JUDGMENT : B.P. Dharmadhikari, J. This criminal appeal, under Section 374 of the Code of Criminal Procedure, 1973, challenges judgment and order dated 26.11.2014, delivered by learned Additional Sessions Judge, Khamgaon, convicting appellant/husband Janardhan Barku Solanke under Section 302 of the Indian Penal Code for committing murder of his wife by setting her ablaze on 13.3.2012. Victim Ratnabai expired on 18.3.2012. 2. We have heard learned counsel Shri D.V. Chauhan appointed for the appellant and learned Additional Public Prosecutor Shri R.S. Nayak for the respondent/State. 3. Briefly stated case of the prosecution is, the appellant-accused is drunkard and beggar who used to ill-treat his wife Ratnabai for extracting money to consume liquor. On 13.3.2012, both of them went to Asalgaon Bazar and returned back at about 5:30 p.m.. The appellant-accused then demanded money and Ratnabai paid him Rs. 50/-, which he spent on liquor. She refused to give him more money. The appellant-accused quarreled with her, poured kerosene on her person, and set her on fire. The couple had two sons viz. Rajesh and Vijay and a married daughter Bali who then resided at Nasik. At the time of incident, PW5 son Vijay was present in the house. 4. The dyeing declaration of deceased Ratnabai has been recorded vide Exhibit-26 on 13.3.2012 itself at about 9:00 p.m. by PW3 Executive Magistrate Vasant Baban Dabhade in the presence of PW4 Doctor Vinayak Jaidev Dhurjad. In her dyeing declaration, she has stated that her husband has attempted to burn her and her hand was fractured by him. They have returned from Asalgaon bazaar. Her husband is drunkard and troublesome. She had given him money to drink liquor still her husband Janardhan poured kerosene on her person and burnt her. Earlier also, he attempted assaulting her with knife and made several efforts to kill her. She stated that he made full attempt to burn her. It is apparent that effort was to kill her. 5. PW5 son Vijay was seventeen years old on 24.6.2014 when his deposition was recorded by the Trial Court. He was, thus, fifteen years old at the time of incident in question. The gist of his deposition is, on the date of incident, his mother and father came from Asalgaon bazaar. He has stated that his father was a beggar. He demanded money from Ratnabai for consuming liquor and quarreled with her. He was, thus, fifteen years old at the time of incident in question. The gist of his deposition is, on the date of incident, his mother and father came from Asalgaon bazaar. He has stated that his father was a beggar. He demanded money from Ratnabai for consuming liquor and quarreled with her. This was at about 5:00 to 5:30 p.m.. His mother had already paid Rs. 50/- to his father and he was demanding more amount. The father quarreled with his mother since his mother refused to give his father more amount. His father poured kerosene on his mother and set her ablaze. He was standing there and raised shouts. He called PW6, his neighbour, Ajabrao Bajirao Sonanke. Ajabrao came and extinguished his mother. He then rushed to the house of Dharma Pandurang and requested him to bring his Maruti Omni Van in which his mother was then carried to hospital. After setting his mother ablaze, his father was standing outside the house. He has stated that as his father was over-drunk, his mother was scolding him. He denied that his mother was fed up and, therefore, tried to kill herself by pouring kerosene on her person. His father, though not in a position to stand and maintain his balance, tried to prevent the same and in this process hands of his father got stained with kerosene. He denied that his mother herself ignited match stick and set fire. He denied that his father tried to extinguish his mother and sustained burn injuries. He denied that his father was admitted in hospital. His evidence also shows that his maternal aunts, sisters of deceased Ratnabai, Sangita Suresh Solanke and Anita also resided in neighbourhood and they came to hospital with him. 6. The report is lodged by PW1 Sangita, sister of Ratnabai. She heard shouts of PW5 Vijay at 5:30 p.m. and went to house of deceased Ratnabai. Her sister Anita, who resided beyond two to three houses from her house, also came there. Deceased Ratnabai was burning and PW6 Ajabrao Solanke poured water on her person. Then they took deceased Ratnabai to General Hospital Khamgaon in Maruti Omni Van. On way to hospital, deceased Ratnabai told them that the appellant-accused used to demand money to consume liquor and used to beat her. Deceased Ratnabai told them that the appellant-accused poured kerosene and set her ablaze. Then they took deceased Ratnabai to General Hospital Khamgaon in Maruti Omni Van. On way to hospital, deceased Ratnabai told them that the appellant-accused used to demand money to consume liquor and used to beat her. Deceased Ratnabai told them that the appellant-accused poured kerosene and set her ablaze. When she went to the house of deceased Ratnabai, the appellant-accused was standing outside his house. She has also stated that the appellant-accused used to beg by changing his looks. Her cross-examination shows that she and her sister Anita were with deceased Ratnabai and she did not lodge police report while taking deceased Ratnabai to General Hospital Khamgaon. She has denied that when police visited deceased Ratnabai in hospital, deceased Ratnabai told police that she had burnt herself. She has denied that the report was lodged four-to-five days after the incident. 7. PW2 Dharma Gangaram Mandokar is driver of Maruti Omni Van. He has stated that with deceased Ratnabai, her two sisters, and son Vijay sat in his Maruti Omni Van. When he proceeded to General Hospital Khamgaon, fault developed in his van at Pimpalgaon Kale. Therefore, he arranged van of one Manu Raut. He further deposed that Vijay came to his house to call him. Vijay told him that his mother had poured kerosene on her person and set her ablaze. He was declared hostile. He denied that he had told police about Vijay informing him that his father poured kerosene and set his mother ablaze. He has stated that portion mark A in his statement, is not correct. He could not explain as to why portion mark A appeared in his police statement. He has also denied oral dyeing declaration by Ratnabai and deposed that portion mark B was incorrect. Again he could not explain why police wrote it accordingly. He deposed that appellant-accused Janardhan was present at house but did not came to hospital. 8. Non-examination of Manu Raut, driver of other Maruti Van, is not fatal in this situation. Submission of the appellant-accused that when police got knowledge of incident on 13.3.2012 itself, registration of F.I.R. on 17.3.2012 is by way of after thought, is again misconceived in present facts. Reliance upon the judgment of the Honourable Apex Court in the case of Ganesh Bhavan Patel and another v. State of Maharashtra, reported at [AIR 1979 SCC 135 ], particularly paragraph No. 18, is misconceived here. 9. Reliance upon the judgment of the Honourable Apex Court in the case of Ganesh Bhavan Patel and another v. State of Maharashtra, reported at [AIR 1979 SCC 135 ], particularly paragraph No. 18, is misconceived here. 9. The dyeing declaration of deceased Ratnabai has been recorded after following proper procedure by PW3 Naib Tahsildar Vasant Baban Dabhade. He received requisition on 13.3.2012 for recording of dyeing declaration. Accordingly, he went to General Hospital Khamgaon and gave requisition to the medical officer there. The medical officer then declared Ratnabai to be fit and conscious to give her dyeing declaration. He has proved this requisition at Exhibit-24. He has then also proved statement of deceased Ratnabai at Exhibit-26. We have already referred to it. Dyeing declaration mentions that it was read over to deceased Ratnabai and same was accepted to be correct. Thereafter, her thumb impression has been obtained and then there is certificate issued by the medical officer. This certificate also states that the patient was conscious and fit while giving dyeing declaration. This certificate is at Exhibit- 27. The certificate obtained by PW3 Naib Tahsildar Vasant Baban Dabhade before recording dyeing declaration is at Exhibit-25. There is nothing in his cross examination to discredit his evidence on solemn affirmation. He accepted that dyeing declaration Exhibit-24 shows two thumb impressions. Though he had taken thumb impression only once, perusal of dyeing declaration Exhibit-26, in original, shows that so called other thumb impression is very faint repetition which may have appeared accidentally. 10. PW4 Dr. Vinayak Jaidev Dhurjad has supported PW3 Naib Tahsildar Vasant Baban Dabhade and proved fitness certificate given by him at Exhibits-25 and 27. He has denied that deceased Ratnabai was unable to speak though she had sustained 80% burnt injuries. He has further stated that he put time on certificates as per his writ watch. The evidence of both these witnesses is convincing and supports narration by deceased Ratnabai at Exhibit-26. The narration is on same lines as deposed by PW5, son Vijay of deceased Ratnabai, and also PW1, sister of deceased Ratnabai, Sangita. This dyeing declaration has been recorded at about 9:00 in the evening/night on 13.3.2012. Not mentioning date, on which recording of statement came to an end or time thereof and leaving space prescribed for it in printed proforma blank, is not sufficient to vitiate this dyeing declaration. 11. This dyeing declaration has been recorded at about 9:00 in the evening/night on 13.3.2012. Not mentioning date, on which recording of statement came to an end or time thereof and leaving space prescribed for it in printed proforma blank, is not sufficient to vitiate this dyeing declaration. 11. The appellant-accused has attempted to rely upon the deposition of DW1 Bali Lakhan Shinde, daughter of the appellant-accused. DW1 Bali has deposed that her brother Vijay was at Nasik on the date of incident. The appellant-accused has, during cross-examination of Vijay, brought it on record that on the date of incident Vijay did not go to school and was present in the house. As such, this effort of the appellant-accused to establish absence of Vijay cannot succeed. It is attempted to show that as per PW1 Sangita Solanke, only she and her sister Anita were present in the van with deceased Ratnabai. However, that does not mean that PW5 son Vijay was not with them. PW2 Dharma Gangaram Mandokar, driver of Maruti Omni Van, has stated that Vijay also came with him in van. 12. PW6 Ajabrao Bajirao Solanke has deposed that, at about 5:30 p.m., Vijay gave a call that his mother was burnt and, therefore, he rushed to the house of Vijay. He extinguished fire on person of deceased Ratnabai. Appellant-accused Janardhan was standing there. Anita and Sagita and other members gathered. Deceased Ratnabai was taken in Maruti Omni Van to hospital. In his cross-examination, he has admitted that at the time of incident the appellant-accused was under the influence of alcohol. 13. Elder brother of Vijay by name Rajesh was about 17 years old at the time of incident. His evidence shows that he was away and on getting knowledge, he went to General Hospital Khamgaon to meet his mother. His mother informed him that the appellant-accused demanded money for buying liquor and she gave Rs. 20/-. He was demanding more amount to which she refused. Therefore, he poured kerosene on her person and ignited her. 14. Thus, evidence of all theses witnesses conclusively establishes correctness of dyeing declaration given by deceased Ratnabai. The fact, that the F.I.R. has been registered four days after the incident i.e. on 17.3.2012, is not in dispute. However, mere late recording of F.I.R. by itself cannot be said to be fatal, in this situation. 14. Thus, evidence of all theses witnesses conclusively establishes correctness of dyeing declaration given by deceased Ratnabai. The fact, that the F.I.R. has been registered four days after the incident i.e. on 17.3.2012, is not in dispute. However, mere late recording of F.I.R. by itself cannot be said to be fatal, in this situation. PW10 Assistant Police Inspector Anand Dhondiba Kushanwah has stated that he arrested the appellant-accused on 17.3.2012 after investigation was handed over to him. He has also pointed out that on 18.3.2012, he prepared spot panchnama. He also deposed that portion marks A and B, in statement of PW2, driver of Maruti Omni Van, Dharma Gangaram Mandokar, were correctly recorded. He has further stated that police did not receive the separate complaint about the incident. 15. In these facts, the defence of the appellant-accused that because of delayed recording of F.I.R., presumption of some manipulation arises, is misconceived. Here, the dyeing declaration was recorded immediately and PW5 minor son Vijay has supported the prosecution. PW6 Ajabrao Bajirao Solanke is an independent witness who has also supported the prosecution. 16. Learned counsel Shri D.V. Chauhan appointed for the appellant, however, also relied upon the judgment of the Honourable Apex Court in the case of Ramanlal and Ors v. State of Haryana, reported at [2015 (4) Crimes 275 (SC)] to urge that when such an event occurring in heat of passion, intention to kill is absent. He points out that the present appellant-accused did not run away from the spot. Our attention is drawn to judgment of the Honourable Apex Court in the case of Sayaji Hanmant Bankar v. State of Maharashra, reported at [ (2011) 14 SCC 477 ] to urge that the facts, there, are more or less identical and the Honourable Apex Court has altered the conviction from Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code. Learned counsel Shri D.V. Chauhan appointed for the appellant submits that in the present matter when the appellant-accused is a beggar and there was quarrel between couple, lenient view, as taken in the case of Ramanlal and Ors, supra, needs to be taken and the appellant-accused ought to have been convicted under Section 304 Part II. He submits that in the present matter deceased Ratnabai was wearing a polyester saree. 17. He submits that in the present matter deceased Ratnabai was wearing a polyester saree. 17. Perusal of statement under Section 313 of the Code of Criminal Procedure given by the appellant-accused reveals that while answering question Nos.40 and 41, he has stated that the witnesses were deposing incorrectly and falsely. Learned Additional Public Prosecutor Shri R.S. Nayak for the respondent/State has relied upon the judgment in the case of Sayaji Hanmant Bankar v. State of Maharashra, reported at [2005 ALL MR (CRI) 64] to demonstrate that in the present matter deceased Ratnabai has not spoken of any quarrel. However, it is not necessary for us to delve into all these aspects. PW5 Vijay has spoken about quarrel. PW6 Ajabrao has stated that the appellant-accused was under the influence of alcohol. PW5 Vijay has also stated that the appellant-accused had spent earlier amount of Rs. 50/- on alcohol and was under the influence. In cross, he has stated that his father was over-drunk and deceased Ratnabai was scolding him. The dyeing declaration of deceased Ratnabai shows that her husband had earlier broken her hand and was harassing her as he was drunkard. 18. After setting his wife ablaze, the appellant-accused was standing outside his house. He did not run away and also did not proceed to hospital with his wife. His conduct shows that he was unconcerned about the health of his wife. He used to beg food even by changing looks and appears to be an addict. After consuming alcohol on bazar day, he wanted his wife to give him more money. This resulted in quarrel and during that quarrel, the appellant-accused poured kerosene on her person and set her ablaze. It appears that tempers were running high and that may have added fuel to fire, still it cannot be accepted that the appellant did not intend to kill his wife. His concern towards her health would have been apparent in his subsequent conduct, if he wanted her not to die. It appears that in quarrel and heat of passion, the appellant-accused took a drastic step. We, therefore, find that he should have been convicted under Section 304 Part I of the Indian Penal Code. Accordingly, we proceed to pass the following order : ORDER 1. Criminal Appeal is partly allowed. 2. It appears that in quarrel and heat of passion, the appellant-accused took a drastic step. We, therefore, find that he should have been convicted under Section 304 Part I of the Indian Penal Code. Accordingly, we proceed to pass the following order : ORDER 1. Criminal Appeal is partly allowed. 2. The judgment and order of conviction delivered by the Additional Sessions Judge, Khamgaon, in Sessions Trial No. 53 of 2012, under Section 302 of the Indian Penal Code is altered to one under Section 304, Part (I) of the Indian Penal Code and the accused is sentenced to suffer R.I. for a period of 10 years and to pay fine of Rs. 100/- and in default of fine to suffer further R.I. for a period of one month. 3. The accused is in jail since 17.3.2012. He be given set-off under Section 428 of Cr.P.C., of the period already undergone by him in jail. 4. Seized property being worthless, be destroyed after the appeal period is over. 5. The charges of Shri D.V. Chauhan, learned counsel appointed for the appellant, are fixed at Rs. 5000/- and are donated to the High Court Library, as requested by the learned counsel. Appeal partly allowed.