The dying declaration and FIR can form the basis of conviction if found to be reliable and consistent, and the court may apply exceptions to relevant sections of the IPC to determine the appropriate offense.

JUDGMENT :

M.R. MENGDEY, J.

1. The present appeal has been preferred by the appellant under Section 374 of Cr.P.C. challenging the judgment and order dated 05.05.2014 passed by Ld. Additional Sessions Judge, Patan in Sessions Case No. 30 of 2013, whereby the appellant has been convicted for the offence punishable under Sections 302 of IPC and is sentenced to undergo rigorous imprisonment for life and fine of Rs. 1000/- and in default of payment of fine, further simple imprisonment of 15 days is imposed.

2. The short facts giving rise to filing of present appeal are as under:

2.1 On 02.12.2012, deceased Bhuriben, who happens to be the wife of the present appellant, lodged an FIR with Radhanpur Police Station to the effect that on 02.12.2012, at around 09.00 a.m. she was present in her house along with her husband and her in-laws had gone out of station for some personal work. Her husband i.e. present appellant had an illicit relationship with one Hansaben, who was living in the neighbourhood and therefore, the deceased scolded her husband i.e. present appellant. Upon which, the appellant herein got provoked and poured kerosene on her body and set her on fire.

3. On the basis of the said FIR, an offence punishable under Section 302 of the IPC was registered against the present appellant. The Investigating agency, after carrying out the investigation, filed charge-sheet against the present appellant for the said offence. Since the offence alleged against the present appellant was exclusively triable by the Court of Sessions, the Ld. Magistrate had committed the case to the Court of Sessions under the provisions of Section 209 of the Code of Criminal Procedure.

4. The Sessions Court recorded the plea of the appellant and since the appellant pleaded not guilty, he was put to trial. The Ld. Additional Sessions Judge framed the charge for the offence punishable under Section 302 of the IPC against the present appellant vide Exh.4 on 24.07.2013.

5. The prosecution has examined as many as 20 witnesses to prove the charges leveled against the appellant and had also relied upon various documents for the said purpose. After the evidence of prosecution was furnished, further statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, wherein the appellant had completely denied the evidence recorded against him. The Sessions Court, after hearing the arguments of both the sides and after considering the evidence on record was pleased to convict the appellant for the offence punishable under Section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life and also imposed fine of Rs. 1000/- and in default of payment of fine, further simple imprisonment of 15 days is imposed.

6. Being aggrieved and dissatisfied with the said judgment and order, the appellant has preferred the present appeal.

7. Learned advocate for the appellant has submitted that, in the present case, the case of prosecution rests upon the document vide Exh.35 which is dying declaration of the deceased recorded by the Executive Magistrate. In the said dying declaration, as per the case of prosecution, the deceased had put her thumb impression, however, as per the medical evidence adduced on record, the fingers and the thumb of both the hands of the deceased had got burnt and therefore, there was no possibility of the deceased to put her thumb impression on the dying declaration. This fact raises a doubt about the authenticity of the dying declaration vide Exh.35. He further submitted that the treating doctor PW-1 Mr. Amit Devendrabhai Sharma, who was examined at Exh.6 on behalf of prosecution has admitted in his deposition that due to severe pain, the patient may not be in a fit state of mind. This also raises a suspicion upon the authenticity and reliability of the dying declaration purportedly given by the deceased before the Executive Magistrate.

7.1 Learned advocate for the appellant has submitted that from the evidence produced on