JUDGMENT : AMIT B. BORKAR, J. 1. Heard. 2. The Appellant being aggrieved by the judgment and order dated 28.11.2018 passed by the Ad-hoc Additional Sessions Judge, Court, Mehkar in Sessions Trial Case No. 51/2014, convicting and sentencing him to undergo imprisonment for life under Section 302 of the Indian Penal Code, has come in appeal before us. 3. The prosecution case, in brief, is as under: Deceased Ashabai Tulshiram Mhaske was the wife of the Accused. She married the Accused prior to 16 years of the incident. From the said wedlock, the Deceased and the Accused had two daughters named Rupali and Dipali and one son by the name Suraj. On the incident date, all the three children were in school in 10th, 4th and 6th standard, respectively. On 04.10.2013, around 4 p.m. PW-4 Rupali requested her mother and the Accused to send her for the training boxing at Buldhana, but the Accused refused to send her out of the station. Therefore, a quarrel broke out between the Deceased Ashabai and the Accused. Thereafter, PW-4 Rupali went to nature's call along with Dipali. The Deceased Ashabai and the Accused were at home. The Accused closed the door from inside, poured kerosene oil on Ashabai and set her on fire. While Ashabai was at the blaze, she embarrassed the Accused and therefore, the Accused sustained burn injuries. Thereafter, Ashabai opened the door, came out of the house, and poured water on her body. Thereafter, Ashabai was referred to Government Hospital at Jalna, where Police Head Constable A.R. Rathod recorded her written Dying Declaration. On the same night, of 05.10.2013, Ashabai alleged to have been succumbed to her injuries in the Civil Hospital. 4. On 05.10.2013, Nagorao Chavan PW-1 lodged a report against the Appellant-Accused. The investigation was conducted in the usual course, and thereafter the Appellant was charge-sheeted for the offence punishable under Section 302 of the Indian Penal Code. Then, in the usual course, the case was committed to the Court of Sessions. In the Trial Court, the prosecution examined as many as 13 witnesses. It also tendered and proved the various exhibits, including one Dying Declaration recorded by PW-5 A.R. Rathod and an oral Dying Declaration made to PW-4 Rupali. The learned Trial Court believed both the Dying Declarations and convicted the Appellant in the manner set out in Paragraph 1. Hence, the present Appeal. 5. It also tendered and proved the various exhibits, including one Dying Declaration recorded by PW-5 A.R. Rathod and an oral Dying Declaration made to PW-4 Rupali. The learned Trial Court believed both the Dying Declarations and convicted the Appellant in the manner set out in Paragraph 1. Hence, the present Appeal. 5. We have heard Shri R.M. Daga, learned Advocate for the Appellant and Ms. M.A. Barabde, learned APP for the State, at considerable length. We have perused the entire material on record. After giving our anxious consideration to the matter, we are firmly of the opinion that the prosecution has established its case beyond any shadow of doubt. However, this Appeal deserves to be partly allowed as the prosecution has failed to prove the essential ingredients of Section 302 of the Indian Penal Code and have proved its case under Part-I of Section 304 of the Indian Penal Code. After carefully going through the first statement of the Victim Ashabai recorded at the spot of the incident by PW-4 Rupali, who has proved the oral Dying Declaration, we are of the opinion that the said Dying Declaration inspires confidence. 6. We would like to take up the first Dying Declaration, which Ashabai made to PW-4 Rupali. The said statement was recorded at the spot of the incident and immediately after the incident. PW-4 Rupali stated in her evidence that she, along with her mother, Deceased Ashabai and her father (Accused), and her sister were present in their house. She wanted to get training in boxing and she requested her father to let her go for the said training, but the Accused refused the same and therefore quarrel occurred between her mother and father. She thereafter went to nature's call. At that time, her cousin's sister Rohini came to her and told her that her mother was ablaze. When she returned to her house, she saw that her mother Ashabai was standing in a burnt state on the platform of the house of Alkabai. At that time, she and her mother started to cry. She asked her mother as to how this had happened, and her mother told her that her Pappa had set her on fire. Thereafter, her uncle Yogesh Mhaske took her mother to the Government Hospital by autorickshaw. Her mother's oral Dying Declaration made to PW-4 Rupali was immediately after the incident. She asked her mother as to how this had happened, and her mother told her that her Pappa had set her on fire. Thereafter, her uncle Yogesh Mhaske took her mother to the Government Hospital by autorickshaw. Her mother's oral Dying Declaration made to PW-4 Rupali was immediately after the incident. PW-4 Rupali is the daughter of the Appellant himself, and in spite of the said fact, she has deposed against him. Although this witness was subjected to extensive cross-examination, nothing could be extracted there to discredit her evidence. 7. Then, we come to the written Dying Declaration recorded by PW-5 A.R. Rathod, who stated that after the receipt of a letter from the Government Hospital, Jalna from DMO, he gave a letter to the Medical Officer to ascertain the medical condition of the Deceased Ashabai and the Appellant. The Doctor endorsed the said letter (Exhibit No. 38) that Ashabai was in a fit medical condition to speak. Thereafter, he went to the bed of Ashabai. The Doctor examined her before and after recording her Dying Declaration. It is stated that the Doctor has made the endorsement to that effect on the Dying Declaration. The Dying Declaration of Ashabai is at Exhibit No. 39. She specifically stated that the Accused poured kerosene from the plastic can on the person of Ashabai and threw a lighted match-stick on her person. It is stated that due to the said act, Ashabai sustained burn injuries on her neck, chest, stomach, both hands and back. Though PW-5 A.R. Rathod was cross-examined at length, nothing useful which is beneficial to the Appellant could be brought on record. The evidence of PW-5 A.R. Rathod is supported by the medical evidence of Dr. Rajendra Shejule PW-11, who stated that he examined Ashabai before and after recording the Dying Declaration and made endorsement on the said Dying Declaration that Ashabai was conscious, oriented and able to give a statement. 8. It needs to be noted that the Dying Declaration was recorded at the earliest opportunity. Additionally, the said written Dying Declaration is supported by the oral Dying Declaration. The prosecution has proved that the Victim was conscious and in a fit condition to disclose to A.R. Rathod about the manner of the assault when asked by him. 8. It needs to be noted that the Dying Declaration was recorded at the earliest opportunity. Additionally, the said written Dying Declaration is supported by the oral Dying Declaration. The prosecution has proved that the Victim was conscious and in a fit condition to disclose to A.R. Rathod about the manner of the assault when asked by him. We may mention that the manner of assault as given out in the Dying Declaration to PW-4 is identical to that as given out in her written Dying Declaration referred to above. In our opinion, the evidence of the Dying Declaration has a ring of truth about it, and the learned Trial Judge was justified in placing reliance on it. 9. We wish to emphasize that the Deceased was done to death inside the house of the Appellant. Although the Appellant denies the incident, the prosecution has proved that the Appellant was inside the house at the time of the incident. No explanation is forthcoming from the Appellant as to how the Victim received injuries to which she scummed on the next day. The Appellant was under legal obligation as per Section 106 of the Evidence Act to account for the manner in which the Victim was burnt and received injuries. Failure on his part to discharge this burden goes against the Appellant. 10. In our view, the evidence referred above conclusively establishes the involvement of the Appellant in the crime. Accordingly, the learned Trial Judge acted correctly in concluding that the prosecution had squarely established the involvement of the Appellant in the crime. This leaves us with only one question, namely that of offence. In our considered view, considering the overall circumstances, the learned Trial Judge erred in convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and instead, he should have convicted the Accused under Part-I of Section 304 of the Indian Penal Code. 11. According to the prosecution, the assault on the Deceased was not due to any pre-existing vendetta on the part of the Appellant against the Deceased. The evidence of PW-4 Rupali shows that the Appellant got enraged due to insistence on her part to send her to Buldhana for boxing, and in view of the rage, the Appellant poured kerosene on the Deceased Ashabai, and she suffered fatal burn injuries. 12. The evidence of PW-4 Rupali shows that the Appellant got enraged due to insistence on her part to send her to Buldhana for boxing, and in view of the rage, the Appellant poured kerosene on the Deceased Ashabai, and she suffered fatal burn injuries. 12. At this stage, it would be useful to refer to the judgment of the Hon’ble Supreme Court in the case of Ravindra Shalik Naik vs. State of Maharashtra, 2009 All. M.R. (Cri.) 1798 (SC), wherein the Apex Court held that Exception 4 of Section 300 of the Indian Penal Code could be invoked if death is caused by: (a) without premeditation. (b) in a sudden fight. (c) without offender having taken undue advantage or acting in a cruel or unusual manner. (d) the fight must have been with the person killed. 13. The Hon'ble Apex Court observes that heat of passion requires there must be no time for passion for killing. In the facts of the present case, we are satisfied that the manner of assault stated by PW-4 Rupali shows that the pouring of kerosene on the Deceased was without premeditation and was the result of a sudden quarrel. There was a difference of opinion between the Accused and Ashabai. The evidence on record does not show that the Accused had taken undue advantage and acted in a cruel or unusual manner. 14. In our view, considering the aforesaid facts, it would be appropriate to hold that offence under Section 304, Part-I of the Indian Penal Code is made out against the Appellant. This leaves us with only one question, namely, the quantum of sentence to be awarded to the Appellant under Section 304, Part-I of the Indian Penal Code. From the material on record, it appears that a custodial sentence of 10 years would meet the ends of justice. 15. In the result and for the reasons recorded above, we pass the following order: (i) Criminal Appeal No. 44 of 2019 is partly allowed. (ii) The judgment and order of conviction dated 28.11.2018 in Sessions Trial Case No. 51 of 2014 passed by the learned Ad-hoc Additional Sessions Judge, Link Court, Mehkar convicting the Appellant-Tulshiram S/o Sahebrao Mhaske for an offence punishable under Section 302 of the Indian Penal Code and sentencing him imprisonment of life is hereby quashed and set aside. (ii) The judgment and order of conviction dated 28.11.2018 in Sessions Trial Case No. 51 of 2014 passed by the learned Ad-hoc Additional Sessions Judge, Link Court, Mehkar convicting the Appellant-Tulshiram S/o Sahebrao Mhaske for an offence punishable under Section 302 of the Indian Penal Code and sentencing him imprisonment of life is hereby quashed and set aside. Instead, he stands convicted for the offence punishable under Section 304 Part-I and for that, he shall be liable to undergo imprisonment for ten years. The fine amount is maintained. (iii) Needless to say, the Appellant be given the benefit of set-off under Section 428 of the Code of Criminal Procedure. 16. The Appeal is partly allowed in the above terms. Pending Applications, if any, stands disposed of.