JUDGMENT : T.C.D. Sekhar, J. The appellant herein is the sole accused in SC.No.132/2014 on the file of III Additional District and Sessions Judge, East Godavari District at Kakinada (for short learned Additional Sessions Judge). He was tried by the learned Additional Sessions Judge under two charges, the first charge was under Section 498-A IPC and the second charge was under Section 302 IPC . 2. Substance of the charges is that, prior to 20.04.2013, the appellant who is the husband of Vemagiri Kumari (herein-after referred to as the deceased), subjected her to cruelty both physically and mentally and on 20.04.2013 at about 3 pm, the appellant poured kerosene on her and lit with a match stick causing her death, thereby committed offences punishable under Sections 498-A and 302 IPC . 3. After completion of trial, the learned Additional Sessions Judge convicted the accused for the offence punishable under Section 498-A IPC and sentenced to suffer rigorous imprisonment for one (01) year and also to pay fine of Rs.500/-, in default to suffer simple imprisonment for a period of two (02) months. The trial Court also convicted the accused under Section 302 IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two (02) months. 4. Case of the prosecution as culled out from the prosecution witnesses, is as follows. The accused is a resident of Peravaram Village, Yeleswaram Mandal, East Godavari District. The material prosecution witnesses are residents of Kothapeta, Jagapathinagaram Village. The deceased is the eldest daughter among three daughters of her parents. The father of the deceased discarded her mother Thokala Parvathi (PW11) long ago and since then she is residing with her mother. The mother of the deceased performed her marriage with the accused about six years prior to the date of incident and the marriage was consummated and they were leading conjugal life. The appellant/accused looked after her well for some time and they were blessed with two children whose names are Sandeep and Pavani. Later, the accused addicted to consume liquor and started harassing the deceased both mentally and physically subjecting her to cruelty and asking her to go to coolie work and earn money and to bring sare articles from her mother’s house. Later, the accused addicted to consume liquor and started harassing the deceased both mentally and physically subjecting her to cruelty and asking her to go to coolie work and earn money and to bring sare articles from her mother’s house. Unable to bear the harassment in the hands of the accused, the deceased left the matrimonial home and went to her mother’s house at Jagapathinagaram Village along with her two children. Subsequently, at the instance of the mother of the deceased, mediation took place and the elders advised the accused not to harass the deceased and to look after her and children in a proper way. By saying so, the deceased was sent to the house of the accused. Despite the same, there was no change in the attitude of the accused in as much as he started harassing and ill treating the deceased. In those circumstances, at about one year ago, the deceased along with her children went to her mother’s house at Jagapathinagaram Village and staying there since then. The accused used to visit the house of the deceased at Jagapathinagaram Village with a demand to come and join him at Peravaram Village, for which the deceased refused and continued to stay at her mother’s house. While the matter stood thus, on 20.04.2013, when the mother of the deceased went to the house of her younger daughter at Rajavommangi Village along with the son of the deceased, the accused came to Jagapathinagaram Village and demanded the deceased to come with him for leading conjugal life, for which the deceased refused. Thereupon, the accused grew wild and an altercation took place between the accused and the deceased. The accused used filthy language against the deceased and abused her mother, stating that the deceased has got illicit intimacy with others and he had intended to kill her earlier at Khammam but left her. By saying so, the accused took the deceased into the thatched house of her mother and picked up the plastic kerosene bottle lying in the thatched house and poured kerosene on the deceased by abusing her and lit matchstick and set her ablaze with an intention to kill her. The deceased came out of the house by running with flames on her body and raised screams and thereby she sustained burn injuries over her body. The deceased came out of the house by running with flames on her body and raised screams and thereby she sustained burn injuries over her body. In the meantime, on hearing the cries of the deceased, Kodi Appayamma (PW1), Mortha Sundara Rao (PW2), Mortha Mary (PW3), Kodi Amaravathi (PW4), Kodi Rajababu (PW5), Katheti Apparao (PW6) and Yedida Yelisha (PW7) and others rushed to the spot and covered a blanket on the deceased to extinguish the flames. Then the deceased was shifted to Primary Health Center, Kirlampudi, for treatment. Dr.B.Chandra Kiran (PW19) Medical Officer, Primary Health Center, Kirlampudi, attended the deceased and provided first aid to her. On receipt of message from PW19, Sub Inspector of Police, Kirlampudi Village, (PW24) went to the hospital and recorded statement of the deceased which is marked as Ex.P.28. He returned to the police station and registered a case in Cr.No.28 of 2013 under Section 307 IPC on 20.04.2013 at 5pm and took up investigation. He issued copies of FIR to all the concerned. FIR is marked as Ex.P.29 Later, the deceased was shifted to Government General Hospital, Kakinada, for better treatment. On receipt of the requisition from Causality Medical Officer, Government General Hospital, Kakinada, on 20.04.2013 K.Murali Mohan (PW20), Special Judicial I Class Magistrate for Prohibition and Excise, Kakinada, recorded dying declaration (Ex.P.26) of the deceased, while the deceased was undergoing treatment on the said date between 7pm and 7.45 pm in the presence of Causality Medical Officer, Kakinada (PW21). During the course of investigation, PW24 visited the scene of offence along with two mediators Chadaram Adinarayana (PW15) and Dale Ramarao and prepared rough sketch which is marked as Ex.P.30. He got the scene photographed and photographs are marked as Ex.P.31. He prepared observation report Ex.P.21 in the presence of PW15. He also seized a plastic water bottle with kerosene, a match box, half burnt saree and half burnt quill, which are marked as M.Os.1 to 4 respectively under Ex.P.21. PW24 examined PWs 1 to 5 and recorded their statements. On 21.04.2013, PW24 further examined Kodi Amaravathi PW6, Yedoda Yelisha PW7, Doddi Srinivasa Rao PW8, Dangeti Gangadhar PW9, Salaga Chakradhar PW14 and Yellapu Vijaya Durga PW10 who are the neighbors to the scene of offence and recorded their statements. PW24 examined PWs 1 to 5 and recorded their statements. On 21.04.2013, PW24 further examined Kodi Amaravathi PW6, Yedoda Yelisha PW7, Doddi Srinivasa Rao PW8, Dangeti Gangadhar PW9, Salaga Chakradhar PW14 and Yellapu Vijaya Durga PW10 who are the neighbors to the scene of offence and recorded their statements. On 22.04.2013 at about 8.30 am, the appellant/accused Vemagiri Bujjibabu, voluntarily surrendered before PW24 and thereafter he was arrested and the same was intimated to the brother of the accused and later he was remanded to judicial custody. Later, on 18.05.2013 at about 9.30 am., PW24 received information about the death of the deceased, upon which, he altered the FIR from Section 307 IPC to Section 302 IPC and issued copies of altered FIR to all the concerned. Altered FIR is marked as Ex.P.34. On the same day, he went to the hospital and summoned PW22 who held inquest over the dead body. Inquest report is marked as Ex.P.22. Thereafter, the body was shifted to Government General Hospital, Kakinada, for conducting post-mortem examination. PW18, Assistant Professor, Rangaraya Medical College, Kakinada, conducted autopsy over the dead body. He opined the cause of death was “due to septic and toxic condition as a result of Wilson’s 1 st degree burns of about 63% of total body surface area”. He issued post-mortem certificate which is marked as Ex.P.73. MO1-plastic water bottle and MO3-half burnt saree were sent for forensic examination to RFSL, Vijayawada. On 19.05.2013, PW24 handed over the CD file to the Inspector of Police (PW23) for further investigation. PW23 the then Inspector of Police Jaggampeta Circle received RFSL report which is marked as Ex.P.27 and subsequently, he filed charge sheet. 5. In support of its case, the prosecution examined PWs 1 to 25 and marked Exs.P.1 to 36 and exhibited MOs 1 to 4. 6. When the accused was examined under Section 313 CrPC, he denied the incriminating evidence found against him from the prosecution witnesses, but he did not choose to examine any witnesses on his behalf. 7. Accepting the evidence of prosecution witnesses, the learned Additional Sessions Judge convicted the accused as aforesaid. 8. Heard Sri N.Siva Reddy, learned counsel for the appellant/accused and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the State. 9. Admittedly, there are no eyewitnesses to the incident. 7. Accepting the evidence of prosecution witnesses, the learned Additional Sessions Judge convicted the accused as aforesaid. 8. Heard Sri N.Siva Reddy, learned counsel for the appellant/accused and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the State. 9. Admittedly, there are no eyewitnesses to the incident. PW1 is the grandmother of the deceased, PWs2 and 3 are neighbors, PW4 is the daughter in law of PW1, PW5 husband of PW4, PW6 to 9 are residents of Jagapathinagaram Village, PW10 is car driver and resident of Kirlampudi Village, PW11 is the mother of the deceased, PW12 is the brother of PW11, PW13 is the brother in law of PW11, PW14 is the resident of Jagapathinagaram Village. All the witnesses PW1 to 14 turned hostile and denied the statements recorded by the police. Therefore, the evidence of PW 1 to 14 is not helpful to the prosecution. PW15 is the Village Revenue Officer, who accompanied PW24 to the scene of offence. PWs16 and 17 are residents of Jagapathinagaram Village who were present at the time of inquest. The evidence of PWs 15 to 17 is not helpful to the case of prosecution. PW 18 is the Assistant Professor in the department of Forensic Medicines in Rangaraya Medical College, Kakinada, who conducted autopsy over the dead body of the deceased and gave post mortem report Ex.P.23. He opined the cause of the death to the best of his knowledge and belief was “due to septic and toxic condition as a result of Wilson’s 1 st degree burns of about 63% of total body surface area”. 10. PW19 is the medical officer who gave first aid to the deceased and deposed that, at the time of recording the statement of the deceased by the police, the deceased was conscious and coherent. PW20 is the Special Judicial Magistrate of First Class for Prohibition and Excise, Kakinada, who recorded the dying declaration in Ex.P.26. Pw21 is the Causality Medical Officer, Government General Hospital, Kakinada, deposed that, he certified that the deceased was conscious and coherent and in a fit state of mind to give the statement before the dying declaration was recorded by PW20. PW22 is the Tahsildar who was present at the time of inquest. PW23 filed the charge sheet, PW24 is S.I. of Police, who recorded the statements at the scene of offence. PW22 is the Tahsildar who was present at the time of inquest. PW23 filed the charge sheet, PW24 is S.I. of Police, who recorded the statements at the scene of offence. PW25 is the Inspector of Police, Jaggampet Circle who received the CD file and accompanied PW24 to the scene of offence. He further deposed that, he has not recorded any separate statements as the statements were already recorded by PW24. 11. As already noted supra, there are no eye witnesses to the incident. All the material prosecution witnesses turned hostile and they did not support the case of prosecution. They further went to the extent of stating that the police did not record their statements. Therefore, what remains to be looked into is that, the official witnesses’ put forth by the prosecution. 12. It is the case of the prosecution that the deceased was set ablaze by pouring kerosene which was lying in the hut at the time of altercation between the deceased and the accused. The incident happened in a thatched house belonging to the mother of the deceased. Admittedly, the accused did not go to the scene of offence with any weapon or objects that would cause the death of the deceased. From the above, it is clear that, the accused has no intention or motive to do away with the life of the deceased. Due to the heated argument and altercation that occurred between the accused and deceased, the accused grew wild and took the kerosene in a plastic water bottle kept in the thatched house of the mother of the deceased and poured the same on the deceased and set her ablaze. The said incident happened in a spur of moment and the same is also evident from dying declaration marked as Exs.P24 to 26. 13. On a perusal of the evidence let in by the prosecution and upon consideration the post mortem report marked as Ex.P.23 issued by PW18, go to show that, the cause of the death was “due to septic and toxic condition as a result of Wilson’s 1 st degree burns of about 63% of total body surface area”. It is pertinent to mention that, the deceased received burn injuries on 20.04.2013 and thereafter she was taking treatment in the hospital and later she died on 17.05.2013 i.e., after a period of 27 days. It is pertinent to mention that, the deceased received burn injuries on 20.04.2013 and thereafter she was taking treatment in the hospital and later she died on 17.05.2013 i.e., after a period of 27 days. There is no material placed before the Court to prove that, she was given proper medical treatment by the doctors and upon careful perusal of the evidence of PW18, he did not state that the cause of burns are suicidal, homicidal or accidental. Further, the doctors also did not examine to prove that proper course of treatment was given to the deceased. Therefore, the prosecution failed to prove that the appellant was having intention to kill the deceased. Further the deceased died 27 days after the alleged incident due to complication of injuries. Furthermore, if proper medical treatment was given to the deceased, the question of developing septic and toxic conditions by the deceased would not have occurred. Therefore, the same cannot be attributed entirely to the appellant/accused. 14. In that view of the matter, the offence punishable under Section 302 IPC as charged against the accused is not made out. Further, it is also not the case of the prosecution that the accused came to the house of the deceased’s mother with an intention to kill her and the same is evident that the accused took up the kerosene bottle lying in the thatched house during the quarrel and altercation between the accused and the deceased, more particularly, the accused was in drunken condition. The offence committed by the accused would fall under Exception 4 of Section 300 IPC . Therefore, the offence committed by the accused at the best would be a case culpable homicide not amounting to murder and therefore, it is not at all safe to convict the accused under Section 302 IPC . Instead, he can be convicted under Section 304 part II IPC , as it is a case of culpable homicide not amounting to murder and the same falls under Section 304 part II IPC . 15. Insofar as the offence under Section 498-A IPC is concerned, the deceased categorically deposed in her statement i.e., in Ex.P.24 that, the accused used to harass her to bring sare articles from the house of her mother and the same was also reiterated by her in her dying declaration recorded by the magistrate in Ex.P.26. 15. Insofar as the offence under Section 498-A IPC is concerned, the deceased categorically deposed in her statement i.e., in Ex.P.24 that, the accused used to harass her to bring sare articles from the house of her mother and the same was also reiterated by her in her dying declaration recorded by the magistrate in Ex.P.26. To discard the same, the defense did not put forth any contra evidence. Therefore, the prosecution proved the offence committed by the accused under Section 498-A IPC . 16. In that view of the matter, this Court finds that the conviction and sentence imposed by the learned Additional Sessions Judge under Section 302 IPC is liable to be set aside, instead the appellant/accused can be convicted under Section 304 part II IPC . 17. In the result, the criminal appeal is partly allowed and the conviction and sentence recorded by the learned III Additional District and Sessions Judge, East Godavari at Kakinada under Section 302 IPC in SC.No.132 of 2014, dated 23.09.2016 is hereby set aside. Instead, the appellant/accused is convicted for the offence under Section 304 part II IPC (culpable homicide not amounting to murder) and he is sentenced to undergo rigorous imprisonment for a period of seven (07) years, while maintaining the fine amount of Rs.500/-. 18. Insofar as the conviction and sentence under Section 498- A IPC is concerned, the same is confirmed. As the appellant was released on bail during the pendency of the criminal appeal, he is directed to surrender before the trial Court forthwith, to serve the remaining period of sentence. Failure to do so, the learned trial Judge is directed to take steps to secure the presence of the appellant/accused by issuing non bailable warrant. However, it is needless to state that, the period already undergone by the appellant/accused shall be given setoff under Section 428 CrPC. The learned Additional Sessions Judge has already observed that the substantive sentences were directed to run concurrently. As a sequel, pending applications, if any, shall stand closed.