JUDGMENT : C. Praveen Kumar, J. 1. Heard Sri V. Raghu, learned counsel for the appellant and the learned Public Prosecutor appearing for the respondent-State through Video Conference operating in Blue-jeans App. 2. The sole accused in S.C. No. 235 of 2012 on the file of the Court of the learned II Additional Sessions Judge, Chittoor, is the appellant herein. He was tried for the offence punishable under Section 302 IPC for causing the death of his wife namely P.Shanti on 25.11.2010 at 08:00 p.m. at RTC Bus Stand, Palamaneru by pouring kerosene on her and setting her ablaze. By its judgment dated 13.03.2013, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for six months. The period undergone by the accused was directed to be given set off. 3. The facts, as culled out from the evidence of the prosecution witnesses, are as follows: 4. The accused is the husband of the deceased who was running a Tea Stall at RTC Bus stand, Palamaneru. PW5 is the ex-husband of the deceased. She is said to have deserted him about seven years back, but out of wedlock they were blessed with one daughter. It is further stated that the accused is the son of the maternal uncle of the deceased. After deserting PW5, the deceased married the accused and was living with him. On the fateful day at about 08:15 p.m., while PW1 was in his shop, he heard cries from the shop of the deceased. He went there and found the deceased in burns and the accused was standing at the back door of the Tea Stall. PW1 and others poured water on the deceased and subsided the flames. When enquired, the injured is said to have told them that the accused poured kerosene and set her on fire. When PW1 tried to catch hold of the accused, he escaped. Somebody called for Ambulance and shifted the injured to the Government Hospital, Palamaneru. On the same day, at about 09:30 P.M., PW10 -Sub-Inspector of Police received intimation from Government Hospital, Palamaneru regarding admission of the injured with burn injuries. Immediately, he rushed to the Government Hospital, recorded the statement of the injured in the presence of duty doctor and obtained her signature. On the same day, at about 09:30 P.M., PW10 -Sub-Inspector of Police received intimation from Government Hospital, Palamaneru regarding admission of the injured with burn injuries. Immediately, he rushed to the Government Hospital, recorded the statement of the injured in the presence of duty doctor and obtained her signature. In her statement, the injured stated that she herself poured kerosene on her to threaten the accused as he was not coming to the house since four or five days, and later in the ensuing quarrel, the accused set fire to her. Basing on that statement, a case in Crime No. 261 of 2010 came to be registered under Section 307 IPC. Ex.P4 is the F.I.R. It is also brought on record that the intimation about the admission of the injured in the Government Hospital was also sent to PW11, who was working as Junior Civil Judge, Palamaneru during that period. On receiving the intimation, he proceeded to the hospital at 09:57 p.m. and identified the injured with the help of duty doctor. At that time, the injured was in a conscious state of mind to make a statement. After putting some preliminary questions, he recorded the statement of the injured. Ex.P9 is the dying declaration of the injured, marked through PW11. Twenty days later, the injured died while undergoing treatment at S.V.R.R.G.G. Hospital, Tirupati. On receiving death intimation, PW12 – Circle Inspector of Police, Palamaneru proceeded to the hospital along with PWs.5, 6 and others and gave requisition to R.M.O. of S.V.R.R.G.G. Hospital for handing over the dead body of the deceased for holding inquest. It is stated that inquest was conducted on the dead body in the presence of PW8 and others. Ex.P2 is the inquest report. Thereafter, the dead body was sent for post-mortem examination to the Forensic Medicine, S.V.Medical College, Tirupati. PW9, professor in S.V.Medical College, Tirupati, conducted autopsy over the dead body on 12.12.2010 at 11:30 a.m. and issued Ex.P3 – Post-mortem certificate. According to him, the death of the deceased was due to septicemia as a result of the burns. PW12 – Inspector of Police, continued with the investigation and got prepared rough sketch of the scene by PW10. Ex.P5 is the rough sketch of the scene of offence. He secured the presence of PWs.1 to 4 and examined them. According to him, the death of the deceased was due to septicemia as a result of the burns. PW12 – Inspector of Police, continued with the investigation and got prepared rough sketch of the scene by PW10. Ex.P5 is the rough sketch of the scene of offence. He secured the presence of PWs.1 to 4 and examined them. According to him, since PW10 already recorded their statements, he did not record their statements again. After investigation, a charge sheet came to be filed which was taken on file as P.R.C.No. 4 of 2011 on the file of the Court of the Judicial First Class Magistrate, Palamaneru. 5. On appearance of the accused documents as required under Section 207 Cr.P.C., were furnished to the accused and since the case is exclusively triable by the Court of Sessions, the same was committed to the Court of Additional Sessions Judge, Chittoor under Section 209 Cr.P.C. 6. On appearance of the accused, charge under Section 302 IPC came to be framed against him, read over and explained to him in Telugu, to which, he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined PWs. 1 to 12 and got marked Exs.P1 to P9 and M.Os.1 and 2. 8. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which, he denied, however he did not adduce any evidence in support of his case. 9. Believing the evidence of PWs.1 to 4 coupled with the dying declarations recorded by PWs.10 and 11, the learned Sessions Judge convicted and sentenced the accused as mentioned above. Challenging the same, the present appeal came to be filed. 10. Sri V. Raghu, learned counsel for the appellant would contend that no reliance can be placed on dying declaration recorded by the Magistrate since the same is inconsistent with the earlier statement recorded by the police which forms the basis for issuing F.I.R. He took us through the two dying declarations to show as to how they are inconsistent with each other. He would further contend that at the time of inquest, the version given by the deceased is not in tune with what has been stated by her before the learned Magistrate who recorded the dying declaration. He would further contend that at the time of inquest, the version given by the deceased is not in tune with what has been stated by her before the learned Magistrate who recorded the dying declaration. The persons, who were first shown as eye-witnesses at the time of inquest, were not examined before the Court and new set of witnesses were brought on record to prove the alleged dying declaration. In any event, he would contend that taking into consideration, the first dying declaration made before the Sub-Inspector of police coupled with the inquest report and because of the fact that the death caused was due to septicemia, the case falls under Section 304 Part-II IPC and not 302 IPC. 11. The same is opposed by the learned Public Prosecutor contending that there are no reasons to disbelieve the dying declaration recorded by the Magistrate and the contents of the said dying declaration gets corroboration from the evidence of PWs.1 to 4, as such, he pleads that the conviction and sentence imposed by the trial Court warrants no interference. 12. The point that arises for consideration is whether the prosecution was able to bring home the guilt of the accused for the offence punishable under Section 302 IPC beyond all reasonable doubt? 13. It is to be noted that there are no eye-witnesses to the incident except two dying declarations recorded by the Sub-Inspector of Police and the Magistrate on the fateful day at 09:30 p.m. and 09:45 p.m. respectively. Hence, we would like to deal with the two dying declarations which are placed on record. Ex.P9 is the dying declaration marked through PW11. 14. PW10 is the Sub-Inspector of Police who first received intimation from the Government Hospital, Palamaneru about the admission of the injured in the hospital. Immediately, he went to the hospital, recorded the statement of the injured in the presence of duty doctor, obtained her signature and also the signature of the duty doctor. In the statement, the injured stated that on the night of 25.11.2010 at about 10:00 p.m., the accused came to the Tea Stall in a drunken condition. When she questioned him as to why he is not coming to the house since four or five days, he is said to have beat her. Getting angry, she told him that she wanted to die and poured kerosene on herself. When she questioned him as to why he is not coming to the house since four or five days, he is said to have beat her. Getting angry, she told him that she wanted to die and poured kerosene on herself. Then, the accused who was in a drunken condition is said to have lit match stick and threw it on her asking her to die. She raised cries and on which the accused is said to have escaped. PW10 recorded the statement which formed basis for issuing F.I.R. Therefore, the earlier version stated by the deceased was that quarrel took place between she and her husband and when she questioned him about he not coming home for four of five days, and thereby getting angry over the incident, she poured kerosene on herself, and thereafter, the accused lit a match-stick and threw it on her, asking her to die. This version of the deceased as spoken to by PW10 was also incorporated in Ex.P4 – F.I.R. About twenty minutes later, PW11 – the learned Magistrate is said to have recorded the dying declaration of the deceased which is placed on record as Ex.P9. In that statement, the deceased stated that one Raghu Kumar is her second husband. One week back he went somewhere leaving her at home and she was living by running a Tea Stall at RTC Bus Stand, Palamaneru. On the fateful day at 08:00 p.m., her husband came to the Tea Stall in drunken state, due to which, a quarrel took place between them wherein the accused is said to have poured kerosene and set fire to her. After she came out from the room, the persons, who were present in the shed, poured water on her body, and thereafter, she was shifted to Government Hospital. According to her, her husband lit match-stick and set fire to her. Thereafter, she came to know that the accused went to police station. According to her, the quarrel took place between them for the reason that her husband has no parents and when she questioned him as to why he was spoiling his life, he poured kerosene on her and set her ablaze. 15. A reading of the two dying declarations would show that there is some discrepancy with regard to the manner in which the incident took place. 15. A reading of the two dying declarations would show that there is some discrepancy with regard to the manner in which the incident took place. The earlier version before the Sub-Inspector of Police was that the deceased herself poured kerosene on her, and thereafter, the accused set fire to her by litting the match-stick while the second version made before the Magistrate was that the accused pour kerosene and set her ablaze. 16. At this stage, the learned Public Prosecutor would contend that the person who was responsible for causing the death of the deceased is the accused, as such, the conviction and sentence imposed by the trial Court warrant no interference. But it is to be noted that the deceased did not die immediately after the incident, but she survived for only twenty days. She was shifted from Government Hospital, Palamaneru to S.V.R.R.G.G. Hospital, Tirupati where she succumbed to injuries. 17. Two things are required to be considered here. Firstly, after her death, the doctor, who conducted post-mortem examination, stated that the death of the deceased was due to septicemia. Though the doctor was not cross-examined, but since the death was due to septicemia, we feel that if proper treatment was given to the deceased, definitely possibility of survival would have been more. 18. Apart from that it is to be noted that during inquest about five persons were examined as relatives/eye-witnesses. The version of these five persons which is reflected in paragraph No.15 of the inquest report, is to the effect that on 25.11.2010 in the night hours one Prabhu came to the deceased in the state of intoxication and when she questioned him as to why he got addicted to drinking, the accused is said to have beat the deceased and both of them quarreled each other. The deceased is said to have threatened him stating that if the accused does not stop consuming alcohol she will commit suicide, and so saying, poured kerosene on her body. At that point of time, he is said to have lit match-stick set her on fire and went away. Therefore, this version of deceased pouring kerosene and then the accused setting fire to her which was spoken to at the earliest point of time, is again spoken to by the blood relatives and witnesses twenty days thereafter i.e. at the time when they were examined during the inquest. Therefore, this version of deceased pouring kerosene and then the accused setting fire to her which was spoken to at the earliest point of time, is again spoken to by the blood relatives and witnesses twenty days thereafter i.e. at the time when they were examined during the inquest. Therefore, a doubt arises with regard to the statement of the deceased made before the Magistrate. It is not the case where we are doubting the manner in which the statement was recorded by the Magistrate but we feel that the deceased failed to come out with the true statement of facts, as 20 minutes prior to her statement being recorded by the Magistrate, she gave one version stating that she herself poured kerosene and the accused set her on fire asking her to die, which is the version recorded from the witnesses who were examined at the time of inquest also. By this, it does not mean that the accused has to be totally exonerated from punishment. As contended by the learned counsel for the appellant, if really the accused had intention to cause death, he would have poured kerosene and set her on fire. But he did not do so. On the other hand, the evidence on record shows that he came to the Tea Stall in a drunken condition where a quarrel took place between them, and in order to threaten the accused, the deceased is said to have poured kerosene on herself and then the accused is said to have set her on fire. Even the learned Public Prosecutor would submit that the accused may not be having intention to cause death but he is having knowledge that his act would cause death of the deceased. 19. But at the same time, he took us to the evidence of PWs.1 to 4 to show that the deceased made oral dying declarations with regard to the manner in which the incident took place. The evidence of PW1 is to the effect that after seeing the flames they ran towards the Tea Stall, subsided the flames and when they enquired with the deceased as to the incident, she is said to have stated that the accused poured kerosene and set her ablaze. In his cross-examination, it has been elicited that on the next day, he went to Government hospital, Palamaneru where he was examined by the police. In his cross-examination, it has been elicited that on the next day, he went to Government hospital, Palamaneru where he was examined by the police. The said version was spoken to by PWs.3 and 4 as well. If really these three persons were present and the deceased made a statement to them and if really they were examined immediately on the next day in the hospital, the prosecution would not have failed to examine them during inquest. Even otherwise, this version mentioned in the oral dying declaration is found to be inconsistent with the statement made by her before PW10 which forms basis for FIR and also the statement made by another set of witnesses during inquest, who are none other than the blood relatives of the deceased. Therefore, the version of PWs.1, 3 and 4 with regard to deceased mentioning the manner in which the incident took place has to be viewed with suspicion, more so, when PW2 does not speak about the deceased making an oral dying declaration before them when they went to the house after seeing the flames. In fact, in the cross-examination of PW3, it has been elicited that by the time they reached the Tea Stall of the deceased, nearly 60 to 70 persons gathered there. Therefore, the possibility of they questioning the deceased individually as to how the incident occurred, has to be viewed with some doubt. Further, it has been elicited in the cross-examination of PW4 that at the time they reached the Tea Stall of the deceased, the shutter located on the front portion of the Tea Stall was already closed. Therefore, the version that she came out from the front side and then people enquired with her as to the cause of the death has to be viewed with suspicion. 20. At this juncture, the learned counsel for the appellant relied upon the judgments of the Apex Court reported in Gurmukh Singh vs. State of Haryana, 2009(15) SCC 635 and Gudu Ram v. State of Himachal Pradesh, 2013(11) SCC 546 to contend that when there is no intention on the part of the accused to cause death, he cannot be convicted for the offence punishable under Section 302 IPC, but the case falls under Section 304 Part-II IPC. There cannot be any dispute over the preposition laid down. 21. There cannot be any dispute over the preposition laid down. 21. In view of the above findings, we feel that though there is some inconsistency in the two dying declarations with regard to the manner in which she was set on flames, but the earliest version given by her is that the accused is said to have lit match-stick and set her on fire after she doused herself. If the version stated therein and the version stated during inquest coupled with the fact that the deceased died due to septicemia twenty days later i.e. while taking treatment in S.V.R.R.G.G. Hospital, Tirupati is accepted, we feel that it is a fit case where the nature of offence requires alteration. 22. In Ranjan C. George v. State of Kerala (Crl.A.No. 497 of 2013, dated 09.10.2018), the Hon’ble High Court of Kerala, after referring to the decision of the Supreme Court in Virsa Singh v. State of Punjab [ AIR 1958 SC 465 ] held as under: “Therefore, when sufficient materials are available to the case to arrive at a conclusion that the death of the victim was due to septicemia which has developed on account of the burn injuries, it is idle for the accused to contend that the case Crl.Appeal No. 497 of 2013 will not fall under Section 302 IPC.” 23. In Maniben v. State of Gujarat, AIR 2010 SC 1261 , the Apex Court was dealing with a case where, on 29.11.1984, while the deceased was returning home with a pot of water on her head and her daughter on her waist, the appellant set her on fire with a burning wick made of rags. Consequent to which, the deceased suffered burn injuries and succumbed to those injuries on 07.12.1984 while taking treatment in the hospital. The deceased was admitted with 60% burn injuries and during the course of treatment developed septicemia leading to death on 07.12.1984. 24. Having regard to the above and taking into consideration a quarrel ensued earlier with the appellant, altered the conviction from 302 IPC to 304-II IPC. 25. In Sanjay and Others v. State of Uttar Pradesh, 2016(3) SCC 62 the Apex Court dealt with a case where the deceased died 62 days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The cause of death was septicemia. 25. In Sanjay and Others v. State of Uttar Pradesh, 2016(3) SCC 62 the Apex Court dealt with a case where the deceased died 62 days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The cause of death was septicemia. In the said case, the deceased was operated upon and later discharged from the hospital in good condition. Under the said circumstances, the conviction was altered. 26. In Ganga Dass alias Godha v. State of Haryana, 1994 Supp(1) SCC 534 the accused gave a single blow on the head with an iron pipe. The deceased died 18 days later due to septicemia and other complications. The conviction was altered from 302 IPC to 304-II IPC. 27. In the light of the judgments referred to above; having regard to the opinion given by the Doctor in Ex.P3 – postmortem report that the death of the deceased was due to septicemia due to burns; and as death took place 20 days after the incident and the findings as to the manner in which the incident took place, we hold that the offence punishable under Section 302 IPC under which the accused is convicted by the trial Court by judgment dated 13.03.2013 in S.C.No. 235 of 2012 on the file of the Court of the learned II Additional Sessions Judge, Chittoor, is not made out and it shall be altered to Section 304 Part-II IPC and the sentence of life imprisonment imposed on the appellant is hereby modified to rigorous imprisonment for a period of seven years. 28. With the above modification, the Criminal Appeal is partly allowed. 29. As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.