JUDGMENT : K.S. Jhaveri, J. 1. The appellant has been found guilty of commission of offence under Sections 498(A) and 302 of Indian Penal Code and has been awarded rigorous imprisonment for one year & ordered to pay fine of Rs. 200/-, in default, to undergo additional rigorous imprisonment for one month u/s. 498(A) and rigorous imprisonment for life and fine of Rs. 500/-, in default, to undergo additional rigorous imprisonment for three months u/s. 302 by learned Additional Sessions Judge, Court No. 8, Ahmedabad city vide judgment and order dated 29.05.2007 passed in Sessions Case No. 217 of 2003. 2. It is the case of the prosecution in short that on 16.03.2003, the deceased had prepared chicken for her husband - accused. It is the case of the prosecution that as the deceased was a vegetarian she did not have chicken. She told the accused that she felt dizziness. The accused got excited and poured kerosene on the deceased and set her ablaze. The accused caught hold of her and also sustained burns. The neighbours rushed to the house and took the deceased to hospital. 2.1 The appellant was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences have been read before us by learned advocates for both the sides: i P.W. 1 – Dr. Gopal Makwana Ex. 39 ii P.W. 2 – Jadiben Kanitji Ex. 41 iii P.W. 3 – Pushpaben Thakore Ex. 42 iv P.W. 4 – Takhatsinh Chauhan Ex. 43 v P.W. 5 – Manharbhai Chhatavala Ex. 44 vi P.W. 6 – Dr. Manish Jain Ex. 46 vii P.W. 7 – Govindsinh Chauhan Ex. 47 viii P.W. 8 – Daluben Chauhan Ex. 48 ix P.W. 9 – Dr. Sunitbhai Soni Ex. 49 x P.W. 10 – Dineshbhai Thakore Ex. 51 xi P.W. 11 – Valjibhai Patel Ex. 53 xii P.W. 12 – Mansukhbhai Lakhiya Ex. 55 xiii P.W. 13 – Rana Mallikaben Ex. 66 2.2 The prosecution also exhibited the following documents which have been perused by us during the course of hearing: i Post mortem report Ex. 40 ii Scene of offence panchnama Ex. 45 iii Medical certificate of deceased Ex. 50 iv Statement made by deceased before PSI Ex. 54 v Inquest panchnama Ex. 66 2.2 The prosecution also exhibited the following documents which have been perused by us during the course of hearing: i Post mortem report Ex. 40 ii Scene of offence panchnama Ex. 45 iii Medical certificate of deceased Ex. 50 iv Statement made by deceased before PSI Ex. 54 v Inquest panchnama Ex. 56 vi Complaint Ex. 57 vii Report of registering offence Ex. 58 viii Yadi to FSL Ex. 59 ix Letter by FSL Ex. 60 x FSL report Ex. 61 xi Dying decelaration Ex. 62 xii Statement of accused before Ex. Magistrate Ex. 63 2.3 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 judgment and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. Rutul Desai, learned advocate appearing for Mr. Mrugen Purohit, learned advocate for the appellant submitted that the prosecution failed to prove the case against the appellant beyond reasonable doubt. He submitted that therefore there is no reason to believe that the appellant had committed the alleged offence. He submitted that in fact the accused tried to save the deceased and in the event sustained burns. He submitted that the trial court has not considered the dying declarations of the deceased in their true perspective. Mr. Desai submitted that the alleged offence occurred on 16.03.2003 whereas the deceased had expired on 26.03.2003 i.e. after about 10 days of the alleged incident. He submitted that in fact the deceased had died due to septicemia and considering around 45% burns sustained by the deceased, it cannot be said that the burns proved to be fatal to the deceased. He submitted that therefore the appellant deserves to be acquitted of the offence charged against him. 3.1 Mr. Desai 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 10 days after the incident, the Court may consider the case of the appellant under section 304 (Part II) of Indian Penal Code. In support of his submissions, Mr. In support of his submissions, Mr. Desai has relied upon the decisions of the Apex Court in the case of Maniben v. State of Gujarat, reported in (2009) 8 SCC 796. 4. Ms. C.M. Shah, 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. She has submitted that considering the barbaric act committed by the appellant, the trial court has rightly convicted the appellant. Ms. Shah submitted that going by the contents in the complaint, it is amply clear that the accused-appellant is guilty of the offence charged against him. She also submitted that the sentence imposed upon the appellant is just and proper and does not deserve to be reduced or quashed. 5. It has neither been disputed before this Court or before the trial court that deceased had met with her death on account of septicemia following 45% burn injuries sustained at the house of appellant. This even otherwise stands proved from her post-mortem report Ex. 40 which mentions the cause of death as septicemia following burns. 5.1 The post mortem report gives details about the burn injuries sustained by the deceased and the same reads as under: "17. Some infected & some healing burns on face, chest, abdomen & both upper limb." 5.2 Now the question that arises for consideration is whether the present appellant-husband of the deceased was the perpetrator of the crime or it was an accidental or suicidal death. 6. In the present case there are dying declarations of the deceased in the form of dying declaration recorded by the deceased before the Executive Magistrate, Ex. 62, complaint given by the deceased at Ex. 54, complaint given by the deceased at Ex. 57 and also the history before the doctor. 7. In the dying declaration recorded before the Executive Magistrate at Ex. 62, the deceased has stated that she had sustained accidental burns while she was cooking food. Now we shall take up the second dying declaration of the deceased which was recorded in the form of complaint at Ex. 54. In the complaint given by the deceased at Ex. 54, the deceased has stated that she sustained accidental burns while trying to prepare food. Now we shall take up the second dying declaration of the deceased which was recorded in the form of complaint at Ex. 54. In the complaint given by the deceased at Ex. 54, the deceased has stated that she sustained accidental burns while trying to prepare food. She has stated that she tried to extinguish the fire and clung to the accused. She has further stated that thereafter, her house owner and neighbours reached there and took her to hospital for treatment. 7.1 However, in the dying declaration which is recorded at Ex. 57, the deceased has stated that on 16.03.2003, she had cooked chicken for her husband. She has stated that she did not have chicken as she was a vegetarian and that she complained of dizziness which enraged her husband. She has further stated that the accused in a fit of rage poured kerosene on her and set her ablaze. She has stated that she had stated wrong facts before the Executive Magistrate and the PSI who recorded her complaint at Ex. 54 as her husband had intimidated her. She has stated that she had given the earlier statements as her husband had told her to say. She has stated that as she could not bear a child, her husband used to torture her. 7.2 In the history recorded before the Doctor by P.W. 13 - Nurse Mallika Rana, the deceased had stated that she was standing by her door when the accused had called her inside. However she did not go and thereafter they had a fight. The deceased had stated that the accused in a fit of rage poured kerosene on her and set her ablaze. 8. In the case of Gopal v. 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. 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." 8.1 In the case of Shudhakar v. 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. 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. 8.2 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. 9. P.W. 4 - Takhatsinh Chauhan is the father of deceased who vide his deposition at Ex. 43 has stated that on the date of incident while he was at his home, he received a phone call that his daughter had met with an accident. 9. P.W. 4 - Takhatsinh Chauhan is the father of deceased who vide his deposition at Ex. 43 has stated that on the date of incident while he was at his home, he received a phone call that his daughter had met with an accident. Thereafter, this witness and his wife went to hospital and when this witness asked the deceased about the reason behind the incident, she informed him that the appellant had poured kerosene on her and set her ablaze. P.W. 8 - Daluben Chauhan has also supported the case of the prosecution. 10. From the panchnama of scene of offence at Ex. 45, it is borne out that there was a can of kerosene found from the scene of offence which suggests the fact that the can was used for pouring kerosene. This corroborates the say of the victim in her dying declaration. The presence of the appellant at the scene of offence is also proved from the medical records which suggest that he had sustained burns. Moreover, it is required to be noted that a stove was found from the scene of offence which had an opening in the lower side for pouring kerosene. Therefore, it is highly improbable that a blast could have occurred while pouring kerosene. Moreover, the clothes more particularly, gown and bra of the deceased had kerosene on them. The FSL report suggests the presence of kerosene contents on the clothes of deceased. The clothes of the accused also had kerosene contents which is not possible if the deceased was trying to pour kerosene in the stove. The scene of offence panchnama supports the complaint given by the deceased at Ex. 57. The marriage span of the deceased and husband was six years and there were no issues out of the wedlock which also corroborates the complaint given by the deceased at Ex. 57. 11. In fact, in the case of Krishan v. State of Haryana, reported in (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. 57. 11. In fact, in the case of Krishan v. State of Haryana, reported in (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same. 12. The complaint of the deceased at Ex. 57 is duly corroborated with the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellant in pouring kerosene over and setting her ablaze. We do find that the complaint at Ex. 57 is trust worthy. 13. However, we have also not lost sight of the fact that the deceased had died after 10 days of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns. 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 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. 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." 14. In the present case, we have come to the irresistible conclusion that the role of the appellant is clear from the complaint at Ex. 57 and other records. However, the point which has also weighed with this court are that the deceased had survived for around 10 days and ultimately died of septicemia. In fact she had sustained about 45% 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(II) of Indian Penal Code. The conviction of the appellant under section 498(A) is however upheld. 15. Accordingly, the conviction of the appellant - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 29.05.2007 passed by the Additional Sessions Judge, Court No. 8, Ahmedabad City in Sessions Case No. 217 of 2003 is converted to conviction under Section 304 (Part II) of Indian Penal Code. 15. Accordingly, the conviction of the appellant - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 29.05.2007 passed by the Additional Sessions Judge, Court No. 8, Ahmedabad City in Sessions Case No. 217 of 2003 is converted to conviction under Section 304 (Part II) of Indian Penal Code. The conviction of the appellant under Section 498(A) of the Indian Penal Code is upheld. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of five years under section 304 (Part II) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The amount of fine is maintained. The sentence awarded under section 498(A) IPC is confirmed. The sentence awarded by the court below stands altered accordingly. Both the sentences shall run concurrently. The appellant - original accused shall surrender before the competent authority within a period of ten weeks from today to serve out the remaining period of sentence. The judgment and order dated 29.05.2007 is modified accordingly. Appeal is allowed to the aforesaid extent. R & P, if lying with this Court, to be sent back forthwith.