JUDGMENT : A.M. Thipsay, J. 1. This Appeal is directed against the judgment and order dated 9th May 2012 delivered by the Addl. Sessions Judge in Sessions Case No. 763/11, convicting the appellant who was the sole accused in the said case, of an offence punishable under section 304 Part I of the Indian Penal Code (IPC), and sentencing him to suffer Rigorous Imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/- in default to suffer Rigorous Imprisonment for 1 (one) year. The charge against the applicant in the said case was of having committed an offence punishable under section 302 of the IPC, but the learned Addl. Sessions Judge came to the conclusion that the offence committed by the appellant would be of a lesser degree and would be one punishable under section 304 Part I of the IPC. The appellant was charged for having committed murder of his wife Seema. Appellant and Seema were married to each other in the year 2006. They had been residing in Sitabai Chawl, Sion. They had a daughter of 18 months. Appellant was in the habit of consuming alcohol, and gambling and on that account, there used to be frequent quarrels between the appellant and Seema. A few months before the incident. Seema had lodged a report with the police alleging illtreatment by the accused which was recorded and registered as a non-cognizable case. 2. The incident took place on 15th May 2011. On that day, Seema and appellant both were in their house. It was afternoon time. The appellant had consumed alcohol, and a quarrel took place between him and Seema. In a fit of anger and perhaps to threaten the appellant, Seema poured kerosene on her person. The appellant, at that time, ignited a matchstick and threw it on Seema. Seema caught fire, started shouting and ran out of the room. Appellant followed her. Vicky Khade (P.W. 1) - a neighbour heard the cries of Seema and came out. Vicky Khade and appellant both extinguished the fire caught by Seema by pouring water on her person. They called a taxi, and took Seema to Sion hospital. Seema was got admitted and was treated. She had sustained 75% burn injuries on different parts of her body. On 20th May 2011, she succumbed to the burn injuries. 3. Vicky Khade and appellant both extinguished the fire caught by Seema by pouring water on her person. They called a taxi, and took Seema to Sion hospital. Seema was got admitted and was treated. She had sustained 75% burn injuries on different parts of her body. On 20th May 2011, she succumbed to the burn injuries. 3. During the trial, prosecution examined 9 (nine) witnesses to prove the charge against the appellant. The evidence against the appellant, however, consisted only of the 'dying declarations' which are admissible in evidence, under Section 32(1) of the Evidence Act made by Seema. implicating him. There were a number of dying declarations made by Seema, and the first one was the oral one made by her in the presence of Vicky Khade and the appellant himself. The second one is also an oral one made by her to her brother, shortly thereafter. There is no written record of these dying declarations. Then, there is Seema's statement made by her to Bhaskar More (P.W. 5), a Sub-Inspector attached to Dharavi Police Station, at the material time. This statement through oral, was recorded by More and was treated as the First Information Report, and is also a dying declaration admissible under Section 32(1). A statement of Seema was recorded by Mrs. Pratiksha (P.W. 4), a Special Executive Officer on 18th May 2011, which is also a dying declaration, and admissible under Section 32(1) of the Evidence Act. Thus, though all the statements were made verbally by Seema, two of them have been reduced to writing and the written record was produced before the Court and given in evidence during the trial. The trial court has believed these dying declarations as true and reliable. 4. A brief reference to the evidence that was adduced during the trial, may now be made. 5. The first witness for the prosecution is the said Vicky Khade who has spoken about the incident i.e. that he had seen Seema coming out of the room; that she had caught fire at that time, and was shouting 'save, save'. That, he and the appellant extinguished the fire, and took her to hospital in a taxi. 5. The first witness for the prosecution is the said Vicky Khade who has spoken about the incident i.e. that he had seen Seema coming out of the room; that she had caught fire at that time, and was shouting 'save, save'. That, he and the appellant extinguished the fire, and took her to hospital in a taxi. He speaks of Seema making a statement in the taxi that 'on account of the quarrel between the appellant and her, she had poured kerosene on her person and the appellant had then set her on fire by lighting a match-stick.' 6. The second witness for the prosecution is Dattatraya Kamble, brother of Seema. His evidence shows that Seema had been complaining about the vices of the appellant and that, the appellant used to consume alcohol and beat her. Regarding the incident that took place on 15th May 2011, he says that he received a telephone call informing him that his sister was burnt and that, he then rushed to Sion hospital. He speaks of a dying declaration made by Seema to him. 7. The third witness Suvarna Pawar is a panch in respect of the Inquest Panchnama. Her evidence is not very relevant in the context of the controversy, except that in the cross-examination, it was elicited from her that 'entire hands of Seema were burnt'. 8. The fourth witness Pratiksha Gaonkar, a Special Executive Officer, it may be recalled, is the one who had recorded the dying declaration made by Seema to her. The record of the dying declaration, as made by this witness, was tendered in evidence (Exhibit 15). 9. The fifth witness Bhaskar More, it may be recalled, is a Police Officer who has recorded the statement of Seema which was treated as the First Information Report, and which statement is a dying declaration of Seema. The statement was produced before the court, and tendered in evidence (Exhibit 17). 10. The sixth witness Vinayak Shinde is a panch in respect of the spot panchnama. According to him, when the spot panchnama was drawn, there was smell of kerosene in the house, and that a matchbox was seized from the house in his presence and under a panchnama. 11. The seventh witness is Dr. Rajesh Dere who had performed postmortem examination on the dead body of Seema. According to him, when the spot panchnama was drawn, there was smell of kerosene in the house, and that a matchbox was seized from the house in his presence and under a panchnama. 11. The seventh witness is Dr. Rajesh Dere who had performed postmortem examination on the dead body of Seema. He has opined the cause of death of Seema to be 'shock due to 75% infected burns (unnatural)'. 12. The eighth witness Dr. Venkatesh Manjunath is a Doctor who had treated Seema after she was brought to the hospital. He is the one who had examined Seema before her statement was recorded by Bhaskar More (P.W. 5). According to him, Seema was conscious, and fit to make a statement at that time, and accordingly, he had made an endorsement on the statement of Seema, which as aforesaid, was treated as the F.I.R. 13. The ninth and the last witness is the Investigating Officer - Ratnakar Sawant. He is the one who filed a charge sheet against the appellant after completion of investigation. 14. In all her dying declarations, Seema's version has been uniform. She has stated that due to the quarrel that took place between her and the appellant, she got kerosene poured over herself and that the appellant thereupon lighted a matchstick and set her on fire. Even about the subsequent happenings, her version has been uniform in all the dying declarations. She says that the appellant thereafter tried to extinguish the fire. She speaks of coming out of the room running and meeting Vicky. She also speaks about Vicky and the appellant having taken her to hospital. 15. The evidence of Dr. Venkatesh Manjunath (P.W. 8) indicates that when Seema's statement was recorded by Bhaskar More (P.W. 5), Seema was conscious and in a fit condition to make the statement. In the cross examination of Dr. Venkatesh Manjunath, nothing which would discredit his version has been brought on record. The dying declaration recorded by Pratiksha Gaonkar (P.W. 4) does not bear any endorsement by any doctor about Seema being in a fit state of mind at that time. Pratiksha Gaonkar has stated that she was unable to find any doctor and therefore, could not take the endorsement of any doctor on the statement that was recorded. 16. Mr. The dying declaration recorded by Pratiksha Gaonkar (P.W. 4) does not bear any endorsement by any doctor about Seema being in a fit state of mind at that time. Pratiksha Gaonkar has stated that she was unable to find any doctor and therefore, could not take the endorsement of any doctor on the statement that was recorded. 16. Mr. Wagh, the learned counsel for the appellant contended that the evidence of the dying declarations cannot be relied upon as the same lacks corroboration. He further submitted that when the spot panchnama was drawn, no stove or kerosene can, was found on the spot and that this contradicts the version in the dying declarations. He submitted that the statement made by panch Vinayak Shinde that there was kerosene smell in the house, cannot be relied upon in the absence of the mention of the same in the spot panchnama. According to him, it was clearly an improvement. 17. Indeed, the version reflected in all the dying declarations is consistent and uniform, and therefore, it would be difficult to discard the dying declarations, as unreliable. However, internal consistency with respect to the dying declarations is only one aspect of the matter, and that the version in the dying declaration, does not get support from the other evidence, is quite another. Indeed, in this cases, no kerosene can, or kerosene pot, or stove was found on the spot. On the contrary, the evidence indicates that there was a gas stove in the house. The question that arises is when there was no kerosene at all, how reliance can be placed on the statement of the deceased that she had poured kerosene over herself. The absence of kerosene pot, or can and the stove, is a circumstance which is in conflict with the version in the dying declarations. Therefore, the matter would need some deeper examination. 18. The learned APP submitted that there had been some time gap between the incident and the drawing of the spot panchnama, and therefore, there existed a possibility of somebody having removed the kerosene can. and/or stove from the spot, and having cleaned the same, in the mean time. This contention cannot be easily accepted. 18. The learned APP submitted that there had been some time gap between the incident and the drawing of the spot panchnama, and therefore, there existed a possibility of somebody having removed the kerosene can. and/or stove from the spot, and having cleaned the same, in the mean time. This contention cannot be easily accepted. Though such possibility undoubtedly exists, in that case, the Investigating Officer was expected to investigate, and find out as to who had removed the stove, and/or the can/pot, and who had cleaned the place. Not only it is not done, but even the clothes of Seema were not sent to Chemical Analyzer for finding out whether traces of Kerosene could be detected thereon. 19. I have carefully considered the evidence in respect of the Dying Declarations made by Seema, particularly because the same not only does not get any support from any other evidence, but also tends to create a doubt about the truth of the version in the Dying Declarations. I find the evidence reliable. The first Dying Declaration was made by Seema in the presence of the appellant and, therefore, there is almost no possibility of the same being false. The evidence of Vicky (P.W. 1) does not suffer from any infirmity, so as to render it unreliable. 20. When such is the position, just because the version in the dying declaration is not supported by the observations made during the spot panchnama, the dying declarations, which otherwise appear to be reliable and consistent, cannot be discarded. It cannot be overlooked that there was a time gap between the incident and the drawing of spot panchnama. Undoubtedly, therefore, the whole evidence would be required to be subjected to a meticulous scrutiny, and the conclusion drawn would be required to be supported by elaborate reasoning. 21. However, such an exercise which would have otherwise been essential need not be undertaken in the present case, inasmuch as the learned counsel for the appellant submitted that he would not challenge the incident, as is reflected in the dying declarations, but would only urge that the offence allegedly committed by the appellant would not be punishable either under section 302 of the IPC or 304 Part I of the IPC. According to him, it would amount to an offence punishable under section 326 of the IPC only. According to him, it would amount to an offence punishable under section 326 of the IPC only. He also submitted that as reflected from the evidence, the appellant has a small child, and is required to look after her, and that as such, by altering the conviction to a lesser offence, the sentence imposed upon the appellant, be substantially reduced. 22. In view of this concession, I do not propose to discuss the evidence adduced during the trial in greater depth, and only express an opinion that the conclusion arrived at by the learned trial Judge about the version reflected in the dying declaration being a truthful version, appears to be correct. Thus, it can be safely accepted that the incident as is reflected in the dying declaration had indeed taken place. 23. The question, however, is what offence the appellant appears to have committed. 24. The conclusion of the learned Judge that the offence committed by the appellant would not be one punishable under section 302 of the IPC, is proper and legal. However, his conclusion that the offence in question would be one punishable under Part I of section 304of the IPC, is not correct. Similarly, the contention of the learned counsel for the appellant that the offence committed by the appellant would be only one that is punishable under section 326 of the IPC, is also not correct. This needs a little elaboration and discussion. Admittedly, Seema had poured kerosene on herself. It is also clear that it was to either create some fear in the appellant, or to cause alarm to him. The appellant who was drunk and was angry because of the quarrel between him and Seema, appears to have thereafter lighted a matchstick and thrown it on Seema. After the fire was caught, the appellant took immediate and all the necessary steps to extinguish the same. He took Seema to the hospital immediately. The manner in which the incident has taken place, as also the subsequent conduct of the appellant, when considered together, leaves no manner of doubt that the appellant never intended to cause death of Seema. It is also clear that the appellant never intended to cause such injuries as would be sufficient in the ordinary course of nature to cause the death of Seema. 25. The learned Addl. It is also clear that the appellant never intended to cause such injuries as would be sufficient in the ordinary course of nature to cause the death of Seema. 25. The learned Addl. Sessions Judge has also come to the conclusion that the appellant did the guilty act without intending to cause the death of Seema. It would be interesting to quote what the learned Judge has observed in the judgment. "Accused was so in drunken condition, he was incapable of forming the requisite intend which could bring his act within ambit of Section300. In my view, by doing alleged act accused should be imputed with knowledge on his act." (para 44 of the judgment) 26. In the same paragraph, the learned Judge further observed that "this takes out his case from rigor of case of minder to one of culpable homicide not amounting to murder." 27. This conclusion of the learned Addl. Sessions Judge appears to be proper, but how in spite of arriving at this conclusion, the learned Judge held that the offence committed by the appellant would be one punishable under Part I of section 304 of the IPC, is difficult to understand. It is quite clear that when the act of causing death is done without intention of causing death, but only with the knowledge that death would thereby be caused, such act would fall within Part II of section 304 of the IPC. The homicide covered in Part II of section304 of the IPC, is of a lesser degree and lesser gravity than the one covered by Part I thereof. 28. In the instant case, from the totality of circumstances, it cannot be doubted that the appellant never intended to cause death of Seema. The same is the conclusion of the Addl. Sessions Judge, and this conclusion appears to be correct. Knowledge that by putting a lighted matchstick on the person of Seema was likely to cause her death can, however, be attributed to the appellant. Since death has actually been caused by the burn injuries that occasioned by putting the lighted matchstick on the person of Seema, the act of the appellant would amount to culpable homicide not amounting to murder, covered by Part-II of section 304 of the IPC. 29. Since death has actually been caused by the burn injuries that occasioned by putting the lighted matchstick on the person of Seema, the act of the appellant would amount to culpable homicide not amounting to murder, covered by Part-II of section 304 of the IPC. 29. In the result, though the conviction of the appellant is therefore, required to be maintained, it should be altered to the offence punishable under section 304 Part-II of the IPC. As aforesaid, this offence is of a lesser gravity than the one covered by Part I of section 304 of the IPC. 30. After hearing the learned counsel for the appellant, and keeping in mind that the appellant has a young daughter who needs to be looked after, and all other relevant aspects of the matter, I am inclined to reduce the sentence imposed upon the appellant. 31. The Appeal is partly allowed. 32. The conviction of the appellant is altered, from that of an offence punishable under Part I of section 304 of the IPC, to the offence punishable under Part II of section 304 of the IPC. 33. The sentence of Rigorous Imprisonment imposed upon the appellant is reduced to 4 (four) years. 34. The amount of fine as imposed by the Addl. Sessions Judge is reduced to Rs. 500/-. In default of payment of fine, the appellant shall undergo Rigorous Imprisonment for 10 (ten) days. Appeal is disposed of in the aforesaid terms.