JUDGMENT : ILESH J. VORA, J. 1. This criminal appeal preferred by the sole appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 28.03.2016 passed by the Sessions Court, Surat in Sessions Case No.341 of 2013 by which the appellant has been convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.30,000/- and in default of payment of fine, to further undergo additional imprisonment for 9 months. 2. Case of the prosecution, in short is that, the deceased Premilaben was living with the appellant-accused in a live in partnership relations. She had a son born out from her husband with whom she got married. The deceased and the accused belongs to lower strata of the society and doing masonry work at Surat. In the area of Udhna, Magdalla Road, Surat, they had lived in a hut, along with other labourers who were living in the same vicinity. Despite of their relations, the life of the deceased and the accused was disturbed as the accused was in habit to consume liquor and did not contribute any amount in running the day to day life. The dispute on this issue arose and according to allegations, deceased Premilaben was harassed mentally and physically by the appellant-accused. on 16.04.2013 in the evening, the deceased Premilaben and the accused came back from their labour work and deceased about to start the meal for which she had demanded money from the accused and while refusing to pay the amount, the altercation took place between the two. The accused then left the hut and purchased the kerosene oil from the nearby shop. The kerosene oil was in one small polythene bag. The accused came to his hut and filled the kerosene in one plastic tumbler and then sprinkled the kerosene on the deceased and lit her with the matchstick. After the incident, the neighbouring persons called the 108 ambulance and the injured Premilaben who had sustained 60 to 70% burn injuries, was taken to New Civil Hospital, Surat. She was primarily treated by Dr. Nisha Chandra (PW.19). The civil hospital informed the Khatodara Police Station. The P.I., C.K. Patel (PW.22) went to the hospital where the deceased Premilaben disclosed her complaint, inter alia, alleging that, the appellant-accused burnt her by pouring kerosene. She was primarily treated by Dr. Nisha Chandra (PW.19). The civil hospital informed the Khatodara Police Station. The P.I., C.K. Patel (PW.22) went to the hospital where the deceased Premilaben disclosed her complaint, inter alia, alleging that, the appellant-accused burnt her by pouring kerosene. The complaint was recorded on 17.04.2013 at about 00:55 and the offence came to be registered under Section 498A, 323, 307 of the IPC . The police after taking endorsement of the duty doctor about the consciousness and fit mental condition of the injured, called the Executive Magistrate (PW.13) Dipak Sonawala. The Executive Magistrate on the basis of requisition made by the police, immediately reached at the Burns Ward of the hospital and orally take a sense of the doctor that the deceased was conscious and mentally fit. The Magistrate thereafter, recorded the statement of Premilaben wherein she had alleged against the accused that she was burnt alive by pouring kerosene. The statement in the form of dying declaration recorded between at about 1:55 a.m. to 2:10 a.m. During the course of investigation, the I.O. (PW.22) recorded the statement of the neighbouring persons, the minor son (PW.12) Avinash Saidane and the parents of the injured Premilaben. He also drew the panchnama of place of incident in the presence of officer of Forensic Science, Surat and collected necessary samples for chemical analysis. The I.O. arrested the accused on 20.04.2013 and due to sustaining of the burn injuries over his both hands, he was referred to Government Hospital where he was admitted for treatment. The injured Premilaben was admitted on 16.04.2013 in the hospital, succumbed to her injuries on 23.04.2013 at about 6:30 p.m. The I.O. sent her dead body for post-mortem and as per the report, the cause of death was septicemic shock due to burns. The I.O. thereafter, sent the seized articles to the FSL for chemical analysis. In such circumstances, the chargesheet came to be filed and the case was committed to the Court of Sessions, Surat. Charges were framed under Section 302 , 498A and 323 of the IPC against the accused to which he pleaded not guilty and claimed trial. The prosecution examined 22 witnesses and exhibited 26 documents to establish the guilt of the accused. Charges were framed under Section 302 , 498A and 323 of the IPC against the accused to which he pleaded not guilty and claimed trial. The prosecution examined 22 witnesses and exhibited 26 documents to establish the guilt of the accused. Oral evidence PW 1 – Exh.8 Satishbhai Shankarbhai Rathod, panch witness PW 2 – Exh.11 Nitinbhai Bhikhubhai Patel, panch witness PW 3 – Exh.12 Nisharali Akbarali Saiyed, panch witness PW 4 – Exh.16 Lakshmi Mangal Yadav, panch witness PW 5 – Exh.17 Ashokbhai Joginder Yadav, panch witness PW 6 – Exh.18 Sumanben Kishanbhai Chauhan, panch witness PW 7 – Exh.19 Rajuben Lalubhai Chandravanshi PW 8 – Exh.20 Lalubhai Lacchiram Chandravanshi PW 9 – Exh.21 Lilaben Kishorbhai Darbar PW 10 – Exh.22 Kalubhai Khaneram Chandravanshi PW 11 – Exh.23 Ratanben Kaluram Chandravanshi PW 12 – Exh.25 Avinash Kishorebhai Saidane, child witness PW 13 – Exh.26 Dipakkumar Chhotalal Sonawala, Executive Magistrate PW 14 – Exh.30 Ratilal Haribhai, Police Station officer PW 15 – Exh.33 Rameshbhai Mangabhai Kuvar PW 16 – Exh.34 Dr. Nisha Vinodchandra Chandra, medical officer PW 17 – Exh.38 Nitinbhai Dayarambhai Patel, scientific officer PW 18 – Exh.41 Dr. Paresh Valjibhai Chandegara, medical officer PW 19 – Exh.47 Dr. Nisha Vinodchandra Chandra, medical officer PW 20 – Exh.50 Kalusinh Nansinh Solanki, Assistant Sub-Inspector PW 21 – Exh.52 Prashant Popatlal Brahmbhatt, Police Sub-Inspector PW 22 – Exh.53 Chandrakant Keshavlal Patel, investigation officer Documentary evidence Exh.9 Panchnama of scene of offence Exh.10 Panch slip Exh.13 Panchnama of physical examination of accused Exh.14 Panch slip Exh.15 Inquest panchnama Exh.27 Police yadi for recording dying declaration Exh.28 Dying declaration Exh.29 Order of duty of Executive Magistrate Exh.31 Extract of Station diary Exh.32 Index Exh.35 Yadi for medical examination of accused Exh.36 Medical certificate of accused Exh.39 FSL report of scene of offence Exh.40 Yadi to FSL officer to remain present at scene of offence Exh.42 Yadi for post-mortem Exh.43 Post-mortem note Exh.44 Certificate of cause of death Exh.48 Certificate of treatment to deceased Exh.49 Medical case papers of treatment to deceased Exh.54 Complaint Exh.55 Forwarding note Exh.56 Letter for seeking opinion after forensic analysis of muddamal Exh.57 Letter for addition of charge of Section 302 of IPC Exh.58 Receipt of muddamal by FSL Exh.59 Report of Geological Department of FSL alongwith forwarding letter Exh.60 Report of Chemistry Department of FSL alongwith forwarding letter 3. After closure of the prosecution evidence, the appellant was questioned under Section 313 Cr.P.C. to which he stated that, he has been falsely implicated in the offence and as such, he did nothing towards the deceased as alleged by her. 4. Though opportunity was extended, no oral evidence being adduced from the side of the appellant-accused. 5. The trial court relying on the two dying declarations namely the complaint (Exh.54) and the dying declaration recorded by Executive Magistrate (Exh.28), came to a conclusion that, the accused with an intention to kill the deceased, poured the kerosene upon her and set her on fire and found him guilty for the offence punishable under Sections 302 , 498A and 323 of the IPC . 6. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant sole accused is before this by way of the present appeal. 7. We have heard learned counsel Mr. G. P. Baghel and Ms. C.M. Shah, learned APP for the respective parties. 8. Mr. Baghel, learned counsel for the appellant does not challenge the conviction rendered by the court below. He confined his arguments on the issue of sentence and submitted that, the learned trial court was not justified in convicting the appellant-accused for the offence under Section 302 of the IPC . Referring to the contents of FIR and dying declaration recorded by Executive Magistrate, he would urge that, the kerosene oil was carried by the deceased in a small plastic polythene bag which shows that, there was no intention to cause death of the deceased. If he had an intention to kill her, then he would have purchased the kerosene oil in large quantity. That, as per the medical evidence, the septicemia was the reason for the cause of death. The accused as per the evidence of child witness, was under influence of liquor and as per the allegations made by the deceased, he was in habit of consuming liquor. That, the accused as per the evidence of treating doctor, had sustained injuries over both his hands for which he was hospitalized for some time. In such circumstances, it cannot be said that the accused had the intention that such action on his part would cause death or such bodily injury which likely to cause death of the deceased. 9. Mr. In such circumstances, it cannot be said that the accused had the intention that such action on his part would cause death or such bodily injury which likely to cause death of the deceased. 9. Mr. G.P. Baghel, learned counsel relying on the case of Maniben Vs. State of Gujarat (2009) 8 SCC 796 , would urge that, the deceased died after 8 days of the incident and primary cause of death was septicemia due to burn injuries and at relevant time, the accused was under influence of liquor, the conviction under Section 302 of the IPC is not proved as the essential ingredients of Section 300 are absent in the facts of the present case and considering the peculiar facts and evidence as referred above and the present case is fall under culpable homicidal death not amounting to murder as defined under Section 304 of the IPC . 10. In such circumstances as referred above, Mr. Baghel, learned counsel prays that, there being merits in the appeal and same may be allowed and further prayed that the order of conviction under Section 302 be set aside and the appellant may be convicted under Section 304 Part II of the IPC and sentence of life imprisonment be modified accordingly. 11. Ms. C.M. Shah, learned APP vehemently opposed the appeal and contended that, the accused with all determination, purchased the kerosene oil and poured upon the deceased which resulted into her death. The primary cause is not septicemia, but due to burn injuries, she developed a complication. Thus, the kerosene oil whether is a small quantity or large quantity would make no difference as it is an inflammable substance and small drops of it would be enough for fire. In such circumstances, she would urge that, the prosecution has been able to bring home the offence of murder against the accused beyond reasonable doubt and the impugned judgment is well reasoned and the court below has rightly appreciated the two dying declaration while coming to the conclusion that, the act was intended to cause death and therefore, it is not the case which should be converted into Section 304 Part II of the IPC , therefore, the appeal deserves to be dismissed. 12. We have heard the counsel for the parties and considered the rival submissions made hereinabove and also went through the records with utmost circumspection. 13. 12. We have heard the counsel for the parties and considered the rival submissions made hereinabove and also went through the records with utmost circumspection. 13. It is not in dispute that, death of the deceased was homicidal in nature. 14. The trial court recorded that, the appellant has caused the death of deceased Premila and for arriving at the said findings, the court below mainly relied on the two dying declarations namely Exh.12 Dipak Sonawala and complaint- Exh.54 recorded by the I.O. (PW.22). The learned counsel Mr. Baghel does not challenge the conviction allegedly based on the two dying declarations. In such circumstances, it is not necessary to refer the contents of two dying declarations in detail as the admissibility and correctness of the said dying declarations are not doubted. The only issue raised is the conviction recorded under Section 302 of the IPC . It is submitted that, the death caused was culpable homicide not amounting to murder under Section 304 of the IPC . 15. Before we proceed to examine this aspect, it would be beneficial to refer the necessary facts of the two dying declarations for a limited purpose. So far as dying declaration recorded by Executive Magistrate is concerned, the deceased had stated that, the appellant-accused was in habit to consume liquor and always asked her to give money to consume liquor. She had further stated that, on the day of incident, when she had asked the money for preparing food, the accused beaten her and due to said quarrel, she went to the market and come back with kerosene filled in polythene bag and by pouring the said kerosene on her, he burnt her. The son of the deceased namely Avinash (PW.12) had also stated that on the day of incident, the deceased was in an inebriated state of mind. The complaint is running in four pages, however, sum and substance of the complaint is that, the accused poured kerosene on her and thereafter, burnt her. The medical evidence shows that during the treatment period, she developed septicemia. 16. In the aforesaid evidence, we are of considered opinion that the trial court has rightly held that, it is the appellant who has caused the burn injuries to the deceased. The medical evidence shows that during the treatment period, she developed septicemia. 16. In the aforesaid evidence, we are of considered opinion that the trial court has rightly held that, it is the appellant who has caused the burn injuries to the deceased. The aforesaid findings bring us to the next question for consideration as to whether the learned trial court is justified in convicting the appellant for the offence under Section 302 of the IPC or same is liable to be converted to offence under Section 304 Part I or II of the IPC ? 17. In the facts on hand, as discussed hereinabove, the appellant at the time of pouring Kerosene upon the deceased, has consumed the liquor and due to day to day quarrel he managed to that, some portion of kerosene oil from nearby area and then sprinkled it on the deceased. It is relevant to note that, the accused had also sustained a burn injuries over his both the hands. In such circumstances, it can be inferred that, at relevant time due to consumption of alcohol and day to day domestic dispute, he sprinkled the kerosene but the act was not intended to kill the deceased. We may profitably refer the case of Kalu Ram Vs. State of Rajasthan , AIR 2000 SC 3630 , wherein, the Supreme Court converted the offence under Section 304 of the IPC . Para-7 & 8 of the said judgment reads thus: “7. But then, what is the nature of the offence proved against him? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. 8. We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC . Both sides conceded that the appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly.” 18. Similarly in the case of Dattatraya Vs. The State of Maharashtra (2024) SCC online 223 , the principles of law laid down in Kaluram (supra) have been followed and the Supreme Court converted the offence from murder to culpable homicide not amounting to murder. Para-23 and 24 is relevant to refer, which reads thus: “23. In the above case, the appellant who in an inebriated state was pressurizing his wife to part with some ornaments so that he could buy some more liquor. On her refusal he poured kerosene on her and set her on fire by lighting a matchstick. But then he also tried to pour water on her to save her. This Court was thus of the opinion that: “7….Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. But then he also tried to pour water on her to save her. This Court was thus of the opinion that: “7….Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. 8. We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC …” 24. The facts of the present case, as we have already discussed above, by and large reflect the same situation, nature of crime as well as the act of the accused and the consequences of his action. We are inclined to accept the arguments raised by the learned senior counsel for the appellant, Mr. Sudhanshu S. Choudhari that under the present circumstances it would indeed be a case of culpable homicide not amounting to murder as given in Section 304 Part II in as much as, though the accused had knowledge of the consequences of the act he was committing, yet there was no intention to cause death.” 19. Bearing in mind the aforesaid principle of law and reverting to the case of the case, it is evident that, the appellant sustained burn injuries over his two hands and at relevant time, he was under influence of liquor and before the incident, the dispute arose between the deceased and the appellant on the day to day affairs of the house and their relations were not cordial and considering the subsequent development of septicemia as the deceased died after 8 days of the incident, we are of the considered opinion that, the evidence on record does not establish that the act was not done with an intention to cause death. Thus, the prosecution failed to bring the case under definition of ‘murder’ and the case would be fall under the culpable homicide not amounting to murder as defined under Section 304 Part-II of the IPC , as the appellant must have no intention but knowledge would be attributable that by sprinkling kerosene the burnt injuries is likely to cause death and therefore, on consideration of the totality of the facts and circumstances of the case, the ends of justice would be made if the conviction of the appellant under Section 302 is set aside and is convicted under Section 304 , Part-II and sentenced to undergo imprisonment of 10 years with fine awarded by the court below. 20. Accordingly, appeal is allowed in part. The conviction and sentence of life under Section 302 of IPC is set aside. The appellant is convicted under Section 304 Part-II of the IPC and sentenced to undergo 10 years imprisonment with the fine imposed by the court below. It is reported that, the appellant has undergone 12 years of imprisonment. The authority shall forthwith release the appellant, if his custody is not needed in any other case. R&P, if any, be sent back to the concerned court forthwith.