JUDGMENT : VINIT KUMAR MATHUR, J. 1. The present criminal appeal has been preferred by the accused-appellant against the judgment and order of conviction dated 05.04.2013 passed by the learned Additional Sessions Judge No. 5, Udaipur in Sessions Case No. 162/2012 whereby the accused- appellant was convicted for the offence under Section 302 of I.P.C. and sentenced to undergo imprisonment for life with fine of Rs. 2,000/- and in default of payment of fine to further undergo two months additional simple imprisonment. 2. The prosecution case emanates from the dying declaration of Smt. Ratan wife of Banshi Lal (Ex.P/13) recorded by the police while she was undergoing treatment at Burn Ward of M.G. Government Hospital, Udaipur on 20.09.2010 at 12.15 A.M. wherein she stated that two years ago, she had contracted a love marriage with Banshi Lal of her own volition. Her husband Banshi Lal started working as Khalasi on a bus of Madar. They were staying in the house of Logar Dholi on rent. On 19.09.2010, she went to see the play of Gajanandji. At around 8.00 P.M. when she returned home, her husband Banshi Lal was present in the house. Since her husband was suspected her character, he threw a burning kerosene stove on her from inside the room, due to which, her body and clothes caught fire. Her brother-in-law Ramesh, Logarji and the neighbours doused the fire by pouring water over her. Her husband fled away from the place of incident. Her brothers-in-law Ramesh and Roshan took her to the hospital in 108 Ambulance. Her husband was boiling milk on the stove and after putting the pan of milk on the stand, he threw the burning stove on her, due to which her clothes caught fire. He was shouting and asking where she had gone. He became infuriated as she did not disclose where she had gone without informing him and in this fit of rage, he threw the burning stove on her, due to which she sustained burn injuries. 3. On this statement, a formal F.I.R. No. 349/2010 was registered at Police Station Amba Mata, District Udaipur for the offence under Section 326 of I.P.C. against the accused- appellant. The victim Smt. Ratan died while undergoing treatment and therefore, the police added Section 302 of I.P.C. in the matter and arrested the accused-appellant on 25.09.2010. 4. 3. On this statement, a formal F.I.R. No. 349/2010 was registered at Police Station Amba Mata, District Udaipur for the offence under Section 326 of I.P.C. against the accused- appellant. The victim Smt. Ratan died while undergoing treatment and therefore, the police added Section 302 of I.P.C. in the matter and arrested the accused-appellant on 25.09.2010. 4. After conclusion of investigation, the police filed chargesheet against the accused- appellant for the offences under Sections 326 and 302 of I.P.C. 5. Learned trial court framed, read over and explained the charge for the offence under Section 302 of I.P.C. to the accused-appellant, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 13 witnesses and exhibited 16 documents in support of its case. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial, which he denied and stated that he was innocent and had been falsely implicated in the case. However, no evidence was adduced by the accused-appellant in his defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 05.04.2013. Hence this appeal. 9. We have heard the arguments advanced by learned Amicus Curiae appearing for the accused-appellant and the learned Public Prosecutor and have carefully and threadbare perused the entire evidence available on record. 10. Learned Amicus Curiae has fervently urged that all the material witnesses including the father of the deceased PW-7 Babulal have not supported the prosecution story and were declared hostile. He further contends that a bare reading of the dying declaration of the deceased Smt. Ratan (Ex.P/13) shows that the burning kerosene stove was thrown by the accused-appellant from inside the room as she went out of the house without informing him. The accused-appellant became furious and lost his mental balance leading to him throwing the burning stove without intending to cause any harm to his wife Smt. Ratan. The accused-appellant became furious and lost his mental balance leading to him throwing the burning stove without intending to cause any harm to his wife Smt. Ratan. He, therefore, submits that the act done by the accused-appellant in the heat of passion without there being any intention to cause fatal injuries to his wife falls within the Exception 1 of Section 300 of I.P.C. He further submits that the conviction of the accused-appellant, therefore, deserves to be altered from one under Section 302 of I.P.C. to Section 304 Part- II of I.P.C. 11. Per contra, learned Public Prosecution has supported the Judgment dated 05.04.2013 and contended that a bare reading of the dying declaration of Smt. Ratan (Ex.P/13) shows that the accused-appellant threw the burning kerosene stove on his wife knowing fully well the consequences of his act. The burn injuries sustained by Smt. Ratan ultimately proved fatal. The act of the accused-appellant is reprehensible and unpardonable. There was no reason for him to doubt the character of his wife and put fetters on her movement. The dying declaration of Smt. Ratan (Ex.P/13) is fully corroborated from the medical testimony as deposed by PW-8 Dr. Anupam Johari who stated that the cause of death of Smt. Ratan was septicemia because of infection due to excessive burn injuries sustained by her, which were sufficient to cause death in the ordinary course of nature. The postmortem report (Ex.P/11) also clearly shows that the cause of death of the deceased was ante mortem burn injuries. He further submits that the learned trial court, after evaluating the entire facts and evidence, came to the only possible and logical conclusion while convicting the accused- appellant for the offence alleged in the present case vide Judgment dated 05.04.2013, which does not warrant any interference by this Court. 12. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as the judgment dated 05.04.2013 impugned herein. 13. The point of consideration in the case is dying declaration of the deceased Smt. Ratan (Ex.P/13). 12. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as the judgment dated 05.04.2013 impugned herein. 13. The point of consideration in the case is dying declaration of the deceased Smt. Ratan (Ex.P/13). For better appreciation of the facts in the case, it will be fruitful to reproduce the dying declaration of Smt. Ratan (Ex.P/13), which reads as under:- ^^utkbZ c;ku Jhefr jru iRuh cU'khyky tkfr Jh efr jru iRuh cU'khyky tkfr kbZ gSA esjk ifr mlh oDr ekSds ls Hkkx x;k esjk nsoj jes'k u.knksbZ jks'ku 108 esa gkWLihVy yk;s gSA esjk ifr LVksi ls nq/k xje dj jgk Fkk nq/k Hkh risyh dks uhps mrkj dj LVksi esjh rjQ Qsad fn;k ftlls esjs diM+ks esa vkx yx x;h eq>s dgk fd rq dgk x;h FkhA esjs ifr us esjs ij xyr 'kadk djrs gq, LVksi Åij Qsadk ftlls esjs diM+ks esa vkx yxus ls ty x;h gwaA mlus eq>s chuk crk;s tkus ls xqLlk djds LVksi tyrk gqvk esjs ij Qsadk gSA ftlls eSa tyh gwaA** 14. The fact that the dying declaration was recorded in the presence of the duty doctor after getting a certificate of fitness is clear from Ex.P/16. Therefore, we are of the view that the dying declaration (Ex.P/13) was recorded without there being any tutoring or embellishment as there is no allegation for the same. 15. From the very tenor of the dying declaration (Ex.P/13), it is clear that the accused- appellant became quite furious when he saw his wife returning home as she had gone out of the house without informing him. He seems to have lost control and in a sheer fit of rage, threw the burning stove from inside the room towards his wife. We are of the view that the act of throwing the burning stove from inside the room shows the recklessness and extreme reaction in a fit of rage rather than it being intended to cause death of his wife. It appears that on noticing the unexplained absence of his wife (deceased) from the home and on seeing her returning the home from outside, the appellant lost control over his senses. It appears that on noticing the unexplained absence of his wife (deceased) from the home and on seeing her returning the home from outside, the appellant lost control over his senses. He was preparing tea on the stove and in an instant fit of rage, without realizing the consequences of his action, he appears to have thrown the burning stove, which was in his reach, from inside the room towards the general direction where the deceased was standing. The deceased Smt. Ratan also stated that the accused-appellant was having suspicion about her character and in these circumstances, it appears that as she had gone out of the house without informing him, the suspicion became stronger resulting into loss of temper and control. In these circumstances, it can very well be inferred that there was no intention on the part of the accused-appellant to kill his wife Smt. Ratan and he cannot even be clothed with the knowledge that she might be killed by the high handed action. 16. In our opinion, the act done by the accused-appellant falls under Exception 1 of Section 300 of I.P.C. as the same was done in sheer heat of passion, where he lost control over his senses and threw the burning stove on his wife, who had gone outside the house without informing him. Therefore, the conviction of the accused-appellant, in our opinion, is required to be toned down from one under Section 302 of I.P.C. to Section 304 Part-II of I.P.C. 17. We are gainfully supported by the observations of Hon’ble Supreme Court in the case of Hari Shankar vs. State of Rajasthan, AIR 1999 SC 2629 which read as under:- “2. Only question that we have to consider in this appeal is what offence can be said to have been committed by the appellant on the basis of the facts found by the High Court. It has been held that while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the tea-club of the Air Force, 32 Wing (MT Section), an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs. 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wick-stove and threw it on the deceased. 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wick-stove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in contact with his clothes they caught fire. The deceased ultimately died as a result of the burns received by him. 3. What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs. 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In view of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC. 4. We, therefore, allow this appeal partly, alter the conviction of the appellant from under Section 302 to Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years.” 18. In view of the discussion made above, the conviction of the accused-appellant is converted from one under Section 302 of I.P.C. to Section 304 Part-II of I.P.C. While converting the conviction of the accused-appellant as above, in our view, the interest of justice will be served if the sentence awarded to the accused-appellant by the learned trial court is reduced from life imprisonment to eight years rigorous imprisonment. The sentence of fine is maintained. The impugned judgment dated 05.04.2013 stands modified to that extent. 19. The appeal is partly allowed in these terms.