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2016 DIGILAW 199 (GUJ)

Karimaben v. State of Gujarat

2016-01-28

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred against the judgment and order dated 29.12.2005 passed by Additional Sessions Judge, Amreli, Camp-Rajula in Sessions Case No. 47 of 2000, whereby both the accused were held guilty for the offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 200/-. Since the accused were awarded punishment for offence under Section 302 of IPC, learned trial Judge has not awarded any separate sentence for offence punishable under Section 498(A) of IPC and only imposed fine of Rs. 100/- each on the accused for this offence. Feeling aggrieved by the impugned judgment, both the accused have preferred present appeal before this Court. 2. The facts in brief giving rise to the filing of present appeal are as under:- 2.1 It is the case of the prosecution that the complainant was married to Yunus Mohamad Sandhi of Khambha before ten years and she was residing with her in-laws. On 22.12.1999 at about 10.30 a.m., when the complainant was at her residence, main door of the house was closed and her father-in-law, mother-in-law and sister-in-law broke open the door and entered the house. It is further alleged that her father-in-law caught hold of the complainant and sister-in-law poured kerosene over her, while mother-in-law alighted her. It is alleged that thereafter the sister-in-law ran away, while mother-in-law received burn injuries. Thereafter, she was taken to the hospital. It was also alleged that the accused were harassing the complainant mentally and physically. With these allegations, the complaint was given by the complainant. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. However, since father-in-law had expired even before framing of the charge, the trial was undertaken only against two accused, who are appellants herein. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exh. 1 Kalubhai Yakubbhai. 10 2 Bhikhubhai Somabhai. 13 3 Rajiben Shamjibhai. 14 4 Rahimaben wife of Ismailbhai. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exh. 1 Kalubhai Yakubbhai. 10 2 Bhikhubhai Somabhai. 13 3 Rajiben Shamjibhai. 14 4 Rahimaben wife of Ismailbhai. 15 5 Hasmukhrai Shantilal Trivedi. 16 6 Dr. Alpeshbhai Rasikbhai Vora. 19 7 Maheshbhai Nankubhai. 22 8 Valjibhai Mulubhai. 24 9 Hajibhai Bhabhlubhai. 25 10 Dr. Arvindbhai Ratilal Vithlani. 26 11 Babbhai Bhabhlubhai Dal. 31 12 Shivshankar Krupashankar Vansh, ASI. 32 13 Shermohmad Aalambhai Shaikh, ASI. 37 14 Atulkumar Rajendrasinh Jankant, IO. 51 2.4 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Panchnama of collection of evidence form the place of offence. 11 2 Arrest panchnama. 12 3 Yadi for recording of dying declaration. 17 4 Dying declaration. 18 5 PM Note. 20 6 Yadi for postmortem. 21 7 Panchnama of the place of offence. 23 8 Yadi by Medical Officer. 27 9 Form. 28 10 Case issued by Hospital of Hanifaben. 29 11 Medical Certificate. 30 12 Original complaint. 33 13 Letter written by ASI, Khambha to PSO, Khambha. 34 14 Certificate of primary treatment given by Medical Officer, Amreli. 40 15 Panchnama of physical condition. 42 16 Statement recorded before Executive Magistrate, Amreli. 43 17 Inquest panchnama. 44 18 Receipt for handing over dead body. 45 19 Order for investigatin. 52 20 Inquest Van analysis report. 53 21 Letter of FSL. 54 22 Letter written by Deputy Director to PSI, Khambha. 55 23 Letter written by Deputy Director, Junagadh to PSI, Khambha. 56 2.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. B.M. Mangukiya, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Mr. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. B.M. Mangukiya, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Mr. B.M. Mangukiya, learned advocate for the appellants submitted that the accused No. 1 is 86 years old and the other accused is having very young children and considering the fact that there are serious discrepancies in different dying declarations, which are recorded at Amreli and Bhavnagar about the way in which the incident had happened, second dying declaration of the deceased cannot be taken into consideration. He has further contended that the scientific report, which is produced on record at Exh. 53, it is opined that the door of the room was sought to be opened after the deceased committed suicide and the accused have tried to help the deceased and in the process mother-in-law has received injuries. He also submitted that the sister-in-law of the deceased is also wrongly roped in as she was not present in the house and it is alleged that she ran away after the incident. He further submitted that the incident is of 1999 and more than 16 years have passed, therefore, considering the evidence, as aforesaid, benefit of doubt is required to be granted to the appellants, as there are different dying declarations which cannot be relied to convict the accused. He has also taken us through the evidence of hostile witnesses and contended that even the family members of the deceased have not supported the case of the prosecution and the prosecution has miserably failed to prove its case against the accused. He, therefore, prayed that this appeal may be allowed by setting aside the conviction of the accused persons. 4. On the other hand, Mr. L.R. Pujari, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused persons is just and proper and he has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. He further submitted that in the complaint, which is at Exh. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. He further submitted that in the complaint, which is at Exh. 33, it is stated by the complainant that she had given a wrong statement before Amreli Police as the accused had threatened her that the way in which she was set on fire her son would also be set ablaze. He further submitted that the complainant has narrated the real incident in this complaint and stated that accused No. 2, sister-in-law had poured kerosene on her and accused No. 1-mother-in-law set her on fire. He submitted that this statement of the deceased is enough to convict the accused persons as on the basis of the dying declaration the accused can be convicted. In this regard, he has relied upon the decision of the Supreme Court in the case of Sudhakar v. State of Madhya Pradesh reported in (2012) 7 SCC 569 and contended that the accused are rightly convicted by the trial Court. In view of this, learned APP submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, therefore, no interference is called for in the present appeal. 5. Mr. Pujari has also taken us through the panchnama of scene of offence and submitted that stove is not found from the place of offence. However, in reply to this, Mr. Mangukiya has taken us through report of FSL, page 122, and contended that on 24.12.1999, police had handed over the stove to the FSL officer and, therefore, the contention of learned APP is not tenable. 6. We have heard Mr. B.M. Mangukiya, learned advocate for the appellants-original accused and Mr. L.R. Pujari, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. We find that in the complaint, Exh. 33, it is stated by the complainant that she had given a wrong statement before Amreli Police as the accused had threatened her to kill her son. In the same complaint, the deceased had also narrated the incident and stated that accused No. 2, sister-in-law had poured kerosene on her and accused No. 1-mother-in-law set her on fire. 33, it is stated by the complainant that she had given a wrong statement before Amreli Police as the accused had threatened her to kill her son. In the same complaint, the deceased had also narrated the incident and stated that accused No. 2, sister-in-law had poured kerosene on her and accused No. 1-mother-in-law set her on fire. To decide as to whether this statement of the deceased can be relied to convict the accused or not, it would be profitable to refer to the following observations of the Apex Court in Sudhakar v. State of Madhya Pradesh (supra):- "21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters. 22. In the case of Lakhan (supra), this Court provided clarity, not only to the law of dying declaration, but also to the question as to which of the dying declarations has to be preferably relied upon by the Court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused therein and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under: "9. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused therein and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under: "9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as "the Evidence Act") as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely 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. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon. (Vide Khushal Rao v. State of Bombay, Rasheed Beg v. State of M.P., K. Ramachandra Reddy v. Public Prosecutor, State of Maharashtra v. Krishnamurti Laxmipati Naidu, Uka Ram v. State of Rajasthan, Babulal v. State of M.P., Muthu Kutty v. State, State of Rajasthan v. Wakteng and Sharda v. State of Rajasthan.) XXX XXX XXX 23. The second dying declaration was recorded by Shri Damodar Prasad Mahure, Assistant Sub-Inspector of Police (P.W. 19). He was directed by the Superintendent of Police on telephone to record the statement of the deceased, who had been admitted in the hospital. In that statement, she had stated as under: "On Sunday, in the morning, at about 5.30 a.m., my husband Lakhan poured the kerosene oil from a container on my head as a result of which kerosene oil spread over my entire body and that he (Lakhan) put my sari afire with the help of a chimney, due to which I got burnt." She had also deposed that she had written a letter to her parents requesting them to fetch her from the matrimonial home as her husband and in-laws were harassing her. The said dying declaration was recorded after getting a certificate from the doctor stating that she was in a fit physical and mental condition to give the statement. 24. As per the injury report and the medical evidence it remains fully proved that the deceased had the injuries on the upper part of her body. The doctor, who had examined her at the time of admission in hospital, deposed that she had burn injuries on her head, face, chest, neck, back, abdomen, left arm, hand, right arm, part of buttocks and some part of both the thighs. The deceased was 65% burnt. At the time of admission, the smell of kerosene was coming from her body. XXX XXX XXX 26. Undoubtedly, the first dying declaration had been recorded by the Executive Magistrate, Smt. Madhu Nahar (D.W. 1), immediately after admission of the deceased Savita in the hospital and the doctor had certified that she was in a fit condition of health to make the declaration. XXX XXX XXX 26. Undoubtedly, the first dying declaration had been recorded by the Executive Magistrate, Smt. Madhu Nahar (D.W. 1), immediately after admission of the deceased Savita in the hospital and the doctor had certified that she was in a fit condition of health to make the declaration. However, as she had been brought to the hospital by her father-in-law and mother-in-law and the medical report does not support her first dying declaration, the trial court and the High Court have rightly discarded the same. XXX XXX XXX 30. Thus, in view of the above, we reach the following inescapable conclusions on the questions of fact: (c) The second dying declaration was recorded by a police officer on the instruction of the Superintendent of Police after getting a certificate of fitness from the doctor, which is corroborated by the medical evidence and is free from any suspicious circumstances. More so, it stands corroborated by the oral declaration made by the deceased to her parents, Phool Singh (P.W. 1), father and Sushila (P.W. 3), mother." 23. In the case of Nallam Veera Stayanandam and Others v. Public Prosecutor, High Court of A.P. [ (2004) 10 SCC 769 ], this Court, while declining to except the findings of the Trial Court, held that the Trial Court had erred because in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. 24. Similarly, in the case Sher Singh & Anr. v. State of Punjab [ (2008) 4 SCC 265 ], the Court held that absence of doctor's certification is not fatal if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind and the requirement of doctor's certificate is essentially a rule of caution. Similarly, in the case Sher Singh & Anr. v. State of Punjab [ (2008) 4 SCC 265 ], the Court held that absence of doctor's certification is not fatal if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind and the requirement of doctor's certificate is essentially a rule of caution. The Court, while dealing with the case involving two dying declarations observed that the first dying declaration could not be relied upon as it was not free and voluntary and second statement was more probable and natural and mere contradiction with the first will not be fatal to the case of the prosecution. 25. The Court held as under: "16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise. 17. In the present case, the first dying declaration was recorded on 18-7-1994 by ASI Hakim Singh (D.W. 1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court, Hakim Singh (D.W. 1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (P.W. 7) on 20-7-1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration and also in the written dying declaration recorded by SI Arvind Puri (P.W. 8) on 22-7-1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement." 26. Examining the evidence in the present case in light of the above-stated principles, we have no hesitation in holding that the first dying declaration was not voluntary and made by free will of the deceased. This we say so for variety of reasons: (1) When the deceased was brought to the hospital, she was accompanied by the accused and other relations. While her statement Exhibit D-2 was recorded by D.W. 1, Naib Tehsildar, the accused and his relations were present by the side of the deceased. (2) D.W. 1, though mentions in his statement that the deceased was fully conscious, chose not to obtain any fitness certificate from the doctor on duty. In spite of it being a rule of caution, in the peculiar facts of the present case where the deceased had suffered 97 per cent burn injuries, D.W. 1 should have obtained the fitness certificate from the doctor. (3) The statement of the deceased was totally tilted in favour of her husband and the version put forward was that she had caught fire from the stove while cooking. This appears to be factually incorrect inasmuch as if she had caught fire from the stove, the question of the mattress and other items catching fire, which were duly seized and recovered by the Investigating Officer, would not have arisen. (4) Furthermore, within a short while, after her first statement, she changed her view. Exhibit P-12, the second dying declaration, was recorded at 6.30 p.m. on the same day after due certification by the doctor that she was conscious and in a fit condition to make the statement. This statement was recorded by P.W. 9, the Tehsildar. In his statement, P.W. 9 has categorically stated that he was directed by the SDM to record the dying declaration. This statement was recorded by P.W. 9, the Tehsildar. In his statement, P.W. 9 has categorically stated that he was directed by the SDM to record the dying declaration. He had even prepared memo, Exhibit P-13, and sent the same to the Police Station. He specifically stated that the deceased was in a great pain and was groaning. She was not even fully conscious. According to him, he was not even informed of recording of the fact of the previous dying declaration. He had carried with him the memo issued by the SDM for recording the statement of the deceased. No such procedure was adhered to by D.W. 1. All these proceedings are conspicuous by their very absence in the exhibited documents and the statement of the said witnesses. (5) The third dying declaration which was recorded by P.W. 7, Sub-Inspector, was also recorded after due certification and in presence of the independent witnesses Bharat Kumar and Abdul Rehman. Furthermore, P.W. 6 gave the complete facts right from the place of occurrence to the recording of dying declaration of the deceased. He categorically denied the suggestion that the deceased had stated to him that she caught fire from the stove. Rather, he asserted that the deceased had specifically told him that the accused had put her on fire. (6) The second and third dying declarations of the deceased are quite in conformity with each other and are duly supported by P.W. 6, P.W. 7, P.W. 9 and the medical evidence produced on record. The accused, having suffered 97 per cent burns, could not have been fully conscious and painless, as stated by D.W. 1. According to D.W. 2, the doctor, the accused could suffer the injuries that he suffered when the deceased would have pushed him back when he was attempting to burn the deceased. (7) Besides all this, the accused had admitted the deceased to be his wife and they were living together and that she caught fire. It was expected of him to explain to the Court as to how she had caught the fire. Strangely, he did not state the story of his wife catching fire from the stove in his statement under Section 313 CrPC, though the trend of cross-examination of the prosecution witnesses on his behalf clearly indicates that stand. It was expected of him to explain to the Court as to how she had caught the fire. Strangely, he did not state the story of his wife catching fire from the stove in his statement under Section 313 CrPC, though the trend of cross-examination of the prosecution witnesses on his behalf clearly indicates that stand. (8) We have already discussed that the theory of the deceased catching fire from the stove is neither probable nor possible in the facts of the present case. The kind of burn injuries she suffered clearly shows that she was deliberately put on fire, rather than being injured as a result of accidental fire. (9) Besides the deceased had herself stated the reason behind her falsely making the first declaration. According to her, her husband was likely to lose his job if she implicated him. It is clear from the record that the relations of the accused were present at the time of making the first dying declaration and the deceased had stated wrongly on the tutoring of her husband. (10) The recoveries from the place of occurrence clearly show a struggle or fight between the deceased and the accused before she suffered the burn injuries. (11) In addition to the above, another significant aspect of the present case is that the deceased had also made a dying declaration, even prior to the three written dying declarations, to P.W. 1, the landlady and P.W. 6. She had categorically stated to these witnesses when death was staring her in the eyes that she was burnt by her husband by pouring kerosene oil on her. Both these witnesses successfully stood the subtle cross-examination conducted by the counsel appearing for the accused. We see no reason to disbelieve these witnesses who were well known to both, the deceased as well as the accused. 27. Thus, in our considered view, the second and third dying declarations are authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence. These dying declarations, read in conjunction with the statement of the prosecution witnesses, can safely be made the basis for conviction of the accused. 28. 27. Thus, in our considered view, the second and third dying declarations are authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence. These dying declarations, read in conjunction with the statement of the prosecution witnesses, can safely be made the basis for conviction of the accused. 28. The argument that the first dying declaration recorded by D.W. 1 had not been produced on record by the prosecution and, therefore, an adverse inference should be drawn against the prosecution in terms of Section 114 of the Evidence Act, is without any merit. This document has not only been produced but has even been critically examined by the Trial Court as well as the High Court. It is a settled principle of law of evidence that the question of presumption in terms of Section 114 of the Evidence Act only arises when an evidence is withheld from the Court and is not produced by any of the parties to the lis." 7. In view of above observations, the trial Court has not committed any error in convicting the accused persons by relying upon the statement of the deceased and they are rightly convicted by the trial Court. At this stage, we are also required to consider the fact that the incident in question occurred on 22.12.1999 and the victim died on 30.12.1999. From the complaint, it is clear that due to the burn injuries received by her, the deceased was admitted in the hospital. From the evidence of medical officer, it is clear that the deceased died due to septicemia caused on account of extensive burns. Therefore, it is clear that septicemia is the reason for death of the deceased and this is unnatural death. In view of this, we may consider as to whether the offence in question falls within Section 302, or 304, part-II. Taking into consideration the whole incident and the fact that the deceased died seven days after the incident, leaves a room to come to the conclusion that this is not a case of offence under Section 302 of IPC. In view of the decision of the Honourable Apex Court, it can be said that the learned trial Judge has committed an error while holding the accused guilty for offence under Section 302 of IPC. The main cause of death was reported to be septicemia because of burns. In view of the decision of the Honourable Apex Court, it can be said that the learned trial Judge has committed an error while holding the accused guilty for offence under Section 302 of IPC. The main cause of death was reported to be septicemia because of burns. In B.N. Kavatakar and another v. State of Karnataka [1994 Supp (1) SCC 304], the Honourable Apex Court observed as under:- "9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC. 10. In the result, we set aside the conviction under Section 302 read with Section 34 IPC and the sentence of imprisonment for life imposed therefore on each of the appellants. Instead we convict them under Section 326 read with Section 34 IPC and sentence each of the appellants to undergo rigorous imprisonment for a period of three years. With the above modification in the conviction and sentence, the appeal is dismissed." 8. Similarly, in Ganga Dass @ Godha v. State of Haryana [1994 Supp (1) SCC 534], the Hon'ble Supreme Court in para-36 observed as under:- "36. We find considerable force in this submission. As stated above the occurrence took place on November 18, 1988 and the deceased died 18 days later on December 5, 1988 due to septicemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years RI. The sentence of fine of Rs. 2000 along with default clause is confirmed. Accordingly the appeal is partly allowed." 9. Since the victim died due to septicemia, in view of above decisions of the Honourable Apex Court, it can be said that the learned trial Judge has committed an error in convicting the accused for offence under Section 302 of IPC. Looking to the nature of the injury, it can be said that the accused are guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. Therefore, this Criminal Appeal is required to be partly allowed by holding the accused guilty for offence under Section 304, Part II of IPC and not for offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to five years imprisonment. 10. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order dated 29.12.2005 passed by Additional Sessions Judge, Amreli, Camp-Rajula in Sessions Case No. 47 of 2000 is modified and, instead of offence under Section 302 of IPC, the accused are held guilty for the offence punishable under Section 304, Part-II of IPC and ordered to undergo rigorous imprisonment for a period of five years. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused persons be given set off to them. The accused persons shall surrender before the jail authorities within a period of twelve weeks from today to serve the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.