JUDGMENT : K.S. Jhaveri, J. 1. As both these appeals arise out of the judgment and order dated 06.02.2003 passed by the learned Additional Sessions Judge, 6th Fast Track Court, Junagadh in Sessions Case No. 33 of 1993. The same are heard and being decided in this common judgment. 2. Ms. Shah, learned Additional Public Prosecutor for the State, at the outset, submitted that the State was to file an appeal against acquittal of the accused for the offence punishable under Section 302 of the Indian Penal Code, 1860, however, inadvertently, in the appeal filed by the State, viz., Criminal Appeal No. 560 of 2013, it is mentioned to be for enhancement of sentence and accordingly, she requested to consider the appeal accordingly, against acquittal, as aforesaid. Accordingly, we have considered the matter. 3. Criminal Appeal No. 560 of 2003 is filed by the State of Gujarat against the order of acquittal of respondent-accused under Section 302 of the Indian Penal Code whereas Criminal Appeal No. 201 of 2003 is filed by the accused person who was convicted for the offence punishable under Section 304Part I of the Indian Penal Code and sentenced to undergo ten years' rigorous imprisonment with fine of Rs. 1000/- in default of payment of fine, further simple imprisonment of one month. 4. Brief facts of the case are as under: 4.1 The accused happened to be wife of elder brother-in-law of deceased Radhaben @ Jayaben wife of Manubhai. The accused Jayaben wife of Rajabhai and the deceased were residing under the same roof. On 04.06.1992, when Radhaben @ Jayaben wife of Manubhai (deceased) was doing her household work, her minor son started crying and therefore, she left the work and went to attend him. The accused Jayaben wife of Rajabhai is said to have picked up quarrel on this issue and therefore, Radhaben @ Jayaben (deceased) had responded that she could not allow her son to die. The accused who was elder sister-in-law (Jethani) lost temper and set Radhaben @ Jayaben ablaze by pouring kerosene. As a result of burns injuries, she died during treatment. Therefore, a complaint was lodged before Junagadh Police Station as I.C.R. 59 of 1992 against the accused for the offence punishable under Section 302 of the Indian Penal Code. 4.2 Pursuant to complaint, investigation was carried out and charge-sheet was filed. As a result of burns injuries, she died during treatment. Therefore, a complaint was lodged before Junagadh Police Station as I.C.R. 59 of 1992 against the accused for the offence punishable under Section 302 of the Indian Penal Code. 4.2 Pursuant to complaint, investigation was carried out and charge-sheet was filed. As the offence was triable by Court of Sessions, the learned Magistrate committed the case to the court of Sessions. The learned Sessions Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried and hence, trial commenced. 4.3 To prove the guilt on the accused, the prosecution examined following witnesses: P.W.No. NAME EXHIBIT No. 1 Jesingbhai Dadabhai 29 2 Minbai Dadabhai 30 3 Manubhai Dadabhai 31 4 Devshibhai Madhubhai 32 5 Dr. Chandrakant Maganlal Jethwa 35 6 Dr. Diptiben Digan Buch 39 7 Govindbhai Maganbhai 41 8 Amrabhai Chudasma 42 9 Rajbai Bachubhai 43 10 Bachubhai Mahopatbhai 44 11 Dayashankar Rajabhai 47 12 PSO Madhubhai Motibhai Parmar 49 13 Dr. Ghanshyam Chinubhai Joshi 56 14 Takhatsinh Navalsinh Thakore 58 4.4 The prosecution also relied on following documentary evidence Sr. No. Description Exh. no. 1 Yadi to Medical Officer 9 2 F.S.L. Report 10 3 Copy of draw Sketch 11 4 Map of place of incident 12 5 Arrest Panchnama of the accused 13 6 Yadi given to Executive Magistrate to record Dyding Declaration 14 7 Copy of Yadi informing death during treatment 15 8 Copy of yadi sent to Executive Magistrate to draw inquest panchnama 16 9 Inquest Panchnama 17 10 Inquest Form 19 11 Yadi sent to Medical officer to perform post mortem 12 Covering letter with muddamal 20 13 Acknowledgement of receipt of muddamal by FSL 21 14 Coverign Letter From FSL 22 15 F.S.L. Report 23 16 Forwarding letter of Biological Department of FSL 24 17 Report of Biological Report 25 18 Serological Report 26 19 Coverign letter from physiological department of FSL 27 20 Report of physiological Department of FSL 28 21 Panchnama of place of incident 33 22 Yadi written to Medical Officer Primary health Centre Chuda by Bhesan Police 36 23 Medical Certificate 37 24 Case papers of dispensary of Jesingbhai Dadbhai Chavda 38 25 P.M. Note 40 26 Original Dying Declaration 46 27 Complaint 48 28 Yadi written to Executive Magistrate. Junagadh 45 29 Report regarding addition of Section 302 50 30 Copy of complaint being I.C.R. NO. 59 of 1992 52 31 Copy of Station Diary 51 32 Case papers of dispensary 57 5. On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statement of the accused under Section 313 of Code of Criminal Procedure qua incriminating evidence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the impugned judgment and order as aforesaid was delivered giving rise to prefer the present appeals. 6. Mr. N.D. Nanavaty, learned Senior Advocate assisted by learned advocate Mr. Nirad Buch appearing for the accused has submitted that the incident occurred because of sudden quarrel and the death of the deceased was the accidental and not homicidal. There is no evidence on record to prove that the accused had motive or intention to cause the death of the deceased. 6.1 Mr. Nanavaty, learned Senior Advocate for the accused contended that in view of evidence of PW 9-Rajbai Bachubhai (Mother of the deceased) who was examined at Exh. 43, when for the first time the history was given before the police, the name of the accused was not disclosed. He further submitted that the dying declaration which was recorded at Exh. 46, does not disclose the mental status of the deceased that she was conscious. For the statement recorded in dying declaration under Section 32(1)of the Evidence Act, he relied on the decision of the Apex Court in case of State of Maharashtra versus Hemant Kawadu Chauriwal, reported in AIR 2016 Supreme Court 287 and submitted that it is settled law that dying declaration can be the sole basis of conviction and it does not require any corroboration. But it is equally true that dying declaration goes against the cardinal principle of law that 'evidence must be direct'. Thus the dying declaration must be judged and appreciated in light of the surrounding circumstances and its weigh determined by reference to the principle governing the weighing of evidence. He submitted that in the case on hand nothing had been recorded on the dying declaration that the deceased was conscious enough to declare the correct facts. However, the evidence of Rajbai Bachubhai P.W. 9, the matter of the deceased, who was examined at Exh. He submitted that in the case on hand nothing had been recorded on the dying declaration that the deceased was conscious enough to declare the correct facts. However, the evidence of Rajbai Bachubhai P.W. 9, the matter of the deceased, who was examined at Exh. 43, in cross-examination has deposed that her daughter was under mental depression and she was not mentally fit. She has also stated that deceased was under treatment of the doctor. The learned advocate further submitted that dying declaration is not supported by any other corroborative piece of evidence and therefore, dying declaration is not believable. 6.2 Mr. Nanavaty, learned Senior Advocate for the accused submitted that learned Trial Court erred in not considering the injuries sustained by the deceased which also supports/corroborates the theory of accident as the post mortem report shows that the entire body of the deceased was having burn injuries. The prosecution examined one Dr. Dipti Buch at Exh. 39 who had performed the post mortem of the deceased and her evidence proves that the deceased had 80% burn injuries on her body and as almost entire body had burn injuries, the theory of accident could have been believed by the trial Court. However, the learned trial Court has not at all considered this aspect though in the medical evidence it has been admitted that such injuries can be caused to the deceased if she had fallen on the stove. Therefore, solely on this ground, the conviction cannot sustain, placing undue reliance on the so called dying declaration recorded by the prosecution during the course of the investigation. 6.3 Mr. Nanavaty, learned Senior Advocate further contended that depositions of the relatives and other persons prove that the deceased had become unconscious immediately after the incident and had remained unconscious throughout. He submitted that dying declaration recorded by Bachubhai Mahipatrav Aayrav admits that the left toe impression below the DD was not attested by any person but was attested and identified by himself. There is no endorsement by the medical officer on duty that the deceased was fully conscious and well oriented either before or during the recording of complaint. PW 10 Bachubhai Mahiptrav Aayarav who is examined at Exh. 44 even in examination in chief does not depose that the medical officer had opined that the deceased was conscious and well oriented. There is no endorsement by the medical officer on duty that the deceased was fully conscious and well oriented either before or during the recording of complaint. PW 10 Bachubhai Mahiptrav Aayarav who is examined at Exh. 44 even in examination in chief does not depose that the medical officer had opined that the deceased was conscious and well oriented. He further submitted that the deceased was a patient of depression, is supported by the mother of the deceased. 6.4 Mr. N.D. Nanavaty, learned Senior advocate submitted that there was no grief between the deceased and the accused. There was a sudden quarrel, however, there is nothing on record to show that the accused had caused death by pouring kerosene on her. 6.5 Making above submissions, Mr. Nanavaty, learned Senior Advocate has submitted that the appeal filed by the accused against conviction deserves to be allowed by setting aside the impugned judgment and order and the appellant-accused may be acquitted from the offences for which he is convicted. 7. As far as acquittal of the accused for the offence under Section 302 of the IPC is concerned, Ms. Chetna Shah, learned APP appearing for the State has submitted that the learned Judge has not properly appreciated the deposition of PW 10 Bachubhai Mahipatrai Aayrav who has been examined by the prosecution and whose deposition is recorded at Exh. 44 and the evidence of Dr. Ghanshymabhai Chinubhai at Exh. 56. 8. She further submits that the learned Judge has not properly appreciated dying declaration which is at Exh. 46 and the deposition of PW 10-Bachubhai Mahipatrai Aayrav Exh. 44 wherein he has specifically stated that at the time of recording the dying declaration was recorded the patient was fully conscious and the Doctor has endorsed the said fact in the said dying declaration. Moreover, she submitted that at the time of recording the dying declaration, the relatives of the deceased and Police personnel were not present in the ward. 9. She submitted that the learned Judge erred in ignoring the dying declaration given by the deceased, the deposition of Mamlatdar who has recorded the dying declaration, the deposition of Dr. Ghanshymabhai Chinubhai and also misread the F.I.R. and therefore, acquitted the accused for the offence punishable under Section 302 of the Indian Penal Code which is contrary to law and the evidence on record. Ghanshymabhai Chinubhai and also misread the F.I.R. and therefore, acquitted the accused for the offence punishable under Section 302 of the Indian Penal Code which is contrary to law and the evidence on record. She submitted that the declaration was voluntary and made by free will of the deceased. She has relied upon the decision of the Apex Court in Shudhakar vs. State of Madhya Pradesh, reported in (2012) 7 SCC 569 and submitted that a person on death bed will normally speak the truth and only the truth. She has also relied upon another decision of Apex Court in the case of Krishan vs. State of Haryana, reported in (2013) 3 SCC 280 . 10. Ms. Chetna Shah, learned APP for the State submitted that going by the contents of the dying declaration and the complaint, it is amply clear that the accused is guilty of the offence alleged against her. She further submitted that the dying declaration of the deceased recorded by the Executive Magistrate is in accordance with law and in fact does not need any corroboration. She has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana, reported in (2013) 3 SCC 280 . 11. Ms. Chetna Shah, learned APP has strongly supported the judgment of the trial court as far as the conviction of the accused is concerned. She has submitted that the trial court, considering the entire facts and circumstances of the case and the role of the accused in the alleged offence ought not to have acquitted her from the offence punishable under section 302 of Indian Penal Code. Ms. Shah has submitted that the injury caused to the deceased proved to be fatal and the trial court has wrongly applied Section 304 Part I instead of Section 302 of IPC. 12. We have heard learned advocate for the accused-convict and learned APP for the State. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocates for both the sides. 13. The trial court has observed that it is an undisputed fact that there was quarrel between the parties. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocates for both the sides. 13. The trial court has observed that it is an undisputed fact that there was quarrel between the parties. A close scrutiny of the evidence of the complainant as well as the other prosecution witnesses, the presence of the accused person at the scene of offence is proved. 14. In the present case, the injury though was caused by the accused upon the deceased, it cannot be said that there was an intention to cause death to the deceased. The present case cannot be said to be murder since it was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. In that view of the matter, this submission of learned APP cannot be accepted. 15. While going through the dying declaration some of the questions which were put to the victim at the relevant point of time by the Executive Magistrate, clearly establish that she was conscious and mentally fit to reply to each of the queries or questions which were raised by the Executive Magistrate. In reply to the first question regarding her status, she has clearly said that she was burnt; she belonging to a particular community; she was also conscious and she stated the time of incident and when it was asked as to how the incident happened, she replied that her elder sister-in-law poured kerosene on her. She has also disclosed the name of her elder sister-in-law and she has also stated that she had poured kerosene on her and set her on fire. Further question put forward to her that as to why this had happened, she has clearly stated that there was a dispute regarding small issues last month and she had no other problem with any other family member and her husband had tried to save her when the fire has taken place. The deceased has clearly stated that accused had got angry and kerosene was taken from one tin by the accused where the night lamp was burnt and she then set her ablaze. 16. The deceased has clearly stated that accused had got angry and kerosene was taken from one tin by the accused where the night lamp was burnt and she then set her ablaze. 16. In view of the fact that the involvement of the accused in the offence in question is proved, it would now be pertinent to test the legality of application of Section 304 Part I of the Indian Penal Code by the learned trial Court. In the facts and circumstances of the case and thereby imposing imprisonment for ten years, as contended by learned counsel for the accused or whether it can be said that the accused poured kerosene on the deceased and set her on fire with the intention of causing murder of the deceased so as to be convicted under Section 302, Indian Penal Code as contended by the learned APP. 17. In the present case the accused did not intend to cause death of the deceased. There was an altercation followed by the incident in question of pouring kerosene on the deceased and set her on fire. When temper ran high, in the heat of passion, upon sudden quarrel, the accused had poured kerosene on the deceased but without premeditation. Keeping the aforesaid angle in view, we are of the opinion that the offence falls within Exception 4 of Section 300 of the Indian Penal Code and thus the trial court has rightly acquitted the accused under Section 302 of Indian Penal Code and convicted her under Section 304 Part I of Indian Penal Code. 18. Taking into consideration the complaint and other evidence on record we are of the opinion that dying declaration is supported by all the witness and medical evidence and the trial court has not committed any error in convicting the accused for the offence under Section 304 Part I of the Indian Penal Code. 19. In the case of Krishan vs. 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. 19. In the case of Krishan vs. 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, and 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. 20. Accordingly, the conviction of the accused under Section 304 Part I of the Indian Penal Code vide judgment and order dated 06.02.2003 passed by the Additional Sessions Judge, 6th Fast Track Court, Junagadh in Sessions Case No. 33 of 1993 is hereby confirmed. Both the appeals are dismissed. 21. The convict shall surrender before the concerned authority within a period of 16 weeks from today in order to serve out the remaining period of sentence. Bail bond, if any, shall stand cancelled. R & P to be sent back to the trial Court forthwith.