JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 26.04.2011 passed by learned Additional Sessions Judge, Court No. 5, Bhuj-Kutch in Sessions Case No. 22 of 2009 and another judgment and order dated 03.01.2013 passed by learned 6th Additional Sessions Judge, Bhuj-Kutch, in Sessions Case No. 18 of 2012, whereby the accused were held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine and, in default of payment of fine, accused were ordered to undergo simple imprisonment for two months. The accused were also convicted for the offence punishable under Section 506(2) of IPC, however, no separate sentence was imposed for this offence. Feeling aggrieved by the impugned judgments, the accused have preferred present appeals before this Court. Though these appeals are arising out of two different judgments of the trial Court, they are taking up for hearing together as the incident in question is same. 2. The facts in brief giving rise to the filing of present appeals are as under:- 2.1 It is the case of the prosecution that both the accused and one Ramesh Nagji with an intention to commit the offence went to the house of the deceased on 28.2.2009. At that time, the deceased, Jeram Vaghari and his wife Fotariben were sleeping. It is alleged that the accused were angry as the deceased used to keep a bad eye over the ladies of their family and, therefore, the accused had threatened to kill him. On the fateful day, the accused poured kerosene over the deceased and set him on fire. Upon hearing the shouts of the deceased, his wife, daughter and son-in-law came there and took him to the hospital in an ambulance. In the hospital, complaint was given against the accused persons and the deceased died during treatment. 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. The accused pleaded not guilty and claimed to be tried. 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. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses in Sessions Case No. 22 of 2009:- Sr. no. Name Exh. 1 Fotariben Bachubhai Parmar. 15 2 Lilaben Vitthalbhai Vaghela. 19 3 Vitthalbhai Chhaganbhai Vaghela. 20 4 Fakirmamad Jusab Mali. 21 5 Dr. Chetan N. Sarvakar. 24 6 Khimjibhai Hemabhai Devipujak. 29 7 Abdul Osman Rayma. 30 8 Anvar Fakirmamad Luhar. 31 9 Latif Saya Kevar. 32 10 Kirtgar Shambhugar Gusai. 34 11 Anvarbhai Fakirmamad Lohar 36 12 Husen Abdreman. 38 13 Navinpuri Shankarpuri. 39 14 Vinod Narottambhai Pandya. 41 15 Dhirubhai Azadbhai Koli. 42 16 Mushtakbhai Jusabbhai Myatra. 44 17 Jitendra Harilal Rajgor. 49 18 Bansraj Ramajor Dubey. 51 19 Umarkhan Allaji Malek. 53 20 Ajaysinh Pravinsinh Jadeja. 56 21 Vishnudan Jasubhai Gadhvi, IO. 58 2.4 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Extract of Janvajog entry 17 2 Extract of station diary. 18 3 Letter written by PSO to Executive Magistrate for recording dying declaration. 22 4 Dying declaration of the deceased. 23 5 Letter written by PSO to Medical Officer for taking sample and to carrying out postmortem. 25 6 Postmortem report. 26 7 Certificate of death of the deceased. 27 8 Letter written by Medical Officer to PI, Bhuj, about the samples taken by him during medical treatment. 28 9 Panchnama. 33 10 Inquest panchnama. 37 11 Panchnama of seizure of samples. 40 12 Panchnama of the place of offence. 43 13 Arrest panchnama 50 14 Original complaint 54 15 Report of mobile FSL van 55 16 Police report sent to Civil Surgeon along with the dead body. 57 17 Letter written by PI for sending muddamal for analysis to the FSL. 59 18 Receipt regarding muddamal being received by FSL. 60 19 Receipt regarding muddamal being received by FSL. 61 20 Report of analysis by FSL, Junagadh. 62 21 Report of analysis by FSL, Junagadh. 63 22 Letter of FSL, Junagadh. 64 23 Report of analysis by FSL, Jungadh. 65 24 Letter of FSL, Junagadh to PSI, Bhuj. 59 18 Receipt regarding muddamal being received by FSL. 60 19 Receipt regarding muddamal being received by FSL. 61 20 Report of analysis by FSL, Junagadh. 62 21 Report of analysis by FSL, Junagadh. 63 22 Letter of FSL, Junagadh. 64 23 Report of analysis by FSL, Jungadh. 65 24 Letter of FSL, Junagadh to PSI, Bhuj. 66 25 Serology report of FSL. 67 2.5 During the trial of Sessions Case No. 18 of 2012, the prosecution had examined following witnesses:- Sr. No. Name Exh. 1 Fortariben Bachubhai Parmar. 9 2 Abdul Osman Rayma. 10 3 Khimjibhai Hemabhai Devipujak. 11 4 Lilaben Vitthalbhai Vaghela. 12 5 Vitthalbhai Chhaganbhai Vaghela. 13 6 Anvar Fakirmamad Luhar. 14 7 Husen Abdreman Luhar. 16 8 Mushtakbhai Jusabbhai Myatra. 17 9 Kiritgar Shambhugar Gusai. 19 10 Vinod Narottambhai Pandya. 21 11 Snehans Kishorbhai Bhatt 23 12 Fakirmamad Jusab Mali. 27 13 Dr. Chetan N. Sarvakar. 30 14 Bansray Ramajor Dubey. 36 15 Bhikhubhai Mangabhai. 38 16 Mohd. Ali Suleman Chand. 40 17 Vishnudan Jasubhai Gadhvi, IO. 43 18 Jesang Jethabhai Dhranga, IO. 46 19 Umarkhan K. Malk, IO of Station Diary entry No. 24/09. 47 2.6 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Inquest panchnama. 15 2 Panchnama of the place of offence. 18 3 Panchnama of seizure of articles from the place of offence by Scientific officer. 20 4 Panchnama of seizure of samples. 22 5 Arrest panchnama of the accused. 24 6 Copy of the letter written to Executive Magistrate for recording dying declaration. 28 7 Copy of dying declaration. 29 8 Yadi written by IO to Medical Officer for taking blood sample. 31 9 Report for sending dead body for postmortem. 32 10 Copy of PM Notes. 33 11 Copy of death certificate. 34 12 Yadi by Medical Officer to IO for sending samples. 35 13 Copy of janvajog entry. 37 14 Analysis report of FSL. 39 15 Analysis report of FSL. 41 16 Serological report. 42 17 Yadi sent by IO to FSL for sending analysis report 44 18 Receipt of the samples received by FSL. 45 19 Copy of FIR. 48 20 Copy of station diary entry. 49 21 Report of mobile FSL van. 37 14 Analysis report of FSL. 39 15 Analysis report of FSL. 41 16 Serological report. 42 17 Yadi sent by IO to FSL for sending analysis report 44 18 Receipt of the samples received by FSL. 45 19 Copy of FIR. 48 20 Copy of station diary entry. 49 21 Report of mobile FSL van. 50 2.7 At the end of trial, the Court below recorded further statements of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgments and orders awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgments of the trial Court, present appeals are preferred before this Court. 3. Mr. Kirtidev Dave, 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. He also submitted that from the FIR and dying declaration, it is clear that since one of the accused had got married with the daughter of the complainant, they had a grudge against the accused persons and, therefore, they are wrongly implicated in the present offence. He submitted that both the accused are father and son and trial against the son was conducted prior in point of time and the evidence recorded therein is relied on by the trial Court to convict another accused also and he has not been given an opportunity to defend himself. He further contended that there was no motive on the part of the accused persons to commit murder. He further submitted that it has come on record that accused Vibho @ Vipul had strained relations with his father Nagjibhai, therefore, presence of both the accused at the same place to commit the offence is neither plausible nor probable. He further submitted that only interested witnesses have been examined by the prosecution, therefore, their evidence could not have been relied to convict the accused persons. He further contended that it has come on record that the incident took place on 28.02.2009 and the deceased died on 3.3.2009 i.e. four days after the incident and the cause of death as stated by the doctor is septicemic shock due to extensive burns. He further contended that it has come on record that the incident took place on 28.02.2009 and the deceased died on 3.3.2009 i.e. four days after the incident and the cause of death as stated by the doctor is septicemic shock due to extensive burns. He, therefore, submitted that the learned trial Judge has committed an error in convicting the accused for offence under Section 302 of IPC and, at the most, the accused could be held guilty for offence punishable under Section 304, Part-II of IPC. In support of his submission, he has relied upon the decision of the Honourable Apex Court in Maniben v. State of Gujarat [ AIR 2010 SC 1261 ]. In view of these, he prayed that these appeals may be allowed. 4. On the other hand, Mr. Pranav Trivedi, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused 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 also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeals. 5. We have heard Mr. Kirtidev Dave, learned advocate for the appellants-original accused and Mr. Pranav Trivedi, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. The incident in question occurred on 28.2.2009 and the victim died on 3.3.2009. From the complaint, it is clear that due to the injuries received by the victim, he was admitted in the hospital. From the evidence of medical officer, it is clear that the deceased died due to septicemia. Therefore, it is clear that these burn injuries are the reason for death of the deceased and this is an unnatural death. Now coming to the point whether it falls within 302, or 304, part-II, taking into consideration the whole incident and the fact that the deceased died four 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. Now coming to the point whether it falls within 302, or 304, part-II, taking into consideration the whole incident and the fact that the deceased died four 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 relied upon by Mr. Dave, 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 septicemic shock due to extensive burns. In Maniben v. State of Gujarat [ AIR 2010 SC 1261 ], the Honourable Apex Court observed as under:- "13. The post-mortem report of the deceased was placed on record during the trial and Dr. Tarlikaben, who conducted the post-mortem examination was also examined as a witness in the trial. The said documentary and oral evidence of the doctor, as adduced, that he also treated the patient and conducted the post-mortem examination made it crystal clear that the deceased remained under treatment in hospital for 8 days and died after 8 days of the incident in question. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. 14. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC. 15. We find that the view taken by the trial court was a cogent and plausible view and, therefore, we hold that the conviction and sentence imposed by the trial court is justified. Considering the totality of the circumstances and the fact that the appellant is of 85 years of age and had undergone the sentence imposed by the trial court under the provisions of Section 304, Part II of IPC, we set aside the conviction and sentence of the appellant imposed by the High Court of Gujarat and restore the judgment and order passed by the trial court. Since the appellant has already undergone the sentence imposed by the trial court she shall not be re-arrested unless required in connection with any other case. Bail bonds shall stand discharged. This shall not be the precedent for other cases." 6. In view of above discussion, it is clear that the victim died due to septicemia and in view of above decision 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. 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, these Criminal Appeals are required to be allowed by holding the accused persons 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. 7. For the foregoing reasons, both these appeals are partly allowed. The impugned judgment and order dated 26.04.2011 passed by learned Additional Sessions Judge, Court No. 5, Bhuj-Kutch in Sessions Case No. 22 of 2009 and another judgment and order dated 03.01.2013 passed by learned 6th Additional Sessions Judge, Bhuj-Kutch, in Sessions Case No. 18 of 2012 are modified and, instead of offence punishable under Section 302 of IPC, the accused are convicted 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 judgments shall remain unaltered. The period of sentence already undergone by the accused be given set off to them. If Nagji Madhu Vaghela, accused in Sessions Case No. 18 of 2012 has already undergone five years' imprisonment and if he is not required in any other criminal case, he shall be released forthwith. Since it is reported that Vibho @ Vipul Nagji Madha Vaghela, accused in Sessions Case No. 22 of 2009 is absconding, he may be arrested to serve the remaining period of sentence imposed by this Court, if he has not already undergone the same. Bail bond, if any, of the accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.