JUDGMENT : K. Surender, J. 1. This Criminal Appeal is filed by the appellant aggrieved by the judgment, dated 12.03.2020 passed in S.C.No.541 of 2016 on the file of the Additional Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Ranga Reddy District, wherein the appellant was convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment. The appellant herein is arrayed as accused No.1 and he was tried along with accused Nos.2 and 3 for the offences punishable under Sections 498-A read with 34 of IPC and 304-B of IPC against accused Nos.1 to 3, and Section 302 of IPC simplicitor against accused No.1. 2. Heard learned counsel for the appellant and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for respondent – State. Perused the record. 3. Learned Sessions Judge, after conducting the trial, acquitted accused Nos.2 and 3 and convicted the appellant for the offence under Section 302 of IPC . Appellant was acquitted for the offences under Sections 304-B of IPC and 498-A read with 34 of IPC . 4. The deceased, namely Sandhya, is the wife of the appellant. The marriage of the appellant and the deceased was performed on 25.05.2014. At the time of marriage, gold and silver ornaments and cash of Rs.50,000/- were given as dowry. It is alleged that after the marriage, the appellant herein and accused Nos.2 and 3, who are the mother-in-law and brother-in-law of the deceased, harassed the deceased. 5. The incident happened on 21.09.2015, when the appellant and the deceased were in the house. According to the prosecution case, the appellant set fire to the deceased, resulting in the deceased receiving severe burn injuries. The deceased was taken to the hospital by the appellant after pouring water on her. On information given by PW1 at about 00:30 hrs on 22.09.2015, which is a telugu written complaint-EXP1, the FIR was registered. The requisition (Ex.P12) was given to the Magistrate-PW16 on 21.09.2015 at about 10:20 PM for recording the dying declaration. The magistrate went to the hospital and recorded the statement/dying declaration of the deceased, which was marked as Ex.P13. The deceased died on 22.09.2015, i.e., the next day of the incident. 6. The Investigating Officer, PW17, went to the scene of offence, which is the house of the appellant and there, Ex.P15/scene of offence panchanama was drafted. M.O.1, which is cigarette lighter, was seized from the bedroom. The deceased died on 22.09.2015, i.e., the next day of the incident. 6. The Investigating Officer, PW17, went to the scene of offence, which is the house of the appellant and there, Ex.P15/scene of offence panchanama was drafted. M.O.1, which is cigarette lighter, was seized from the bedroom. 7. After the death of the deceased on 22.09.2015, the inquest proceedings were conducted around 2 PM, and thereafter, the body was sent for postmortem examination. The postmortem doctor opined that the death was on account of “burn injuries” received by the deceased. 8. The appellant was charge sheeted along with accused Nos.2 and 3. However, only the appellant was convicted, as stated above. 9. PWs.1 to 5, who are the relatives of the deceased, have stated about the physical and mental harassment by the appellant for the purpose of additional dowry. However, the trial Court did not find favour with the version of harassment for dowry by either the appellant or anyone else and accordingly acquitted the accused for the offence under Section 498-A read with 34 of IPC . 10. Sri Pratap Reddy, the learned Senior Counsel, appearing for the appellant submitted that the dying declaration is the only evidence that was considered by the trial Court and on the basis of the said dying declaration, the conviction was recorded. In fact, the said dying declaration is a result of a tutoring by the relatives of the deceased, PWs1 to 5. Such tutored statement of the deceased cannot be considered. Once the Court has found that there was no harassment for dowry and acquitted the appellant and other accused, the question of appellant burning the deceased on the date of the incident does not arise. Learned counsel relied on the judgment of the Hon’ble Supreme Court in case of Shaik Bakshu v. State of Maharashtra , (2007) 11 SCC 269 , wherein it was held as under:- “14. So far as the presence of the relatives and the tutoring aspect is concerned, the High Court held that there cannot be a possibility of tutoring Vo Rubina for falsely implicating the appellants in the offence because of the promptness in recording the dying declaration by PW 1 and PW 3. The conclusion is clearly based on surmises and conjectures. So far as the presence of the relatives and the tutoring aspect is concerned, the High Court held that there cannot be a possibility of tutoring Vo Rubina for falsely implicating the appellants in the offence because of the promptness in recording the dying declaration by PW 1 and PW 3. The conclusion is clearly based on surmises and conjectures. Another fallacy in the conclusions of the High Court and the trial court was that mere change in the place of occurrence as borne out in the dying declaration, as projected by the prosecution with reference to the spot panchnama was not material. According to the deceased, the occurrence took place in the bedroom. It is to be noted that no mark of burn injury was noticed in the bedroom and they were noticed in the kitchen. The High Court noted, even if spot of occurrence has not been correctly stated by the deceased same is of no consequence. That certainly has effect on the credibility of the dying declaration, contrary to what the High Court has observed. Another aspect which assumes great importance is that in the dying declaration the deceased stated that she was brought to the hospital by a neighbour but the official records show that she was brought to the hospital by Accused 2 i.e., sister-in-law. It was categorically asked to the doctor whether in the admission register it was recorded that the injuries were due to the accidental burns. He stated that the witness has not gone through the register of that date.” 11. Learned counsel also relied upon the judgment of the Hon’ble Supreme Court in case of Suresh v. State Rep. by Inspector of Police, AIR 2025 SC 1561 wherein it was held as under:- “14. As discussed above, in cases where the dying declaration is suspicious, it is not safe to convict an accused in the absence of corroborative evidence. In a case like the present one, where the deceased has been changing her stance and has completely turned around her statements, such a dying declaration cannot become the sole basis for the conviction in the absence of any other corroborative evidence. 15. On this point, the prosecution would argue that Observation Mahazar prepared by PW-15 talks about the recovery of an empty kerosene can and match stick from the spot. 15. On this point, the prosecution would argue that Observation Mahazar prepared by PW-15 talks about the recovery of an empty kerosene can and match stick from the spot. PW-15 also mentioned in the Observation Mahazar that when he visited the deceased's house on 15.09.2008, it was full of the smell of burnt kerosene. According to the prosecution, this Mahazar corroborates the dying declaration made by the deceased. However, the veracity of this Observation Mahazar is itself in doubt. Apart from the fact that there had been an inordinate delay in sending the Mahazar to Court, the witnesses (PW-5 and PW-6) to the seizure of the above articles had also been declared hostile. PW-5 and PW-6 deposed that the site was visited by PW-15 but they did not support that any articles with kerosene smell were seized from the place”. 12. Referring to the findings of the Hon’ble Supreme Court in case of Suresh (Supra), the learned Senior Counsel argued that the Investigating Officer admitted that in the scene of offence it was written that the incident happened in the bedroom, whereas the contents of the dying declaration reflects that the incident happened in the kitchen, which is contradicting one another. In the said circumstances, the version given by the deceased in the dying declaration cannot be believed. Except for the dying declaration, there is no evidence to connect the appellant with the crime. 13. Learned Assistant Public Prosecutor argued that the harassment is apparent from the evidence of witnesses, PWs. 1 to 5, and they have specifically stated about the harassment for additional dowry. The contents of Ex.P2, a letter, shows that it is a suicide note written by the deceased, and the same was recovered from the almirah in the house. The said letter was also sent to the handwriting expert for the purpose of examination. When the evidence of PWs.1 to 5 and EX.P2 is looked into, it is clear that the deceased was subjected to harassment. Further, on the date of the incident, it was the appellant who set fire to the deceased, resulting in her death. 14. Pws. 1 to 5 who are the relatives of the deceased, stated about the harassment by the appellant and also by accused Nos.2 and 3. Further, on the date of the incident, it was the appellant who set fire to the deceased, resulting in her death. 14. Pws. 1 to 5 who are the relatives of the deceased, stated about the harassment by the appellant and also by accused Nos.2 and 3. The version of harassment was disbelieved by the trial Court since the allegations made were omnibus in nature and could not be believed on account of the contradictory nature of the evidence of the witnesses. The prosecution has not preferred any appeal against the acquittal of A2 and A3 or the acquittal of the appellant for the offence under Section 498-A of IPC . 15. The crucial evidence is the statement made by the deceased to the Magistrate-PW16. PW16 went to the hospital, and having been satisfied that the patient was in a fit state of mind, started recording the statement. The duty doctor endorsed that the patient was conscious, coherent and in a fit state of mind to give the statement. 16. In the statement made, the magistrate questioned as follows:- “Q. How did you receive these injuries and at what time? Ans. On the day of Vinayakachavathi festival, me and my husband quarreled. My mother-in-law is staying separately. We are also staying separately. My mother-in-law hand was fractured and I daily go to her residence. In between our house and mother-in-law house, there are couple of houses. My husband works with the organization snapdeal. Today he did not go to duty, I questioned my husband as to why he did not go to the duty. He said that he would do as he likes. Then I questioned that he should go to his duty. My husband replied that I was at risk and asked me to die. I questioned as to why you are saying so. My husband stated that he would be at peace, if she dies. Then I went into the house to take a bath, I kept water on the stove to heat. My husband said that he would light the kerosene stove and asked me to heat water on the kerosene stove. I removed the kerosene tin, when the kerosene fell on me. He saw me I had a burning sensation. I rubbed of the kerosene with rice flour. My husband stated that I was wasting kerosene. I requested to get water to take a bath. I removed the kerosene tin, when the kerosene fell on me. He saw me I had a burning sensation. I rubbed of the kerosene with rice flour. My husband stated that I was wasting kerosene. I requested to get water to take a bath. He went outside and brought two buckets of water. I asked him to give a bath to me. My husband said he will not do it. He took a pen type lighter and set fire to my saree hanging over my shoulder. Fire engulfed, when I was trying to remove my saree, my husband poured one bucket of water, went out and started shouting. Me and my husband were only there in the house. My mother-in-law went to the village. Several persons gathered. I said I wanted to live as such people brought me an ambulance . I was taken to a hospital near cine planet. Doctors said that it would cost of Rs.2,00,000/-. From there I was taken to Gandhi hospital. There my husband and maternal aunty came along with me to the hospital. My husband is saying that he does not like me since several days. The incident happened at about 1:30 in the afternoon.” 17. Learned Sessions Judge has placed reliance on the statement of the deceased given to the Magistrate. In the said statement, the deceased stated that the mother-in-law was staying separately and the deceased and the appellant were staying separately. In fact, on the date of the incident, the mother-in-law was not present. 18. A close scrutiny of the statement made by the deceased would reflect that no quarrel took place on the date of1 0 incident. The deceased was trying to take a bath after heating water. From the narration of the deceased in the statement, the appellant helped the deceased to wipe the kerosene that had fallen on her and thereafter went out at the request of the deceased and brought two buckets of water. After the appellant brought the water, the deceased requested the appellant to give her a bath. Thereafter, water was kept in the vessel on the kerosene stove for heating. According to the declaration, the appellant took out a lighter and set fire to her saree. 19. After the appellant brought the water, the deceased requested the appellant to give her a bath. Thereafter, water was kept in the vessel on the kerosene stove for heating. According to the declaration, the appellant took out a lighter and set fire to her saree. 19. The narration given by the deceased would go to show that the appellant heeded to the request of the deceased to get water and thereafter, it is alleged that he set fire with the lighter. When the entire statement and the narration of the events are taken into consideration, it appears that the husband, while trying to light the kerosene stove, set the deceased’s saree on fire, and there is a probability of an accident. In the peculiar facts of the present case, when the entire narration is looked into, there was neither any quarrel, nor heated exchange of words between the appellant and the deceased. In fact, when the deceased was taking the 1 kerosene from the top rack in the kitchen, the kerosene fell on her accidentally and she had wiped out the kerosene with the help of rice flour. 20. In the said circumstances, we are of the considered opinion that there was no deliberate act of the appellant to commit the murder of the deceased or cause injury to her. It appears that the appellant had set fire to the saree while lighting the stove, and it was totally unintentional. In the present facts, there is nothing to indicate that the husband had the intention to cause death of the deceased by setting her on fire or that it would result in her death. The Hon’ble Supreme Court in case of Pulicherla Nagaraju v. State of Andhra Pradesh , held as under:- “ Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 21. The Hon’ble Supreme Court, in case of Mohd Rafiq v. State of Madhya Pradesh , held as under:- “The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC or culpable homicide of either description, punishable under Section 304 IPC , has engaged the attention of Courts in India for over one- and-half century, since the enactment of the IPC . A welter of case law, on the aforesaid aspect exits , including perhaps several hundred rulings by the Supreme Court. The use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines “murder” however reference from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. Such difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes”. 22. Even believing the version of the deceased that after wiping the kerosene, the husband came back with two buckets of water, lighting the saree with a lighter would fall within the four corners of Section 304 Part-II of IPC , which pertains to causing death unintentionally. 23. Accordingly, the Criminal Appeal is partly allowed, converting the Section 302 of IPC to Section 304 Part-II of IPC and the appellant/accused is sentenced to undergo rigorous imprisonment for a period of six (6) years. Miscellaneous Petitions, pending if any, shall stand closed.