The main legal point established in the judgment is the requirement for corroboration and consistency in dying declarations, and the principle of giving the benefit of doubt to the accused when two reasonable conclusions are possible.

JUDGMENT :

(Rajendra M. Sareen, J.)

1. Present Criminal Appeal has been preferred by the appellant – State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 28/01/1997 passed by the learned Sessions Judge, Vadodara in Sessions Case No.54 of 1996 acquitting the respondent original accused from the offence punishable under section 302 of Indian Penal Code.

2. The crux of the case of the prosecution is as under:- Complainant Ahmed-Hussain Bhikhumiya Malek, resident of Kalyannagar, Kamatibaug, Vadodara is working as a watchman in Jyoti Limited Company. He has six sons and two daughters out of which marriage of elder daughter – Abeda was performed before four years with Maheboobmiya Bhikhumiya Kureshi, resident of Village Gorva. Maheboobmiya has one earlier wife also. Prior to two years from the date of incident, daughter of the complainant Abeda and her husband were residing in a hut near their house in Kalyannagar Tekara. Out of the wedlock of the daughter of the complainant and Maheboobmiya, one daughter has born whose name is Taslim. Since the Abeda has not delivered son child, Maheboobmiya frequently quarrel with her and was taunting and in drunken condition, he was also beating his daughter Abeda.

It is alleged that on the day of the incident at 8 O’clock at night, the complainant was present at his house with his family members and at that time, her daughter Abeda had come rushing to his house in naked condition and with severe burns on her body and was shouting that where is her Munni and hence she was made to sleep in the house. After sometime, elder brother of the complainant - took the Abeda in SSG Hospital and during that time, on inquiry, Abeda informed him that her husband in drunken condition was quarreling with her saying that she is not delivering boy child and he was abusing her and hence, she poured kerosene on her body and threatened to set at fire herself and at that time, her husband – accused herein lighted the match-box and throw it on her and hence she has sustained burn injuries. Therefore, the complainant lodged the complaint ion 1/12/1994.

3. On the basis of the said complaint, investigation was started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondent – accused, Chargesheet was filed in the court of learned Chief Judicial Magistrate. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Sessions Judge, which has been numbered as Sessions Case No.54 of 1996. Thereafter, Charge was framed against the accused for the offence punishable under section 302 of Indian Penal Code. The accused pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. After the evidence was over, Further Statement of the accused were recorded under section 313 of the Code of Criminal Procedure and arguments were heard. At the conclusion of the trial, the learned Sessions Judge was pleased to acquit the accused for the charge levelled against him. Hence, the appellant - State of Gujarat has preferred the present Criminal Appeal challenging the judgement and order of acquittal.

4. Heard Ms.C.M. Shah, learned APP for the State and Ms.Shubha Tripathi, learned advocate for the surviving respondent accused.

5. Mr.C.M. Shah, learned APP has vehemently submitted that the Sessions Court has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. She has further submitted that the Sessions Court has erred in acquitting the respondent - a