deserves credence. According to the learned APP, the First Information Report clearly implicated both the accused in commission of the crime and there is absolutely no evidence led by the accused or any foundation has been led in the cross examination of the prosecution witnesses to probabalize the defence of suicide by Ranjana taken by the accused. According to the learned APP, the First Information Report clearly implicated both the accused in commission of the crime and there is absolutely no evidence led by the accused or any foundation has been led in the cross examination of the prosecution witnesses to probabalize the defence of suicide by Ranjana taken by the accused. The learned APP further submitted that the evidence of doctor and the evidence of the Executive Magistrate, who are independent witnesses, clearly support the prosecution case and, therefore; no interference is warranted with the Judgment and order of conviction passed by the learned trial court. 11. We have carefully considered the rival submissions, perused the record and the Judgment relied upon. 12. There is no serious dispute that Ranjana died on account of burn injuries. The same has been proved by the prosecution through the evidence of P.W. l0 Dr. Kanchan Dhole, who conducted postmortem on the dead body of Ranja Dandage on 24.6.2007. She found 42% burn injuries on the body of Ranjana. She further deposed that all the injuries were ante mortem and the cause of death was septicemic shock due to burn injuries. She identified her signature on the post mortem report (Ex.- 48) and confirmed its contents as true. The testimony of this witness has not been shaken in the cross examination. In any case, it is the defence of the accused that Ranjana committee suicide by setting herself ablaze. Therefore, the prosecution has been able to establish that Ranjana expired on 23.6.2007 on account of burn injuries suffered by her on 7.3.2007. 13. Though the prosecution has primarily relied upon four dying declarations recorded by P.S.I., Dhere (Exh.- 63), A.S.I., Dhiraj (Exh.-74), Rajkumar Kshirsagar Special Executive Magistrate (Exh.- 32) and A.S.I., K.S. Tankar (Exh.- 91), the trial court has refused to place reliance the dying declarations which are recorded by P.S.I., Dhere and A.S.I., Dhiraj on technical grounds. The learned trial Court has relied upon two dying declarations recorded by P. WA Rajkumar Kshirsagar and P.W.17 A.S.I., K.S.Tankar. 14. P.W.4 Rajkumar Kshirsagar, Special Executive Magistrate recorded the dying declaration of deceased Rajana on 21.3.2007. He deposed that he recorded the dying declaration of Ranjana after Dr. Achintanwar certified that the patient was in fit mental and physical condition. The learned trial Court has relied upon two dying declarations recorded by P. WA Rajkumar Kshirsagar and P.W.17 A.S.I., K.S.Tankar. 14. P.W.4 Rajkumar Kshirsagar, Special Executive Magistrate recorded the dying declaration of deceased Rajana on 21.3.2007. He deposed that he recorded the dying declaration of Ranjana after Dr. Achintanwar certified that the patient was in fit mental and physical condition. He further deposed that Ranjana stated to him that she was set on fire by pouring kerosene on her person by Subhash Sonone and Sangita Sonone and her sister Shindhu Kale caught her. He further stated that Ranjana told him that since prior to two days of the incident, Subhash Sonone was quarreling with her. She further stated that after the incident she had gone to Police Station Path rot for lodging the complaint. In his cross examination, nothing tangible has been brought on record to discredit his testimony. His evidence stands corroborated on material aspects by P.W. 15 Dr. Jitendra Achintanwar who had certified the mental and physical fitness of Ranjana. We have absolutely no reason not to accept the dying declaration (Exh.-32) which has been confirmed by P. W.4 Rajkumar Kshirsagar, Special Executive Magistrate as the one recorded by him. 15. The learned trial Judge has also relied upon the dying declaration (Exh.91) recorded by P. W.17 A.S.I., Kailash Tankar by way of first Information Report. The evidence of P. W.17 A.S.I., Kailash Tankar discloses that at the relevant time he was Police Station Officer at Path rot. On 7.3.2007, Ranjana came to the Police Station in burnt condition at about 10.30 a.m. and lodged report against Subhash, Sangita and Sindhu stating that they set her on fire. She further stated that Sindhu and Sangita caught her and accused Subhash poured kerosene from "chili" and accused Subhash ignited stick of match box and set her ablaze. At that time, Madhu Wani, Bhaskar and A fsar bai were present. He further stated that same was reduced into writing and thereafter Ranjana put her thumb impression on the report. He identified his signature and thumb impression of Ranjana on the report (Exh.- 91). He further stated that on the basis of the report, he registered the Crime No. 22/07 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. He identified his signature and thumb impression of Ranjana on the report (Exh.- 91). He further stated that on the basis of the report, he registered the Crime No. 22/07 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. He also identified the thumb impression of Ranjan a on printed First Information Report (Exh.- 32). In his cross examination, nothing tangible has been brought on record to discredit his testimony. Except suggestions, the witness has not been effectively cross examined to bring on record any material to discredit his testimony. We have, therefore, absolutely no. hesitation to accept the dying declaration which was recorded by A.S.I., Kailash Tankar by way of First Information Report. It is also pertinent to note that the First Information Report was lodged within an hour of the incident by Ranjana which lends assurance to the prosecution case that it was accused no.1 Subhash Sonone, who set Ranjana ablaze after the accused nos. 2 and 3 caught her. We have, therefore, absolutely no hesitation to accept two dying declarations upon which the learned trial court has placed reliance. No doubt some of the prosecution witnesses have not supported fully the prosecution case but this by itself would not be sufficient to discredit two dying declarations which inspire confidence being truthful. 16. The prosecution evidence, more particularly that of P.W.1 Madhukar itself suggests that just prior to the incident, the accused no. 1 abused deceased Ranjana in filthy language and Ranjana also gave abuses to Subhash. It appears that this happened on account of the fact that at that time Ranjana was sitting on the road and caused obstruction to Subhash who had come to his house in rickshaw driven by him. His evidence further discloses that there was exchange of words between both of them. Insofar as the evidence of D.W.1 Sk. Isa tendered by the accused is concerned, we find it difficult to place reliance on his testimony and in our opinion the learned trial court has rightly refused to place reliance on his testimony. He was examined by the defence in support of the stand that Ranjana had attempted to commit suicide by setting herself ablaze. Isa tendered by the accused is concerned, we find it difficult to place reliance on his testimony and in our opinion the learned trial court has rightly refused to place reliance on his testimony. He was examined by the defence in support of the stand that Ranjana had attempted to commit suicide by setting herself ablaze. However, his deposition, read as a whole, does not inspire confidence and in any case, we find it extremely difficult to place reliance upon his testimony in view of the two dying declarations (Exhs. 91 and 32) to which We have already made reference hereinabove. Thus, the prosecution has been able to prove that it was accused no.1 Subhash Sonone who set her ablaze after accused nos.2 and 3 caught deceased Ranjana. 17. The next question which arises for consideration is, as to what offence is made out against the accused. The learned trial Court has held that the offence of murder was made out against both the appellants/ accused. The prosecution evidence itself suggests that there was quarrel between accused no.1 Subhash and deceased Ranjana who was squatting on the road and causing obstruction to Subhash who had come on rickshaw. Moreover, there used to be frequent quarrels between the accused and deceased inasmuch as deceased Ranjana was leading immoral life to which accused objected. In addition, the incident had occurred on 7.3.2007 and Ranjana expired on 23.6.2007 i.e. after the period of almost more than three months. There is absolutely no evidence as to what medical treatment was given to Ranjana during this period. In addition, the prosecution evidence itself suggests that Ranjana suffered 42% burn injuries. Considering all these facts, we are of the considered opinion that appropriate conviction on both the appellants/ accused would be under Section 304 (II) r/w 34 and not under Section 302 r/w 34 of the Indian Penal Code. Hence, both the accused are liable to be convicted for the offence punishable under section 304 (II) read with Section 34 of the Indian Penal Code. 18. The major role of setting Ranjana ablaze was played by Accused no. 1 Subhash. Accused no.2 Sangita facilitated the act of setting aside Ranjana ablaze by catching Ranjana with the help of accused no.3 Sindhu, who expired during the trial. Therefore, in our considered view, accused no.1 Subhash deserves higher punishment as compared to accused no.2 Sangita. 18. The major role of setting Ranjana ablaze was played by Accused no. 1 Subhash. Accused no.2 Sangita facilitated the act of setting aside Ranjana ablaze by catching Ranjana with the help of accused no.3 Sindhu, who expired during the trial. Therefore, in our considered view, accused no.1 Subhash deserves higher punishment as compared to accused no.2 Sangita. In our opinion, the interest of justice would be served by sentencing accused no.1 Subhash to undergo rigorous imprisonment of 7 (Seven) years and to pay fine ofRs.2000/- (Rs. Two thousand only), in default to undergo rigorous imprisonment for 1 (one) month and accused no.2 Sangita to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs. 1000/- (Rs. One thousand only) in default to undergo rigorous imprisonment for 15 (fifteen) days. 19. In the result, therefore, we pass the following order. Order I) Criminal Appeal No. 843/2008 is partly allowed. The conviction of both the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is quashed and set aside. Instead, both the accused are convicted for the offence punishable under Section 304 (II) read with Section 34 of the Indian Penal Code. II) Accused no.1 Subhash Sonone is sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs.2000/- (Rs. Two thousand only), in default to suffer rigorous imprisonment for 1 (one) month. III) Accused no.2 Sangita Sonone is sentenced to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs. l000/- (Rs. One thousand only), in default to suffer rigorous imprisonment for 15 (fifteen) days. IV) Both the accused are entitled to set off the period of detention already undergone under Section 428 of the Code of Criminal Procedure. V) The order passed by the learned trial court insofar as the disposal of the property is concerned, is maintained. VI) The accused no.2 Sangita Sonone, who is on bail, is granted time off our weeks to surrender to suffer remaining sentence imposed on her. The accused no.2 Sangita shall surrender before the learned trial Court within a period of four weeks. In case, the accused no.2 fails to surrender within four weeks, the learned trial Court shall take appropriate steps to take her in custody to serve remaining sentence. Ordered accordingly.