Decided on January 28,2016

Vijaysinh Jaysinh Rathod Appellant


K.S. Jhaveri, J. - (1.) The appellant has been found guilty of commission of offence under Ss. 498(A) and 302 of Indian Penal Code and has been awarded rigorous imprisonment for one year & ordered to pay fine of Rs. 200/ -, in default, to undergo additional rigorous imprisonment for one month u/s. 498(A) and rigorous imprisonment for life and fine of Rs. 500/ -, in default, to undergo additional rigorous imprisonment for three months u/s. 302 by learned Additional Sessions Judge, Court No. 8, Ahmedabad city vide judgment and order dated 29.05.2007 passed in Sessions Case No. 217 of 2003.
(2.) It is the case of the prosecution in short that on 16.03.2003, the deceased had prepared chicken for her husband - accused. It is the case of the prosecution that as the deceased was a vegetarian she did not have chicken. She told the accused that she felt dizziness. The accused got excited and poured kerosene on the deceased and set her ablaze. The accused caught hold of her and also sustained burns. The neighbours rushed to the house and took the deceased to hospital. 2.1 The appellant was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences have been read before us by learned advocates for both the sides: 2.2 The prosecution also exhibited the following documents which have been perused by us during the course of hearing: 2.3 At the end of the trial and after recording the statement of the accused under Sec. 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal.
(3.) Mr. Rutul Desai, learned advocate appearing for Mr. Mrugen Purohit, learned advocate for the appellant submitted that the prosecution failed to prove the case against the appellant beyond reasonable doubt. He submitted that therefore there is no reason to believe that the appellant had committed the alleged offence. He submitted that in fact the accused tried to save the deceased and in the event sustained burns. He submitted that the trial court has not considered the dying declarations of the deceased in their true perspective. Mr. Desai submitted that the alleged offence occurred on 16.03.2003 whereas the deceased had expired on 26.03.2003 i.e. after about 10 days of the alleged incident. He submitted that in fact the deceased had died due to septicemia and considering around 45% burns sustained by the deceased, it cannot be said that the burns proved to be fatal to the deceased. He submitted that therefore the appellant deserves to be acquitted of the offence charged against him. 3.1 Mr. Desai submitted that if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the medical evidence and the fact that the deceased had survived for around 10 days after the incident, the Court may consider the case of the appellant under Sec. 304 (Part II) of Indian Penal Code. In support of his submissions, Mr. Desai has relied upon the decisions of the Apex Court in the case of Maniben v/s. State of Gujarat reported in : (2009) 8 SCC 796;

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