JUDGMENT : K.S. Jhaveri, J. 1. These appeals are filed by the present appellants-accused against the judgment and order dated 16.07.2014, passed by the learned 5th Additional Sessions Judge, Surat, in Sessions Case No. 190 of 2010, whereby, the appellants-accused were convicted for the offences punishable under Sections 302, 143, 147, 148, 149 & 188 of the Indian Penal Code (for short "the IPC") and were ordered to undergo the sentences as mentioned in the table shown below:- Offence under Sections Sentence Default 302 Life imprisonment and fine of Rs. 20,000/- Simple imprisonment for 09 days 143 Rigorous imprisonment for 05 months and fine of Rs. 3,000/- Simple imprisonment for 01 month 147 Rigorous imprisonment for 02 years and fine of Rs. 5,000/- Simple imprisonment for 03 months 148 Rigorous imprisonment for 02 years and fine of Rs. 5,000/- Simple imprisonment for 03 months 149 Rigorous imprisonment for 02 years and fine of Rs. 5,000/- Simple imprisonment for 03 months 188 Fine of Rs. 200/- Simple imprisonment for 05 days. 2. Criminal Appeal No. 1491 of 2014, has been preferred by original accused No. 4, in Sessions Case No. 190 of 2010, whereas, Criminal Appeal No. 1369 of 2015, has been preferred by original accused No. 1, in Sessions Case No. 190 of 2010. Therefore, we have heard these appeals qua original accused Nos. 1 and 4 only, in Sessions Case No. 190 of 2010. 3. The case of the prosecution is that prior to two days of Uttarayan the original accused No. 1 along with his friend, went to the complainant's Vadaapanv stall/lorry and asked for Vadaapanv for free, to which the complainant denied. This resulted into an altercation between the owner i.e. the complainant and the accused No. 1. Keeping the said animosity in mind, the accused formed an unlawful assembly with other accused persons, and armed themselves with different kinds of weapons and went to the place of offence on 24.02.2010, at about 07:30 hrs in the evening, with the common intention to kill the complainant as well as the witness Jalamsingh. The complainant as well as his father i.e. the witness of the present case on hand, were both present at the Vadaapanv lorry. The complainant as well as his father i.e. the witness of the present case on hand, were both present at the Vadaapanv lorry. During the given time, accused No. 1 Sandip alias Fakira, hit the complainant and the witness with the sword on head, while accused No. 2, Vijay alias Zamrukh, hit the complainant on right hand with the baseball bat and also caused injury to the witness on head. Accused No. 3, Ramchandra hit the complainant with cricket bat on right side of the rib-cage and also hit the witness on different parts of the body with the cricket bat. Accused No. 4, Mehul Budhiyabhai Rathod and Sunil gave fist blows and kick blows to the complainant and the witness. Not only this, but also the accused No. 4, i.e. Mehul Budhiyabhai Rathod, poured the boiled oil on the complainant as well as the witness on different parts of the body, which caused severe burn injuries. The complainant was badly burnt on the chest, back, both hands, legs and face, which ultimately resulted into his death. Therefore, the accused were charged for the offences punishable under Sections 302, 307, 323, 143, 147, 148, 149 and 188 of the IPC. 4. Upon filing of the complaint, investigation was carried out and the accused were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court. Thereafter, charges were framed against the accused persons. The accused persons pleaded 'not guilty' and claimed to be tried. 5. During the trial, the prosecution has examined the following witnesses:- S. No. Name of witnesses Exhibit 1. Complainant the deceased Vijay Jalamsingh Rajput 2. Budhabhai Govindbhai Vasava 65 3. Rajeshbhai Rameshchandra Parmar 84 4. Doctor Shyam Rameshchandra Patel 28 5. Doctor Bhaskar Chunilal Khimaniya 74 6. Doctor Bhaskar Chunilal Khimaniya 122 7. Doctor Vinit Thakorebhai Patel 126 8. Santosh Ramdas Sonar 54 9. Ramesh Fakira Sonavance 55 10. Dulichand Yadav Bharambe 56 11. Sachin Sahebrao Chaudhary 57 12. Anil Digambar Patil 61 13. Mahesh Shyamrao Vaagh 62 14. Raju Kashinath Poddar 63 15. Suresh Jalamsingh Rajput 71 16. Jalamsingh Shitalsingh Rajput 73 17. Ashok Avinashiram Bharati 106 18. Sahebrao Ramdas Chaudhary 31 19. Hiraman Murlidhar Patil 33 20. Kalpesh Dilipbhai Sandane 35 21. Gautam Anandsingh Rajput 37 22. Anil Bansilal Chaudhary 46 23. Sachin Sahebrao Chaudhary 57 12. Anil Digambar Patil 61 13. Mahesh Shyamrao Vaagh 62 14. Raju Kashinath Poddar 63 15. Suresh Jalamsingh Rajput 71 16. Jalamsingh Shitalsingh Rajput 73 17. Ashok Avinashiram Bharati 106 18. Sahebrao Ramdas Chaudhary 31 19. Hiraman Murlidhar Patil 33 20. Kalpesh Dilipbhai Sandane 35 21. Gautam Anandsingh Rajput 37 22. Anil Bansilal Chaudhary 46 23. Ganesh Bharatbhai Patil 53 24. Vitthal Narayan Rode 77 25. Nathubhai Gavjibhai Parghi 78 26. H.C. Sureshbhai Narji 89 27. Kantibhai Shankarbhai Motavar 91 28. Bholabhai Somabhai Moree 96 29. Lakhdhirsinh Babubhai Zala 109 30. Bharatbhai Maljibhai Desai 116 6. The prosecution has also produced and relied upon the following documentary evidences:- S. No. Particulars of the documents Exhibit 1. Complaint 92 2. Panchnama of the place of offence 32 3. Inquest panchnama 34 4. Panchnama of seizure of clothes of the deceased and the injured witness 36 5. Panchnama of arrest 47 6. P.M. Note 29 7. Cause of Death Certificate 30 8. Copy of slip signed by panchas of Muddamal article no. 5 48 9. Copy of slip signed by panchas of Muddamal article no. 6 49 10. Copy of slip signed by panchas of Muddamal article no. 7 50 11. Copy of slip signed by panchas of Muddamal article no. 8 51 12. Copy of slip signed by panchas of Muddamal article no. 8 52 13. Receipt of yadi to take DD 66 14. Dying declaration of the victim Vijay Jalamsingh Rajput 68 15. Statement of the victim Jalamsingh Shitalsingh Rajput 69 16. Certificate of treatment of Jalamsingh by Smimer Hospital 75 17. Original Case papers 76 18. Copy of station diary 79 19. Suchipatra as well as report of the PSO to conduct further investigation 80 20. FIR 81 21. Yadi to prepare map of the place of offence 85 22. Map of the place of offence 86 23. Receipt of handing over of the deceased body 90 24. Report to conduct P.M. of the deceased 97 25. Report - I to conduct analysis of the muddamal and dispatch note 98 26. Muddamal Received Receipt - 1 99 27. Muddamal Received Receipt - 2 100 28. Report to issue certificate after conducting analysis of the muddamal and dispatch note 101 29. Report to prepare map of the place of offence 102 30. Notification issued by Police Commissioner regarding Prohibition of Arms 103 31. Muddamal Received Receipt - 1 99 27. Muddamal Received Receipt - 2 100 28. Report to issue certificate after conducting analysis of the muddamal and dispatch note 101 29. Report to prepare map of the place of offence 102 30. Notification issued by Police Commissioner regarding Prohibition of Arms 103 31. Place Opinion Report to the Officer of FSL 110 32. FSL Report - 1 as well as FSL Report - IA 111 33. Serology Report 112 34. FSL Report - 2 113 35. Serology Report - 2 114 36. Yadi (To get final cause of death certificate, yadi written to medical officer) 115 37. All the papers related to the treatment given to Vijay 123 7. At the end of the trial, the Court below recorded further statements of the accused persons under Section 313 of the Cr.P.C and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment and order of the trial Court, the appellants has approached this Court, by way of the present appeals. 8. Learned counsel for the appellant contended that majority of the witnesses have turned hostile. He further contended that it has come on record that the incident took place on 24.02.2010, and the deceased died on 14.03.2010 i.e. eighteen days after the incident and the cause of death as stated by the doctor PW-1, Dr. Shyam Patel is septicemic shock due to burns on body. He, therefore, submitted that the learned trial Judge has committed an error in convicting the accused for offence under Section302 of IPC and, rather contended that at the most, the accused could be held guilty for the offence punishable under Section 304, Part-II of the 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. 9. On the other hand, Ms. Chetna M Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused is just and proper and she has supported the conviction recorded by impugned judgment. In view of these, he prayed that these appeals may be allowed. 9. On the other hand, Ms. Chetna M Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused is just and proper and she 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. She also submitted that the learned trial Judge has not committed any error while imposing the sentences on the accused and, therefore, no interference is called for in the present appeals. 10. We have heard learned advocate for the appellants-original accused and Ms. Chetna M Shah, 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 24.02.2010 and the victim died on 14.03.2010. 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 eighteen 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 the learned counsel, it can be said that the learned trial Judge has committed an error while holding the accused guilty for offence under Section302 of IPC. The main cause of death was reported to be septicemic shock due to burns on body. 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. 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. 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. 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." 11. In view of the 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 the IPC. Looking to the nature of the injury, it can be said that the accused are guilty 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, 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. 12. For the foregoing reasons, both these appeals are partly allowed. 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. 12. For the foregoing reasons, both these appeals are partly allowed. The impugned judgment and order dated 16.07.2014, passed by learned 5th Additional Sessions Judge, Surat, in Sessions Case No. 190 of 2010 is 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 judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to them. The appellant of Criminal Appeal No. 1491 of 2014, Mehul Budhiyabhai Rathod, original accused No. 4, in Sessions Case No. 190 of 2010, has already completed five years of imprisonment. Hence, if he is not required in any other criminal case, he shall be released forthwith. Since it is reported that Sandip @ Fakira Vasant Patil, original accused No. 1, in Sessions Case No. 190 of 2010, is on bail and he has already completed five years, he is not required to surrender or arrested, if he is not required in any other case. His bail bonds stands cancelled. Record and Proceedings, if any, lying here be sent back to the concerned trial Court forthwith.