1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.3980 OF 2009 Mr.Shankar Narayan Venkatyelam Naidu : Applicant (Orig.Accused) V/s. The State of Maharashtra : Respondent .... Mr.Akhilesh Choubey with Mr.Mahesh Prajapati i/b.ABG & Associates for the applicant. Ms M.H. Mhatre, Addl. Public Prosecutor for the State. .... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 07, 2009. P.C.: 1. Rule. The learned Addl. Public Prosecutor for the State waives service. Heard by consent. 2. The applicant has approached this Court under section 482 of the Code of Criminal Procedure against the order of the learned trial Court refusing to alter the charge from section 302 to section 306 of the I.P.C. The applicant is also charged under section 498A, 323, 504 and 307 of the 2 I.P.C. in respect of the death of his wife, who is said to have died of burns. According to the applicant, no case under section 302 is made out and, therefore, he applied for alteration of the charge from 302 to 306 of the I.P.C. The learned trial Judge observed that in the dying declaration recorded by the SEO immediately after the incident, the deceased specifically stated that she was set on fire on 28.2.2008. However, on a perusal of the dying declaration annexed to the application at page 91, it does not seem to contain such a statement. Moreover, in paragraph 6, the learned trial Judge has said that there is no whisper in the entire proceedings about committing suicide by the deceased. This observation seems to be at variance with the dying declaration dated 29.12.2008 annexed at page 91 of this application where the deceased seems to have stated that she lit up the cooking gas and then lit up the maxi (gown) which she was wearing. 3. It appears that the order of the trial Court is not according to record and is, therefore, liable to be set aside. The order is accordingly set aside. The matter is remanded back to the trial Court for a fresh decision, in accordance with law. The trial Judge may decide the matter entirely afresh without being influenced by any of the observations made in this order. Order accordingly. 3 4. Rule is made absolute in the above terms. S.A. BOBDE, J.