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2013 DIGILAW 693 (GUJ)

Gopal Udaising Thakur v. State of Gujarat

2013-11-29

K.J.THAKER, K.S.JHAVERI

body2013
Judgment K.S. Jhaveri, J.—The appellant has been found guilty of commission of offence under Section 302 of Indian Penal Code and has been awarded life imprisonment and fine of Rs. 2000/-, in default, rigorous imprisonment for two months by learned Addl. Sessions Judge, Court No. 15, Ahmedabad City vide judgement and order dated 30.07.2010 passed in Sessions Case No. 48 of 2010. 2. The gist of the prosecution story is mentioned hereinbelow:— 2.1 On 24.09.2009, the deceased after doing some household work in the morning, went to take a nap. At that time, the accused poured petrol which he had purchased from a petrol pump on 20.09.2009 and set her ablaze and thereafter ran out of the premises latching the room door from outside. Sensing heat, the deceased woke up from sleep all of a sudden and started shouting for help. In the meantime the deceased learnt from her minor duaghter that the accused had poured petrol on her from a bottle and had set her ablaze. Hearing the shouts, the neighbours gathered there and took the deceased to hospital. The victim died on 30.09.2010 during the course of her treatment. 2.2 The appellant was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions at Ahmedabad. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: (i) P.W. 1 – Prabhakar Khedekar Ex. 08 (ii) P.W. 2 – Mehul Munshi Ex. 10 (iii) P.W. 3 – Rajendraprasad Sharma Ex. 11 (iv) P.W. 4 – Sheelaben Patel Ex. 15 (v) P.W. 5 – Dr. Tapanbhai Mehta Ex. 18 (vi) P.W. 6 – Payalben Lodha Ex. 22 (vii) P.W. 7 – Natwarbhai Dabgar Ex. 23 (viii) P.W. 8 – Himmatsinh Lodha Ex. 25 (ix) P.W. 9 – Dahyabhai Dabgar Ex. 26 (x) P.W. 10 – Bheem Jogi Ex. 27 (xi) P.W. 11 – Jayantilal Panchal Ex. 30 2.3 The prosecution also exhibited the following documents as evidences which have been perused by us: (i) Panchnama of scene of offence Ex. 09 (ii) Panchnama of seizing clothes of accused Ex. 12 (iii) Yadi to Executive Magistrate for D.D Ex. 16 (iv) Dying Declaration Ex. 17 (v) P.M. Report Ex. 19 (vi) Inquest panchnama Ex. 28 (vii) Complaint Ex. 09 (ii) Panchnama of seizing clothes of accused Ex. 12 (iii) Yadi to Executive Magistrate for D.D Ex. 16 (iv) Dying Declaration Ex. 17 (v) P.M. Report Ex. 19 (vi) Inquest panchnama Ex. 28 (vii) Complaint Ex. 31 (viii) Report under Section 157 Ex. 32 (ix) Yadi to FSL officer Ex. 33 (x) Permission for inquest Ex. 34 (xi) Report for adding Section 302 Ex. 35 (xii) FSL Dispatch note Ex. 36 (xiii) FSL receipt Ex. 37 (xiv) FSL Letter Ex. 38 (xv) FSL analysis Ex. 39 2.4 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 Additional Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. Vivek Mopara, learned advocate appearing for the appellant submitted that the prosecution failed to prove the case against the appellant beyond reasonable doubt. He submitted that there are major and material contradictions and inconsistencies in the evidence of the prosecution witnesses creating serious doubts upon the veracity and genuineness of the prosecution case. 3.1 Mr. Mopara further submitted that the case of the prosecution is mainly based on the evidence of P.W. 6- Payal Lodha who is a child witness. He submitted that the evidence of the child witness cannot be completely relied upon as the same can always be tutored and that the child may be swayed by what other tell him/her. 3.2 Mr. Mopara 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 6 days after the incident and that the deceased had died due to shock as a result of complications of burns, the Court may consider the case of the appellant under Section 304 (Part I) of Indian Penal Code. 3.3 In support of his submissions, Mr. Mopara has relied upon a decision 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. 4. 3.3 In support of his submissions, Mr. Mopara has relied upon a decision 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. 4. Mr. Soni, 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 appellant is guilty of the offence so convicted of. He submitted that considering the barbaric act committed by the appellant in setting on fire his own wife, the trial Court has rightly convicted the appellant. He also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed. 4.1 Mr. Soni submitted that going by the contents in the dying declaration and the complaint, it is amply clear that the accused-appellant is guilty of the offence charged against him. He further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law and in fact does not need any corroboration. He has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 . He submitted that the prosecution witnesses have supported the case of the prosecution. 4.2 Mr. Soni has further submitted that the trial Court is fully justified in basing the conviction on the dying declaration as well as evidence of witnesses including the child witness. He submitted that considering the post mortem report, it is clear that it was a homicidal death caused due to pouring of petrol and the same corroborates the version of the child witness – P.W. 6, the complaint as well as dying declaration. He submitted that the contention that evidence of child witness cannot be relied upon does not hold water as the witness in the present case, though minor, had intellectual capacity to understand questions and give rational answers thereto. 5. We have gone through the judgement and order passed by the trial court. He submitted that the contention that evidence of child witness cannot be relied upon does not hold water as the witness in the present case, though minor, had intellectual capacity to understand questions and give rational answers thereto. 5. We have gone through the judgement and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial Court and also considered the submissions made by learned Advocate for the appellant and the State. The main question that falls for our determination in this appeal is as to whether the accused could have been convicted for the offence of murder punishable under Section 302 IPC. 6. In the complaint given by the deceased she has stated that her husband had been out of work for quite some time and therefore he used to sell household items for his necessities and this had led to an unwarmth between the deceased and her husband. She has stated that for the last one year there had been frequent quarrels between them and he used to suspect her wrongly. She has stated that on 24.09.2009, she had woken up early and completed household chores and thereafter as she had been awake for long the previous night, she went to sleep for sometime. She has stated that her daughter was present at home. It is further stated by the deceased in her complaint that due to a sudden fire she had woken up from her slumber and she found her clothes had caught fire. She started shouting for help and her daughter also screamed. At this time, her daughter told her that her husband – accused had poured petrol on her and had fled away. It is further stated by the deceased in her complaint that the neighbours gathered there and tried to extinguish the fire and that she was later on brought to hospital for treatment. 7. In the dying declaration recorded by the Executive Magistrate, the deceased has while she was sleeping after completing household chores, she woke up due to a sudden fire. She started shouting for help. She has stated that she learnt that her husband had poured petrol on her and had ran away and that she had not seen him doing it but her daughter had seen him. She started shouting for help. She has stated that she learnt that her husband had poured petrol on her and had ran away and that she had not seen him doing it but her daughter had seen him. She has stated that she was brought to hospital for treatment by her mother, brother in law and sister. She has stated that she has started to hate him after the incident and that she had never imagined he would have done so. 7.1 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. 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.” 7.2 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. 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. 8. 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. 4 – Sheelaben Patel in her deposition vide Ex. 15 has stated that she had seen the opinion of the doctor as to fitness of the deceased on the yadi sent to her by Dariapur Police Station for recording dying declaration and that the doctor had stated that the deceased was conscious. She stated that she went to the room where the deceased was being treated and verified the consciousness and fitness of the deceased to record the statement. She has stated that she asked everyone present there to go out of the room. She has supported the averments made by the deceased in the dying declaration. P.W. 4 has stated that she took the toe impression of the right leg of the deceased after recording the dying declaration. She has categorically stated that the victim was conscious and oriented enough to give her dying declaration. 8.1 In the present case, when the Executive Magistrate recorded the dying declaration pursuant to the Vardhi received by her after opinion from the doctor, this Court finds no reason to disbelieve her more particularly when she has no axe to grind against the accused and being a public officer we find no reason as to why she will implicate a person falsely. The yadi at Ex. 16 mentions the endoresment by the Medical Officer that the deceased is conscious and able to give D.D which was made at around 12.10 pm on 24.09.2009. The recording of dying declaration was started by the Executive Magistrate at 12.55 pm on 24.09.2009. The yadi at Ex. 16 mentions the endoresment by the Medical Officer that the deceased is conscious and able to give D.D which was made at around 12.10 pm on 24.09.2009. The recording of dying declaration was started by the Executive Magistrate at 12.55 pm on 24.09.2009. 8.2 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. 8.3 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. 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. 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. 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. 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] 8.4 Considering the aforesaid discussion, more particularly the dying declaration recorded before the Executive Magistrate and the complaint, the role of the appellant is clearly enunciated by the deceased. Even otherwise, looking to the facts and circumstances of the case it cannot be said that the death was not homicidal. 9. The post mortem report gives the details of the injuries on the body of the deceased and the same reads as under: “17. IInd and IIIrd degree burns present over following areas of body (1) Head and neck. Hairs in the frontal region of scalp are burnt upto root and rest of the scalp hair singed. Eyebrows & eyelashes burnt upto root. (2) Right upper limb with axillary hair burnt upto root. (3) Left upper limb with axillary hair burnt upto root. (4) Anterior aspect of chest. (5) Posterior aspect of chest with sparing of upper part. (6) Anterior aspect of abdomen. (7) Posterior aspect of abdomen with sparing of lower part of back of abdomen. (8) Front of right thigh (9) front of left thigh Total 73% of body surface area burnt with greenish – yellow, fould smelling, slough with pus present at the base of burnt area. 9.1 P.W. 5, Dr. Tapan Mehta vide his evidence (Ex. 18) 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 stated that the total burnt area was around 73%. He has mentioned that there were burn injuries on the limbs, chest, abdomen and neck of the deceased. He has categorically opined that such type of burn injuries are possible when a person who is sleeping is poured with petrol. 10. From the panchnama of scene of offence, it is borne out that the incident actually occurred while the deceased was sleeping as stated by the deceased in her complaint. He has categorically opined that such type of burn injuries are possible when a person who is sleeping is poured with petrol. 10. From the panchnama of scene of offence, it is borne out that the incident actually occurred while the deceased was sleeping as stated by the deceased in her complaint. It is mentioned in the panchnama that half burnt mattress was found on the iron cot and the mattress cover has also been burnt. A calendar which was hanging alongside the wall near the cot was also half burnt. Near the cot, two half burnt match sticks were also found. 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. 10.1 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. 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. 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.” 10.2 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 ].” 10.3 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.” In that view of the matter, it is clear that the dying declaration being voluntary and made in a fit state cannot be discarded. 11. P.W. 3 is the panch witness who has supported the panchnama of seizure of clothes of accused. P.W. 6 – Payalben Lodha is the daughter of the deceased and accused who was present at the house when the alleged incident occurred. This witness has stated that on the date of incident her father poured petrol on her mother and set her mother ablaze and thereafter went away after bolting the room from outside. She has stated that she and her mother shouted for help and that thereafter she wrapped a blanket around her mother. She has deposed that the neighbours came there and opened the bolt from outside and poured water on her mother. She has identified her father in the court. 11.1 In the cross examination of this witness, she has categorically denied the suggestion that she had not seen the incident. She has stated that the petrol did not fall on her when her father had poured it on her mother. She has denied the suggestion that she was not at home when the alleged incident happened. 11.2 P.W. 7 – Natwarbhai Dabgar is the neighbour of the deceased who had rushed to the scene of offence on hearing the screams of the deceased. He has stated that the door was bolted from outside and he saw the deceased on flames and that her daughter was by her side. He has stated that as the clothes of the deceased was burnt, she was made to sit in the bathroom. 11.3 P.W. 8 – Himmatsinh Lodha is the father of deceased who has stated that he was informed about the alleged incident by the neighbours of deceased. He has deposed that he reached the house of deceased and came to know that the accused had poured petrol on the deceased and had set her on fire. 11.3 P.W. 8 – Himmatsinh Lodha is the father of deceased who has stated that he was informed about the alleged incident by the neighbours of deceased. He has deposed that he reached the house of deceased and came to know that the accused had poured petrol on the deceased and had set her on fire. 12. The evidence of witnesses more particularly P.W. 6 corroborates the versions of the deceased in the complaint and the dying declaration. The fact that the accused set the deceased ablazed is unanimously stated by the witnesses. 13. Learned advocate for the appellant has tried to contend that the evidence of P.W. 6 being the evidence of a minor cannot be admissible and trust worthy. The law on the subject is well settled. It is true that child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 13.1 It goes without saying that love of a child for a parent is far beyond explanation. A child aged 14 years under no circumstances can be imagined to falsely implicate some one and that too her father as is in the present case. No motive surfaces from the facts and circumstances of the case which establishes that the child has falsely deposed against her own father. In fact she clearly described the way the crime was committed by his father. The versions of the witnesses is also supported by the medical evidence which cannot be lost sight of. We are of the opinion that this is clearly a case of culpable homicide. 14. Considering the contents of dying declaration, the evidence of Executive Magistrate, evidence of witnesses 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 as a result of the action of the accused is proved beyond reasonable doubt. 15. 14. Considering the contents of dying declaration, the evidence of Executive Magistrate, evidence of witnesses 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 as a result of the action of the accused is proved beyond reasonable doubt. 15. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellant – accused. The prosecution has been able to prove the case against the appellant – accused and therefore we see no reason to interfere so far as the case of the prosecution that the appellant is the one who committed the alleged offence. 16. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial Court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial Court that the appellant is the perpertrator of the alleged offence. 17. However, we have also not lost sight of the fact that the deceased had died after about 6 days of treatment. From the medical reports, it is clear that the deceased suffered from certain complications which happened due to extensive burns. 17.1 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. 17.2 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, 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. 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.” 18. In the present case, we have come to the irresistible conclusion that the role of the accused 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 6 days in the hospital and ultimately died of complications. In fact she had sustained about 73% burns. In that view of the matter, we are of the opinion that the conviction of the appellant under Section 302 of Indian Penal Code is required to be converted to that under Section 304(I) of Indian Penal Code. 19. In fact she had sustained about 73% burns. In that view of the matter, we are of the opinion that the conviction of the appellant under Section 302 of Indian Penal Code is required to be converted to that under Section 304(I) of Indian Penal Code. 19. Accordingly, the conviction of the appellant - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 30.07.2010 passed by the Additional Sessions Judge, Court No. 15, Ahmedabad City in Sessions Case No. 48 of 2010 is converted to conviction under Section 304 (Part I) of Indian Penal Code. Accordingly, the appellant is ordered to undergo rigorous imprisonment for ten years with fine of Rs. 2,000/-, in default, rigorous imprisonment for two months under Section 304 (Part I) of Indian Penal Code. The sentence awarded by the Court below stands altered accordingly. The judgement and order dated 30.07.2010 is modified accordingly. The period of sentence already undergone shall be considered for remission and set off in accordance with law. Appeal is allowed to the aforesaid extent. R & P to be sent back forthwith.