K.S. Jhaveri, J. - (1.)THIS appeal is directed against the judgment and order of acquittal dated 4.4.2008 passed by Additional Sessions Judge, Fast Track Court No. 10, Vadodara, in Sessions Case No. 187 of 2007, whereby the respondent -original accused was acquitted of the charges under Sections 302 and 498(A) of the Indian Penal Code.
(2.)THE facts in brief giving rise to the filing of present appeal are as under:
2.1 The victim married with the respondent -accused, however, as the victim was not in a position to conceive child, the respondent -accused used to give mental and physical torture to her and also taunted her for the same. On 23.2.2007, in night hours, an altercation took place between the accused and the victim, thereafter, the accused asked her to bring Rs. 5,000/ - from her maternal home. The accused also taunted her for not conceiving the child and threatened that he would marry for the second time. On the very same night, at about 3 O' clock, the accused poured kerosene on the body of the victim and set her on fire. Thereafter, she was taken to Bharuch Welfare Hospital, where she succumbed to the burn injuries on 26.2.2007. Accordingly, the complaint being C.R. No. I -44/2007 came to be registered with Karjan Police Station for the offences punishable under Sections 302 and 498(A) of IPC.

2.2 Investigation was carried out and the accused came to be arrested. At the end of investigation, charge -sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried.

2.3 In order to bring home the charges against the accused persons, prosecution has examined following witnesses.

2.4 The prosecution has also relied upon following documents in support of its case.

2.5 Thereafter, after filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him.

At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 4.4.2008 passed by Additional Sessions Judge, Fast Track Court No. 10, Vadodara, in Sessions Case No. 187 of 2007, the appellant -State has preferred the present appeal before this Court.

(3.)MS . Nisha Thakor, learned APP appearing for the State has taken us through the oral as well as documentary evidence and contended that the trial Court has committed an error in acquitting the accused inspite of voluminous evidence against him and contended that the trial Court ought not to have acquitted the accused. She submitted that the learned Sessions Judge ought to have appreciated the version of PW -14 viz., Iliyas Hafiz Ismail, Executive Magistrate, who has been examined at Exh. 28. This witness has stated in his evidence that after receiving yadi, he reached the hospital for recording dying declaration of the victim. He stated that after obtaining endorsement regarding fit state of mind of the victim from the doctor, he has recorded the dying declaration of the victim, wherein she has narrated the incident and stated that it is his husband, who poured kerosene on her and set her on fire. She has also submitted that in fact the learned trial Judge has ignored the deposition recorded vide Exh. 28 as referred above. She also submitted that Dr. Lalitbhai Bhagubhai Patel, PW -15, Exh. 31, who performed postmortem of the dead body, has stated that the victim was burnt to the extent of 90 to 95% and he has opined the cause of death is the burn injuries received by the victim. She also submitted that even Dr. Yasmin Mahammad Rasulkhan, PW -17, Exh. 39 has also supported the case of the prosecution. She submitted that the learned trial Judge has committed an error in not believing the version of the deceased in the form of complaint as well as dying declaration, wherein she has stated about the harassment being meted out to her at the behest of the respondent -accused. She submitted that on the date of incident, quarrel had taken place between the accused and the victim and the accused asked the victim to bring Rs. 5,000/ -from her parents for the marriage of his younger brother and on the same night, the incident in question has taken place. In the complaint, the victim has stated that her husband has poured kerosene on her and in her dying declaration also she has repeated the same incident. She further submitted that as per the evidence on record, the deceased was in the fit state of mind at the time of recording of dying declaration. She, therefore, submitted that the learned trial Judge has committed an error in not believing the evidence on record and acquitting the accused of the charges levelled against him. She, therefore, prays that this appeal may be allowed by reversing the impugned judgment.