JUDGMENT : B.R. Gavai, J. 1. The Criminal Appeal No. 168/15 is filed by the original accused nos. 1 & 2 being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Wardha dated 18.12.2014 in Sessions Trial No. 199/13, thereby convicting them for the offence punishable under Part I of Section 304 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for a term of ten years and to pay a fine of Rs. 5,000/- and in default, to suffer simple imprisonment for six months. The Criminal Appeal No. 141/15 is filed by the State being aggrieved by not convicting the said accused for the offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case as could be gathered from the material placed on record, in brief, is thus: Accused nos. 1 Pralhad, No. 2 Diwakar so also the deceased Vijay are real brothers. The accused no. 3 Bebibai is their mother. The families of the accused no. 1 Pralhad as well as the deceased Vijay were residing separately in the house which was owned by original accused no. 3 Bebibai. The deceased was residing along with his wife Kavita and a child in one room. In hall which was adjacent to the room of the deceased, accused no. 2 Diwakar and accused no. 3 Bebibai were residing. On the rear side room, accused Pralhad was residing along with his wife. It is the prosecution case that the deceased had contributed Rs. 1,50,000/- for construction of the house. It is the prosecution case that the accused were always quarrelling with the deceased and PW-2 Kavita on the pretext of immovable property. 3. It was the prosecution case that the incident took place on 13.4.2013 at around 13.30 to 14.00 hours. The deceased, PW-2 Kavita, so also the accused persons were present in the house. Since the accused no. 3 had not paid the electric bill, there was a quarrel amongst the siblings. The accused nos. 1 & 2 started assaulting the deceased with kick and fist blows. PW-2 Kavita attempted to intervene. However, she was also assaulted. Accused Diwakar caught hold of the hands of her husband from the back side. Accused Pralhad poured kerosene on the deceased from the bottle kept in the living room and set him ablaze. The accused nos. 1 & 2 started assaulting the deceased with kick and fist blows. PW-2 Kavita attempted to intervene. However, she was also assaulted. Accused Diwakar caught hold of the hands of her husband from the back side. Accused Pralhad poured kerosene on the deceased from the bottle kept in the living room and set him ablaze. On the basis of the oral report of PW-2 Kavita below Exh. 64, initially a First Information Report came to be lodged for an offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The deceased was hospitalized. During his hospitalization two dying declarations came to be recorded. After ten days, on 24.4.2013 the deceased succumbed to the injuries. As such, the offence was converted to the one under Section 302 of the Indian Penal Code. 4. At the conclusion of investigation, a charge sheet came to be filed against the accused in the Court of learned J.M.F.C., Wardha. Since the case was exclusively triable by the Court of Sessions, the same came to be committed to the learned Sessions Judge, Wardha. The learned Sessions Judge, Wardha framed the charges for the offence punishable under Sections 302, 324 read with Section 34 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge acquitted the accused no. 3. The learned Judge passed an order of conviction for the offence punishable under Section 304 Part-I of the Indian Penal Code as aforesaid; however, acquitted the accused for the offence punishable under Section 324 of the Indian Penal Code. Hence, the present appeal. 5. Smt. S.B. Khobragade and Shri R.M. Daga, learned Counsel for the appellants, submit that the learned trial Judge has grossly erred in convicting the appellants. It is submitted that both the dying declarations are not in accordance with the law. It is submitted that in so far as dying declaration below Exh. 19 is concerned, the same is not read over to the deceased and as such, in view of the law laid down by the Apex Court in the case of Shaikh Bakshu and Others vs. State of Maharashtra, (2007) 11 SCC 269 , the same would not be admissible and submit that in so far as the dying declaration below Exh. 55 is concerned, the same has been disbelieved by the learned trial Judge. It is, therefore, submitted that if the dying declarations are disbelieved, then the only evidence available is that of PW-2 Kavita. It is further submitted that she is an interested witness and as such, the conviction only on the basis of her testimony would not be sustainable. 6. In so far as the dying declaration recorded by the Executive Magistrate PW-9 Akelesh Shrivastava is concerned, we find that in view of the clear admissions of PW-9 Shrivastava thereby admitting that the thumb impression of the statement does not bear any attestation and that he also did not sign below the thumb impression, we find that the learned trial Judge has rightly disbelieved the said dying declaration. The next dying declaration below Exh. 19 is recorded by PW-1 Police Constable Suresh Lakhe. However, in the said dying declaration there is no endorsement that the same was read over to the maker thereof and he has admitted the same to be true as per his version, in view of the judgment of the Apex Court in the case of Shaikh Bakshu and Others vs. State of Maharashtra (cited supra). As such the said dying declaration would not support the prosecution case. 7. That leaves us with the evidence of PW-2 Kavita Dhoble, the wife of the deceased. She has stated about the scuffle over nonpayment of electricity bills between her husband on one hand and rest of the accused on the other hand. She has also stated that on account of the said scuffle, a quarrel started. Accused nos. 1 & 2 assaulted the deceased with kick and fist blows. Accused Diwakar caught hold of the deceased and the accused Pralhad poured kerosene on her husband from the bottle kept in the living room and set him ablaze. No doubt that it has come in the cross-examination that on account of the previous enmity on earlier 23 occasions also reports by the said witness were filed against the accused persons. We find that though this witness has been cross-examined at length, nothing damaging in so far as the actual incident is concerned has come on record. It is further to be noted that the evidence of this witness is corroborated by the First Information Report which is immediate in point of time. We find that though this witness has been cross-examined at length, nothing damaging in so far as the actual incident is concerned has come on record. It is further to be noted that the evidence of this witness is corroborated by the First Information Report which is immediate in point of time. It is further to be seen that in Chemical Analyzer's reports stains of kerosene have been found on the clothes of both the appellants. In that view of the matter, we find that no interference is warranted in the finding of the learned trial Judge that it is the present appellants who are responsible for causing the death of the deceased. 8. That leaves us with the next question as to whether the conviction under Section 304 Part I would be sustainable or needs to be altered to a lesser offence. From the perusal of the evidence itself, it would reveal that there was a quarrel between the deceased on one hand and the accused on the other hand. According to PW-2 Kavita, as an outcome of that quarrel the accused Diwakar caught hold of hands of her husband from the back side and accused Pralhad poured kerosene on her husband. Even according to PW-2 Kavita, the other two brothers and the mother were on one side whereas the deceased was on the other side. From the evidence on record itself, it is clear that there was a previous enmity between the brothers interse. The mother was also on the side of the other brothers. It could thus be seen that the possibility of the real genesis of the incident being withheld by the prosecution cannot be ruled out. The possibility of the deceased abusing the mother and the brothers and in the result, in the heat generated the accused persons pouring kerosene on the deceased and setting him ablaze cannot be ruled out. We are of the considered view that the prosecution has failed to prove that the appellants had an intention to cause the death of the deceased. In that view of the matter, we find that the accused are entitled to benefit of doubt. The case would rather fall under Part II of Section 304 and not under Part I of Section 304 of the Indian Penal Code. As such, the appeal of the original accused nos. 1 & 2 deserves to be partly allowed. In that view of the matter, we find that the accused are entitled to benefit of doubt. The case would rather fall under Part II of Section 304 and not under Part I of Section 304 of the Indian Penal Code. As such, the appeal of the original accused nos. 1 & 2 deserves to be partly allowed. 9. In the result, the Criminal Appeal No. 168/15 is partly allowed. The conviction under Section 304 Part-I of the Indian Penal Code is altered to one under Section 304 Part-II of the Indian Penal Code. For the said offence, the appellants/accused are sentenced to suffer R.I. for six years. 10. Rest of the order including fine, etc. is maintained. 11. In view of the view taken by us, we do not find any merit in the appeal of the State. The same deserves to be dismissed. Hence, the Criminal Appeal No. 141/15 is dismissed. Ordered accordingly.