JUDGMENT - VISHNU SAHAI, J.:---The appellant aggrieved by the judgment and order dated 21st August, 1996 passed by the Additional Sessions Judge, Solapur, in Sessions Case No. 7/93, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- in default to undergo R.I. for one month for the offence under section 302 I.P.C. has come up in appeal before us. 2. Shortly stated the prosecution case runs as under: The deceased Muktabai was the wife of the appellant and at the time of the incident was residing with him in Gandhi Nagar Zopadpatti No. 3, Solapur. On the date of the incident i.e. 28-11-1995 at about 10 a.m. the deceased asked the appellant who was not going for any work to do some work because they had three children. This enraged the appellant who started abusing and beating her. Thereafter he took the stove and poured kerosene oil therefrom on the person of the deceased, lighted a match stick and set her on fire. As the deceased was wearing a polyster sari the same caught fire instantaneously and resulted in her sustaining burn injuries on chest, arms, legs etc. She shouted for help but nobody came to her rescue. Thereafter the appellant poured water on her. Meanwhile a daughter of the deceased went to the house of Ambubai Gadagi P.W. 1, the sister of the appellant, who was residing in the neighbourhood and told her that the deceased was burning. Consequently Ambubai Gadagi rushed to the house of the deceased along with her mother Laxmibai, who was also residing nearby and in an auto-rickshaw which was arranged by the appellant all of them, after calling Padmabai Mhanta P.W. 4, who upon inquiring from the deceased as to how she was burnt was told that her husband set her on fire, took the deceased to Civil Hospital, Solapur. Padmabai Mhanta P.W. 4 followed them. 3. The evidence of Dr. Asha Gaikwad P.W. 5 shows that on 28-11-1995 at about 11.15 a.m. while she was working as the Medical Officer in Civil Hospital, Solapur, Muktabai (the deceased) was brought in that hospital. When she asked her the case history she told her that she had been burnt by her husband. She found 28% superficial too deep burns on her person. She admitted her and informed the police. When she asked her the case history she told her that she had been burnt by her husband. She found 28% superficial too deep burns on her person. She admitted her and informed the police. Her evidence shows that Muktabai was in the hospital till 10-12-1995 on which date she was discharged, she was again admitted on 11-12-1995 and discharged on 6-1-1996. 4. The evidence of P.S.I. Nitin Kulkarni P.W. 8 shows that on 28-11-1993 while he was present at Sakhar Peth Police Chowky he received a letter from the Jail Road Police Station, signed by P.S.O. H.C. Kolekar, regarding the medico legal case admitted in Civil Hospital, Solapur. He reached the said hospital and requested Bhimrao Mane P.W. 3, the Special Executive Magistrate, to record Muktabai's dying declaration. 5. The evidence of Bhimrao Mane P.W. 3 shows that he was approached at 11.30 a.m. Consequently Bhimrao Mane after informing Muktabai that he was going to record her statement recorded her statement. The said statement was recorded by him in question and answer form. On his questioning her as to how she got burnt Muktabai stated that the appellant was not doing any work and she asked him to work because they were having three children. On this the appellant got enraged; abused her; assaulted her; took the stove and poured kerosene oil from it on her person; lighted a match stick and set her on fire. She also stated that thereafter he poured water. 6. The evidence of P.S.I. Nitin Kulkarni P.W. 8 shows that after the Special Executive Magistrate had recorded Muktabai's statement he recorded her statement. In the said statement (Exhibit 48) Muktabai mentioned the same facts. On the said statement he registered the F.I.R. under sections 307/323 I.P.C. 7. On 25-1-1996 P.S.I. Nitin Kulkarni P.W. 8 received information regarding the death of Muktabai and sent the corpse for autopsy which was performed by Dr. Vijaykumar Bet P.W. 2, on 26-1-1996, who found on it 37% burns, ranging from superficial deep burns distributed between back, right upper limb and left upper limb. The cause of death spelt out in the post mortem report by Dr. Bet was septicemia due to 37% burns. 8. The investigation was conducted in the usual manner by P.S.I. Nitin Kulkarni P.W. 8. On 28-11-1995 at about 3 p.m. he arrested the appellant. He thereafter prepared the spot panchanama. The cause of death spelt out in the post mortem report by Dr. Bet was septicemia due to 37% burns. 8. The investigation was conducted in the usual manner by P.S.I. Nitin Kulkarni P.W. 8. On 28-11-1995 at about 3 p.m. he arrested the appellant. He thereafter prepared the spot panchanama. On 16-2-1996 after completing the investigation he filed the charges-sheet. 9. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence under section 302 I.P.C. to which he pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 8 witnesses. We may straight away mention that there is no eye-witness of the incident and the case hinges on multiple dying declarations; viz. those in the form of case history recorded by Dr. Asha Gaikwad P.W. 5, her statement recorded by Special Executive Magistrate Bhimrao Mane P.W. 3, her statement recorded by P.S.I. Nitin Kulkarni P.W. 8 and her oral dying declaration furnished to Padmabai Mhanta P.W. 4. The learned trial Judge believed all the dying declarations and convicted and sentenced the appellant in the manner stated in para 1. 10. We have heard Mr. M.R. Deshpande for the appellant and Mr. A.N. Shringarpure, A.P.P. for the respondent. Mr. Deshpande, learned Counsel for the appellant frankly and candidly stated that he could not assail the dying declarations. He urged that even if the entire evidence adduced by the prosecution in the form of dying declarations and the other evidence led by it is accepted on its face value, no offence beyond that contemplated under section 304(ii) I.P.C. would be made out against the appellant. We have reflected over Mr. Deshpande's submission and find merit in it. Despite Mr. Deshpande's submission that he could not assail the dying declarations on merit we have gone through them and find them to be implicitly reliable and truthful. In our view since Muktabai had only sustained 28% burns the medical evidence furnished by the prosecution that she was in a position to give the dying declarations, is acceptable. It is pertinent to mention that Muktabai had no rancor or ill will against the appellant and in our view, unless the appellant had burnt her in the manner furnished by her dying declarations she would not have falsely implicated him. It is pertinent to mention that Muktabai had no rancor or ill will against the appellant and in our view, unless the appellant had burnt her in the manner furnished by her dying declarations she would not have falsely implicated him. Nothing demonstrates the transparent truthfulness of the dying declarations better than the circumstance that Muktabai has mentioned therein that after setting her on fire the appellant poured water on her. If Muktabai was on a witch hunting campaign this fact would not have been stated by her in her dying declarations. We accordingly believe the dying declarations and reach the conclusion that the involvement of the appellant in the incident is established beyond all doubt. 11. However, we make no bones in observing that the learned trial Judge erred in convicting the appellant for the offence under section 302 I.P.C. We say this in view of the conflicting medical evidence furnished by the prosecution. The evidence of Dr. Asha Gaikwad P.W. 5 who examined Muktabai in Civil Hospital, Solapur on the date of the incident i.e. 28-11-1995 at 11 a.m. shows that Muktabai had 28% superficial to deep burns on her person; from 28-11-1995 to 10-12-1995 she was admitted in the hospital; on 10-12-1995 she absconded; she was re-admitted on 11-12-1995; and was discharged on 6-1-1996. Her evidence also shows that 28% burns sustained by Muktabai were sufficient to cause her death. The evidence of Dr. Bet P.W. 2 who performed the autopsy on the corpse of the deceased shows that she had 37% superficial to deep burns and there were no internal injuries connected with these burns. The post mortem report prepared by him shows that she died on account of septicemia due to the burns. It is pertinent to mention that in his statement in the trial Court Dr. Bet P.W. 2 did not state that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death and in stead in his cross-examination stated thus: "It may be that the deceased might not have followed the instruction about the treatment after her discharge. She might have not taken the treatment or she might have not taken the treatment after her discharge and therefore, secondary infection formed which resulted in her death." When the evidence of Dr. Asha Gaikwad P.W. 5 and Dr. She might have not taken the treatment or she might have not taken the treatment after her discharge and therefore, secondary infection formed which resulted in her death." When the evidence of Dr. Asha Gaikwad P.W. 5 and Dr. Bet P.W. 2 is conjunctively examined it appears to be doubtful whether the evidence of the former in terms that 28% burns suffered by the deceased were sufficient to cause death, is credible. At any rate, Dr. Bet did not state that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. In our view from the passage extracted from the evidence of Dr. Bet referred to above, there is a high probability that Muktabai might have died on account of not following the instructions after taking her discharge, resulting in her contracting a secondary infection, leading to her death. That she died on account of secondary infection is manifest from the post-mortem report wherein the cause of death is mentioned as septicemia due to 37% burns. 12. In such a state of medical evidence, bearing in mind that there was no background of any enmity between the appellant and the deceased and taking into account the conduct of the appellant who immediately after setting fire on the deceased poured water on her, and keeping in mind the fact that the deceased died nearly two months after the incident, it cannot be safely held that the act of the appellant would fall within the dragnet of any of the four clauses of section 300 I.P.C., the breach of which is punishable under section 302 I.P.C. The said clauses of section 300 I.P.C. read thus: "300. Murder:---Except in the case hereinafter excepted, culpable homicide is murder, if the act by the which the death is caused is done with the intention of causing death, or- Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly.- If it is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly.- If the person committing the act knows that it is to so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." 13. The act of the appellant would not fall within the ambit of clause firstly and secondly because of the absence of motive and the circumstance that after setting fire on the deceased the appellant poured water on her. The said circumstances clearly demonstrate that he had neither intention to cause death as contemplated by clause firstly nor intention to cause such bodily injury as was likely to cause death as stipulated by clause secondly. The appellant's act would also not fall within the four corners of clause thirdly because a perusal of the said clause makes it manifest that the injury intended to be inflicted should be sufficient in the ordinary course of nature to cause death. As we have mentioned earlier the autopsy surgeon Dr. Bet P.W. 2 did not state that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. The appellant's act, in our judgment would also not fall within the dragnet of clause fourthly. For the application of clause fourthly, it must be established that the death in all probability was either the result of the imminently dangerous act committed by a person or the likely result of the bodily injury resulting from such an act. In the instant case none of these two contingencies exists. We have seen that not only did the deceased die about 2 months after sustaining burns but the autopsy surgeon Dr. In the instant case none of these two contingencies exists. We have seen that not only did the deceased die about 2 months after sustaining burns but the autopsy surgeon Dr. Bet in his cross-examination stated that the deceased might have died on account of a secondary infection which she had contacted from her not following the instructions about the treatment after her discharge or not taking the treatment prescribed after her discharge. In our view, the said statement of Dr. Bet appears to be correct because in the post mortem report the cause of death is spelt out by him as septicemia, as a result of 37% burns. 14. But we hasten to add that, be that as it may, in the factual matrix of the instant case, we do not even have an iota of doubt, that when the appellant set Muktabai on fire he had the knowledge of her death, as contemplated by clause thirdly of section 299 I.P.C., the breach of which is punishable under section 304(ii) I.P.C. 15. The sole question which survives is the quantum of sentence which should be awarded to the appellant for the offence under section 304(ii) I.P.C. Having reflected over it, we are of the judgment that a sentence of 7 years R.I. would meet the ends of justice. 16. In the result this appeal is partly allowed. Although we acquit the appellant for the offence under section 302 I.P.C. and set aside the sentence of life imprisonment and fine of Rs. 500/- and one month's R.I. in default, imposed thereunder, but we find him guilty for the offence under section 304(ii) I.P.C. and sentence him to undergo 7 years R.I. The appellant is in jail and shall serve out his sentence. In case he has paid the fine it shall stand returned to him. Appeal partly allowed. -----