JUDGMENT :

Rajendra M. Sareen, J.

1. The State being prosecuting agency has preferred this appeal under Section 378 of the Criminal Procedure Code against the judgment and order dated 02.07.1994 rendered by the learned Additional Sessions Judge, Mahesana in Sessions Case No.57 of 1994.

2. The short facts giving rise to the present appeal are that, deaseased was married to Vithalbhai Valjibhai Vaghari and both were residing at Radhanpuriwas, Patan. On the day prior to the incident, there was exchange of words between deceased and her in-laws that the deceased was not giving food to her husband. On the day of the incident, her mother-in-law had come to her house and started quarraling on the flimsy ground that she is not giving food to her son and is often quarraling with her son. Therefore, she should return the golden ornaments, which she was having with her. At that time, accused No.2 Babubhai Valjibhai came and gave carosine to accused No.1 Govabhai @ Govindbhai Valjibhai poured kerosine and lighted a matchstick. As a result of which deceased – Geetaben was burnt and she came out of the house shouting for the help. The neighbours gathered and extinguished the fire. At that time three accused were present over there. The father in law of the deceased took her to the hospital, where Medical Officer in charge intimated the incident to the police constable, who was on duty in the hospital about the incident and complaint was registered by the deceaed. Dying declaration was also recorded by the Executive Magistrate. The statements of the witnesses – mainly brother of the deceased was also recorded. The PSI also recorded the statement of the deceased and she succumbed to the burn injuries during her treatment and thereafter, on completion of investigation, charge-sheet was filed for the offences punishable under Sections 302 read with Section 34 and 504 of the Indian Penal Code.

3. The case was committed to the Sessions Court by the learned Judicial Magistrate, Patan, wherein the Sessions Case was tried against the accused. Witnesses were examined and several documentary evidence were produced by the prosecution. After the evidence was over, further statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure and arguments were heard and after appreciating the oral as well as documentary evidence, the trial Court has delivered the judgment, acquitting the accused persons from the offence as alleged against them.

4. Being aggrieved by the same, the appellant - State has preferred the present Criminal Appeal before this Court.

5. It is pertinent to note that during the pendency of the appeal, accused – respondent Nos. 2 and 3 have expired. As such, appeal stands abated against respondent Nos. 2 and 3. Thereby, appeal has been heard only qua accused – respondent No.1.

6. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has erred in evaluating the evidence on record and without appreciating the evidence in its proper perspective acquitted the accused and therefore, the impugned judgment and order of acquittal is required to be reversed, as such.

7. We have heard learned APP Mr. H.K. Patel appearing for appellant – State and learned advocate Mr. P.T. Jasani for respondent – accused No.1. Learned advocate has filed written submissions in support of his arguments.

7.1 Learned APP has vehemantally argued that the Sessions Court by the impugned judgment has acquitted the accused. The impugned judgment is contrary to law, facts and evidence on record. The impugned judgment is illegal, improper and bad in law. The learned Sessions Judge has erred in disbelieving the prosecution evidence, which has supported the case of prosecution. It is also submitted that the deceased gave five dying declarations, One before the Doctor,