JUDGMENT K. Sreedhar Rao, J. The case of the prosecution is that the deceased Lalithamma is the wife of the accused. Their marriage took place 3 years prior to the incident. The deceased was constantly subjected to cruelty and ill-treatment. The accused is addicted to alcohol. On 2-1-2001 the accused demanded money from the deceased. When the deceased refused, the accused assaulted, tied her hands and legs with her saree, doused kerosene and set her ablaze. The neighbours and the mother of the victim P.W. 2, P.W. 3, @ and P. W. 1 took her to Primary Health Centre, Dyavani. From there the deceased was sent to C. G. Hospital, Davanagere. The deceased had sustained 87% superficial burns. The deceased died on 18-1-2001 while under treatment on account of septicemia and septicemia shock. 2. The deceased at the time of admission stated that the burn injuries are caused by her husband. The statement the deceased is recorded by P.w. 21. The Taluk Executive Magistrate on 2-1-2001 at 6.40 p.m. at Ex. P19. The dying declaration discloses that her husband caused the burn injuries by pouring kerosene and setting her ablaze. The medical opinion shows that the deceased was conscious to give the statement as per Ex. P.9. pw. 2 who goes to the scene immediately after the incident assist in admitting the deceased to hospital testify to the fact that after hearing the noise, herself and P. W. 3 went to the house of the accused. The doors of the house were closed from inside. She found the accused and deceased were present in the house. The deceased was in flames. P. W. 2 and P. W. 3 took the victim to hospital. 3. The dying declaration and the evidence of P.W. 2 & P.w. 3 convincingly establishes that the accused was at the scene when the deceased was found ablaze. The evidence of P.W. 2 and P.W. 3 substantially corroborates the version in the dying declaration at Ex. P.19. In view of the above evidence the Trial Court convicted the accused for the offence u/S. 302, IPC. The accused is in appeal. 4. The medical report shows that the deceased had sustained 63 superficial bums on both the arms and legs. P.19. In view of the above evidence the Trial Court convicted the accused for the offence u/S. 302, IPC. The accused is in appeal. 4. The medical report shows that the deceased had sustained 63 superficial bums on both the arms and legs. The “Treatise Forensic Medicine” and Toxicology by R. N. Karmarkar, 1st edition, at page 136, gives the nature and classification of the burn injuries r in the following manner: “Burn injuries can be classified (l) Depending upon the depth of the body involved: . (a) Depuytren’s classification (in 6 degrees) (i) 1st degree - Erythema with transient swelling. (ii) 2nd degree - Vesication with blister is formation surrounded by red line. (iii) 3rd degree - Partial destruction of dermis. (iv) 4th degree - Complete destruction of dermis. (v) 5th degree - Involvement of subcutaneous tissues and also the muscles. (vi) 6th degree - Involvement up to bony tissues. (b) Hebra’s classification - Here burn injuries are classified in three degrees, taking every two degrees of Dupuytren’s classification into one. (c) Wilson’s classification - Here also burn injuries are classified in three degrees and here also every two degrees of Dupuytren’s classification is taken into one and classified as follows : “(i) Epidermal - Involvement of epidermis alone. (ii) Dermo-epidermal - Involvement up to dermis. (iii) Deep - Extends beyond dermis. This classification is used by the forensic experts in day-to-day practice. (d) Evan’s classification - Here also burn injuries are classified in three decrees (i) Superficial burn - Involves epidermis only. (ii) Partial thickness burn - Involves both epidermis and dermis. (iii) Full thickness burn - Extends beyond dermis. (e) Muir and Sutherland’s classification Here burn injuries are classified in three degrees (i) Superficial partial thickness burn Depending upon the degree of dermal involvement. (ii) Deep partial thickness burn - Depending upon the degree of dermal involvement. (iii) Full thickness burn. (2) Depending upon the body surface area involved: Wallace classified burn injuries basing upon the extent of the surface area of the body involved and the percentage of involvement is calculated by ‘Rule of 9’ (Fig. 543). (ii) Deep partial thickness burn - Depending upon the degree of dermal involvement. (iii) Full thickness burn. (2) Depending upon the body surface area involved: Wallace classified burn injuries basing upon the extent of the surface area of the body involved and the percentage of involvement is calculated by ‘Rule of 9’ (Fig. 543). According to this classification, percentage of involvement of body surface area is calculated as follows: Considering the whole body to be 100%” The causes of burn injuries is stated at page No 137 10 the following manner: (1) Immediate cause; (a) Primary or neurogenic shock; (b) Secondary shock; (c) Vegal inhibition; (d) Asphyxia; (e) Associated fatal mechanical injuries; (2) Delayed cause; (a) Secondary or hypovolemic shock; (b) Toxemia; (c) Infection and sepsis; (d) Acute oedema glottis. (3) Late causes: (a) Jaundice resulting from toxemia; (b) Anemia, anorexia, indigestion, diarrhea (c) Hypoproteinaemia; (d) Septicemia, pyaemia, gangrene, tetanus, decubitus ulcer.” 5. The Mosby’s “Medical Dictionary” 2000 edition, defines septicemia in the following manner: “Septicemialsepticemea, systemic infection in which pathogens are present in the circulating bloodstream,. having spread from an infection in any part of the body. It is diagnosed by culture of the blood and is vigorously treated with antibiotics. Characteristically, septicemia causes fever, chill, prostration, pain, headache, nausea or diarrhea. Also called blood poisoning. Compare bacteremia. See also septic shock. Septicemia, adj.-septicemia,-septicemia a combining form meaning (condition of the) blood caused by virulent microorganisms’. Hemorrhagicsepticemia, pyosepticemia, strepto-septicemia.” 6. The “Medical Jurisprudence” by Jahala and Raju, 6th edition, at page 435 makes the following comments on the burn injuries and the death as a result of burn injuries: “It is necessary to understand that in many cases, burns may not be prove fatal immediately. Furthermore, sometimes the coincidental factors which may cause burns may cause death and not burns, viz., suffocation or poisoning by carbon monoxide. If the burns are severe and extensive, they prove fatal because of shock, dehydration and collapse in a very short time.” 7. In the instance case, the superficial burn injuries caused constitute 2nd degree burn to an extent of 67%. According to medical opinion the septicemia and septicemia shock are the intervening cause for the death. The medical opinion expressed by authors Jahala and Raju discloses that all burn injuries may not be fatal unless they are severe and extensive. In the instance case, the superficial burn injuries caused constitute 2nd degree burn to an extent of 67%. According to medical opinion the septicemia and septicemia shock are the intervening cause for the death. The medical opinion expressed by authors Jahala and Raju discloses that all burn injuries may not be fatal unless they are severe and extensive. It is said some times poisonous contents in the drugs administered get digested in the blood with toxic effect of causing death. 8. The provision of category 3 in Section 300, IPC declares that: “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”. 9. The requirement of law insists that the injury should be intentional. The bodily injuries should have been caused which has the effect of causing death in the ordinary course. As noted above, in the medical opinion the burn injuries are not necessarily fatal always. If the burn injury has no direct effect of causing death but the coinciding factors like septicemia causes the death, it cannot be said that in such a situation that the injuries are intentionally caused which causes death in the ordinary course. If the death is on account of the intervening and coinciding factors, the case does not come within the purview of 3rd category of Section 300, IPC and that the provisions of part II under Section 304, IPC attracts. The Division Bench decision of the Bombay High Court in Sham Madhavrao Rupvate v. State of Maharashtra, reported in 2000 Cri LJ 2389 has also taken similar view. 10. In that view of the matter, we are of the view that the accused is liable for conviction under Section 304, Part II, IPC. The conviction under Section 302, IPC is bad in law. The same is altered. 11. The accused is serving sentence for the past six years. The period of sentence served by the accused is imposed as the sentence. The accused is entitled to the benefit of set off under Section 428, Cr.P.C. Hence accused is deemed to have served the sentence. The accused is directed to be set free, forthwith, if not required in any other case. Communicate the operative portion of the Order to the Trial Court and to the Jail Authorities. Order accordingly.