JUDGMENT : AMIT B. BORKAR, J. 1. Heard. 2. Through this appeal, the appellant is challenging the judgment and order dated 19.01.2019 passed by the District Judge-1 and Additional Sessions Judge, Wardha in Sessions Case No. 116/2016, whereby she has been convicted and sentenced to undergo imprisonment for life and pay fine of 5000/- for the offence Rs.500/- for the offence punishable under Sections 302 and 449 of the Indian Penal Code (IPC). 3. Shortly stated, the prosecution’s case runs as under:- Saku Kishan Kurale -deceased/victim, was a labourer. The appellant used to reside near her house. The deceased was a part of Bhisi taken by her from the appellant and owed her an amount of 40,000/-. On the date of the incident, i.e. on 10.08.2016 at about Rs.5000/- for the offence 04.00 p.m., the appellant came to her house to recover the said amount; however, the deceased told her that she would pay her amount back by paying 500/- per week. The appellant refused to Rs.5000/- for the offence accept the said offer and started to take away the gas cylinder kept in the deceased's house. When the deceased obstructed, the appellant went to her house; brought a kerosene can; poured kerosene on the deceased; lighted a match-stick and set the deceased ablaze. At that time, the husband of the deceased was standing in the courtyard; he tried to make the appellant understand. However, the appellant poured kerosene on the deceased and set her ablaze with the intention of killing her. 4. Sunita Jadhav (PW9) and Shobha Satpute (PW10) were present when the incident took place. The deceased was taken to General Hospital, Wardha. Accordingly, Crime No. 1669/2016 came to be registered under Section 307 of the IPC. Saku succumbed to her injuries, and an offence under Section 302 of the IPC was added. 5. The investigation was conducted in the usual course, and thereafter the appellant was charge-sheeted for the offence under Section 302 of the IPC. Then, in the usual course, the case was committed to the Court of Sessions. In the Trial Court, the prosecution examined as many as 16 witnesses. It also tendered and proved various material exhibits, including one dying declaration recorded by Prabhakar Tarale (PW4). Then, in the usual course, the case was committed to the Court of Sessions. In the Trial Court, the prosecution examined as many as 16 witnesses. It also tendered and proved various material exhibits, including one dying declaration recorded by Prabhakar Tarale (PW4). The learned Trial Court believed the evidence of two eye-witnesses, i.e. Sunita Jadhav (PW9), Shobha Satpute (PW10) and dying-declaration Exh.50 and convicted the appellant in the manner set out in paragraph no. 2, hence this appeal. 6. We have heard Shri R. M. Daga, learned Advocate of the appellant and Shri T. A. Mirza, learned APP for respondent/State, at considerable length. We have also perused the depositions of the witnesses, the material exhibits, the statement of the appellant and the impugned judgment. After giving our anxious consideration to the matter, we are firmly of the opinion that the prosecution has established its case beyond any shadow of a doubt. However, this appeal deserves to be partly allowed as the prosecution has failed to prove essential ingredients of Section 302 of the IPC and has proved its case under Part-II of Section 304 of the IPC. 7. After going through the testimony of eye-witnesses, Sunita Jadhav (PW9), Shobha Satpute (PW10) and Prabhakar Tarale (PW4), who recorded dying declaration, we are of the opinion that evidence of eye-witnesses and dying-declaration inspires confidence. 8. The evidence adduced by the prosecution in the instant case can be classified under the following two heads:- a) Ocular testimony of Sunita Jadhav (PW9) and Shobha Satpute (PW10). b) Dying declaration, which is said to have been made by the deceased to Prabhakar Tarale (PW4). 9. The short question in this appeal is whether the evidence adduced by the prosecution is credible enough to sustain conviction of the appellant under Section 302 of the IPC. First, we would first like to begin with the ocular account furnished by Sunita Jadhav (PW9) and Shobha Satpute (PW10). Both these witnesses have deposed that they were present along with some other persons at the spot on the date and time of the incident. Both these witnesses stated that the appellant entered the deceased's house to demand Bhisi money from the deceased. However, the deceased could not give full money, and she stated that she would give the amount of 4000/- but the Rs.5000/- for the offence appellant refused to accept 4000/- and became angry. Both these witnesses stated that the appellant entered the deceased's house to demand Bhisi money from the deceased. However, the deceased could not give full money, and she stated that she would give the amount of 4000/- but the Rs.5000/- for the offence appellant refused to accept 4000/- and became angry. The appellant Rs.5000/- for the offence fought with the deceased, and the appellant brought the deceased's gas cylinder outside her house; therefore the deceased became upset. The appellant, therefore, went to her house, brought a plastic bottle containing kerosene, poured the same on the deceased and lighted a match-stick. Finally, the appellant set the deceased ablaze and left for her house. 10. It is worthy to emphasise that the Investigating Officer- Rajendra Shirtode (PW16) promptly interrogated both the eyewitnesses, under Section 161 of the Code of Criminal Procedure. Rajendra Shirtode (PW16)- Police Inspector, stated in his deposition that he interrogated these witnesses on the following day, i.e. on 11.08.2016. Prompt investigation under Section 161 of the Code of Criminal Procedure has definite significance to a considerable degree as it eliminates the possibility of manufacturing ocular accounts and averments contained in the same. We are also impressed by the circumstance that both these eye-witnesses are wholly independent witnesses and had no axe to grind against the appellant. No plausible reason can be pointed out by the learned Advocate for the appellant as to why both these witnesses are falsely deposing about the appellant's participation in the incident. We have gone through the statement of both these eye-witnesses and find them to be trustworthy witnesses. 11. The manner of the incident given by these witnesses is corroborated by the incident described by the deceased in her dying declaration (Exh.50). The dying declaration is recorded by Prabhakar Tarale (PW4), who stated that after getting requisition, he went to Female Surgery Ward and met with Dr. Dhole (PW13). Dr. Dhole (PW13) gave him a certificate that the deceased is in a fit state to give a statement. Dr. Dhole (PW13) endorsed said letter that the deceased was in fit medical condition to speak. Dr. Dhole (PW13) examined the deceased before and after the recording of her dying declaration. Dr. Dhole (PW13) made the endorsement to that effect on the dying declaration. The dying declaration is at Exh.50. Dr. Dhole (PW13) endorsed said letter that the deceased was in fit medical condition to speak. Dr. Dhole (PW13) examined the deceased before and after the recording of her dying declaration. Dr. Dhole (PW13) made the endorsement to that effect on the dying declaration. The dying declaration is at Exh.50. In the said dying declaration, she has specifically stated that the appellant poured kerosene on her, lighted a match-stick, and set her ablaze. The evidence of Prabhakar Tarale (PW4) is supported by the medical evidence of Dr. Dhole (PW13), who stated that he examined the deceased before and after the recording of the dying declaration and made endorsement on the said dying declaration that the deceased was conscious and oriented to give a valid statement. Though Prabhakar Tarale (PW4) and Dr. Dhole (PW13) were cross-examined at length, nothing useful, which is beneficial to the appellant could be brought on record. 12. In our view, the evidence referred to above conclusively established the involvement of the appellant in the crime. Therefore, according to us, the learned Trial Judge acted correctly in concluding that the prosecution squarely established the appellant's involvement in the crime. 13. This leaves us with only one question, namely of offence. In our considered view and considering the overall circumstance, the learned Trial Judge erred in convicting the appellant under Section 302 of the IPC. The Trial Court should have convicted the appellant under Part-II of Section 304 of the IPC. We say this because the appellant's act would not fall in any of the four clauses of Section 300 of the IPC, a breach of which is punishable under Section 302 of the IPC. Section 300 of the IPC reads thus:- “300. The Trial Court should have convicted the appellant under Part-II of Section 304 of the IPC. We say this because the appellant's act would not fall in any of the four clauses of Section 300 of the IPC, a breach of which is punishable under Section 302 of the IPC. Section 300 of the IPC reads thus:- “300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or- 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly.-If it is done with the 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, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 14. A perusal of Clause 1stly would show that it can be invoked if the act is done with the intention of causing death, and 2ndly would show that it would be attracted if it is done with the intention of causing such bodily injury as the offender knows is likely to cause death. The question whether an act is committed with the intention of causing death or the intention of causing such bodily injury as is accordingly to cause death is a question of fact and not one of law. 15. The question is whether the appellant's act would fall within the first two Clauses of Section 300 of the IPC. In the instant case, the incident occurred all of a sudden. When the deceased refused to repay an amount of 40,000/-, the appellant got enraged Rs.5000/- for the offence and, in the heat of passion, brought a plastic cane containing kerosene from the adjoining house. The learned Trial Court has overlooked the circumstance that the entire incident, which took place in the appellant's house, was part of the same transaction. There was no time for the passion of the appellant to cool down. The learned Trial Court has overlooked the circumstance that the entire incident, which took place in the appellant's house, was part of the same transaction. There was no time for the passion of the appellant to cool down. Since the entire incident took place at the house of the deceased, the appellant, in the heat of passion, must have brought a cane containing kerosene and poured it on the deceased; hence this circumstance would not aggravate the gravity of the offence committed by her. At any rate, the cause of death spelt out in the post-mortem report is "Septicemia due to burn" and by no stretch of the imagination could it be said that the appellant intended to inflict injuries that were likely to cause septic. For the said reason, Clause 1stly and 2ndly would not be applicable. 16. Clause 3rdly of Section 300 of the IPC would also not be applicable. On perusal of the said Clause would show that before it could be invoked, two prerequisites have to be satisfied, namely:- (a) There should be an intention to inflict bodily injury which has been inflicted in contradiction to its being accidental. (b) The bodily injury inflicted should be sufficient in the ordinary course of nature to cause death. 17. We have no reservation in observing that neither prerequisite (a) nor prerequisite (b) is satisfied in the present case. Prerequisite (a) is not satisfied because although the appellant had the intention to cause the burn that she caused to the deceased, however, it could not be said that he had the intention to cause septic burns. The post-mortem report shows that this septic led to the deceased's death. In the post-mortem report, the cause of death is mentioned as “Septicemia due to burn". The evidence on record shows that the deceased died on 14.08.2016, and in such a situation, the possibility of burns becoming septic in the Hospital itself cannot be ruled out. Hence, prerequisite (b) is also not satisfied. In the instant case, the post-mortem has been proved by the prosecution. Dr. Rokde (PW11), who was examined in the instant case, did not state that injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. Hence, prerequisite (b) is also not satisfied. In the instant case, the post-mortem has been proved by the prosecution. Dr. Rokde (PW11), who was examined in the instant case, did not state that injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. We would like to emphasise that since the prosecution has proved the post-mortem report, it cannot be ipso facto to conclude that injury suffered by the deceased were in the ordinary course of nature is sufficient to cause death. The burden to show or prove is always rested on the prosecution, and it would have to be discharged by it unless, of course, on a bare perusal of the injuries show that they are sufficient in the ordinary course of nature to cause death. In the instant case, a perusal of the anti-mortem burns suffered by the deceased does not so lead to the inference that they were sufficient in the ordinary course of nature to cause death. It should be bear in mind that the deceased succumbed to her injuries four days after the incident. The cumulative effect of the above reasons makes Clause 3rdly inapplicable. 18. In our view, Clause 4thly would also not be applicable. A perusal of Clause 4thly would show it would be attracted if the person who commits an act knows that it is so imminent danger it must:- a) in all probability caused death; b) such bodily injury is likely to cause death. 19. The knowledge simpliciter on the part of the person of an act to be in danger would not invoke the application of Clause 4thly. It would only invoke application if the act is coupled with knowledge, and there is the knowledge that such act is either in all probability would cause death or such bodily injury as is likely to cause death. 20. In the instant case, the evidence is that the deceased died four days after the incident not on account of burns simpliciter but due to septicemia due to burn injuries. It is true that there was direct nexus between the appellant’s act and burns suffered by the deceased, but, in our view, there were no direct nexuses between the act of the appellant and the burns turning septic. It is possible that the burns of the deceased may have turned septic in the Hospital. It is true that there was direct nexus between the appellant’s act and burns suffered by the deceased, but, in our view, there were no direct nexuses between the act of the appellant and the burns turning septic. It is possible that the burns of the deceased may have turned septic in the Hospital. In such a situation, then, even though the appellant can be attributed of knowledge that her act was imminently danger, knowledge can not be fastened to her that it would in all probability cause death or such bodily injury as is likely to cause death. Hence, Clause 4thly would not be applicable. 21. Bearing in mind the proved circumstances of this case reveals that the incident happened on the spur of movement. Nevertheless, there is no getting away from the fact that the appellant poured kerosene on the deceased; set her on fire; and she had knowledge of the deceased's death as contemplated by Clause 3rdly of Section 299 of the IPC, breach of which is punishable under Section 304 Part-II of the IPC. In our view, the offence punishable under Section 304 Part-II is made out against the appellant. 22. The sole question which survives is the quantum of the sentence which should be awarded to the appellant for the offence under Section 304 Part-II I.P.C. Having reflected over it, we are of the judgment that a sentence of 7 years rigorous imprisonment would meet the ends of justice. 23. Hence, we pass the following order:- i) The appeal is partly allowed. ii) We acquit the appellant for the offence under Section 302 of the Indian Penal Code and set aside her conviction and sentence imposed thereunder. However, we hold her guilty of an offence punishable under Section 304 Part-II of the Indian Penal Code and sentence her to undergo 7 (Seven) years of rigorous imprisonment. She shall serve out the sentence. iii) Needless to say that the appellant is given set off under Section 428 of the Code of Criminal Procedure. iv) Pending application, if any, disposed of accordingly.