J.M.PANCHAL, J. - (1.)Instant appeal filed under Section 374 of the Code of Criminal Procedure, 1973 is directed against judgment dated August 7, 1996, rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.95 of 1996, by which the appellant is convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.500/-, in default, R.I. for three months.
(2.)Deceased Manjuben Ramaji Thakor was married to Ramaji Mansangji Thakor before 8 years of the incident which took place on February 5, 1996 and was residing with her husband and three minor daughters at village Sundhia, Taluka : Kheralu, District : Mehsana. On February 4, 1996, a religious discourse was arranged in front of house of one Thakor Kavaji in the Maholla where house of deceased Manjulaben Thakor was situated. The appellant, who is neighbour and family nephew of the deceased, had approached the deceased and asked the deceased to submit to his sexual desires. The deceased had spurned the offer upon which the appellant had got enraged and annoyed. On the day of incident, i.e.February 5, 1996, a quarrel had taken place between the appellant and the deceased, as the deceased had refused to submit herself to illegal and improper demands made by the appellant to have sex with her. At about 8.00 p.m. the appellant had gone inside the house of the deceased, who was sleeping with her three minor daughters, with a can containing kerosene. The appellant had poured kerosene over the deceased and set her ablaze. The deceased had put on polyester Sari which had caught fire immediately. Because of burn injuries, the deceased had raised shouts. Her husband Ramaji, who was not present, was also informed about the same and he with the help of others had extinguished fire by covering the body of the deceased with a quilt. The deceased was thereafter removed to General Hospital, Visnagar for treatment. Dr.Bhogilal Amthalal, who was then Medical Officer of the Hospital, had treated her and noted history of assault as narrated by the deceased. The doctor had given telephonic information at Visnagar Police Station, which was noted down by P.S.O. of the Police Station. P.S.O. of the Police Station had sent a yadi to Executive Magistrate Mr.Rasiklal Jivabhai Patel and requested him to record dying declaration of the deceased. Accordingly, the Executive Magistrate had gone to the hospital and tried to ascertain from the doctor as to whether the deceased was conscious and in a fit state of mind to make statement or not. The doctor, whose office was situated quite near the Ward in which the deceased was admitted for treatment, had examined the deceased and certified that the deceased was conscious and in a fit state of mind to make statement. The doctor had made s necessary endorsement below the yadi itself which was addressed by the police officer in charge of Visnagar Police Station to the Executive Magistrate requesting him to record dying declaration of the deceased. 10 The Executive Magistrate had also satisfied himself that the deceased was conscious and in a fit state of mind to make statement. Accordingly, the Executive Magistrate had ecorded the dying declaration of the deceased in questions and answers form and obtained right hand thumb impression of the deceased after recording of dying declaration was over. The police officer in charge of Visnagar Police Station had 20 infomred the 2nd Grade Jamadar Mr.Shambhuji Pradhanji that the deceased was admitted in Visnagar General Hospital for treatment of burn injuries and that appropriate steps should be taken by him. Accordingly, the 2nd Grade Jamadar had gone to General Hospital, Visnagar and recorded complaint of the deceased as narrated by her. In view of disclosure made by the deceased that the appellant had set 30 her on fire after pouring kerosene over her, initially offence punishable under Section 307 I.P.C. was registered against him. The complaint lodged by the deceased was investigated by Mr.G.K.Desai, who was 35 then P.I. of Kheralu Police Station because the offence had taken place within the jurisdiction of Kheralu Police Station. The investigating officer had drawn panchnama of place of occurrence as pointed out by 40 Sartanji, who was brother of husband of the deceased. The investigating officer had also recorded statements of those persons, who were found to be conversant with the facts of the case. Meanwhile, the appellant 45 had surrendered before the police on February 7, 1996 with a plastic Can which was smelling of kerosene and, therefore, the appellant was arrested; whereas the Can smelling kerosene was attached. As condition of the deceased had deteriorated, she was referred to Civil Hospital, Ahmedabad for better treatment. During the course of treatment, the deceased had succumbed to her injuries on February 11, 1996 and, therefore, offence punishable under Section 302 I.P.C. was registered against the appellant. The investigating 10 officer had made arrangements for sending the dead body of the deceased to Civil Hospital, Ahmedabad for post-mortem examination. The autopsy on the dead body of the deceased was held by a panel of is doctors comprising Dr.Pratimaben Bharatkumar and Mr.B.B.Oza. The investigating officer had thereafter held inquest on the dead body of the deceased and sent incriminating articles such as 20 control earth seized from the place of incident, plastic Can produced by the appellant, etc. for analysis to Forensic Science Laboratory. On conclusion of investigation, the appellant was charge- sheeted in the Court of learned Judicial Magistrate, First Class, Kheralu of the offence punishable under Section 302 I.P.C. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Mehsana for trial, where it was numbered as Sessions Case No. 95 of 1996.
(3.)The learned Additional Sessions Judge, Mehsana, to whom the case was made over for trial, had framed charge against the appellant of the offence punishable under Section 302 I.P.C. at Exh.2. The charge was read over and explained to the appellant, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Dr. Pratimaben Bharatkumar as PW.1 at Exh.9, (2) Ramaji Mansangji as PW.2 at Exh.11, (3) Patel Rasiklal Jivabhai as PW.3 at Exh.12, (4) Bakaji Sartanji as PW.4 at Exh.15, (5) Sartanji Mansangji as PW.5 at Exh.16, (6) Shambhuji Pradhanji as PW.6 at Exh.21, (7) Khodaji Bhikhaji as PW.7 at Exh.23, (8) Ghemarji Amaji as PW.8 at Exh.25, (9) Gandabhai Kalabhai Desai as PW.9 at Exh.26, and (10) Dr.Bhogilal Amthalal as PW.10 at Exh.28, to prove its case against the appellant. The prosecution also produced documentary evidence such as map of place of occurrence at Exh.8, post-mortem notes at Exh.10, yadi sent to Executive Magistrate requesting him to record dying declaration of the deceased at Exh.13, dying declaration of the deceased recorded by Executive Magistrate at Exh.14, panchnama of place of occurrence at Exh.17, panchnama of person of the deceased at Exh. 18, panchnama indicating seizure of clothes of the deceased at Exh.19, inquest report at Exh.20, complaint of deceased Manjuben as recorded by witness Shambhuji Pradhanji at Exh.22, arrest panchnama of the appellant at Exh.24, certificate indicating injuries sustained by the deceased which was issued by Dr.Bhogilal Amthalal at Exh.29 etc. in support of its case against the appellant.