JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellants Rajendar Singh (A-1) and Biswantin Devi (A-2) against impugned judgment dated 09/04/2015 passed by learned Additional Sessions Judge, Durg in Sessions Trial No. 100/2014 whereby they have been convicted for offence punishable under Sections 302/34 and 498-A/34 of IPC and have been sentenced to undergo imprisonment for life with fine of Rs. 100/- and R.I. for 3 years with fine of Rs. 100/-, respectively, and in default of payment of fine, additional R.I. for 10 days for both the offences. 2. Case of the prosecution, in a nutshell, is that Rajendar Singh (A-1), husband of Soni Rajput and Biswantin Bai (A-2), mother-in-law of Soni Rajput, harassed her for dowry and on 09/02/2014 at about 07:15 PM, they poured kerosene oil over Soni Rajput along with juvenile co-accused Manisha and set her ablaze due to which she suffered grievous injuries and ultimately, died on 30/03/2014. 3. Further case of the prosecution is that after the incident, Soni Rajput was admitted to Government Hospital, Durg which was informed to ASI H.L. Banjare (PW-13), who then reached to the Hospital and upon enquiry, Soni Rajput informed him that she had been married to Rajendar Singh (A-1) an year ago and since then both the appellants and juvenile co-accused Manisha used to quarrel with her and harassed her which she had also reported at Police Station Durg and on the date of incident, when she returned home after working as a labourer, all the three accused persons started quarreling with her. She went to inform her neighbour Pankaj (PW-3) and when she came back, they poured kerosene oil over her and set her ablaze. On the said information, H.L. Banjare (PW-13) registered dehati nalishi (Ex. P/17) and thereafter, took the statement of injured Soni Rajput under Section 161 of CrPC vide Ex. P/20. Thereafter, memo was written to the Executive Magistrate for recording dying declaration vide Ex. P/16 pursuant to which medical opinion was sought from Dr. Renu Tiwari (PW-8) and after she had declared injured Soni Rajput to be physically and mentally fit to give her dying declaration, it was recorded by the Executive Magistrate Arvind Sharma (PW-15) vide Ex. P/27. P/20. Thereafter, memo was written to the Executive Magistrate for recording dying declaration vide Ex. P/16 pursuant to which medical opinion was sought from Dr. Renu Tiwari (PW-8) and after she had declared injured Soni Rajput to be physically and mentally fit to give her dying declaration, it was recorded by the Executive Magistrate Arvind Sharma (PW-15) vide Ex. P/27. Thereafter, injured Soni Rajput was discharged from Government Hospital, Durg and she was admitted to Sector 9 Hospital, Bhilai by her relatives wherein she again told about the incident to Dr. Niranjan Sahu (PW-7) vide Ex. P/11 and on 21/02/2014, against medical advice, she was discharged by her family which has been proved by Dr. Niranjan Sahu (PW-7) and ultimately, she succumbed to her injuries on 30/03/2014 and died. Thereafter, inquest was conducted and the dead body of Soni Rajput was subjected to postmortem which was conducted by Dr. N.C. Rai (PW-16) and as per the postmortem report (Ex. P/26) cause of death is said to be septicemia due to 50% burns. After due investigation, the appellants were charge-sheeted for offence punishable under Sections 302/34 and 498A/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 16 witnesses and brought on record 27 documents. Statements of the appellants was recorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and only brought 1 document on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellants for offence punishable under Sections 302/34 and 498A/34 of IPC and sentenced them as aforesaid. 6. Learned counsel for the appellants would submit that the trial Court is absolutely unjustified in relying upon the dehati nalishi (Ex. P/17) as first dying declaration of the deceased, her statement under Section 161 of CrPC as second dying declaration of the deceased, her dying declaration (Ex. P/27) recorded by Executive Magistrate Arvind Sharma (PW-15) and her statement given to Dr. Niranjan Sahu (PW-7) and Dr. Uday Kumar (PW-9) as her fourth dying declaration as they are wholly unreliable and does not inspire confidence, therefore, the appellants could not have been convicted for offence punishable under Section 302/34 of IPC. P/27) recorded by Executive Magistrate Arvind Sharma (PW-15) and her statement given to Dr. Niranjan Sahu (PW-7) and Dr. Uday Kumar (PW-9) as her fourth dying declaration as they are wholly unreliable and does not inspire confidence, therefore, the appellants could not have been convicted for offence punishable under Section 302/34 of IPC. In alternative, he would submit that deceased Soni Rajput was discharged from the Hospital by her relatives on 21/02/2014 against medical advice which has been proved by Dr. Niranjan Sahu (PW-7) and ultimately, she died on 30/03/2014 on account of septicemia and 50% burn injuries, as such, prosecution has failed to establish that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause her death and therefore, conviction of the appellants if found proved, be altered to Section 304 Part I of IPC and since the appellants are in jail from 10/02/2014, they be sentenced to the period already undergone. 7. Per contra, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellants for the offence in question as dying declaration (Ex. P/27) recorded by Executive Magistrate Arvind Sharma (PW-15) has duly been proved and it has been recorded absolutely in accordance with law after taking opinion from the Dr. Renu Tiwari (PW-8) with regard to the condition of the deceased, as such, it inspires confidence and is voluntary and true. Moreover, the dehati nalishi (Ex. P/17) recorded by ASI H.L. Banjare (PW-13), statement of deceased under Section 161 of CrPC vide Ex. P/20 and the statement given by the deceased to Dr. Niranjan Sahu (PW-7) and Dr. Uday Kumar (PW-9) also corroborate the dying declaration (Ex. P/27). As such, the instant appeal is liable to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration is whether the appellants are the authors of crime in question ? 10. Learned trial Court has mainly relied upon the dying declaration (Ex. P/27) given by deceased Soni Rajput to the Executive Magistrate Arvind Sharma (PW-15) to base the conviction of the appellants for the offence in question. Considering the dying declaration (Ex. 9. The first question for consideration is whether the appellants are the authors of crime in question ? 10. Learned trial Court has mainly relied upon the dying declaration (Ex. P/27) given by deceased Soni Rajput to the Executive Magistrate Arvind Sharma (PW-15) to base the conviction of the appellants for the offence in question. Considering the dying declaration (Ex. P/27) which has been recorded by the Executive Magistrate Arvind Sharma (PW-15) on 09/02/2014 at 08:45 PM and prior to recording the said dying declaration, a separate certificate was issued by Dr. Renu Tiwari (PW-8) certifying that deceased Soni Rajput was physically and mentally fit to give her dying declaration and the Executive Magistrate Arvind Sharma (PW-15) has himself recorded his satisfaction also that patient was in sound mental condition while giving her statement and they have been subjected to lengthy cross-examination but nothing has been extracted to hold that the said dying declaration (Ex. P/27) is not true and voluntary, as such, we are of the considered opinion that the trial Court has rightly held the dying declaration (Ex. P/27) to be reliable and trustworthy. Apart from that, oral dying declaration given by the deceased to ASI H.L. Banjare (PW-13) in the shape of dehati nalishi (Ex. P/17), her statement under Section 161 of CrPC (Ex. P/20) and her statement given to Dr. Niranjan Sahu (P.W.-7) and Dr. Uday Kumar (PW-9) also corroborate the written dying declaration (Ex. P/27). Thus, in our considered opinion, the trial Court is absolutely justified in holding that appellants are authors of the crime in question relying upon the dying declaration (Ex. P/27), dehati nalishi (Ex. P/17), statement of the deceased under Section 161 of CrPC (Ex. P/20) and statements given by the deceased to Dr. Niranjan Sahu (PW-7) and Dr. Uday Kumar (PW-9). We hereby affirm the said finding recorded by the trial Court. 11. The next question for consideration is whether the trial Court is justified in convicting the appellants for offence punishable under Section 302/34 of IPC or it can be altered to Section 304 Part I of IPC as contended by learned counsel for the appellant ? 12. Taking the case of the prosecution as it is, while deceased Soni Rajput was undergoing treatment at Sector 9 Hospital, Bhilai, she was discharged on 21/02/2014 by her family members against medical advice which has been proved by Dr. 12. Taking the case of the prosecution as it is, while deceased Soni Rajput was undergoing treatment at Sector 9 Hospital, Bhilai, she was discharged on 21/02/2014 by her family members against medical advice which has been proved by Dr. Niranjan Sahu (PW-7) in his statement before the Court and ultimately, she died on 30/03/2014. Thereafter, her postmortem was conducted by Dr. N.C. Rai (PW-16) and as per the postmortem report (Ex. P/26), she died on account of septicemia and 50% burn injuries. As such, if she had not been discharged from the Hospital and was still undergoing treatment as per the advice of Dr. Niranjan Sahu (PW-7), she could have been recovered well. 13. The Supreme Court, in the matter of B.N. Kavatakar and another v. State of Karnataka, 1994 Supp (1) SCC 304 wherein injuries were caused by lethal weapons and death of deceased was consequential to septicemia secondary to injuries caused five days ago and peritonitis, it has been held that offence would be covered by Section 326/34 and not Section 302/34 and observed in paragraphs 9 and 10 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 of 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.” 14. 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.” 14. Similarly, in the matter of Sanjay v. State of U.P., (2016) 3 SCC 62 , the death occurred after 62 days of the incident due to occurrence of septicemia and it was indirectly due to the injuries sustained by the deceased, the Supreme Court held that the death not being direct result of the injuries sustained by the deceased, an inference cannot be drawn that the intended injury was sufficient in the ordinary course of the nature to cause death so as to attract Section 300 Thirdly IPC and eventually, the conviction under Section 302 of IPC was converted into Section 304 Part I of IPC and the accused was awarded sentence of RI for 10 years. It was thus observed in paragraphs 14 and 15 as under :- “14. However, in the instant case, it is apparent that the death occurred sixty-two days after the occurrence due to septicaemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13-10-1998 was septicaemia which of course was due to the injuries caused in the incident on 11-8-1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty-two days. In such facts and circumstances, the prosecution should have elicited from Dr Laxman Das (PW 9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr Laxman Das (PW 9) or from Dr Gulecha (PW 3). Having regard to the fact that Roop Singh survived for sixty-two days and that his condition was stable when he was discharged from the hospital, the Court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause Thirdly of Section 300 IPC. 15. Having regard to the fact that Roop Singh survived for sixty-two days and that his condition was stable when he was discharged from the hospital, the Court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause Thirdly of Section 300 IPC. 15. In Ganga Dass v. State of Haryana, 1994 Supp (1) SCC 534, the accused gave iron pipe single blow on the head of the deceased and deceased died eighteen days after the occurrence due to septaecemia and other complications, the conviction of the appellant under Section 302 IPC was altered by this Court to Section 304 Part II IPC. This Court observed as under: (SCC pp. 535-36, para 6) “6. We find considerable force in this submission. As stated above the occurrence took place on 18-11-1988 and the deceased died 18 days later on 5-12-1988 due to septicaemia 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. 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.” 15. The common thread arising from the above referred judgments (supra) is that when death is not as a direct result of injuries sustained by the deceased, but there was an intervening factor like development of gangrene or septicaemia or any other complications, which resulted in death in the course of treatment or after discharge from hospital, it cannot be presumed that the accused had an intention to commit culpable homicide. 16. 16. Applying the aforesaid principles of law laid down by their Lordships of the Supreme Court to the facts and circumstances of the present case, it is quite vivid that while deceased Soni Rajput was undergoing treatment at Sector 9 Hospital, Bhilai, she was discharged by her family members on 21/02/2014 against medical advice of Dr. Niranjan Sahu (PW-7) which he has proved in his statement before the Court and ultimately, she died on 30/03/2014 i.e. after 36 days of the occurrence, as a result of septicemia as per the postmortem report (Ex. P/26) duly proved by Dr. N.C. Rai (PW-16), as such, it cannot be held that deceased Soni Rajput died particularly on account of the injuries sustained by her and prosecution has further failed to establish that the nature of injuries suffered by her were sufficient to cause death in the ordinary course of nature so as to attract Section 300 Thirdly IPC. In that view of the matter, we hereby set aside the conviction of the appellants for offence punishable under Section 302/34 of IPC and convict them for offence punishable under Section 304 Part I of IPC and sentence them to undergo R.I. for 10 years. However, the conviction of the appellants for offence punishable under Section 498A of IPC as recorded by the trial Court and the sentence so awarded shall remain intact. 17. Accordingly, this criminal appeal is allowed to the extent indicated herein-above. 18. Let a certified copy of this judgment be sent to the concerned trial Court along with the original records as well as to the jail authorities for information and compliance.