JUDGMENT 1. Appellant had faced trial in FIR No. 204 dated 06.07.2012 registered at police station Muhana, District Jaipur City (East) under Section 307 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). Offence under Section 302 IPC was added on account of death of the victim. 2. FIR was registered on the basis of the statement made by victim Meera Kanwar. It was the case of the victim that she had got married to Narendra Singh in the year 2001. Out the said wedlock, two sons were born to her. On 06.07.2012, a dispute arose in the morning with Pinki (appellant) on the ground that she had not prepared good/tasty tea. Due to this reason, Pinki poured kerosene oil on her and set her on fire. Occurrence had taken place at about 10.00 a.m. At that time, her mother-in-law was also present at home. Her children were also present at home. On hearing the alarm, her husband as well as other villagers came to the spot and took her to the hospital. Her husband had never beaten her, but used to scold her under the influence of liquor. Her mother-in-law had never beaten her. 3. Victim died on 07.07.2012 at 7.00 a.m. 4. After completion of investigation and necessary formalities, challan was presented against the appellant. 5. Charges were framed against the appellant under Sections 302 and 201 IPC. Appellant did not plead guilty and claimed trial. 6. In order to prove its case, prosecution examined 13 witnesses. Appellant when examined under Section 313 Cr.P.C., prayed that she was innocent and had been falsely involved in this case. Appellant examined three witnesses in her defence. 7. Trial Court vide judgment/order dated 26.10.2017 ordered the conviction and sentence of the appellant under Sections 302 and 201 IPC. Hence, the present appeal by the appellant. 8. Learned counsel for the appellant during the course of arguments has submitted that in view of the dying declaration suffered by the victim before the Magistrate, he does not dispute the factum of occurrence. However, the case would not fall within the ambit of Section 302 IPC but would fall within the ambit of Section 304 (I) IPC. Learned counsel has submitted that the appellant had made effort to save the victim as she had herself suffered burn injury on her hand. However, the case would not fall within the ambit of Section 302 IPC but would fall within the ambit of Section 304 (I) IPC. Learned counsel has submitted that the appellant had made effort to save the victim as she had herself suffered burn injury on her hand. The occurrence had occurred on a petty dispute with regard to preparation of tea. Appellant could not be attributed to any premeditation with regard to commission of offence. It appears that on account of quarrel between the victim and the appellant, victim (she) suffered burn injuries at the hand of the appellant, in a sudden fit of passion/anger. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Criminal Appeal No. 770 of 2019, Govind Singh Versus The State of Chhattisgarh, decided on 29.04.2019, wherein it was held as under:- "The entire occurrence was in a spur of moment. There was quarrel between the father and daughter as to where the bulb is to be put on. In the sudden quarrel and in spur of the moment, the appellant threw the chimney lamp on his daughter. The occurrence was sudden and there was no premeditation. The chimney lamp was burning there which the appellant had picked up and thrown on the deceased. Since the occurrence was in sudden quarrel and there was no premeditation, the act of the accused would fall under Exception 4 to Section 300." 9. Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in Criminal Appeal No. 763 of 2019, Kalabai Versus State of Madhya Pradesh, decided on 30.04.2019 wherein, it was held as under:- "It is relevant to notice that husband of the deceased, Vijay Singh was also charged under Section 302 read with Section 34 IPC and 114 IPC who has been acquitted by the trial court. In the evidence which was led before the Courts below, there are no evidence of any strained relations between the appellant and deceased. The entire incident which happened has been elaborately described by the deceased herself in her dying declaration. There is no evidence to come to conclusion that the appellant had any intention to kill the deceased. In the evidence which was led before the Courts below, there are no evidence of any strained relations between the appellant and deceased. The entire incident which happened has been elaborately described by the deceased herself in her dying declaration. There is no evidence to come to conclusion that the appellant had any intention to kill the deceased. As per statement of deceased herself that a quarrel was going on between herself and her husband, Vijay Singh and during that quarrel, the appellant who is living in the lower floor of house arrived at the scene. There cannot be any issue that when a person throws a burning stove on a person there is knowledge that the act is likely to cause death." 10. Learned counsel has next placed reliance on the decision of this Court in D.B. Criminal Appeal No. 172 of 2011, Bhagwan Lal Versus State of Rajasthan, decided on 15.05.2018 wherein, it was held as under:- "As noticed hereinabove, in the instant case also, the appellant as a result of a sudden quarrel, under intoxication, set her wife Smt. Seema ablaze. Though the injuries caused were to the extent of 60 to 65% but the fact remains that Smt. Seema after admission to the hospital, survived for a period of aoubt 1 1/2 months. Further, there is absence of motive and on the basis of the evidence on record, it cannot be inferred that the appellant had intention to cause death. That apart, as opined by P.W.8 Dr. Narendra Sharma vide post mortem report (Ex. P/11) and deposed before the Court, the cause of death of Smt. Seema were multiple. In this view of the matter, taking into consideration the totality of the facts and circumstances of the case, it can be safely concluded that the appellant had no intention to cause death but certainly the act by which death is caused was done by the accused with an intention to causing such bodily injury as is likely to cause death. Accordingly, the conviction of the accused deserves to be altered from murder to culpable homicide not amounting to murder falling within the ambit of provisions of Section 304 Part-I IPC." 11. Learned State counsel, has opposed the appeal. 12. In the present case, appellant is the sister-in-law (Nanad) of the deceased. FIR was registered on the basis of the statement of the victim herself. Learned State counsel, has opposed the appeal. 12. In the present case, appellant is the sister-in-law (Nanad) of the deceased. FIR was registered on the basis of the statement of the victim herself. Victim had also suffered statement before the Magistrate alleging that she had set on fire by the appellant after pouring kerosene oil on her. Thus, the case rests on dying declaration. 13. It has been held by the Hon'ble Supreme Court in Muthu Kutty And Another Vs. State By Inspector of Police, T.N. in,2005 9 SCC113, as under:- "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat, (1992) AIR SC 1817 (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764 (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See Munnu Raja & Anr. v. The State of Madhya Pradesh, (1976) 2 SCR 764 (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav and Ors., (1985) AIR SC 416 and Ramavati Devi v. State of Bihar, (1983) AIR SC 164 (iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor, (1976) AIR SC 1994 (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. v. State of Madhya Pradesh, (1974) 4 SCC 264 (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P., (1982) AIR SC 1021 (vi) A dying declaration with suffers from infirmity cannot form the basis of conviction. (See Ram Manorath and Ors v. State of U.P., (1981) 2 SCC 654 (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, (1981) AIR SC 617 (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and Ors v. State of Bihar, (1979) AIR SC 1505 (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, (1988) AIR SC 912 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See Nanahau Ram and Anr. v. State of Madhya Pradesh, (1988) AIR SC 912 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Medan Mohan and Ors., (1989) AIR SC 1519 (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) AIR SC 839 14. In the present case, since the dying declaration has been recorded before the Magistrate after obtaining fitness certificate of the victim from the Doctor, the same is liable to be believed. The statement of victim appears to be voluntary. Victim has not levelled allegation against her other members of the in-laws' family. Victim has also not levelled any allegation against her husband. Victim has alleged that on account of quarrel between herself and the appellant in connection with preparation of tea, appellant had poured kerosene oil on her and had set her on fire. Hence, learned counsel for the appellant has rightly not challenged the dying declaration suffered by the appellant. 15. Appellant is a married lady and was on a visit to her parental home and during the said visit, occurrence in the present case took place. FIR was lodged on the basis of the statement of the victim herself. Statement of the victim was also recorded before the Magistrate. As per the said statement, victim has stated that on the day of incident, a dispute arose between her and her mother-in-law with regard to the fact that she had not prepared good/tasty tea. The quarrel aggravated and as a result, Pinki poured kerosene oil on her and set her on fire. She also deposed that whenever, appellant used to come to her matrimonial home, she used to harass her. She has stated that her mother-in-law had never beaten her. Her husband used to quarrel with her sometimes after taking liquor. 16. It has been admitted by the father of the victim that there was a complaint lodged by the victim under Domestic Violence Act, 2005 against her husband. 17. She has stated that her mother-in-law had never beaten her. Her husband used to quarrel with her sometimes after taking liquor. 16. It has been admitted by the father of the victim that there was a complaint lodged by the victim under Domestic Violence Act, 2005 against her husband. 17. Thus, there was no complaint made by the victim against the appellant prior to the incident-in-question. The incident also took place on a petty matter with regard to preparation of tea. Thus, it can be said that the quarrel occurred between the appellant and the victim on the spur of the moment. Thus, in the present case, it can be said that appellant had no intention to commit the murder of the deceased but by the act committed by the appellant, she knew that such act was likely to cause death. 18. Section 300 IPC read as under:- "Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- (Secondly) If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (Thirdly) If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (Fourthly) If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exceptions :- 1. ...........x.............x........... 2. ...........x.............x............ 3. ...........x.............x........... 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault." 5. ............x.............x........... 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault." 5. ............x.............x........... After going through the facts and circumstances of the case, we are of the considered opinion that the present case would not fall within the ambit of Section 302 IPC but would fall within the ambit of Section 304 (I) IPC for the following reasons:- (1) Victim and the appellant had quarrelled over a petty matter, i.e., preparation of tea by the victim. (2) There was no premeditation by the appellant to commit the offence and the incident took place in a sudden quarrel and in the heat of passion. (3) Since, appellant had also suffered burn injury on her hand, it shows that she had made effort to save the victim. (4) It has been admitted by the father of the victim in his cross-examination that when he went to the hospital, appellant along with her mother was present there for the treatment of the victim. (6) Appellant was not residing in the matrimonial home of the victim but had come there for a visit. 19. Thus, in the present case, appellant is liable to be acquitted of the charge framed against her under Section 302 IPC but is guilty of an offence under Section 304(I) IPC. 20. Accordingly, appellant is acquitted of the charge framed against her under Section 302 IPC and is convicted qua offence punishable under Section 304 (I) IPC. Appellant is sentenced to undergo rigorous imprisonment for ten years and shall pay a fine of Rs. 5,000/- and in default of payment of fine, appellant shall further undergo rigorous imprisonment for two months. Conviction and sentence of the appellant under Section 201 IPC is maintained. 21. Appeal stands disposed of accordingly.