JUDGMENT : Sanjay K. Agrawal, J (1) These two criminal appeals filed under Section 374(2) of Cr.P.C., by two appellants herein, namely, Krishna Pandey (A-1) and Asha Bhoyar (A-2), are directed against a common impugned judgment of conviction and order of sentence dated 29.03.2016, passed by the Sessions Judge, Bastar in Sessions Trial No.04 of 2016, whereby they have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life. (2) The case of the prosecution, in short, is that on 11.09.2015, at about 07:00 AM, at Village Jaitgiri, Sukugudapara within the ambit of Outpost- Bakawand, Police Station Nagarnar, at the house of Asha Bhoyar (A-2), the two accused-appellants herein firstly shared common intention and, in furtherance thereof, Krishna Pandey (A-1) poured kerosene oil on the body of his wife, namely, Nirmala Pandey and Asha Bhoyar (A-2) lit the match-stick and set her ablaze, due to which Nirmala Pandey suffered burn injuries to the extent of 98% and died on 13.09.2015 during the course of her treatment at Maharani Hospital, Jagdalpur and, thereby, the appellants are said to have committed offence under Section 302 read with Section 34 of IPC. (3) The further case of the prosecution is that Krishna Pandey (A-1) was married to Nirmala Pandey (hereinafter referred to as the “deceased”) but was also indulged in relationship with another woman, namely, Asha Bhoyar (A-2). The deceased suspected that her husband Krishna Pandey (A-1) was having illicit relationship with Asha Bhoyar (A-2) and, on that account, on the date of offence, when deceased caught her husband- Krishna Pandey (A-1) at the house of Asha Bhoyar (A-2), a dispute erupted between the deceased and her husband- Krishna Pandey (A-1), in which, as per the case of the prosecution, Krishna Pandey (A-1) poured kerosene oil on the body of the deceased and Asha Bhoyar (A-2) lit the match-stick and set her ablaze. However, when the deceased was burning, appellant-Krishna Pandey (A-1) extinguished the fire by pouring water and escorted her to the Community Health Center, Bakawand, where she was firstly treated and medically examined by Dr. R.K. Chaturvedi (PW-07), who gave MLC report (Ex.P/10) and referred her to the Maharani Hospital, Jagdalpur for better treatment. Thereafter, the deceased was treated by Dr. However, when the deceased was burning, appellant-Krishna Pandey (A-1) extinguished the fire by pouring water and escorted her to the Community Health Center, Bakawand, where she was firstly treated and medically examined by Dr. R.K. Chaturvedi (PW-07), who gave MLC report (Ex.P/10) and referred her to the Maharani Hospital, Jagdalpur for better treatment. Thereafter, the deceased was treated by Dr. V.K. Joshi (PW-08) at Maharani Hospital, Jagdalpur, wherein her dying declaration (Ex.P/14) was recorded by Tehsildar, namely, R.S. Sidar (PW-11) in the presence of Dr. V.K. Joshi (PW-08), in which the deceased alleged both the appellants to be the author of the crime in question. However, the deceased succumbed to her injuries during the course of her treatment on 13.09.2015. (4) Thereafter, the police registered FIR (Ex.P/15) under Section 154 of Cr.P.C and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/08 and summons under Section 175 of CrPC were sent vide Ex.P/07. Spot map and Panchnama were also prepared vide Ex.P/03. ‘Dehati Nalishi’ was also prepared vide Ex.P/16-A. The dead-body of deceased was sent for postmortem examination and in the postmortem report (Ex.P/12) conducted by Dr. Pawan Tekade (PW-09), it was opined that the cause of death of deceased was due to burn injuries to the extent of 98%. Thereafter, the appellants were arrested vide Ex.P/18 & Ex.P/19 respectively. Property seizure memo was prepared vide Ex.P/04, whereby, burnt pieces of cloth, a bottle stinking kerosene oil and match-sticks were seized and same were sent for chemical examination vide Ex.P/10 and FSL report was received confirming the traces of kerosene oil in the bottle and on the burnt pieces of cloth. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Chief Judicial Magistrate, Jagdalpur and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 15 witnesses and exhibited 21 documents apart from final report and FSL report, whereas the appellants in support of their defence have neither examined any witness nor exhibited any document. (5) The prosecution in order to prove its case examined as many as 15 witnesses and exhibited 21 documents apart from final report and FSL report, whereas the appellants in support of their defence have neither examined any witness nor exhibited any document. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offence under Section 302 read with Section 34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Rahul Mishra and Mr. Sukhdev Prasad Sahu, learned counsel appearing for the appellants submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302 read with Section 34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. They further submit that the dying declaration (Ex.P/14) of the deceased is not voluntary and trustworthy, as it was recorded when the deceased was not in a fit state of mind. Also, Dr. V.K. Joshi (PW-08), in whose presence the dying declaration of the deceased was recorded has also not stated that the deceased was in fit physical and mental state of mind while recording her statement/dying declaration. In alternative, learned counsel submit that even if the dying declaration is taken as it is and in view of statement of Smt. Domni (PW-1) that the appellant- Krishna Pandey (A-1) escorted/admitted the deceased to the hospital and as per the dying declaration (Ex.P/14) also the appellant- Krishna Pandey (A-1) has extinguished the fire, it depicts that the appellant- Krishna Pandey (A-1) poured kerosene oil on the body of the deceased in anger and thereafter appellant- Asha Bhoyar (A-2) set her ablaze, thus, they have no intention to cause her death. As such, there was no motive or premeditation on the part of the appellants to cause death of the deceased and only on account of sudden quarrel, under anger and in heat of passion, firstly appellant- Krishna Pandey (A-1) poured kerosene oil over the body of the deceased and, thereafter, appellant- Asha Bhoyar (A-2) set her ablaze, due to which the deceased suffered burn injuries and died later on during the course of her treatment. Therefore, the case of the present appellants would fall within the purview of Exception 4 to Section 300 of IPC, as their act is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellants for offence under Section 302/34 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II)/34 of IPC and as the appellants are in jail since 11.09.2015 i.e. more than 08 years 02 months, they be awarded the sentence for the period already undergone by them. Learned counsel would rely on the decision of the Supreme Court in the matter of Kalu Ram v. State of Rajasthan, AIR 2000 SC 3630 to bolster their submissions. Hence, the present appeal deserves to be allowed in full or in part. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. It is further submitted that the dying declaration (Ex.P/14) is true and voluntary and can be relied upon to convict the appellants herein. Considering the dying declaration (Ex.P/14) coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence under Section 302/34 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the case where conviction of the appellants under Section 302/34 of IPC requires to be altered to Section 304 (Part-I or Part-II)/34 of IPC. Thus, the present appeal deserves to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/12), wherein it has been opined that cause of death of deceased is due to burn injuries to the extent of 98%, which is duly proved by the statement of Dr. Pawan Tekade (PW-09). Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statement of Dr. Pawan Tekade (PW-09). Accordingly, taking into consideration the postmortem report (Ex.P/12) and the statement of Dr. Pawan Tekade (PW-09), who has conducted postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (11) Now, the next question would be whether the accused-appellants herein have caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the dying declaration (Ex.P/14), wherein she has implicated the name of the appellants herein to be the authors of the crime. The said dying declaration (Ex.P/14) has been recorded by Tehsildar, namely, R.S. Sidar (PW-11), who appeared in the witness box before the Court and has proved the dying declaration (Ex.P/14) and even Dr. R.K. Chaturvedi (PW-7), who firstly treated and medically examined the deceased at Community Health Center, Bakawand, has also proved the document (Ex.P/11), in which he has certified the deceased to be in fit state of mind to give dying declaration, as such, we find no reason to discard/disbelieve the dying declaration (Ex.P/14), as the same is true and voluntary. Thus, on the basis of dying declaration (Ex.P/14) coupled with other evidence available on record, the learned trial Court has rightly held that firstly appellant- Krishna Pandey (A-1) poured kerosene oil over the body of the deceased and, thereafter, appellant- Asha Bhoyar (A-2) set her ablaze, due to which deceased suffered burn injuries and died later on during the course of her treatment. Accordingly, we hereby affirm the said finding that it is the appellants-accused who have caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding that it is the appellants-accused who have caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. (12) The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellants is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellants, for which they have relied on the decision of the Supreme Court in the matter of Kalu Ram (supra), wherein in paragraphs 7 and 8 it has been held as under :- “7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene oil on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder. 8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder. 8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly.” (13) Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid that in the instant case, as per the statement of Smt. Domni (PW-01), who is neighbour of appellant-Asha Bhoyar (A-2), it is clear that appellant-Krishna Pandey (A-1) has called the vehicle and escorted the deceased to the hospital and when she reached to the spot, the deceased was unconscious. Further, Gopal Kashyap (PW-03) has also stated that on the date of offence, appellant-Krishna Pandey (A-1) came to his house and informed that his wife (deceased) suffered burn injuries and called the vehicle and taken her to the hospital. Even in the dying declaration (Ex.P/14) also, the deceased has clearly stated that when she was suffering burn injuries, her husband [appellant-Krishna Pandey (A-1)] brought water and extinguished the fire. Furthermore, the incident took place in the house of appellant-Asha Bhoyar (A-2), as the deceased used to suspect that her husband- Krishna Pandey (A-1) was having illicit relationship with Asha Bhoyar (A-2) and, on the date of offence, when deceased caught her husband- Krishna Pandey (A-1) at the house of Asha Bhoyar (A-2), a dispute erupted between the deceased and her husband- Krishna Pandey (A-1), in which, firstly Krishna Pandey (A-1) in anger poured kerosene oil on the body of the deceased and thereafter Asha Bhoyar (A-2) lit the match-stick and set her ablaze, due to which, deceased suffered burn injuries and died later on during the course of treatment. As such, there was no premeditation on the part of the appellants to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellants poured kerosene oil on the deceased and set her ablaze, due to which she suffered burn injuries and died. Thus, in view of dicta of the Supreme Court in the matter of Kalu Ram (supra) and looking to the injuries sustained by the deceased, though the appellants had no intention, but they must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause her death, therefore, the act of the appellants herein would fall within the purview of Exception 4 to Section 300 of IPC, as it completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, consequently, the conviction of the appellants under Section 302/34 of IPC can be altered/converted to Section 304 (Part-II)/34 of IPC. (14) In view of the aforesaid discussion, the conviction of the appellants for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injuries caused by them were sufficient in the ordinary course of nature to cause death, the appellants are convicted for offence punishable under Section 304 Part-II read with Section 34 of IPC and as the appellants are in jail from 11.09.2015 i.e. more than 08 years 02 months, they are awarded the sentence for the period already undergone by them. Consequently, the appellants be released from jail forthwith, if not required in any other offence/crime. (15) This criminal appeal is partly allowed to the extent indicated herein-above. (16) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.