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2024 DIGILAW 2230 (GUJ)

DIPAK CHHAGANBHAI KHIMSURIYA v. STATE OF GUJARAT

2024-12-19

ILESH J.VORA, S.V.PINTO

body2024
JUDGMENT : ILESH J. VORA, J. 1. The present appeal is filed by the appellant-original accused under Section 374 of Code of Criminal Procedure, 1973 (old) (‘Cr.P.C.’ in short) against the judgment and order of conviction and sentence dated 19.02.2016 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 32 of 2013, wherein, the appellant came to be tried for offences punishable under Sections 302, 323 and 504 of the Indian Penal Code, 1860 (old) (‘IPC’ for short). At the end of the trial, the appellant came to be convicted under Sections 302 and 504 of IPC and was sentenced as under: Sections under IPC Punishment Fine In default 302 Imprisonment for life Rs. 2,000/- SI for three months 504 RI for six months Rs. 1,000/- SI for one month 2. Facts and circumstances giving rise to file this appeal are as follows: 2.1. The appellant-accused Dipak Chhaganbhai Khimsuriya, as per the prosecution case, has killed his wife Anuben @ Punamben by pouring kerosene oil upon her and thereafter, she set on fire. The alleged incident took place on 18.12.2012 at about 10:30 a.m. The appellant-accused and his wife were living in a rented premise at City Jamnagar. The marriage span was of 8 years and they blessed with one daughter and baby boy. The marriage was love marriage. Despite of this, their relations were not cordial and there was matrimonial dispute between them. On the day of incident i.e. on 18.12.2012, the appellant-accused had an argument at home for no reason and then, the appellant-accused took the plastic cane filled with kerosene oil allegedly lying in the house and poured kerosene on the deceased-wife and by igniting matchstick, she was set on fire. The appellant-husband was quarreling with the deceased saying that, because of you, his father’s legs have been amputated. The appellant-accused after the incident tried to extinguish the fire by sprinkling water on the deceased and then, he ran away. The owner of the house had also tried to extinguish the fire. The ambulance 108 came after receiving the message of the incident. Meanwhile, the brother of the deceased PW-11 who was residing nearby the area, reached at the scene of offence and before him the deceased had narrated the entire incident. The deceased brought to G.G. Hospital at Jamnagar. 2.2. The ambulance 108 came after receiving the message of the incident. Meanwhile, the brother of the deceased PW-11 who was residing nearby the area, reached at the scene of offence and before him the deceased had narrated the entire incident. The deceased brought to G.G. Hospital at Jamnagar. 2.2. In the G.G. Hospital, the duty doctor examined her and before the doctor, she had narrated the facts of occurrence which had been noted in the medical case papers by the doctor. She was admitted in the Burns Department. She was under observation of Dr. Ankur Sangal PW-7 and Dr. Maulik Patel PW-8. Before the duty doctor PW-7, she had disclosed the facts of occurrence and same had been noted in the medical case papers. 2.3. The duty constable of G.G. Hospital informed the jurisdictional police station i.e. City “A” Police Station, Jamnagar and same was noted by the P.S.O. of the police station on 19.12.2012 at about 00:50. The PSI - PW-10 H.A. Piparvadiya was entrusted the duty for the inquiry. He reached at the hospital. At about 2:45 a.m., the PSI, Piparvadiya recorded the statement of the deceased and according to him, she was able to speak and mentally fit to make declaration. The said statement treated as FIR and accordingly the offence was registered as I-C.R. No. 421 of 2012 under Sections 307, 504, 323 of the Indian Penal Code. The investigation was entrusted to PW-12 - V.G. Rathod, PI. 2.4. In order to record statement of the deceased, the Executive Magistrate PW-2 - H.D. Joshi was informed at about 2:30 a.m. and the official acknowledgment of the information was noted by him at about 2:55 a.m. After receiving the written yadi whereupon the duty doctor had endorsed that the deceased was in a fit state of mind and was in a conscious mental condition. The Executive Magistrate PW-2, recorded the statement of the deceased between 3:00 a.m to 3:30 a.m. on the same day i.e. 19.12.2012. Before recording the statement, the endorsement of the duty doctor about the fit state of mind of the deceased was independently taken by him and the doctor had endorsed on the written yadi. The Magistrate PW-2, in his preliminary inquiry, was satisfied with the responses of the deceased that she was in a fit condition to make the statement. Before recording the statement, the endorsement of the duty doctor about the fit state of mind of the deceased was independently taken by him and the doctor had endorsed on the written yadi. The Magistrate PW-2, in his preliminary inquiry, was satisfied with the responses of the deceased that she was in a fit condition to make the statement. The deceased in her statement, in clear terms, had stated that “on 18.12.2012 at about 9:30 p.m. her husband without any reason quarreled with her and then he poured the kerosene oil on her and burnt her alive by igniting matchstick and at relevant time, he had spoken to her that, because of her, the legs of his father have been amputated and thereafter, he sprinkled water on her and then he ran away.” The Executive Magistrate- PW-2 after recording the statement, again called the duty doctor and taken an endorsement on the written letter about the mental state of the deceased to make the declaration. 2.5. The investigating officer PW-13, proceeded to investigate the case. He had recorded statements of the witnesses. Drew the panchanama of place of occurrence and collected necessary samples for FSL purpose. The deceased, died on 24.12.2012 at about 6:30 p.m. The dead body was sent for postmortem. The I.O. collected the medical treatment case papers as well as copy of P.M. Report and sent the muddamal for FSL purpose. The I.O. sought the permission of the Court for addition of Section 302 of the Indian Penal Code. At the end of investigation, the I.O. found sufficient evidence against the appellant for the charge of murder and accordingly, chargesheet came to be filed and the case was committed to the court of sessions and same was registered as Sessions Case No. 32 of 2013. 3. On the basis of material on record, the charge was framed against the appellant at Exh.8, to which he pleaded not guilty and therefore, he came to be tried by the trial Court, accordingly. 4. In order to prove the case against the appellant, prosecution has examined 13 witnesses and exhibited 29 documents to prove its case as per the following table: Oral Evidence PW-1 - Exh.11 Dr. Mahesh Mansukhbhai, medical officer PW-2 - Exh.16 Hasmukh Dayashankar Joshi, Executive Magistrate PW-3 - Exh.24 Premji Ambabhai, panch witness PW-4 - Exh.25 Mahesh Labhubhai, panch witness PW-5 - Exh.27 Dr. Mahesh Mansukhbhai, medical officer PW-2 - Exh.16 Hasmukh Dayashankar Joshi, Executive Magistrate PW-3 - Exh.24 Premji Ambabhai, panch witness PW-4 - Exh.25 Mahesh Labhubhai, panch witness PW-5 - Exh.27 Dr. Ashok Roshanlal, medical officer PW-6 - Exh.32 Dr. Sunil Rameshwarprasad, medical officer PW-7 - Exh.37 Dr. Ankur Sanghal, medical officer PW-8 - Exh.39 Dr. Maulik Babubhai, medical officer PW-9 - Exh.40 Ramsinh Manubha, Assistant Sub-Inspector PW-10 - Exh.85 Husain Abdulbhai, Police Sub-Inspector PW-11 - Exh.50 Shailesh Vinodbhai PW-12 - Exh.51 S.F. Vadher, Police Inspector PW-13 - Exh.60 V.G. Rathod, Police Inspector Documentary Evidence Exh.61 Panchanama of place of incident Exh.10 Report of FSL mobile van Exh.52 Copy of memo of treatment of accused Exh.53 Memo of Superintendent of Police Exh.63 Memo to add charge of Section 302 IPC Exh.54 Memo of sending articles to FSL, Rajkot Exh.55 Questionnaire of Articles Exh.57 Receipt by FSL regarding receiving articles Exh.56 Authorisation letter Exh.58 FSL forwarding letter Exh.59 FSL report Exh.12 Memo for conducting Post Mortem Exh.13 Inquest Panchanama Exh.14 Police report for post mortem Exh.15 Post Mortem note Exh.17 Memo to record dying declaration Exh.18 Memo to doctor regarding dying declaration Exh.19 Dying declaration Exh.23 Memo of Executive Magistrate who recorded dying declaration Exh.28 Hospital case of Shailendrasinh Exh.29 Police memo for treatment of Shailendrasinh Exh.30 Certificate of medical treatment of Shailendrasinh Exh.33-34 Certificate of treatment of victim and medical papers Exh.41 Memo to Police Station Officer Exh.42 Entry in Station Diary Exh.43 Report to Police Station Officer for registering offence Exh.49 Complaint Exh.64 Pursis for closure of prosecution evidence 5. The accused upon being questioned under Section 313 of the Cr.P.C. with regard to incriminating circumstances made against him in the evidence rendered by the prosecution and he denied it and has examined 2 witnesses and exhibited 6 documents in defence as per the following table: Oral Evidence DW-1 - Exh.66 Dr. Nasreen Hala, medical officer DW-2 - Exh.72 K.H. Joshi, Police Sub-Inspector Documentary Evidence Exh.67-68 Certificate of treatment of accused and medical papers Exh.73 Report to Police Station Officer for registering offence Exh.74 Complaint made by accused Exh.75 Police vardhi Exh.76 Report to Superintendent of Police 6. The trial court after appreciation of evidence, came to a conclusion that, the death of the deceased was homicidal and did not accept the defense that the deceased herself committed suicide. The trial court after appreciation of evidence, came to a conclusion that, the death of the deceased was homicidal and did not accept the defense that the deceased herself committed suicide. The learned trial court mainly relied on the evidence of dying declarations, allegedly recorded by the duty doctor, Executive Magistrate and the statement of deceased in the form of FIR recorded by the PW-10. The learned trial court upon careful examination of the evidence, observed that, the deceased at relevant time, was in a conscious state of mind and there are no inconsistencies in the dying declarations recorded by the different authorities and the declarations are found to be true and voluntary. In the circumstances, the learned trial court found guilty the appellant-accused for the charge of murder of his wife. 7. Evidence on record. 7.1. The incident took place on 18.12.2012 between 9:30 p.m. to 10:00 p.m. The deceased was at her home. After the incident, she was brought to the Government Hospital in ambulance and was admitted at about 11:15 p.m. in the surgical ward. During the treatment, the deceased had narrated the facts of the incident before the doctor PW-7 Dr. Ankur Sangal who was on duty as a Resident Surgeon with G.G. Hospital. 7.2. Dying declaration before the duty doctor-PW-7: PW-7, in his deposition, had stated that the patient was having burn injuries all over the body up to 96 to 98%. The patient herself has stated to him about the facts of incident and according to her statement, it was stated that, she was burnt alive by the husband Dipak Chhagabhai pouring kerosene upon her and she was brought here by her brother. The PW-7 had noted in the case papers that, patient was conscious, cooperative and well oriented about time, place and person. The witness has further stated that, he made endorsement about the fit mental condition of the patient on the written yadi allegedly prepared by the hospital duty constable. In the cross-examination, the doctor has denied that, due to 96% burn injuries, the deceased find difficulty in breathing as well as to speak. In the cross-examination, the duty doctor PW-7 admitted that, the patient was in great distress and in pain when he came to examine her in the next round. In the cross-examination, the doctor has denied that, due to 96% burn injuries, the deceased find difficulty in breathing as well as to speak. In the cross-examination, the duty doctor PW-7 admitted that, the patient was in great distress and in pain when he came to examine her in the next round. He also refused to the suggestion made by the defense that the patient could not properly breath and speak when there are 96 to 98% burn injuries. The witness PW-7 denied to the suggestion that, the deceased was not in a fit state of mind and due to severe burn injuries, her condition was serious and nothing being disclosed about the facts of the incident. 7.3. PW-8 Doctor Maulik Patel, was on duty when the deceased admitted in the ward of Dr. S.G. Mehta. He has been examined to prove the endorsement of physical fitness of the deceased made by him on the letter calling upon the Magistrate to record the statement of the deceased. The witness has stated that, on 18.12.2012 at about 11:45 p.m., the deceased Punamben referred by casualty ward and admitted in his ward. He further stated that, on 19.12.2012 at about 3:00 a.m. i.e. early morning, the Executive Magistrate PW-2 came to his ward for recording her statement. He has further stated that, at the request of Magistrate PW-2, after preliminary examination of the patient, he made endorsement that, the deceased was in a sound mental condition and able to give statement. The witness identified his signature as well as the particulars of endorsement made on letter Exh.18. The witness has further stated that, the PW-2 again requested him to further endorse on the letter about the mental condition of the patient after recording the statement of the witness and again, after examination of the victim, he made endorsement that the victim was mentally fit to give statement. In the cross-examination, he admitted that, when the history recorded by PW-7 Duty Doctor, he was present with him. He also admitted that before recording the statement of the patient by the Executive Magistrate, the police officers came to record the statement of the deceased and at that time, the police did not ask him to opine about the condition of the patient. He denied that, the endorsement for the fitness of the patient was given at the instance of police officials. 7.4. PW-1 Dr. He denied that, the endorsement for the fitness of the patient was given at the instance of police officials. 7.4. PW-1 Dr. Mahesh Tragadiya who had performed the postmortem, has proved the postmortem report Exh.15. He stated that postmortem was done by the panel doctor. The doctor found 90 to 95% burns on the body of the deceased and the nature of burns were dermo and epidermo. He also admits that, if the person burnt alive by pouring kerosene, then, the injuries sustained by the deceased could be possible. According to doctor, the injuries were sufficient in ordinary course of nature to cause the death. The cause of death opined by the doctor that, deceased died due to shock and septicemia. In the cross-examination, he has admitted that, in the case of burn injuries, the death could be homicidal, suicidal or accidental. 7.5. Dying declaration recorded by the Executive Magistrate: PW-2 H.D. Joshi, had recorded the dying declaration of the deceased on 19.12.2012 between 3:00 to 3:30 a.m. At relevant time, the witness was serving as Executive Magistrate for the city area of Jamnagar. He had been informed at about 2:30 a.m. by the police for recording the dying declaration and the concerned police officials contacted him on mobile. At relevant time, he was at his home. He immediately came to police station which is just opposite to the hospital where the deceased was admitted. He received the letter Exh.17 at about 2:55 a.m. He went to the burns department and contacted the duty doctor and informed that, he intend to record the statement of the patient Punamben. He also obtained the fitness certificate from the duty doctor before recording the statement. The witness in his deposition has stated that, after preliminary inquiry of the patient Punamben, he was satisfied with her responses that she was in a fit condition to make a statement. He also identified the endorsement of the doctor and his signature. He had introduced himself and informed the patient that, he intends to record her statement. The witness in his deposition has stated that, after preliminary inquiry of the patient Punamben, he was satisfied with her responses that she was in a fit condition to make a statement. He also identified the endorsement of the doctor and his signature. He had introduced himself and informed the patient that, he intends to record her statement. The Executive Magistrate has stated that, the patient Punamben has stated before him that, “at 10:30 p.m., while she was at home, her husband started quarreling with her for no reason and then poured approximately 3 liters of kerosene upon her and by igniting matchstick by her husband, she was set on fire.” The Executive Magistrate has further stated that the patient Punamben has also stated that, she has been brought in the hospital by the neighbours. The Executive Magistrate has also asked the patient about the number of family persons and other necessary facts. The Executive Magistrate PW-2 has stated that, he has recorded her statement in the exact words spoken by the patient and it was explained and read over to her and thereafter, in his presence, the thumb impression of left leg being taken over on the statement because the treatment bandage were there on her both hands. The witness has further stated that the procedure for recording the statement was over at about 3:30 p.m. and thereafter, he again obtained the endorsement of fitness of the patient from the duty doctor. He has also stated that while recording the statement, no one was present in the ward as before recording the statement, he has requested the relatives to go out of the ward. The witness has produced the original statement of the patient Punamben at Exh.19. In the cross-examination, he has denied to the suggestion asked by the defense that, before recording the statement of the deceased, he did not inquire and satisfied with the fit condition to make the statement. The Executive Magistrate in his cross-examination has stated that, the responses of the patient i.e. the reply was not clearly audible, however, he has clarified that, whatever responses given by the patient which he could heard in clear terms. It is denied by the witness that, he has recorded the statement at the behest of police officials and the near relatives of the patient and he obtained the thumb impression directly on the ready and prepared statement. It is denied by the witness that, he has recorded the statement at the behest of police officials and the near relatives of the patient and he obtained the thumb impression directly on the ready and prepared statement. 7.6. PW-10 Husenbhai A. Piparvadiya, PSI, City “A” Division Police Station, Jamnagar had recorded a statement of the deceased in the form of FIR. On 18.12.2012, he was on night duty and he was informed by the PSO and went to the burns ward at G.G. Hospital. The witness PW-10 in his deposition has stated that, he had inquired about the patient Punamben and found that she was under treatment because of burn injuries. The witness has further stated that he has asked the patient for the cause of incident. In response to the question, patient has stated that, “Dipak came in the house at 10:30 p.m. and said that because of you, my father’s legs were amputated. He started beating and abusing her. When she resisted, he picked up the cane of kerosene lying in the house and poured the kerosene on her and by igniting matchstick she set on fire.” The witness PW-10 has further stated that, whatever facts stated by the patient, he has recorded and thereafter, he took her a thumb impression of left leg and same was identified by the social worker who was present over there. The statement in the form of complaint sent to the police station for registration of the offence and accordingly, the offence came to be registered. The FIR of the deceased produced at Exh.49. In the cross-examination, the witness PW-10 has fairly admitted that, before recording the complaint, he did not obtained the endorsement of fitness from the duty doctor. He has denied to the suggestion that, at the instance of relatives of the patient, he prepared the FIR and straightway took the thumb impression of the deceased. 7.7. PW-11Shaliesh Rathod is the brother of the deceased before whom the deceased had narrated orally the facts of the incident. The witness in his deposition has stated that the marriage of his sister Punamben with the accused Dipak was love marriage and the marriage span was of 7 years and during the said wedlock, her sister blessed with one son and one daughter. The witness in his deposition has stated that the marriage of his sister Punamben with the accused Dipak was love marriage and the marriage span was of 7 years and during the said wedlock, her sister blessed with one son and one daughter. The witness has stated that there was a matrimonial dispute between the parties and their marriage life was not happy. So far as incident part is concerned, he stated that, he was informed by landlord one Shaileshbhai that, her sister Punamben is burnt alive by her husband. He rushed to the house of her sister and he saw that his sister suffered burn injuries and lying on the floor. The witness and the neighbours who assembled there called the 108 ambulance. The deceased Punamben before the witness has stated that, she has been burnt alive by Dipak pouring kerosene oil upon her. 8. PW-13 V.G. Rathod, PI, was on duty with City “A” Division Police Station, Jamnagar. Pursuant to the registration of the offence, the investigation was entrusted to him. He has stated that, he drew the panchnama of place of occurrence and recorded the statement of witnesses. He has further stated that on 26.12.2012, the deceased died in the hospital. He sent the dead body for postmortem and thereafter, arrested the accused on 19.12.2012 and also sought permission of the Court for addition of Section 302 and then, filed the chargesheet in the court. In the cross-examination, he admitted that, he has not recorded the statement of treating doctor as well as Executive Magistrate. He has denied to the suggestion that, he has falsely arrested the accused and despite of insufficient evidence, the chargesheet is filed. 9. The appellant-accused in his defense, has examined two witnesses namely Dr. N.A. Hala, DW-1 and Police Constable Mr. K.H. Joshi, DW-2. DW-1 Dr. Hala in his deposition, has stated that, on 19.12.2012, when she was on duty at G.G. Hospital, the appellant-accused Dipak was came in 108 ambulance. On examination, the witness has found the burn injuries on the body of the appellant-accused Dipak and according to his statement, on 18.12.2012, he suffered burn injuries. The injuries were superficial in nature to the extent of 18 to 20%. The patient Dipak was admitted in the ward of Dr. D.K. Mehta and remained as indoor patient from 19.12.2012 to 11.03.2013. The injuries were superficial in nature to the extent of 18 to 20%. The patient Dipak was admitted in the ward of Dr. D.K. Mehta and remained as indoor patient from 19.12.2012 to 11.03.2013. DW-2 K.H. Joshi, Police Constable who had informed the City “A” Division Police Station about the admission of the appellant-accused Dipak in the hospital. 10. In the aforesaid facts and circumstances, the question for consideration would be whether the learned trial court is justified in convicting the appellant for the act of murder of his wife? Submissions on behalf of the appellant-accused 11. Ms. Rekha Kapadia, learned advocate assailing the judgment of conviction and sentence, has submitted that, the conviction and sentence is not sustainable in eye of law. That the prosecution mainly relied on the dying declarations recorded by the duty Doctor, Executive Magistrate and Police Officials. Deceased died due to shock and septicemia caused by 96% burn injuries. She was in her serious state of mind and was not mentally fit to understand the questions as well as to identify the person. The doctor who has expressed his opinion, made an endorsement to the effect that, patient is conscious and is able to give statement, however, there is no specific endorsement made by the doctor that, the deceased was in a fit state of mind at the time of recording dying declarations (Exhs.19 & 49). Thus, considering the health condition of the deceased, it could not be possible for her to disclose the facts of occurrence as referred by the witnesses. The learned trial Court failed to appreciate the facts about the mental condition of the deceased and in a mechanical manner, without properly appreciation of the evidence, held guilty the appellant for the serious charge of murder. The second contention relates to motive behind the act of murder. The prosecution failed to prove the motive for the alleged incident, as nothing brought on record to prove that the legs of the father of accused were amputated because of the deceased. The third contention relates to non-examination of the independent witnesses by the prosecution. The neighbour Shailendrasinh Rathod who suffered burn injuries while rescuing the deceased, has not been examined. The facts of his burn injuries are being proved by examining Dr. A.R. Bhasin PW-5, who had treated Shailendrasinh and produced the injury certificate and case papers produced at Exh.28 to 30. The neighbour Shailendrasinh Rathod who suffered burn injuries while rescuing the deceased, has not been examined. The facts of his burn injuries are being proved by examining Dr. A.R. Bhasin PW-5, who had treated Shailendrasinh and produced the injury certificate and case papers produced at Exh.28 to 30. In the circumstances, if Shailendrasinh, neighbour, would have examined, then, the true facts could certainly surfaced. The fourth contention relates to false implication of the appellant accused by the family members of the deceased. The accused tried his level best to save the deceased, as in order to save her, he poured water on her and same facts being disclosed by the deceased before the Executive Magistrate - PW-2. Thus, there was no premeditation and intention on the part of the accused to kill his wife. The accused in his defense has examined two witnesses namely DW-1 Dr. Nasrin Hala and DW-2 Police Constable-K.H. Joshi. The witness DW-1 has produced statement case papers of the appellant, who suffered burn injuries to the extent 24% and was remained in the hospital from 18.12.2012 to 11.03.2013. Thus, the act of the appellant would not fall under the definition of ‘murder’ and the facts and circumstances would establish that, the offence is homicidal death not amounting the murder and case would fall under Section 304 Part I-II. Submissions on behalf of the State 12. Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent State vehemently opposed the contentions and submitted that the learned trial Court has rightly convicted the accused for the murder of his wife. The appellant accused poured the kerosene oil on the deceased and by igniting matchstick she was sat on fire. At the time of pouring kerosene, the appellant accused was in full senses and was aware about the very same act and therefore, it cannot be said that, the act was done without requisite intention to kill her. The duty doctor - PW-7 and 8, have noted the history allegedly disclosed by the deceased and at relevant time, according to evidence of the doctor, she was cooperative, in a fit state of mind and able to speak and conscious about the time, place and person. The duty doctor - PW-7 and 8, have noted the history allegedly disclosed by the deceased and at relevant time, according to evidence of the doctor, she was cooperative, in a fit state of mind and able to speak and conscious about the time, place and person. The Executive Magistrate - PW-2 was also satisfied about the condition of the deceased and while recording the statement of her, he obtained an endorsement from the duty doctor about the consciousness and fit state of mind. The PW-10 PSI, who had recorded statement of the deceased, which was later on registered as FIR, has also stated that at relevant time, the deceased was in a fit state of mind and conscious. In the circumstances, despite of 96% burn injuries suffered by the deceased, she could in a position to speak properly and in a fit mental condition to make a statement and thus, therefore, merely 96% burn injuries, would not be a ground to discard the substantial evidence of oral as well as two written dying declaration, which are consistent so far as act of the accused is concerned. In such circumstances, it was submitted that, the learned trial Court has properly considered and appreciated the evidence in its correct prospective and the findings for the guilt are based on evidence. Thus, prosecution has succeeded in proving the act of the accused, for which he was charged and therefore, there is no ground exist to interfere with the impugned judgment of conviction and sentence. Analysis and conclusion: 13. The case of the prosecution basically hinges upon the dying declarations of the deceased recorded by the duty Doctors, Executive Magistrate and Police Officials. It is not in dispute that, deceased died due to shock and septicemia caused on account of 96-98% burn injuries. The conviction is based thoroughly upon the aforesaid dying declarations and therefore, it would be fruitful to refer the principles governing the appreciation of dying declarations discussed by the Supreme Court (Paniben Vs. State of Gujarat, AIR 1992 SC 1817 ), in the form of following propositions: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of Gujarat, AIR 1992 SC 1817 ), in the form of following propositions: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (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 has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (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.” 14. It can be, thus, seen that the dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. The Court is required to satisfy itself that deceased was in fit state of mind at the time of making the statement and where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. 15. The Court is required to satisfy itself that deceased was in fit state of mind at the time of making the statement and where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. 15. We have heard learned counsel for the parties at length and also went through the records. 16. The first question for consideration would be whether the trial court is justified in holding that the death of the deceased was homicidal in nature? The trial court after relying upon the testimony of PW-1 Dr. Mahesh Tragadiya and duty doctors PW-7 and 8 and also taking into consideration the postmortem report Exh.15 as well as the testimony of Executive Magistrate at PW-2 and the police official-PW-10 who had recorded the statement of the victim, clearly came to a conclusion that the death of the deceased was homicidal in nature. The appellant-accused in his reply to the further statement recorded under Section 313, stated that, it was an accidental death and in order to save the deceased, he tried to extinguish the fire by pouring water on the body of the deceased. The bare words are not sufficient to accept the theory of accident as there is ample evidence on record that, the death of the deceased was homicidal in nature. Therefore, the findings of the trial court on this aspect are correct finding of fact based on the evidence available on record and we hereby affirm the said findings recorded by the trial court. 17. The next finding recorded by the trial court that the appellant has caused death of his wife Punamben by pouring kerosene oil on her and set her on fire. 18. On this aspect, the principal contention raised is that, the deceased was not in a position to make her statement and due to 96% burn injuries, she was not in a fit state of mind and at the behest of the relatives and family members of the deceased, the Duty Doctors and Magistrate had recorded the statement of the deceased. We have carefully examined the evidence of duty doctors and the Executive Magistrate PW-2 who had recorded the statement of the deceased. We have carefully examined the evidence of duty doctors and the Executive Magistrate PW-2 who had recorded the statement of the deceased. The doctors in their deposition have categorically stated that the deceased was conscious and able to give statement and at relevant time, she was in a fit state of mind and was well oriented about the time, persons and incident. The Magistrate who went to the burns ward, was himself satisfied with the responses given by the deceased and has recorded that, she was in a fit condition to make the statement. The duty doctor PW-8 made an endorsement to this effect that, the deceased was conscious and able to give statement. The deceased was survived by 6 days. The police officials after receiving the message, rushed to the hospital and recorded the statement of the victim which was later on registered as complaint (Exh.49). The presence of the appellant-accused proved by his own treatment case papers (Exh.73). In such circumstances, we find no good reasons to discard 3 dying declarations i.e. before (i) the duty doctor PW-7, (ii) Executive Magistrate PW-2 and (iii) Exh.49 - complaint recorded by PSI PW-10. The deceased made a consistent declaration of her cause of burn injuries. In the circumstances, we are of the considered opinion that, the deceased was in a fit state of mind and able to give statement and the declarations as referred, were not outcome of tutoring/duress/prompting. The dying declarations recorded by the Executive Magistrate and duty doctor cannot be discarded as nothing on record giving rise to any suspicion about their truthfulness. Even, the complaint-Exh.49 recorded by the police officials cannot be ignored merely on the ground that it was recorded by the police officials. It is no doubt true that, the PSI, PW-10 did not ask the duty doctor to opine about the fitness of the deceased to make the statement, but, that itself would not be a ground to discard the said evidence of declaration. 19. For the reasons mentioned above, we are satisfied that the dying declarations as referred are true and voluntary and are consistent in material particulars. 20. The principal argument as canvassed above is to the effect that there was 96% burn injuries found on the body of the deceased, as a result of which, it could not be possible for the deceased to have disclosed the facts of occurrence. 20. The principal argument as canvassed above is to the effect that there was 96% burn injuries found on the body of the deceased, as a result of which, it could not be possible for the deceased to have disclosed the facts of occurrence. We are not agreed with the said submission. The prosecution has adduced sufficient, reliable and acceptable evidence to prove and establish that the deceased at relevant time, was physically and mentally fit to give the statement. Thus, therefore, mere presence of 96% burn injuries on the person of the deceased would not be sufficient to presume that the deceased was not physically and mentally fit to give the statement. 21. Thus, therefore, considering the dying declaration- Exh.19 and medical papers-Exh.34 wherein the dying declaration was noted by the duty doctor and the complaint of the deceased-Exh.49, it is proved and established that, the appellant has caused the burn injuries to the deceased and he is responsible for the cause of death of his wife Punamben. 22. The defense has argued alternatively that, the appellant-accused sustained burn injuries while he tried to extinguish the fire and was admitted as an indoor patient from 18.12.2012 to 11.03.2013. In order to prove the said facts, the defense has examined DW-1 Dr. Nasrin Hala and DW-2 Police Constable K.H. Joshi and relied on the medical treatment case papers Exh.67 and 68. In the circumstances, it has been argued that, if he had ever intended her to die, he would not have poured water in an effort to rescue her and therefore, the act of the accused would not fall under the definition of murder as defined under Section 300 of the Indian Penal Code. 23. The deceased in her dying declaration Exh.19 recorded by Executive Magistrate PW-1, disclosed that, her husband Dipak i.e. present appellant after setting her on fire, poured a bucket of water upon her and ran away from the place of occurrence. The incident took place on 18.12.2012. The deceased was brought to the hospital at about 11:00 p.m. to 11:30 p.m. After midnight i.e. on 19.12.2012, her statement was recorded by the police and thereafter, by the Executive Magistrate PW-2. On the same day i.e. on 19.12.2012 as per the defense evidence, the appellant was admitted in the Government Hospital and was admitted till 11.03.2013. The deceased was brought to the hospital at about 11:00 p.m. to 11:30 p.m. After midnight i.e. on 19.12.2012, her statement was recorded by the police and thereafter, by the Executive Magistrate PW-2. On the same day i.e. on 19.12.2012 as per the defense evidence, the appellant was admitted in the Government Hospital and was admitted till 11.03.2013. On perusal of medical case papers, it emerges that, the skin grafting operation was carried out and he was under observation and treatment of the hospital doctors. The burn injuries sustained by him was 22%. In such circumstances, the question falls for our consideration is whether in the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction be converted to under 304 Part-I or II of the Indian Penal Code. 24. In the facts of present case, the relations of husband wife were not cordial as there was a matrimonial dispute arose off and on between the parties. On the day of incident, the appellant-accused raised the dispute with the deceased that she is responsible for the amputation of legs of his father which led to occurrence of the said incident. The appellant, without pre-meditation took the cane of kerosene lying in the house and poured it on the deceased. The conduct of the appellant-accused is require to be considered as in order to save the deceased, he tried to extinguish the fire and also suffered burn injuries as discussed hereinabove. There is no evidence to the effect that, in order to save himself from the clutches of the legal proceedings, he admitted in the hospital for a long time. Thus, we are of considered opinion that, the death was caused by the act of accused and the inference would be arise that, he knew that such act of pouring kerosene is likely to cause death, but, the intention cannot be attributed on his part to kill the deceased and therefore, we find substance in the submissions made by defense that, the case of the appellant would not fall under the definition of murder. 25. 25. For the reasons aforementioned, we have no hesitation to hold that, in the given facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code as well as sentence awarded to him by the learned trial court, cannot be sustained. In our considered view, the appellant-accused ought to have been convicted under Section 304 Part-II of the Indian Penal Code, instead of conviction under Section 302 of Indian Penal Code. Accordingly, the conviction and sentence of the appellant under Section 302 of the Indian Penal Code is hereby set aside and instead thereof, he is convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced him to suffer 10 years imprisonment. It is reported that, the accused has already undergone more than 10 years. Thus, therefore, with this modification, the appeal is partly allowed. The appellant-accused shall be released forthwith, if he is not required in any other case. Registry shall send the R&P to the concerned court forthwith.