Judgment K.S. Jhaveri, J.—The appellants – original accused were inter alia sentenced to undergo rigorous imprisonment for life and fine of Rs. 25,000/- in default rigorous imprisonment for two years for offence punishable under Section 302 read with 114 of Indian Penal Code by impugned judgement and order dated 20.04.2010 in Sessions Case No. 68 of 2009 by the Sessions Judge, Kheda, Mu. Nadiad. 2. Accused No. 1 is the brother-in-law of the deceased and Accused No. 2 is the sister-in-law of deceased. As per the prosecution case, the deceased in her complaint stated that the houses of appellants and the deceased were adjacent to each other and that on 03.05.2009 the Appellant No. 2 and the deceased entered into a quarrel with regard to a goat wrongly entering the field of Appellant No. 2 which was later on pacified by the husband of deceased. It is the case of the prosecution that on 04.05.2009, when the deceased’s husband had gone for labour work, at about 09.00 am the appellants came with kerosene and Appellant No. 1 allegedly caught held the deceased and Appellant No. 2 poured kerosene and set the deceased ablaze. The deceased raised shouts and one Amin Husen, who happens to be the neighbour of deceased came to her rescue. She was taken to Nadiad hospital and thereafter to Civil Hospital, Ahmedabad where she succumbed to the injuries on 10.05.2009 during the course of treatment. 2.1 The appellants were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. To sustain its case, the prosecution adduced relied upon the following witnesses whose evidences were read before us: (i) P.W. 1 – Dr. Saumil Merchant Ex. 10 (ii) P.W. 2 – Mohamadmunaf Malek Ex. 15 (iii) P.W. 3 – Taufiqhusen Shaikh Ex. 17 (iv) P.W. 4 – Fazalmohammad Malek Ex. 18 (v) P.W. 5 – Salim Allarakha Malek Ex. 20 (vi) P.W. 6 – Bharatkumar Sharma Ex. 23 (vii) P.W. 7 – Mazirhusen Malek Ex. 27 (viii) P.W. 8 – Kerunisha Zahidhusen Ex. 28 (ix) P.W. 9 – Bibisha Amin Ex. 29 (x) P.W. 10 – Aminabibi Malek Ex. 31 (xi) P.W. 11 – Bilkhisbibi Malek Ex. 32 (xii) P.W. 12 – Alimohammad Shaikh Ex. 33 (xiii) P.W. 13 – Jivanbibi Shaikh Ex. 34 (xiv) P.W. 14 – Bashirmohammad Shaikh Ex. 35 (xv) P.W. 15 – Nasirmohammad Shaikh Ex. 28 (ix) P.W. 9 – Bibisha Amin Ex. 29 (x) P.W. 10 – Aminabibi Malek Ex. 31 (xi) P.W. 11 – Bilkhisbibi Malek Ex. 32 (xii) P.W. 12 – Alimohammad Shaikh Ex. 33 (xiii) P.W. 13 – Jivanbibi Shaikh Ex. 34 (xiv) P.W. 14 – Bashirmohammad Shaikh Ex. 35 (xv) P.W. 15 – Nasirmohammad Shaikh Ex. 36 (xvi) P.W. 16 – Dr. Hansaben Patel Ex. 38 (xvii) P.W. 17 – Dr. Manoj Kataria Ex. 40 (xviii) P.W. 18 – Dr. Hiren Oza Ex. 44 (xix) P.W. 19 – Pravinbhai Meghani Ex. 46 (xx) P.W. 20 – Dalpatsinh Dabhi Ex. 50 (xxi) P.W. 21 – Satusinh Rathod Ex. 53 (xxii) P.W. 22 – Vinodsinh Khengar Ex. 64 2.2 The prosecution also relied upon the following documents which were perused by us during the course of hearing: (i) Complaint Ex. 48 (ii) Panchnama of scene of offence Ex. 16 (iii) Panchnama of body condition of accused Ex. 19 (iv) Inquest panchnama Ex. 21 (v) Dying declaration Ex. 25 (vi) Map of scene of offence Ex. 61 (vii) Death form Ex. 54 (viii) Certificate of deceased Ex. 39 (ix) Certificate by Radhswami hospital Ex. 41 (x) P.M. Note Ex. 11 (xi) Cause of death certificate Ex. 12 (xii) Receipt of handing over dead body Ex. 55 (xiii) FSL Mobile Van Report Ex. 56 (xiv) Dispatch note Ex. 57 (xv) FSL Receipt Ex. 58 (xvi) FSL Letter Ex. 59 (xvii) FSL report Ex. 60 (xviii) Oral Vardhi Ex. 47 (xix) Letter to FSL Ex. 13 (xx) Report for recording D.D Ex. 24 (xxi) Case papers Ex. 45 (xxii) Certified copy of Janvajog entry mp/ 35/09 Ex. 51 (xxiii) Certified copy of station diary entry Ex. 52 2.3 At the end of the trial and after recording the statement of the accused under Section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal. 3. Mr. Hriday Buch, learned advocate appearing for the appellants submitted that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. He submitted that there are serious discrepancies in the evidence of witnesses and therefore the appellants deserve to be granted benefit of doubt. 3.1 Mr. 3. Mr. Hriday Buch, learned advocate appearing for the appellants submitted that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. He submitted that there are serious discrepancies in the evidence of witnesses and therefore the appellants deserve to be granted benefit of doubt. 3.1 Mr. Buch submitted that the alleged offence occurred on 04.05.2009 whereas the deceased had expired on 10.05.2009 i.e. after about 06 days of the alleged incident. He submitted that in fact the deceased had died due to septicemia and considering the burns sustained by the deceased, it cannot be said that the burns proved to be fatal to the deceased. He submitted that therefore the appellants deserve to be acquitted of the offence charged against them. 3.2 Mr. Buch contended that the trial Court ought to have appreciated the fact that there is a grave contradiction in the history recorded before the doctors at both the hospitals as well as in the dying declaration recorded by the Executive Magistrate and therefore the appellants deserve to be granted benefit of doubt. He submitted that the husband, sister and mother-in-law of deceased have been declared hostile. 3.3 Mr. Buch submitted that the deceased did not implicate both the appellants together and did not attribute any role to Appellant No. 1 at the earliest available opportunity. He submitted that in fact going by the arrest panchnama and the FSL report no smell of kerosene was found from the clothes of Appellant No. 1. He submitted that considering the same the implication of Appellant No. 1 is an after thought and therefore atleast Appellant No. 1 deserves to be granted benefit of doubt. 3.4 Mr. Buch submitted that if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the medical evidence and the fact that the deceased had survived for around 06 days after the incident coupled with the fact that the incident had happened in a spur of moment, the Court may consider the case of the appellants under Section 304 (Part I) or 304 (Part II) of Indian Penal Code. In support of his submissions, Mr. In support of his submissions, Mr. Buch has relied upon the decisions of the Apex Court in the case of B.N. Kavatakar and Another vs. State of Karnataka reported in 1994 Supp (1) SCC 304 and in the case of Maniben vs. State of Gujarat reported in (2009) 8 SCC 796. 3.5 Mr. Buch has relied upon a decision of the Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, and submitted that in the alternative, even if the case of the prosecution is accepted, considering the fact that the offence was committed in the spur of moment, this Court may increase the amount of fine or compensation in lieu of the sentence awarded considering the provisions of Section 37 of Cr.P.C. 4. Ms. CM Shah, learned APP appearing for the respondent State has supported the order of the trial Court and has submitted that the trial Court has gone into the evidence in detail and has come to the conclusion that the appellants are guilty of the offence so convicted of. She has submitted that considering the barbaric act committed by the appellants, the trial Court has rightly convicted the appellants. She also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed. 4.1 Ms. Shah submitted that going by the contents in the dying declaration and the complaint, it is amply clear that the accused-appellants are guilty of the offence charged against them. She further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law and in fact does not need any corroboration. She has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 . 5. We have heard learned advocates appearing for both the sides and have also gone through the materials placed on record. The fact that the deceased – Roshanbanu had sustained about 80% I0 to III0 burn injuries is clear from the records. The cause of death, as opined by the Medical Officers who conducted the postmortem examination, is shock as a result of burns and its complications. 5.1 There is no eye witness in the present case. The fact that the deceased – Roshanbanu had sustained about 80% I0 to III0 burn injuries is clear from the records. The cause of death, as opined by the Medical Officers who conducted the postmortem examination, is shock as a result of burns and its complications. 5.1 There is no eye witness in the present case. At the outset it shall be relevant to note that it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 6. In the present case there are dying declarations in the form of complaint before the police, Ex. 48 and the dying declaration recorded by the Executive Magistrate Ex. 25 as well as the histories before the doctors. 6.1 As far as the dying declaration Ex. 48 is concerned, the same was recorded by an Executive Magistrate. In the dying declaration, the role of the accused persons is mentioned. The deceased has stated in the dying declaration that the accused persons had beaten her as her goat had entered the field of father-in-law of deceased. Thereafter on the date of incident, at around 09.00 am the accused persons came to her house and Appellant No. 1 caught her and Accused No. 2 poured kersoene on her and set her on fire. She has however named both the accused as the perpertrator of the offence. She has informed that her brother in law – Accused No. 1 thereafter tried to extinguish the fire. 6.2 In the case of Gopal vs. State of Madhya Pradesh reported in (2009) 12 SCC 600 , the Apex Court in Para 13 has observed as under: “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances.” 6.3 In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569 , the Apex Court has held that a “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration. 6.4 As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate – P.W. 6 – Bharatkumar Sharma in his deposition vide Ex. 23 has stated that he had taken the opinion of the doctor as to fitness of the deceased from the doctor at Radhaswami Hospital and thereafter started recording the dying declaration and that the doctor had stated that the deceased was conscious and fit to give her statement. 23 has stated that he had taken the opinion of the doctor as to fitness of the deceased from the doctor at Radhaswami Hospital and thereafter started recording the dying declaration and that the doctor had stated that the deceased was conscious and fit to give her statement. He stated that he started recording the dying declaration at around 03.30 pm and that the deceased and himself were alone in the room. He has supported the averments made by the deceased in the dying declaration. He has stated that the deceased appended her left hand thumb impression after recording the dying declaration. He has categorically stated that an endorsement with regard to the fitness of the deceased was taken from the doctor on the dying declaration. 6.5 In the present case, when the Executive Magistrate recorded the dying declaration pursuant to the Vardhi received by him after taking opinion from the doctor, this Court finds no reason to disbelieve him more particularly when he has no axe to grind against the accused and being a public officer we find no reason as to why he will implicate a person falsely. 6.6 It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. 6.7 In this regard, the Apex Court in the case of Kamalavva and another vs. State of Karnataka reported in (2009) 13 SCC 614 has held as under: “18. In the aforesaid decision this Court while referring to the decision of the Constitution Bench in Laxman case reiterated that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind specially when the dying declaration was recorded by a Magistrate. It was also held in the said decision that it is the testimony of the Magistrate that the declarant was fit to make statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor’s certificate provided the Court ultimately holds the same to be voluntary and truthful. 19. It was also held in the said decision that it is the testimony of the Magistrate that the declarant was fit to make statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor’s certificate provided the Court ultimately holds the same to be voluntary and truthful. 19. In the backdrop of the aforesaid legal principles laid down by this Court, we will now examine the admissibility of the dying declaration in the case in hand. 20. PW-17 (Tahsildar) has stated that he was asked by the police to record the dying declaration of the deceased Shoba who was undergoing treatment in the hospital. He proceeded to the hospital and recorded the statement in the presence of Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17. The aforesaid statement was recorded in the form of questions and answers. From the nature of the answers the deceased has given, it cannot be said that she has not understood the questions and has not given proper answers. Therefore, it is not difficult to conclude that the mental capacity of the deceased was sound and she was capable of giving answers to the questions put forth by PW-17. The aforesaid dying declaration was recorded by PW- 17 in the presence of PW-18 who is a doctor attached to the same hospital. He has categorically stated in his evidence that the doctor had given the certificate to the effect that the injured was in a position to give the declaration. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb impression of the deceased Shoba was also taken on Ext. P.17. The doctor (PW-18) who was present at the time of recording the dying declaration has also attached a certificate to the effect that the said dying declaration was recorded in his presence. 21. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb impression of the deceased Shoba was also taken on Ext. P.17. The doctor (PW-18) who was present at the time of recording the dying declaration has also attached a certificate to the effect that the said dying declaration was recorded in his presence. 21. In view of the aforesaid clear and unambiguous factual position we are of the considered opinion that the High Court was totally justified in relying upon the dying declaration recorded by the Taluka Executive Magistrate (PW-17) The technical objection raised by the counsel for the appellant regarding the unavailability of doctor’s certification and endorsement as to mental fitness of the deceased, is liable to be rejected in as much as the same has been held by this Court in numerous decisions as a mere rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary. 22. PW-17, who recorded the dying declaration had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. PW- 17 being a Public Officer, we find no reason as to why he will implicate a person falsely. Accordingly, the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. The same also corroborates in all respect with the statement given by the deceased to the police on 10.04.1995. The said statement was also recorded by the police officer of the rank of ASI and the deceased also put her LTI in it. In our considered opinion, the dying declaration is reliable and trustworthy and gives an accurate version of the manner in which the incident had taken place.” [Emphasis Supplied] 6.8 In the present case, we do not find any doubt in the nature of the dying declaration recorded. The same is also corroborated by the panchnama and other evidence on record. 7. In the complaint Ex. 48 the deceased has stated that she lived in her matrimonial house with her husband and children. She has stated that her sister in law – Appellant No. 2 used to frequently quarrel with her on trivial issues. The same is also corroborated by the panchnama and other evidence on record. 7. In the complaint Ex. 48 the deceased has stated that she lived in her matrimonial house with her husband and children. She has stated that her sister in law – Appellant No. 2 used to frequently quarrel with her on trivial issues. She has stated that on the day prior to the date of incident, Appellant No. 2 had picked up a quarrel with her as her goat had entered the field. She has stated that her husband pacified her in not quarreling with Appellant No. 2. The deceased had further stated in her complaint that on the next day when the deceased’s husband went for labour work, Appellant No. 2 started abusing her and the deceased did not respond. Thereafter, at around 09.00 am, appellants came to her house with a tin of kerosene and Appellant No. 2 poured it on her whereas appellant no .1 caught her and Appellant No. 2 set her on fire. She has further stated that a neighbour Aminhusen came rushing hearing her shouts and tried to extinguish fire by wrapping a blanket around her. She was thereafter taken to hospital for treatment. 8. In the history recorded before Dr. Hansaben Patel – P.W. 16 the deceased has stated that she was set on fire by Appellant No. 2. P.W. 16 has stated in her deposition vide Ex. 38 that on 04.05.2009 while she was on duty at Nadiad Civil Hospital, the deceased was brought to the hospital for treatment pursuant to burn injuries sustained by her. This witness has stated that when she asked about the history of the burns, the deceased had informed her that she was set on fire by her younger sister-in-law – Appellant No. 2. P.W. 16 has stated that the deceased had sustained around 91% burns and she was transferred to Ahmedabad Civil Hospital after giving primary treatment. 8.1 P.W. 17 – Dr. Manoj Kataria is the doctor who had treated the deceased at Radhaswami hospital, Nadiad after being shifted from Civil Hospital, Nadiad. This witness has stated that when being asked about the history of the burns, the deceased had informed him that she was set on fire by her younger sister-in-law – Appellant No. 2. This witness has stated that the deceased was transferred to Ahmedabad Civil Hospital on 06.05.2009. This witness has stated that when being asked about the history of the burns, the deceased had informed him that she was set on fire by her younger sister-in-law – Appellant No. 2. This witness has stated that the deceased was transferred to Ahmedabad Civil Hospital on 06.05.2009. He has opined that the deceased had sustained around 80-85% superficial to deep burns. 8.2 However, P.W. 18 – Dr. Hiren Oza, the medical officer who treated the deceased at V.S. Hospital, Ahmedabad has stated in his deposition vide Ex. 44 that the deceased had given history before the doctor at previous hospitals that two persons had set her ablaze. This seems to be the result of the dying declaration recorded by the Executive Magistrate wherein the name of the appellants appear. No particular history was given before this witness. 8.3 The vardhi sent by Dr. Hansaben – P.W. 16 at Ex. 47 as recorded by ASI, Civil Choki, Nadiad mentions that the deceased was set on fire by Appellant No. 2 following a quarrel between them. 9. Looking to the facts and circumstances of the case it cannot be said that the death was not homicidal. The post mortem report gives the details of the injuries on the body of the deceased and the same reads as under: “17. (1) I0 to 30 burns present over head and neck, Including face and both ears. (2) I0 to 30 burns present over both upper limbs including axilla, dorsal aspect of hand and palm. (3) I0 to 30 burns present over front of the trunk. (4) I0 to 30 burns present over back of the trunk. (5) I0 to 30 burns present over both lower limb except lower two thrid of both leg, dorsum of feet and sole. – More than 80% of body surface area burnt. – Greenish – Yellow foul smelling slough present over base of the body.” 9.1 P.W. 1, Dr. Saumil Merchant vide his evidence (Ex. 10) has stated that he performed the post mortem on the body of deceased and has opined the cause of death to be shock due to burns and its complications. He has stated that there was slough over the base of burns showing slight greenish – yellowinsh serious discharge and foul smell was being emanated. He stated that the total burnt area was around 80%. He has stated that there was slough over the base of burns showing slight greenish – yellowinsh serious discharge and foul smell was being emanated. He stated that the total burnt area was around 80%. He has stated that such complications due to burns were sufficient in normal course to cause death of a person. 10. From the panchnama of scene of offence, half burnt pieces of clothes which were worn by the deceased were found. Kerosene was found spread in the mud of the floor. A can smelling of kerosene and a match box were also found from the scene of offence. In the present case, we do not find any doubt in the nature of the dying declaration recorded. The same is also corroborated by the panchnama and other evidence on record. 11. P.W. 7 – Nazirhusen Malek who is the husband of deceased has not supported the case of the prosecution and has been declared hostile. P.W. 8 who is the sister of the deceased and P.W. 9 who is the mother-in-law of deceased have also been declared hostile. The panch witnesses barring P.W. 2 have supported the panchnama and identified their signatures. 12. In the case of Panneerselvam vs. State of Tamil Nadu reported in (2008) 17 SCC 190, the Apex Court has observed as under: “7. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 8. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.” 12.1 On the other hand, in the case of Ongole Ravikanth vs. State of Andhra Pradesh reported in (2009) 13 SCC 647 , the Apex Court has held as under: “28. It is well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. 29. It has been repeatedly held by this Court that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. [See: Smt. Paniben vs. State of Gujarat (1992)2 SCC 474 , K. Ramachandra Reddy and Anr. vs. The Public Prosecutor (1976) 3 SCC 618 , Darshan Singh @ Bhasuri & Ors. vs. State of Punjab (1983) 2 SCC 411 , Kanchy Komuramma vs. State of A.P. (1995) Supp. 4 SCC 118, Maniram vs. State of M.P. ( 1994) Supp. [See: Smt. Paniben vs. State of Gujarat (1992)2 SCC 474 , K. Ramachandra Reddy and Anr. vs. The Public Prosecutor (1976) 3 SCC 618 , Darshan Singh @ Bhasuri & Ors. vs. State of Punjab (1983) 2 SCC 411 , Kanchy Komuramma vs. State of A.P. (1995) Supp. 4 SCC 118, Maniram vs. State of M.P. ( 1994) Supp. 2 SCC 539, Laxman vs. State of Maharashtra ( 2002) 6 SCC 710 & Nallapati Sivaiah vs. Sub- Divisional Officer, Guntur, A.P. AIR 2008 SC 19 ].” 12.2 In the case of M. Sarvana Alias K.D. Sarvana vs. State of Karnataka reported in (2012) 7 SCC 636 , the Apex Court has held in para 16 as under: “16. In Laxman v. State of Maharashtra (2002)6 SCC 710 , the Court while dealing with the argument that the dying declaration must be recorded by a magistrate and the certificate of fitness was an essential feature, made the following observations. The Court answered both these questions as follows: “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.” 12.3 In a recent decision of the Apex Court in the 10 case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the Court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the Court to look for corroboration of the same. 13. In that view of the matter, it is clear that the dying declaration being voluntary and made in a fit state cannot be discarded. Considering the contents of dying declaration, the evidence of Executive Magistrate, evidence of doctors and other corroborating documentary evidence such as panchnama of scene of offence, inquest panchnama we are of the opinion that the fact that the deceased died a homicidal death is proved beyond reasonable doubt. 14. However, as far as the role of the Appellant No. 1 on the day of incident is concerned, it is true that no such averment was made in the history recorded before the doctor at Civil Hospital, Nadiad as well as Radhaswami hospital, Nadiad regarding his role on the date of incident. Moreover, Appellant No. 1 has been first named in the dying declaration wherein the deceased has also stated that he tried to extinguish the fire. Moreover, Appellant No. 1 has been first named in the dying declaration wherein the deceased has also stated that he tried to extinguish the fire. No clear role has been attributed to him in setting the deceased on fire and his overt act has not been proved by the prosecution beyond reasonable doubt. However, his presence at the scene of offence cannot be totally ruled out. He could also have prevented the incident when he was present at the scene of offence. 15. We have also not lost sight of the fact that the deceased had died after about 06 days of treatment. From the medical reports, it is clear that the deceased died due to shock as a result of burns and its complications. 15.1 In the case of the B.N. Kavatakar and another (Supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under Section 302 to under Section 326 and modified the sentence accordingly. 15.2 Similarly, in the case of Maniben (Supra), the Apex Court has observed as under: “18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. 19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC.” 16. In the present case, we have come to the irresistible conclusion that the role of the Appellant No. 2 is clear from the dying declaration and other records. However, the point which has also weighed with this Court are that the deceased had survived for around 06 days in the hospital and ultimately died of complications of burns. In fact she had sustained about 80% burns. In that view of the matter, we are of the opinion that the conviction of the Appellant No. 1 under Section 302 read with Section 114 of Indian Penal Code is required to be converted to that under Section 304(II) of Indian Penal Code whereas conviction of Appellant No. 2 under 302 read with 114 of Indian Penal Code is required to be converted to that under Section 304(I) of Indian Penal Code and she is directed to undergo rigorous imprisonment for a period of ten years. 16.1 However, since the deceased was inconsistent in her statement regarding the role of Appellant No. 1, we think it fit that Appellant No. 1 may be imposed punishment of rigorous imprisonment for seven years which may be suspended on payment of suitable compensation in view of the judgment of the Hon’ble Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, wherein, it is held that the principle of Sub-section (3) of Section 357 of CrPC is empowering the Court to award compensation. 17. 17. In the result, appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 20.04.2010 passed by the Sessions Judge, Kheda, Nadiad in Sessions Case No. 68 of 2009 is modified as under: (i) The conviction of original Accused No. 1 – Niyazhusen Fatemiya Malek under Section 302 read with Section 114 of the Indian Penal Code is converted to conviction under Section 304 (Part II) of Indian Penal Code. (ii) Similarly, the conviction of original Accused No. 2 – Parvinbanu w/o Niyazhusen Fatemiya Malek under Section 302 read with Section 114 of the Indian Penal Code is converted to conviction under Section 304 (Part I) of Indian Penal Code. (iii) Accordingly, Accused No. 1 is sentenced to undergo rigorous imprisonment for 07 (seven) years under Section 304 (Part II) IPC but the same is suspended on condition that he shall pay an amount Rs. 29,000/- by way of compensation under sec. 357 of Cr.P.C. over and above the amount of fine imposed by the trial Court. Original Accused No. 1 – Niyazhusen Fatemiya Malek is ordered to be set at liberty if not required in connection with any other case. (iv) However, original Accused No. 2 – Parvinbanu w/o Niyazhusen Fatemiya Malek is ordered to undergo rigorous imprisonment for 10 (ten) years under Section 304 (Part I) of Indian Penal Code. The amount of fine and sentence imposed in default of fine by the trial Court qua original Accused No. 2 is maintained. (v) The amount of compensation/fine shall be paid by Accused No. 1 within a period of twelve weeks from today. If original Accused No. 1 does not pay the amount as ordered hereinabove in time, the sentence awarded hereinabove shall stand revived and it shall be open to the concerned authorities to take original Accused No. 1 into custody and he shall be liable to serve the remaining part of the sentence. (vi) Out of the total amount of Rs. 79,000/- (Rs. 50000/- paid by accused nos. 1 & 2 pursuant to the order of trial Court + Rs. 29000/- to be paid by Accused No. 1), Rs. 75,000/- shall be paid to the three minor children of deceased namely Ashiyanabanu, Idayat Husen and Sirajitbanu by way of compensation under Section 357 of Code of Criminal Procedure instead of the husband of deceased as directed by the trial Court. 29000/- to be paid by Accused No. 1), Rs. 75,000/- shall be paid to the three minor children of deceased namely Ashiyanabanu, Idayat Husen and Sirajitbanu by way of compensation under Section 357 of Code of Criminal Procedure instead of the husband of deceased as directed by the trial Court. The remaining amount of Rs. 4000/- shall be paid to the State. (vii) The period of sentence already undergone by original Accused No. 2 shall be considered for remission and set off in accordance with law. R & P to be sent back to the trial Court forthwith.