JUDGMENT Gopal Krishan Vyas, J. The instant cr. appeal has been filed by the appellant Vitthala @ Vitthal S/o Shanker, resident of Bhilwara under Section 374(2) of Cr.P.C. to challenge the judgment and order dated 23.1.2007 whereby the learned Addl. Sessions Judge (FT), Banswara convicted the accused appellant for offence under Section 302 and 498A IPC in Sessions Case No.66/2006 and following sentence was inflicted upon him: Under Section 302 IPC : Sentenced to life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo 3 months simple imprisonment. Under Section 498A : IPC Sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo one month SI. 2. As per prosecution case on 15.7.2006 deceased Smt. Manju was admitted in the Mahatma Gandhi Hospital, Banswara where her statement Ex.P/4 was recorded at 11.15 pm by Shri Natu Lal ASI of Police Station, Kotwali, District Banswara. In the statement, the deceased Smt. Manju alleged that her husband Vitthala (present appellant) poured kerosene on her and lit fire and after litting fire her husband himself tried to save her, so also, neighbours were gathered to save her and immediately taken to the hospital for treatment. 3. The statement given by the deceased Smt. Manju in the hospital to the ASI of Police Station, Kotwali, Banswara were sent through Shri Bhan Ji ASI of Police Station Kalingara were who registered an FIR no.229/2006 on 16.7.2006 under Section 498A and 307 IPC vide Ex.P/5. 4. Before recording statement of deceased Smt. Manju on 15.7.2006 a letter (Ex. P/9) was given by the SHO, Police Station, Banswara to the Medical Officer, Mahatma Gandhi Hospital, Banswara to ascertain whether Smt. Manju is mentally fit to give her statement. The Medical Officer gave his opinion at 11.00 pm upon communication Ex.P/9 itself that medically she is fit to give statement. The Investigating Officer after registration of the FIR on 16.07.2006 first time prepared site plan on 26.7.2006 at 3.15 pm in presence of two witnesses Bheru Lal and Heera Lal. Smt. Manju died on 28.07.2006, therefore, after post mortem, the body of the deceased was handed over to the family members for cremation. The Investigating Officer after registration of the FIR on 16.07.2006 first time prepared site plan on 26.7.2006 at 3.15 pm in presence of two witnesses Bheru Lal and Heera Lal. Smt. Manju died on 28.07.2006, therefore, after post mortem, the body of the deceased was handed over to the family members for cremation. Before death of Smt. Manju, an application (Ex.P/10) dated 15.07.2006 was moved by the SHO, Police Station, Kotwali, District Banswara to the CJM, Banswara for recording statement of Smt. Manju. In pursuance of the said application to the CJM on the same day, the ACJM, Banswara was directed to record dying declaration of Smt. Manju. The ACJM, Banswara recorded statement of deceased Smt. Manju on 16.7.2006 again after obtaining report from the Medical Officer upon dying declaration Ex.P/11. In the statement made by the deceased it is stated by her that her name is Manju and three years ago she is married with Vitthala and from there wedlock, there is no issue. Further, it is stated by her that my husband poured kerosene upon me and lit fire, so also, used filthy words, at the time of incident, no other person was in the house. In the dying declaration it is further stated by her that after litting fire my husband called his uncle Shanker and uncle of my husband Shanker and husband both took me in the hospital for treatment. According to the deceased, no other person in her in-laws house was harassing her nor there was any demand of dowry. The statement of deceased under Section 161 Cr.P.C. were also recorded on 19.7.2006 in which she reiterated the allegation of pouring kerosene upon her by present appellant but said that due to suspicion upon her character her husband was making quarrel. The deceased died after 13 days on 28.7.2006 at 10.15 am. The post mortem of the body was conducted by the Medical Board and vide post mortem report Ex.P/15 the Medical Board opined that cause of death is burning. On 19.7.2006 deceased Smt. Maya was examined first time by the medical jurist who gave its injury report Ex.P/12 and said report was obtained by the Investigating Officer for the purpose of investigation. On 19.7.2006 deceased Smt. Maya was examined first time by the medical jurist who gave its injury report Ex.P/12 and said report was obtained by the Investigating Officer for the purpose of investigation. The accused appellant was arrested vide Ex.P/14 in front of Shanker S/o Roopeng and Shanker S/o Kodara Katara and after recording statement of the prosecution witness under Section 161 Cr.P.C. the charge sheet was filed by the SHO, Police Station, Kalingjara in the court of Judicial Magistrate, Bagidora under Section 498A and 302 IPC from where the case was committed to the court of Sessions Judge, Banswara but same was transferred to the court of Addl. District & Sessions Judge (Fast Track), Banswara for trail. The learned trial court after framing charge under Section 302 and 498A IPC granted an opportunity to the prosecution to lead evidence. 5. In support of prosecution case, statements of 16 prosecution witnesses were recorded that statement of accused appellant under Section 313 Cr.P.C. were recorded by the learned trial court. The accused produced two witnesses DW-1 Shanker Lal and DW-2 Smt. Vithali in his defence. After recording entire evidence, the learned trial court finally heard the arguments and convicted the accused appellant for offence under Section 302 and 498A IPC and passed the sentence aforesaid. 6. The learned counsel for the appellant submits that there is no direct evidence so as to prove the prosecution case but to held the accused appellant guilty the learned trial court relied upon the three statements (dying declaration) of deceased Smt. Manju recorded by the police as well as by the magistrate. As per prosecution case, the first statement of Smt. Manju Ex.P/4 was recorded by the ASI, Police Station, Kotwali, Banswara, upon which the FIR Ex.P/5 dated 16.7.2006 was registered, thereafter, the ACJM recorded the dying declaration Ex.P/11 on 16.7.2006 and third time on 19.7.2006 the statement of deceased Maju were recorded under Section 161 Cr.P.C. 7. In first statement Ex.P/4 recorded by the ASI, Police Station, Banswara the deceased categorically stated that after pouring kerosene the accused himself put one pillow upon her to save, thereafter, called his uncle Shanker and admitted the deceased in the hospital. In first statement Ex.P/4 recorded by the ASI, Police Station, Banswara the deceased categorically stated that after pouring kerosene the accused himself put one pillow upon her to save, thereafter, called his uncle Shanker and admitted the deceased in the hospital. In the statement recorded by the Magistrate Ex.P/11 it is stated by her that there was no demand of dowry, so also, no family members were harassing but the accused appellant was having suspicion in his mind with regard to her character and the day on which he poured kerosene and lit fire he called her uncle Shanker and admitted her in the hospital. In the statement recorded under Section 161 Cr.P.C. it is stated by her that on 15.7.2006 her husband went out for doing labour work but came back at 1.00 am and asked to prepare tea. Upon asking to prepare tea she replied that sugar is not available in the house but he said that sugar may be brought from anywhere else but she refused, therefore, her husband gave beatings and used filthy words so also poured kerosene upon her and lit fire and upon hearing hue and cry the neighbour Smt. Vithhali came on spot. Thereafter, her uncle-in-law, father-in-law and Prabhu Kakaji came and admitted her in hospital. 8. The learned counsel for the appellant submits that upon perusal of all these three statements recorded by the ASI, Police Station Banswara and dying declaration by the Magistrate and statement under Section 161 Cr.P.C. it will reveal that in all these statements of deceased no allegation for demand dowry was levelled by her. Further, it is argued that as per prosecution case itself the day on which occurrence took place the police did not went on spot to complete the investigation, therefore, on the basis of material contradiction in the statements of the deceased, who died after 13 days of incident, the conviction of the accused appellant under Section 302 and 498a IPC is not sustainable in law. 9. 9. The learned counsel for the appellant submits that the deceased Smt. Maju categorically stated in her all the three statements that his uncle-in-law Shanker and Smt. Vitthali came on spot and brought her to the hospital for treatment but these two witnesses were not produced by the prosecution to support prosecution case in spite of the fact that they were important witnesses but both these witnesses were produced by the appellant in his defence. Both the witnesses Smt. Vithali and Shanker categorically stated that story of pouring kerosene upon the body of the deceased by the accused appellant is totally false, therefore, in absence of direct evidence and upon the statement of DW-1 Shankar and DW-2 Smt. Vithali the learned trial court ought to have disbelieved the testimony of the deceased given in the dying declaration because there is no corroboration of the allegation levelled by the deceased by any independent witness or the witness, therefore, the judgment impugned deserves to be quashed. 10. The learned counsel for the appellant submits that the Investigating Officer has conducted the investigation in a very casual manner which is evident from the fact that Smt. Manju was admitted in the hospital on 15.7.2006, but no documentary evidence is produced in the court to prove this fact. More so, for the first time, she was examined by the medical jurist on 19.7.2006 and thereafter injury report (Ex P/12) was prepared, therefore, this fact itself is sufficient to disbelieve the prosecution case because if a lady in burn condition admitted to the hospital on 15.7.2006 then obviously she was to be examined by the medical jurist immediately but as per the documentary evidence produced on record, deceased was medically examined by the medical jurist on 19.6.2006, which is evident from the injury report Ex.P/12 given by the medical jurist on 19.7.2006. 11. The learned counsel for the appellant submits that the deceased Smt. Manju died after 13 days, therefore, there is possibility of making false allegation by her against the husband with whom no cordial relations were in existence. 12. 11. The learned counsel for the appellant submits that the deceased Smt. Manju died after 13 days, therefore, there is possibility of making false allegation by her against the husband with whom no cordial relations were in existence. 12. The learned counsel for the appellant submits that even if the prosecution evidence is accepted then also, this court cannot lose sight of the fact that for the first time police went on spot on 26.7.2006 and prepared the site plan which is Ex.P/1 and no articles were recovered from the place of occurrence to support the prosecution case. Therefore, in absence of reliable evidence, obviously it can be said that prosecution has failed to prove its case beyond reasonable doubt. On the basis of above arguments, the learned counsel for the appellant submits that in absence of any material recovered from the side of occurrence and upon the fact that contradictory statements are given by the deceased in her three statements, so also, prosecution has not produced the witnesses named by the deceased in her statement as prosecution witnesses, therefore, it is a case in which the accused appellant has been convicted without any material and trustworthy evidence. Therefore, judgment impugned is not sustainable in law. 13. Alternatively, it is argued that conviction of the accused appellant under Section 302 IPC is not sustainable in law because in the first statement recorded by the ASI (Ex.P/4) the deceased herself said that after litting fire the accused appellant himself make efforts to save her and in two statements recorded by the magistrate and under Section 161 Cr.P.C. it is stated by her that it is the accused appellant who brought his uncle Shanker and Smt. Vitthali so as to admit the deceased in the hospital for treatment. As per the statement recorded under Section 161 Cr.P.C. it is evident that quarrel took place suddenly which might be the reason for incident, therefore, the conviction of accused appellant for offence under Section 302 IPC can be converted from 302 IPC to Section 304 part I IPC on the basis of evidence on record. As per the statement recorded under Section 161 Cr.P.C. it is evident that quarrel took place suddenly which might be the reason for incident, therefore, the conviction of accused appellant for offence under Section 302 IPC can be converted from 302 IPC to Section 304 part I IPC on the basis of evidence on record. In support of his argument, the learned counsel for the appellant invited our attention towards the judgment of the Hon'ble Supreme Court delivered in the case of Kalu Ram v. State of Rajasthan reported in 2000 SCC (Cri) 86 and submits that if this Court is not accepting the argument of the accused appellant for quashing the judgment impugned then the sentence awarded to the accused appellant under Section 302 and 498A IPC may be converted into offence under Section 304 part I IPC and the sentence of life imprisonment may be reduce to already undergone. 14. Per contra learned Public Prosecutor vehemently opposed the prayer and submits that the learned trial court has relied upon the three statements (Dying declaration) made by the deceased Smt. Majuu in which she has categorically stated that the accused appellant poured kerosene upon her body and lit fire as he was having suspicion in his mind with regard to character of the deceased, therefore, it is a case in which the accused petitioner is guilty for coming offence under Section 302 IPC because he was having intention to kill his own wife. 15. With regard to the arguments of the learned counsel for the appellant that prosecution has not proved its case beyond reasonable doubt. It is submitted that the conviction can be based upon dying declaration only even if other circumstances are not supporting the prosecution case and in this case all the three statements of the deceased were recorded by different persons in which specific allegation was made that accused appellant poured kerosene upon her and lit fire. 16. Although there is no allegation of demand of dowry and regular beating but this Court cannot lose sight of the fact that the husband and wife both were alone in the house when incident took place. On the basis of above evidence it cannot be said that finding of guilt given by the trial court is perverse. Therefore, the instant appeal may kindly be dismissed. 17. On the basis of above evidence it cannot be said that finding of guilt given by the trial court is perverse. Therefore, the instant appeal may kindly be dismissed. 17. After hearing the learned counsel for the parties, we have perused the entire evidence of the prosecution on record. 18. PW-1 Heera Lal is the witness who was present at the time of preparing the site plan by the police. PW-2 Smt. Badiya is the witness who put her signatures upon Panchanama Ex.P/2 of the body of smt. Manju. PW-3 Jagji is the witness who put his signatures upon Ex.P/2 which is Panchnama of the dead body. PW-4 Laleng is also signatory of Ex.P/2. PW-5 Kodarlal is the father of the deceased Smt. Manju who has stated in the court that his daughter came to the parents house informed that her husband is beating her regularly and on 17.7.2006 they received information that your daughter has been admitted in the hospital in burnt condition. On receiving such information, the father Kodarmal and his wife and Sarpanch Pushottam Lal went to the hospital. 19. PW-6 Smt. Hukki, mother of the deceased Manju reiterated the statement made by the PW-5 Kodarlal. PW-7 Badiya is the witness before whom Ex.P/2 and PW-/3 were prepared by the police. PW-8 Mohan Lal stated before the court that upon information that Smt. Manju admitted in the Hospital in burnt condition he went to the Mahtama Gandhi Hospital before 2 months from the date of recording statement along with Sarpanch where Smt. Manju was sleeping on bed and treatment was going on and in front of him the police recorded statement Ex.p/4 upon which put his signatures. PW-9 Bheru Lal put his signatures upon Ex.p/1 Naksha Mauka. PW-10 Babu Lal is the Sub-Inspector who prepared Ex.P/2 and Ex.P/3, so also make arrangement for post mortem by the medical Jurist. PW-11 Purshotam gave statement that on 15.7.2006 he went along with father and mother of deceased Maju in the Mahatam Gandhi Hospital Banswara where an information was given to him that Vitthal poured kerosene and lit fire but this witness has categorically stated that the incident was not seen by him. 20. PW-12 Bhanej who was working as ASI at Police Station, Kalinjara to whom the statement of deceased recorded by the Nathu Lal ASI were handed over to him. 20. PW-12 Bhanej who was working as ASI at Police Station, Kalinjara to whom the statement of deceased recorded by the Nathu Lal ASI were handed over to him. Upon that FIR Ex.P/5 was registered and put his signature so also upon other documents Ex.P/7 put his signature. 21. PW-13 Nathu Lal who was working as ASI on 15.7.2006 at Police Station Banwara states before the court that on the date of occurrence an information as received from Dr.S.K. Bhatnagar of Mahatama Gandhi Hospital, Banwara with regard to the fact that one Smt. Manju has been admitted in the hospital in burnt condition and upon said information he went to the hospital and recorded the statement (Ex P/4) of deceased Maju, in which allegations were levelled by her against the accused appellant for committing offence under Section 302 IPC. Similarly, the witness PW-14 Deepak Dubey who was working as Judicial Magistrate, Banswara on 15.7.2006 made statement that on 15.07.2006, the dying declaration Ex.P/11 was recorded by him. The said witness categorically stated before the court that before recording dying declaration, certificate was obtained from doctor whether patient is in fit condition to give statement. 22. PW-15 Dr. SK Bhatnagar stated before the court that on 15.7.2006 he was working as medical jurist in the Mahtma Gandhi Hospital, Banswara. On that date, he gave his opinion to the ASO, Police Station, Banswara that Smt. Manju is in fit condition to give statement. On 16.7.2006 again given his opinion to the Magistrate when dying declaration Ex.P/11 was recorded. 23. PW-16 Ram Lal stated before the court that on 16.7.2006 he was working as SHO, Police Station, Kalingjara. On that date, ASI Bhanj reached at Police Station with dying declaration upon which FIR was registered by him. Thereafter, site inspection Ex.P/4 was prepared by him and after investigation, challan was filed in the court. 24. 23. PW-16 Ram Lal stated before the court that on 16.7.2006 he was working as SHO, Police Station, Kalingjara. On that date, ASI Bhanj reached at Police Station with dying declaration upon which FIR was registered by him. Thereafter, site inspection Ex.P/4 was prepared by him and after investigation, challan was filed in the court. 24. Upon perusal of statements of all these witnesses, the important fact emerges for consideration that there is no eye witness in this case and two witnesses Shanker and Smt. Vithhali whose names were disclosed by the deceased in her statement were not produced by the prosecution to support the prosecution case, but it is established from the statement recorded by the ASI, Police Station Banswara that although deceased made an allegation for pouring kerosene and litting fire to the body by her husband but the deceased categorically stated that nLrh;kc dj c;ku ij crk;k fd esjs ifr foV~By us esjs ij dsjkslhu Mky fn;k o dgk fd rw vkokjk j.Mh gSA eSa tyus yxh ?kj ds vUnj ls fpYykbZ ?kj esa vkSj dksbZ ugha FkkA fQj esjs ifr us esjs mij fcLrj Mkydj eq>s cpkus dh dksf'k'k dh yksx ckx cPps bdV~Bs gks x;sA eq>s esjs dkdk llqj izHkw o 'kadj us VsEiks esa Mkydj eq>s M.G.M esa HkrhZ djk;k gSA^^ 25. In the dying declaration (Ex.P/11) recorded by the Magistrate, it is stated by the deceased in reply to question No.11 that ^^esjk ifr eq>s tykus ds ckn esjs dkdk llqj 'kadj dks cqykdj yk;k esjs dkdk llqj ;gka eq>s ysdj vk;s gSaA^^ 26. The deceased categorically stated that there was no demand of dowry. The only reason for pouring kerosene by the husband was the suspicion in the mind of the accused with regard to character of the deceased. 27. The deceased categorically stated that there was no demand of dowry. The only reason for pouring kerosene by the husband was the suspicion in the mind of the accused with regard to character of the deceased. 27. In the statement recorded by the SHO under Section 161 Cr.P.C. which is also dying declaration (Ex.P/13), the deceased stated in her statement that ^^fnukad 15-7-2006 dks esjk ifr etnwjh djus x;k Fkk tks fnu esa djhc 1-00 cts ds yxHkx ?kj ij vk;k o eq>s pk; cukus dks dgk rks eSaus ?kj esa 'kDdj ugha gksuk dgk rks dgha ls Hkh ykdj cukus dks dgk eSaus euk dj fn;k rks foV~By us vkokjk jk.M vkt rq>s [kRe gh dj nsrk gwa dg dj fMCcs esa dSjkslhu Fkk tks esjs mij Mky dj ekfpl ls vkx yxk nhA rc eSa fpYykbZ o ckgj Hkkxus yxh rks ifr us fdokM+ cUn dj fn;kA brus esa Jherh foByh iRuh 'kadj vknh nkSM+dj vk;h vkSj esjs llqj Jh 'kadj tks xkao esa etnwjh ij x;s FksA ftUgsa cqyk, vkSj esjk llqj o izHkw dkdkth nksuksa ysdj ;gka vLirky esa HkrhZ djkbZ gS eq>s esjs llqj 'kadj us dHkh Hkh ekjihV rFkk rax o ijs'kku ugha fd;k gSA eq>s viuh csVh dh rjg j[krs FksA eq>s dsoy esjs ifr us gh pfj= ij 'kadk dj ijs'kku dj tku ls [kRe djus dh fu;r ls dSjkslhu Mkydj tyk nh gS ftlesa eSa iwjh ty x;h gwaA 28. After perusing aforesaid statement it is clear that the Smt. Maju died on 28.7.2006 after 13 days from the date of incident and upon perusal of site plan it is clear that no container in which kerosene was ling or any material was recovered from the place of occurrence. Further, the uncle in law of deceased and witness Smt. Vitthali appeared as defence witnesses and both these witnesses stated altogether different story. Further, the uncle in law of deceased and witness Smt. Vitthali appeared as defence witnesses and both these witnesses stated altogether different story. Following statement is given by witness Shankar Lal (DW-1) before the court, which reads as under:- ^^eSa e`rd eatw o mlds ifr foByk dks tkurk gwaA esjk o foByk dk edku ikl&ikl gSA djhc pkj eghus igys fnu ds 3 cts dh ?kVuk gSA eSa o esjh iRuh ?kj ij gh FksA eatw ds fpYykus dh vkokt lquh nkSM+ks&nkSM+ks eq>s cpkvks fQj eSa o esjh iRuh foByh nksuksa ekSds ij x;sA lkeus ls foByk ysV~hu tkdj okil vk jgk Fkk geus eatw dks tyrs gq;s ns[kk fQj geus tYnh&tYnh xksnM+k Mkydj vkx cq>kus ds fy;s dgkA foByk us xksnM+h Mkydj vius ckag esa nck dj cq>kbZA eatw ds gkFk] Nkrh] dej o ihB vkfn ty xbZ FkhA geus ckn esa eatw dks iwNk fd dSls ty xbZ rks eatw us crk;k fd pk; cukrs le; lkM+h dk iYyk ty x;k mldh lkM+h vklekuh dyj dh o ikWfyLVj FkhA fQj ge VsEiks esa Mkydj NhaN vLirky esa ys x;sA tgka ls MkWDVj us ckalokM+k vLirky ys tkus ds fy;s dgkA ckalokM+k izHkq ys x;s geus iSls ds bartke ds fy;s x;s FksA foByk ds cki ds fexhZ dh chekjh gS og ?kj esa jgrk FkkA^^ 29. DW-2 Smt. Vitthali gave the following statements, which reads as under: ^^eSa e`rd eatw o gkftj vnkyr eqyfte foByk dks tkurh gwaA esjk edku foByk ds edku ds ikl gh gSA djhc 4 eghus igys fnu ds 3 cts dh ?kVuk gSA foByk ysV~hu djus x;k FkkA eatw ds fpYykus dh vkokt vkbZ ftl ij ge nkSM+dj x;sA mlds ?kj ls /kqvka fudy jgk FkkA foByk Hkh ysV~hu tk dj okil vk x;k FkkA geus ns[kk fd eatw ty xbZ mlus crk;k fd pk; cukrs le; mldh lkM+h dk iYyk ty tkus ls og ty xbZ mlds gkFk] o Nkrh vkfn ty xbZ FkhA fQj mldks NhaN vLirky esa ys x;s ogka ls MkWDVj us mls ckalokM+k vLirky ys tkus ds fy;s dgkA eatw ds ifr foByk us xksnM+h Mkydj vkx cq>kbZ FkhA^^ 30. Upon careful consideration of the entire evidence, we are of the opinion that even if the statements of these two defence witnesses are accepted then also, the fact emerges that they were not present at the time of occurrence took place. Upon careful consideration of the entire evidence, we are of the opinion that even if the statements of these two defence witnesses are accepted then also, the fact emerges that they were not present at the time of occurrence took place. Therefore, it is not proper to disbelieve the allegation levelled by the deceased Maju against the accused appellant for pouring kerosene and litting fire upon her. 31. We have considered all the 3 statements of the deceased recorded in the investigation and finding given by the trial court, we find that upon sudden quarrel took place in between the husband and wife and after litting fire, the accused appellant tried to make his all efforts to save deceased Maju. The accused appellant brought her to the hospital along with his uncle Shanker Lal and Smt. Vitthali. Therefore, upon the conduct of the accused appellant and appreciation of the entire evidence, we are of the opinion that there is strength in the alternate prayer of the learned counsel for the appellant that offence cannot travel beyond offence under Section 304 Part I IPC instead of Section 302 IPC. We have also perused the judgment cited by the learned counsel for the appellant delivered in the case of Kalu Ram (supra) in which the following adjudication is made by the Hon'ble Supreme Court, which reads as under: "6. We find no good reason to discard the two dying declarations given by the deceased regarding the actual occurrence. The Courts below have rightly acted on such dying declarations. 7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder. 8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly." 32. After perusing the aforesaid judgment of the Hon'ble Supreme Court in the light of the evidence of prosecution case, we are of the opinion that it is a fit case in which conviction of accused appellant can be converted from offence under Section 302 IPC to offence under Section 304 Part I IPC. 33. Consequently, the instant cr. appeal is partly allowed. The conviction and sentence of the accused appellant passed by the learned Addl. Sessions Judge (FT), Banswara in Sessions Case No.66/2006 vide its judgment dated 23.1.2007 for the offence under Section 302 IPC is hereby altered and the accused appellant is hereby convicted and sentence for the offence under Section 304 part I IPC and the sentence of life imprisonment is hereby reduced to 10 years RI. The conviction and sentence passed under Section 498A IPC along with fine is hereby maintained. Appeal partly allowed.