BHAIRAVIYA, J. - (1.) XXX XXX XXX XXXX
(2.) The appellant -accused has been prosecuted for the offence under Section 302 of the I. P. Code on the allegation that he had sprinkled kerosene on the deceased Lilaben on 14 -3 -1984 at about 9.00 p.m. in his house at Viramgam. She succumbed to the bum injuries and died on 15 -3 -1984. It is alleged that the appellant -accused was under the influence of liquor. At the time of incident, quarrel took place in the house between the deceased and appellant -accused. Deceased is the wife of the appellant -accused and out of wedlock, they had one male child aged about two years. On the day of the incident, it is alleged that the appellant -accused came to his house at about 9.00 p.m. in a drunken state of affairs and picked up quarrel with deceased Lilaben telling her that he does not want her, she may go away where ever she likes. Thereafter, under the influence of alcohol, he sprinkled kerosene on the deceased and ablazed her by enlighting match -stick. On hearing shouts of Lilaben, neighbours rushed to the rescue of deceased Lilaben and tried to extinguish fire by covering her body with mattresses and thereafter she was taken to Gandhi Municipal Hospital, Viramgam. Dr. Kirit Patel examined her and he found 92% burns on the body of Lilaben and, therefore, doctor advised to take Lilaben to Ahmedabad. She was then admitted to V. S. Hospital at Ahmedabad at about 1.40 a.m. and treatment was given by Dr. Udani. It is alleged that a complaint was lodged at Viramgam Police Station at about 1.40 a.m. by witness Madarsing Halusing Thakor for an offence under Section 307 of the I. P. Code against the accused. Injured Lilaben died at about 10.55 p.m. on 15 -3 -1984. After performing post -mortem examination dead -body of the deceased was cremated at Viramgam. Charge levelled against appellant -accused was altered from Section 307 of I. P. Code to Section 302 of the I. P. Code. Investigation was carried out by P.S.I. Deshrathsinh Joravarsinh Vaghela. It is the prosecution case that immediately after the incident, the accused was found near the house and was caught by one Nathubhai, brother -in -law of the appellant -accused; and he handed over the accused to the Viramgam Police. It is alleged that the accused was arrested at about 1.15 a.m. on 14 -3 -1984. After investigation, charge -sheet was submitted in the court and the accused -appellant was committed to the court of sessions for trial. The prosecution examined about 11 witnesses including the Investigating Officer. However, P.W. Nos. 1 (complainant) 3,4,5,6, 7 & 8 have not supported hostile witnesses by the Court and were allowed to be cross -examined. P.W. 9 Adam Ali, Head Constable sent a yadi (exh. 29) to P.W. 2 Babubhai Ranchhodbhai Shah -Executive Magistrate for recording dying declaration of injured Lilaben. Before Executive Magistrate (P.W .2) could record dying declaration of injured Lilaben, it is alleged that P. W. 9 Adam Ali, Head Constable, has recorded statement of the injured in presence of the doctor at about 1.30a.m. on 14 -3 -1984. The learned Addl. Sessions Judge has recorded conviction of the appellant -accused relying on the dying declaration (exh. 17) and accused has been convicted for the offence under Section 302 of the I. P. Code and sentenced to suffer rigorous imprisonment for life by the impugned judgment and order dated 10 -9 -1984.
(3.) xxx xxx xxx xxx;