Judgment Indira K. Jain, J. This is an appeal preferred by original accused No. 2 Sumanbai Mahadeo Gaikwad against judgment and order dt. 11th April, 2012 passed by learned Additional Sessions Judge, Ambajogai, Dist. Beed in Sessions Case No. 55 of 2010. By the said judgment and order, learned Additional Sessions Judge, convicted appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to imprisonment for life and fine of Rs. 1,000/- in default simple imprisonment for three months. 2] Appellant was however acquitted of the offence punishable under Section 498-A of the Indian Penal Code. Accused No. 1 son of the appellant and husband of the deceased was also acquitted of the offences punishable under Sections 498-A, 302 read with 34 of the Indian Penal Code. 3] For the sake of convenience we shall refer the appellant in her original status as accused as she was referred before the trial court. 4] Prosecution case briefly stated is as under:- (i) PW1 Pratap Jadhav was resident of Ambulga, Tq. Chakur, Dist. Latur. He had two sons and two daughters Urmila and Sheetal. Urmila was married to Ganesh before 23 years of the incident. (ii) Incident occurred on 23rd April, 2010 at 10:00 am in the house of accused at village Ujani, Tq. Ambajogai, Dist. Beed. It is the case of prosecution that at about 9:00 am Urmila was beaten by her husband alleging that she did not know how to carry work and he did not like her. At 10:00 am again quarrel was picked up and appellant threatened Urmila to set her on fire. After threatening, accused Sumanbai mother-in-law poured kerosene on person of Urmila and set her ablaze. (iii) Urmila was admitted to S.R.T.R. Hospital, Ambajogai. She sustained 97% burns. On 25th April, 2010 Urmila succumbed to burn injuries while she was under treatment in the Hospital. (iv) After Urmila was admitted to S.R.T.R. Hospital, C.M.O. informed on phone to Government Hospital Police Chouki regarding admission of burn patient Urmila to the Hospital. Police Head Constable PW3 Ramakant Thorat was on duty at the Police Chouki. He went to Ward No. 14 and met Medical Officer. Head Constable inquired from the Medical Officer whether Urmila was in a position to give her statement. PW4 Dr. Dange was on duty. Police Head Constable PW3 Ramakant Thorat was on duty at the Police Chouki. He went to Ward No. 14 and met Medical Officer. Head Constable inquired from the Medical Officer whether Urmila was in a position to give her statement. PW4 Dr. Dange was on duty. He examined the patient and found that she was conscious and was in a position to give her statement. Head Constable Thorat then recorded dying declaration of Urmila. (v) In the dying declaration Urmila stated that on 23rd April, 2010 at 9:00 am she was beaten by her husband alleging that she was not carrying household work properly and he did not like her. She also stated that her mother-in-law Sumanbai had a quarrel with her at 10:00 am and poured kerosene on her person and set her on fire. After recording statement Head Constable Thorat submitted the same to Ambajogai Police Station. (vi) PW6 Sunil Birla was Station Officer of Bardapur Police Station. He received dying declaration on 24th April, 2010 at 24:00 hrs. Crime No. 13/2010 was registered under Sections 307, 498A with 34 of the Indian Penal Code. Dy.S.P. Sunil Birla took over investigation. He visited the spot and recorded panchanama. From the spot one kerosene can, match box, pieces of clothes were seized. Investigating Officer recorded statement of neighbours. Accused were arrested. He visited the Government Hospital Ambajogai and recorded statement of Padminabai grand mother-in-law of Urmila who had extinguished fire and in that attempt sustained burns. (vii) On the death of Urmila offence under Section 302 of the Indian Penal Code was substituted. Inquest panchanama was drawn. Dead body was sent for postmortem. Dr. D.K. Deshmukh performed postmortem and opined cause of death as shock due to burns. (viii) During investigation statements of several witnesses were recorded. Seized muddemal was sent to C.A. On completing investigation charge sheet was submitted to J.M.F.C., Ambajogai who in turn committed the case for trial to the Court of Sessions. 5] Charge came to be framed against the accused at Exh. 9. She pleaded not guilty and claimed to be tried. Her defence was of denial and false implication. 6] Prosecution examined in all six witnesses. Accused examined two defence witnesses. On going through the evidence adduced in the case learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Being aggrieved thereof appellant preferred this appeal. She pleaded not guilty and claimed to be tried. Her defence was of denial and false implication. 6] Prosecution examined in all six witnesses. Accused examined two defence witnesses. On going through the evidence adduced in the case learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Being aggrieved thereof appellant preferred this appeal. 7] We have heard the learned counsel for the parties. After giving our anxious consideration to the facts and circumstances of the case, submissions made on behalf of appellant and State, reasonings recorded by the trial court and evidence on record for the below mentioned reasons we are of the opinion that prosecution could not prove the offence punishable under Section 302 of the Indian Penal Code against accused. However prosecution has succeeded in proving offence punishable under Section 304(I) of the Indian Penal Code against appellant Sumanbai. 8] Prosecution case mainly revolves round one written dying declaration recorded by PW3 Head Constable Thorat and one oral dying declaration to her father PW1 Pratap Jadhav. 9] Needless to state that in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross-examination. It is the settled law that once the court comes to a conclusion that dying declaration was the truthful version as to the circumstances of death and the assailant of victim no further corroboration is required to such a dying declaration. 10] On written dying declaration Exh. 23, evidence of PW3 Head Constable Thorat and PW4 Dr. Dange is important. It is stated by PW3 Head Constable Thorat that on 23rd April 2010 he was attached to Ambajogai Government Hospital Chouki and received a phone call from CMO about admission of a burn patient. The call was received by him between 11:00 and 11:30 am. Head Constable Thorat went to Ward No. 14. He inquired from Doctor whether Urmila was in a position to give her statement. PW4 Dr. Dange examined Urmila and found that she was conscious and in a position to give her statement. Accordingly an endorsement was made by Medical Officer on the statement. 11] Head Constable Thorat then recorded statement of Urmila as per her say. He inquired from Doctor whether Urmila was in a position to give her statement. PW4 Dr. Dange examined Urmila and found that she was conscious and in a position to give her statement. Accordingly an endorsement was made by Medical Officer on the statement. 11] Head Constable Thorat then recorded statement of Urmila as per her say. In her statement she disclosed that on 23rd April, 2010 at 9:00 am her husband Ganesh had beaten her alleging that she was not carrying household work properly and he did not like her. She also stated that at 10:00 am her mother-in-law Sumanbai told her that she did not like them and not properly doing the work. Saying so her mother-in-law poured kerosene on her, put her on fire and went away. Her grand mother-in-law and neighbours extinguished fire and took her to Hospital. 12] PW4 Dr Dange fully corroborates the evidence of PW3 Head Constable Thorat. No material contradictions or omissions could be brought in the evidence of PW3 Head Constable Thorat, PW4 Dr Dange and dying declaration Exh. 23. 13] So far as oral dying declaration is concerned, PW1 father Pratap Jadhav stated that on 23rd April, 2010 Anurag Jadhav informed him that Urmila sustained burns and she was admitted to Hospital. On receiving message along with 23 persons Pratap Jadhav rushed to Government Hospital Ambajogai. He saw that his daughter had sustained burns. He asked Urmila about the incident. She told him that in the morning Ganesh had beaten her and she was sitting and weeping. She further told him that her mother-in-law Sumanbai poured kerosene from the can, set her on fire and went away. She also told that her grand mother-in-law extinguished fire and she was brought to the Hospital by neighbours. It can be seen from the cross-examination of PW1 Pratap Jadhav that he reached the Hospital at 4:00 pm. Urmila sustained 97% burns. Accused examined DW2 Naib Tahsildar Ramdasi. On 23rd April, 2010 on receiving letter Exh. 50 from Ambajogai Police Station Naib Tahsildar Ramdasi went to Hospital at 3:05 pm to record dying declaration of Urmila. He inquired from the Doctor whether she was fit to give her statement. Doctor examined her and found that she was unconscious. Therefore, Naib Tahsildar could not record her dying declaration. He personally assured that patient was not in a position to give her statement. He inquired from the Doctor whether she was fit to give her statement. Doctor examined her and found that she was unconscious. Therefore, Naib Tahsildar could not record her dying declaration. He personally assured that patient was not in a position to give her statement. In view of evidence of DW2 Ramdasi, who is an independent witness it is highly impossible to believe that Urmila had given oral dying declaration to PW1 Pratap Jadhav at 4:00 pm as stated by him. The unshaken testimony of DW2 Naib Tahsildar Ramdasi brings the oral dying declaration to father Pratap Jadahv under clouds of doubt and it would not be safe to rely upon the same. 14] In respect to written dying declaration Exh. 23 we have already observed that the said dying declaration passes the legal hurdles and that can be said to be a true and voluntary statement of the deceased. Still the question is what offence is made out against the accused. From dying declaration Exh. 23, it is apparent that on trivial reason accused Sumanbai poured kerosene on Urmila and set her on fire. Urmila had stated that after she was beaten by her husband she was sitting and weeping and that time Sumanbai poured kerosene on her and set her ablaze. The sudden act attributed to Sumanbai shows absence of intention to kill her daughter-in-law. 15] In this view of the matter we find that it would be a case falling under Section 304 (I) of the Indian Penal Code. We are therefore inclined to partly allow the appeal and modify the judgment and order of conviction and sentence imposed by the trial Court. We accordingly pass the following order. ORDER (I) Criminal Appeal No. 333 of 2012 is partly allowed. (II) The Judgment and Order dated 11th April, 2012 passed by the Additional Sessions Judge-2, Ambajogai in Sessions Case No. 55 of 2010 convicting the Appellant/Original Accused No. 2 – Sumanbai w/o Mahadeo Gaikwad for the offence punishable under Section 302 of the Indian Penal Code and sentencing her to suffer Imprisonment for life and also to pay fine of Rs. 1000/- (Rupees One Thousand) and in default to suffer simple imprisonment for three months, is set aside and modified. 1000/- (Rupees One Thousand) and in default to suffer simple imprisonment for three months, is set aside and modified. The Appellant – Sumanbai w/o Mahadeo Gaikwad is held guilty of the offence punishable under Section 304 Part I of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for five years and also to pay a fine of Rs. 1000/- (Rupees One Thousand), in default to suffer further Rigorous Imprisonment for one month. (III) The benefit of provisions under Section 428 of the Code of Criminal Procedure be given to the Appellant – Sumanbai w/o Mahadeo Gaikwad.