ORDER : Order on Criminal Misc. 4 th Bail Application No. 19 of 2024 in Criminal Appeal No. 4595 of 2013 1. Heard Sri Vinay Kumar Tripathi, learned counsel for the appellant; Ms. Manju Thakur, learned A.G.A-I for the State and perused the material placed on record. 2. Counsel for the appellant submits that he does not wishes to press the above noted application and rather he intends to argue the appeal and hence the same may be dismissed as not pressed. 3. Accordingly, the above noted 4 th bail application of the appellant is hereby dismissed as not pressed. Order on Criminal Appeals 1. The above noted criminal appeals have been filed against the judgement and order dated passed by Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur in S.T. No. 69 of 2010 ( State vs. Hridaya Rai ) and S.T. No. 330 of 2010 ( State vs. Satrajeet Rai and Another ) under Sections 498-A, 304-B, 302/34 IPC and Section ¾ of Dowry Prohibition Act, P.S.- Bansgaon, District- Gorakhpur, convicting and sentencing the appellants under Section 302 /34 IPC to undergo life imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to undergo additional imprisonment for six months. 2. The brief facts of the prosecution case are that the deceased was married to the appellant, Hridaya Rai on 30.04.2008. The mediator of their marriage was co-accused, Satrajeet Rai and his wife, Smt. Nirmala Rai, who were related to the informant. Sufficient dowry in cash and household goods were given in the marriage for the couple but later the deceased came to know that her husband, appellant, Hridaya Rai, was having illicit relationship with co-accused, Smt. Nirmala Rai, which was known to co-accused, Satrajeet Rai also but he never protested against the same. The appellant used to lookafter the business of co-accused, Satrajeet Rai and give his earning to him also. He neglected to look after the deceased, his wife. The deceased informed her family members about these facts and also that accused persons are demanding Rs. 1 lac more towards the dowry and are harassing her and threatening to cause her murder. The deceased gave birth to a child and her harassment further increased. On 02.09.2009 at about 10:00 p.m the accused persons badly beated the deceased and after pouring kerosene oil over her put her on fire. 1 lac more towards the dowry and are harassing her and threatening to cause her murder. The deceased gave birth to a child and her harassment further increased. On 02.09.2009 at about 10:00 p.m the accused persons badly beated the deceased and after pouring kerosene oil over her put her on fire. On hearing her cries her father-in-law, Vinay Rai, brother-in-law, Amresh Rai, sister-in-law, Niti Rai and brother of her father-in-law, Ramakant Rai, and other villagers came and after opening the main door of the house took out the three accused. Family members of her matrimonial home took her to the hospital in burnt condition and information was given to the informant on the next day. Thereafter, the F.I.R was lodged by the informant which was registered as Case Crime No. 500 of 2009, under Sections 498-A, 304-B, 511 IPC and Section ¾ of D.P. Act. 3. After framing of the charges the prosecution examined P.W.-1, Parvati Devi, grand-mother of deceased; P.W.-2, Asha Devi, mother of deceased; P.W.-3, Kumari Bacchi Rai, sister of deceased. All of them admitted marriage of the deceased with appellant, Hridaya Rai, but did not supported the allegations regarding demand of dowry and harassment of the deceased for the same. P.W.-4, Medical Officer, Mahila Chikitsalaya, Gorakhpur, proved the post-mortem report of the deceased stated that her death could have been caused by the burn injuries. P.W.-5, Sunil Kumar, Naib Tehsildar, proved that he was posted in Sadar Hospital, Gorakhpur and dying declaration of the deceased was recorded in his presence. He took down the dying declaration in his own hand writing and he got the right thumb impression of the deceased affixed on her dying declaration which was attested by the doctor on duty. He also proved that before recording of the dying declaration doctor on duty checked the deceased and found her in full senses and competent to get her dying declaration recorded. When he reached the hospital the deceased was in full senses. He had removed all her relatives away at the time of recording of her dying declaration. P.W.-6, Dr. Anand Bodh, certified that prior to the recording of dying declaration of deceased, he found her in full senses and capable of getting her statement recorded. He proved his certificate of fitness before the trial court and her right thumb impression on the dying declaration. 4. P.W.-6, Dr. Anand Bodh, certified that prior to the recording of dying declaration of deceased, he found her in full senses and capable of getting her statement recorded. He proved his certificate of fitness before the trial court and her right thumb impression on the dying declaration. 4. The statement of accused-appellants were recorded under Section 313 Cr.P.C., wherein they alleged false implication and stated that the deceased died on account of burning while cooking food they also denied that the dying declaration of the deceased is not correct and about her fitness to gave her dying declaration wrong medical certificate was given. The trial court after considering the evidence on record found that although the witnesses of fact have not supported the prosecution case but the dying declaration of the deceased was proved beyond doubt. The trial court has considered the relevant law with regard to dying declaration and found it to be reliable and relying on the same, it has convicted the appellants, Hridaya Rai, Satrajit Rai and co- accused, Smt. Nirmala, was acquitted of the charges since no allegations were made against her regarding the commission of offence of burning of the deceased. She was implicated only because of being wife of co-accused, Satrajit Rai. Trial court did not found the charges under Sections 4 98-A, 304-B IPC and Section ¾ of D.P. Act proved against the appellants but charges under Section 302 /34 IPC proved against them and convicted them accordingly. 5. After hearing rival contentions, this court finds that the basis of the judgment of the trial court is the dying declaration of the deceased which deserves consideration first of all. The dying declaration of the deceased is as follows:- 6. A perusal of the dying declaration of the deceased shows that the role of pouring kerosene oil and putting the deceased on fire has been clearly assigned to the appellant, Hridaya Rai, only. The only allegation against the appellant, Satrajit Rai, is that he was present on the scene of incident at the relevant time. It is also stated by deceased that she was burnt by her husband, Hridaya Rai with the help of Satrajit Rai, etc. 7. The only allegation against the appellant, Satrajit Rai, is that he was present on the scene of incident at the relevant time. It is also stated by deceased that she was burnt by her husband, Hridaya Rai with the help of Satrajit Rai, etc. 7. Counsel for the appellants has placed reliance on the division Bench judgment of this court in the case of Lokesh and Another vs. State of U.P. , 2023 (3) ADJ 47 (DB) and has stated that where the contents of dying declaration are inconsistent with the statements of prosecution witnesses and no satisfaction was recorded about the fit state of mind of victim then finding of trial court holding accused-appellants guilty of offence cannot be upheld. This court finds that judgment relied upon by the learned counsel for the appellant of no help for appellants. P.W.-6, Dr. Anand Bodh, has clearly stated before the trial court that he examined the deceased before recording her statement and she was in her full senses and capable of giving statement. 8. P.W.-5, Teshsildar Sadar, Sunil Kumar, also stated in his statement that before he took down the dying declaration of the deceased, the doctor has examined her in his presence and found her in full senses and capable of giving her statement, therefore, the judgment in the case of Lokesh and Another (Supra) relied upon by the learned counsel for the appellants will not help the appellant. 9. Further reliance has been placed by learned counsel for the appellants on the judgment of Apex Court in the case of Naresh Kumar Vs. Kalawati and Others , 2021 0 AIR (SC) 1605 , wherein also in paragraph nos. 11 and 12, the court found that in the dying declaration it was not mentioned that the deceased was not in a fit state of mind to make the statement. In the present case, the doctor has certified the fit mental condition of the deceased in her dying declaration itself at the bottom and proved the same before the trial court, therefore, this case law relied upon will also not help the appellants as clear from paragraph nos. 11 and 12 thereof quoted below:- “11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. 11 and 12 thereof quoted below:- “11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room. 12. In Paparambaka Rosamma and others vs. State of Andhra Pradesh, (1999) 7 SCC 695 , distinguishing between consciousness and fitness of state of mind to make a statement, it was observed: “9. It is true that the medical officer Dr K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified “patient is conscious while recording the statement.” It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr P. Koteswara Rao (P.W. 9) who per formed the postmortem stated that the injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr Smt K. Vishnupriya Devi (P.W.10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the state ment”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P14) as true and genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.” 10. Another judgment relied upon by the learned counsel for the appellant is to the same effect being the case of Paparambaka Rosamma and Ors. vs. State of Andhra Pradesh , 1999 (7) Supreme 640 . In this case also doctor has not deposed that the injured was in a fit state of mind to give dying declaration and only certified that injured was conscious which is not the case in the present case as discussed hereinabove. 11. Counsel for the state-respondent has relied upon the judgment of the Apex Court in the case of Manjunath and Ors. vs. State of Karnataka , 2023 (0) Supreme (SC) 1109 and has submitted that in the present case the dying declaration of the deceased was in accordance with law. Reliance on paragraph no. 11 has been made which elaborate the relevant law and is quoted hereinbelow :- 11. Section 32 the Indian Evidence Act, 18723 relates to statements, written or verbal of relevant fact made by a person who is dead or who cannot be found, in other words, dying declaration. The various principles laid down by pronouncements of this court in respect of dying declarations can be summarised as under: 11.1 The basic premise is “nemo moriturus praesumitur mentire” i.e. man will not meet his maker with a lie in his mouth. The various principles laid down by pronouncements of this court in respect of dying declarations can be summarised as under: 11.1 The basic premise is “nemo moriturus praesumitur mentire” i.e. man will not meet his maker with a lie in his mouth. 11.1.1 In Laxman v. State of Maharashtra, (2002) 6 SCC 710 [5 Judge Bench] a Constitution bench of this court observed: – “when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement.” 11.2 For a statement to be termed a “dying declaration”, and thereby be admissible under Section 32 of IEA, the circumstances discussed/disclosed therein “must have some proximate relation to the actual occurrence”. 11.3 The Privy Council in Pakala Narayana Swamy v. Emperor, AIR 1939 PC 47 (5 Judge Bench] explained the phrase “circumstances of the transaction” as under:- “The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. ‘Circumstances of the transaction’ is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae’. Circumstances must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It is on the other hand narrower than ‘res gestae’. Circumstances must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that ‘the circumstances’ are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that ‘the cause of (the declarant's) death comes into question’.” 11.3.1 In the well-known case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 [3 Judge Bench] principles in respect of the application of section 32 have been noted as under: – Per S. Murtaza Fazal Ali J.- “21. … (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut- and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 3 2. (3) The second part of clause (1) of Section 3 2 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.” 11.4 Numerous judgments have held that provided a dying declaration inspires confidence of the court it can, even sans corroboration, form the sole basis of conviction. In this regard, reference may be made to Khushal Rao v. State of Bombay, Suresh Chandra Jana v. State of West Bengal and Jayamma v. State of Karnataka. 11.5 In order to rely on such a statement, it must fully satisfy the confidence of the court, since the person who made such a statement is no longer available for cross- examination or clarification or for any such like activity. 11.5 In order to rely on such a statement, it must fully satisfy the confidence of the court, since the person who made such a statement is no longer available for cross- examination or clarification or for any such like activity. 11.5.1 In Madan v. State of Maharashtra, (2019) 13 SCC 464 [2 Judge Bench] while referring to an earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 [2 Judge Bench] it was observed that a Court must rely on dying declaration if it inspires confidence in the mind of the court. 11.5.2 On a similar note, this Court in Panneerselvam v. State of T.N. (2008) 17 SCC 190 [3 Judge Bench] has observed: – “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 nature as to inspire full confidence of the court in its correctness.” 11.5.3 However, a note of caution has also been sounded. If such a declaration does not inspire confidence in the mind of the court, i.e., there exist doubts about the correctness and genuineness thereof, it should not be acted upon, in the absence of corroborative evidence. 11.5.3.1 In Paniben v. State of Gujarat it was observed" “The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination.” A reference may also be made to K. Ramachandra Reddy v. Public Prosecutor [2 Judge Bench]. 11.6 The Court must be satisfied that at the time of making such a statement, the deceased was in a “fit state of mind”. In Shama v. State of Haryana, a fit state of mind has been held to be a prerequisite, alongside the ability to recollect the situation and the state of affairs at that point in time in relation to the incident, to the satisfaction of the court. 11.6.1 In Uttam v. State of Maharashtra, it was discussed that it is for the court to determine, from the evidence available on record, the state of mind being fit or not. 11.6.1 In Uttam v. State of Maharashtra, it was discussed that it is for the court to determine, from the evidence available on record, the state of mind being fit or not. 11.6.2 In order to make a determination of the state of mind of the person making the dying declaration, the court ordinarily relies on medical evidence.17 However, equally, it has been held that if witnesses present, while the statement is being made, state that the deceased while making the statement was in a fit state of mind, such statement would prevail over the medical evidence.18 The statement of witnesses present prevailing over the opinion of the doctor has been reiterated in Uttam (supra). 11.6.3 It has also, however, been held in Laxman (supra) that the mere absence of a doctor’s certificate in regard to the “fit state of mind” of the dying declarant, will not ipso facto render such declaration unacceptable. This position had been once again recognised in Surendra Bangali @ Surendra Singh Routele v. State of Jharkhand. 11.7 In case of a plurality of such statements, it has been observed that it is not the plurality but the reliability of such declaration determines its evidentiary value. The principle as held in Amol Singh v. State of M.P was:- “13. … it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration [but] the statement should be consistent throughout. … However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not [and] while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.” 11.7.1 Faced with multiple dying declarations, this Court in Lakhan v. State of M.P. observed: “21. …. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. …. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.” 11.7.2 This Court, in Jagbir Singh v. State (NCT of Delhi), in this respect, concluded as under: – “32. We would think that on a conspectus of the law as laid down by this Court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” 11.8 The presence of a Magistrate in recording of a dying declaration, is not a necessity but only a rule of Prudence. To this effect in Jayamma (supra), this Court observed : “…law does not compulsorily require the presence of a judicial or executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by judicial or executive Magistrate. To this effect in Jayamma (supra), this Court observed : “…law does not compulsorily require the presence of a judicial or executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by judicial or executive Magistrate. It is only a rule of prudence, and if so permitted by the facts and circumstances, the dying declaration may preferably be recorded by a judicial or executive Magistrate so as to muster additional strength to the prosecution case.” Referring to the Constitution bench in Laxman (supra) the principle of a dying declaration not necessarily to be recorded by a Magistrate stands reiterated in Rajaram v. State of Madhya Pradesh. 11.9 Dying Declaration is not to be discarded by reason of its brevity is what is held in Surajdeo Ojha v. State of Bihar. 11.9.1 It was observed in the State of Maharashtra v. Krishnamurti Laxmipati Naidu that if the dying declaration, while being brief, contains essential information, the courts would not be justified in ignoring the same. 11.9.2 In fact, the Constitution bench in Laxman reiterated this principle, stating: – “Marely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.” 11.10 Examination of the person who reduced into writing, the dying declaration, is essential. Particularly, in the absence of any explanation forthcoming for the production of evidence is what stands observed in Govind Narain v. State of Rajasthan. 11.10.1 In fact, in Kans Raj v. State of Punjab it was held: “11. …To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.” In Sudhakar v. State of Maharashtra, this Court categorically observed:- “5. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.” 11.11 The questions that a court must ask when dealing with a case concerning a dying declaration, as listed out by this Court in Irfan @ Naka v. State of U.P. along with the principles culled out hereinabove form the complete gamut of consideration required on part of a court when deciding the weightage to be awarded to a dying declaration.” 12. Consideration of law laid down by the Apex Court regarding dying declaration in the case of Manjunath and Ors. (Supra) shows that there is presumption that the maker of dying declaration will not lie when the death is standing before him. In the present case, dying declaration of the deceased was recorded on the next day of incident and had clear proximate relation to the actual occurrence. It has further been held by the Apex Court that if the dying declaration of the deceased inspires confidence of the court, it can make it the sole basis of the conviction, even without corroboration. For relying on such statements the court must be fully satisfied since the maker of such statement is not available for cross-examination or clarification of any part of the statement. Only where such declaration does not inspire confidence of the court and there exists doubt about its correctness it should not be acted upon, in the absence of corroborative evidence. In the present case, there is nothing to doubt the same and seek the aid of any corroborative evidence. The dying declaration of the deceased is quite clear and there does not appear to be any evidence of tutoring or prompting of the deceased before recording of her statement. 13. The Apex Court has held that the presence of Magistrate in recording of dying declaration is not necessary but only rule of prudence. However, in the present case the Magistrate himself has reduced the dying declaration of the deceased in writing; taken her right thumb impression on the same and proved it before the court. 13. The Apex Court has held that the presence of Magistrate in recording of dying declaration is not necessary but only rule of prudence. However, in the present case the Magistrate himself has reduced the dying declaration of the deceased in writing; taken her right thumb impression on the same and proved it before the court. The doctor, P.W.-6, has also proved the aforesaid fact before the trial court. The Magistrate who recorded the dying declaration of the deceased was examined before the trial court as P.W.-5 and there is nothing in his statement which may persuade the court to disbelieve the same. However, this court finds that in the dying declaration of the deceased, no overt role has been assigned to appellant, Satrajit Rai. Only role assigned to him is that he was present when the appellant, Hridaya Rai, who poured kerosene oil over the deceased and put her on fire. It is further stated that appellant, Satrajit Rai, etc., helped appellant, Hridaya Rai in his act. 14. This court finds that for implication of the appellant, Satrajit Rai, under Sections 302 /34 IPC some overt act or his mental condition or having common intention with the appellant, Hridaya Rai, should have been proved by the prosecution. The prosecution witnesses of fact were declared hostile and there is nothing in their statements which may indicate that the appellant, Satrajit Rai, was instrumental in causing murder of the deceased by way of burning. The ingredients of constituting offence under Section 34 IPC are not borne out from the dying declaration of the deceased which is the basis of conviction of appellant, Hridaya Rai. 15. In view of the above, we are of the view that the appellant, Satrajit Rai, has wrongly been convicted and sentenced by the trial court without any evidence against him for committing the offence under Section 302 /34 IPC. Hence, he deserves to be acquitted of the charges under Section 302 /34 IPC. 16. He is already on bail. His bail bond is cancelled and sureties have discharged. 17. In this backdrop of the matter, now we will consider the legal position concerning culpable homicide not amounting to murder and see whether this case of appellant, Hridaya Rai is one such case. 18. 16. He is already on bail. His bail bond is cancelled and sureties have discharged. 17. In this backdrop of the matter, now we will consider the legal position concerning culpable homicide not amounting to murder and see whether this case of appellant, Hridaya Rai is one such case. 18. The offence affecting life, namely, taking away of one's life has been dealt with in Chapter XVI of the INDIAN PENAL CODE , 1860 (shortly, hereinafter, I.P.C.) under the caption "Offences affecting the Human Body". "Culpable homicide" has been explained and illustrated in Section 299 I.P.C. and "murder" has been explained and illustrated in Section 300 I.P.C. In both the cases, there will be killing of a person. But, both Section 299 I.P.C, 300 I.P.C, and their related penal provisions, namely, Section 302 I.P.C, Section 304 I.P.C, both part I and part II I.P.C. do not deviate from the basic principle of Criminology and Criminal Law. The two essential elements that constitutes an offence, namely, mens rea (guilty mind) and actus rea (overtact) are present in both Section 299 and Section 300 I.P.C. Mens rea has been expressed in two forms in Section 299 I.P.C. and in Section 300 I.P.C., namely, acts committed with intention, (intentional acts), acts committed with the knowledge that it would likely to cause death or sufficient in the ordinary course of nature to cause death. 19. It is axiomatic that "all murders are culpable homicide, but not vice verse", that is to say, all murders are not culpable homicide. Culpable homicide is genus of which murder is species. Culpable homicide is stated in three circumstances, viz. (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge that the doer is likely by such act to cause death. 20. A culpable homicide falling under any one of the three classes, namely, 2ndly 3rdly and 4thly amounts to murder. It is punishable under Section 302 I.P.C. Section 300 I.P.C. itself contains five Exceptions with certain restrictions/ conditions. If the culpable homicide falls under any one of the Exceptions, then it will not be murder, it will be culpable homicide not amounting to murder. It is punishable under Section 302 I.P.C. Section 300 I.P.C. itself contains five Exceptions with certain restrictions/ conditions. If the culpable homicide falls under any one of the Exceptions, then it will not be murder, it will be culpable homicide not amounting to murder. It is punishable under Section 304 I.P.C. If it is an intentional act, it will fall under part I, if it is with knowledge, it will fall under part II. Both these parts differ in severity of punishment. 21. Culpable homicide amounting to murder or not amounting to murder, have been conceived in the Penal Code to consider mitigating circumstances under which the offence was committed, it is intended to reduce/dilute the rigour of punishment. 22. The marked distinction between the offences under Section 302 I.P.C. and under Section 299 I.P.C. brought out by Justice Melvill in R. Vs. Govinda , (1876) 1 Bom 342 has been reiterated in State of A.P. vs. Rayavarappu Punnayya , AIR 1977 SC 45 by Justice Sarkaria in the following words: "In the scheme of the Penal Code, 'culpable homicide' is genus and murder its specie. All 'murder' is culpable homicide but not vice versa. Speaking generally 'culpable homicide sans 'special characteristics of murder' is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the Second Part of Section 304." 23. Now, we go to the two specific Exceptions 1 and 4 in Section 300 I.P.C. dealing with the offence of murder, which makes the culpable homicide not amounting to murder. These Exceptions centres around the mind of the offender, when the offence was committed, when the accused lost his power of self-control, due to grave and sudden provocation. Now, we go to the two specific Exceptions 1 and 4 in Section 300 I.P.C. dealing with the offence of murder, which makes the culpable homicide not amounting to murder. These Exceptions centres around the mind of the offender, when the offence was committed, when the accused lost his power of self-control, due to grave and sudden provocation. When the offence was committed without premeditation in a sudden fight, in the heat of passion. 24. The main point is "provocation". Commission of offence under provocation. In Halsbury’s Laws of England, 4th edition, Volume 11, paragraph 1163, page 619 provocation is stated as under: "Provocation may reduce a charge of murder to one of manslaughter. It consists of something done which would cause in any reasonable person, and actually causes in the defendant, a sudden and temporary loss of self- control, making him so subject to passing that he is not the master of his mind. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked, whether by things done or said, to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did must be left to be determined by the jury. In determining that question the jury must take into account everything both done and said according to the effect which, in the jury's opinion, it would have on a reasonable man." 25. In K.M. Nanavati vs. State of Maharashtra , AIR 1962 SC 605 , Hon'ble Supreme Court held that in India words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S.300 I.P.C. 26. Regarding the appellant, Hridaya Rai, this court finds that the offence against him is clearly proved from the dying declaration of the deceased, but his conviction and sentence under section 302 IPC cannot be upheld. From the dying declaration of deceased it is clear that dispute took place between the couple when deceased asked the appellant to give her his mobile phone since she wanted to talk to her child living at Kolkata with her parents. Appellant, Hridaya Rai, did not give her his mobile phone, but started beating her. From the dying declaration of deceased it is clear that dispute took place between the couple when deceased asked the appellant to give her his mobile phone since she wanted to talk to her child living at Kolkata with her parents. Appellant, Hridaya Rai, did not give her his mobile phone, but started beating her. When the quarrel intensified further the appellant, Hridaya Rai, poured kerosene oil over the deceased and put her on fire. Clearly it is not pre-meditated murder but offence committed in the fit of anger and sudden quarrel and provocation of appellant by the conduct of deceased on small issue. Hence only the offence of culpable homicide not amounting to murder was committed by the appellant, Hridaya Rai and not of culpable homicide amounting to murder. 27. Criminal Appeal No. 3997 of 2011 is allowed with regard to appellant, Satrajit Rai. 28. With regard to appellant, Hridaya Rai, his conviction u/s 302/34 IPC is set aside. Instead, Hridaya Rai, is convicted u/s 304 Part-I IPC. His sentence is reduced to period of incarceration in jail already undergone (above 15 years). 29. Criminal Appeal No. 4595 of 2013 stands partly allowed as for the reasons stated above. 30. Office is directed to notify this judgment to the trial court and return the trial court record within two weeks.