C.K. Buch, J. - (1.)This appeal is preferred by the accused of Sessions Case No. 362 of 1991 tried and decided by Additional City Sessions Judge of Ahmedabad. The appellant (hereinafter referred to as 'the accused') was tried for offence punishable under Sec. 302 of Indian Penal Code on the allegations that on 11th June, 1991 at about 11 -00 p.m. outside Shahpur Gate, Near Fire Brigade in Kamumiya's chawl at Ahmedabad, he poured kerosene on his wife Kamlaben. At that relevant point of time, he was in drunken condition and with an intention of causing her death, set fire by throwing kerosene lamp. According to the case of prosecution, deceased Kamlaben had married the accused before seven years, and was residing with him. The accused was making allegations against her character and on account of such doubt, he was beating Kamlaben. It is contended by the prosecution that earlier on two occasions, she had gone to her parental house because of ill -treatment, but as her mother -in -law persuaded her, she had returned. According to the prosecution, since last four years, she was staying separately with her husband in Kamumiya's chawl. On the date of incident, at about 11 -00 p.m., the accused came from outside in drunken condition and told the deceased, Kamlaben, that she should leave the house or should die. Immediately, after saying so, he poured kerosene on her and a burning Jamp was thrown on her. The clothes caught fire and she sustained bum injuries all over the body. According to the prosecution, she shouted for help and neighbours came running to her rescue. P.W. Gafurbhai Gagjibhai, P.W. -Taraben Chandulal and husband of Taraben, Shri Chandulal were present. The accused thereafter, ran away from the house. Brother of deceased Kamlaben, Atmaram Praiapji, who is residing in the very area, also reached at the spot and took her to the hospital. She was admitted in the hospital. Hospital Authority informed the Police and her complaint came to be recorded by Police Sub -Inspector, Sharma. According to the prosecution, P.S.I., Sharma, had received vardhi from the hospital and the complaint was recorded in the Bums Ward. According to the prosecution, she was conscious. The complaint recorded by the P.S.I, was read over to her and as she was illiterate, her right hand thumb mark was taken on the complaint. P.S.I., Sharma thereafter, prepared a Yadi for Executive Magistrate and intimated that dying declaration of injured Bai Kamlaben requires to be recorded. On this yadi, an endorsement of Doctor present was taken to the effect that the patient was conscious. On arrival of Executive Magistrate, he recorded dying declaration of deceased Kamlaben and one copy of dying declaration was given to P.S.I., Sharma. By that time, the complaint recorded by the P.S.I., Sharma, was sent to the concerned Police Station and offence punishable under Ss. 498A and 307 of Indian Penal Code was registered at about 3 -30 a.m. on 12th June, 1991 and P.S.I., Sharma, started further investigation. Thereafter, he went to the scene of offence and Panchnama was drawn in presence of Panchas and Muddamal : Plastic Tin, a small glass kerosene lamp, burnt pieces of clothes, etc. were collected. Accused, at the relevant point of time, was not found in the house. Meanwhile, the deceased Kamlaben was undergoing treatment in V. S. Hospital, succumbed to injuries on 14th June, 1991. Thereafter, the police arrested and charge -sheeted the accused for offence punishable under Ss. 302 and 498A of Indian Penal Code. After considering the oral evidence of nine witnesses, examined by the prosecution, and documents including panchnamas, hospital treatment papers, post mortem note, etc., the learned Judge held the appellant -accused guilty for the offence punishable under Sec. 302 of Indian Penal Code. At the time of framing of charge, no formal charge for the offence punishable under Sec. 498A was framed. Obviously, therefore, there is no formal finding for the trial qua the alleged offence punishable under Sec. 498A by the trial Court.
(2.)The learned trial Judge sentenced the accused to undergo rigorous imprisonment for life and a fine of Rs. 500/ - and in default one month rigorous imprisonment. Feeling aggrieved by the order of conviction and sentence, this appeal is preferred under Sec. 374 of the Cr.P.C.
(3.)Learned Counsel appearing for the appellant, Mr. Nitin M. Amin, has taken us through the entire oral as well as documentary evidence and relevant part of the judgment. Mainly, he has assailed dying declaration made by deceased Kamlaben before the prosecution witnesses; Atmaram, Gafurbhai and Taraben Chandubhai. He has assailed the genuineness and credibility of the contents of the F.I.R. recorded by P.S.I., Sharma, and dying declaration recorded by the Executive Magistrate and submitted that the order of conviction is mainly based on this dying declaration. Dying declaration relied by the learned trial Judge does not inspire confidence, hence, order of conviction is bad. So, appeal should be allowed and the accused should be acquitted or atleast, looking to the totality of the facts and documents on record, he should be given benefit of doubt.