The court confirmed that a dying declaration can be the sole basis for conviction if found credible, and the intentional act of setting a spouse ablaze constitutes murder, not mere culpable homicide.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. The appellant was prosecuted for the offence of murder of his wife under Section 302 of the Indian Penal Code and offence of cruelty under Section 498A IPC. The trial Court acquitted the appellant under Section 302 of Indian Penal Code and found guilty the appellant for the act of culpable homicide not amounting to murder punishable under Section 304 Part-II of the Indian Penal Code.

2. Vide judgment and order dated 04.07.2007 passed in Sessions Case No. 43 of 2006, the Additional Sessions Judge at Amreli convicted the appellant for the offence punishable under Section 498A and 304-Part II of the Indian Penal Code and sentenced to undergo imprisonment of 4 years and pay fine Rs.1000/- and in default of payment of fine, to further undergo additional simple imprisonment for 3 months.

3. The appellant, being aggrieved and dissatisfied with the judgment of conviction and sentence, has preferred Criminal Appeal being Criminal Appeal No. 946 of 2007.

The State being aggrieved with the judgment of acquittal under Section 302 of the Indian Penal Code, has preferred the acquittal appeal being Criminal Appeal No. 527 of 2008.

The enhancement appeal being Criminal Appeal No. 1130 of 2007 has been preferred by the State on the ground of inadequacy of the sentence.

At the time of hearing of conviction appeal, this Court suo-motu took cognizance of insufficient sentence awarded to appellant accused and registered it as Suo-motu Criminal Revision Application No. 508 of 2007 and same is disposed of vide order dated 24.02.2009.

4. Since the facts of the case and issue involved in all these appeals are identical and arise out of the same judgment, all these appeals are taken up together and are being disposed of by this common judgment.

5. Facts and circumstances giving rise to file these appeals are as under:

5.1 The appellant Girish Sagathiya is resident of village: Balapur, Taluka: Bagasara, Dist.: Amreli. He was married to deceased Jaya and during the wedlock, they blessed with baby boy. After one year of the marriage, there was a matrimonial dispute arise on the petty matters of the family. The husband was used to beat her and she was subjected to mental and physical harassment. She had gone to her parental home because of the matrimonial dispute. The appellant husband brought the wife from parental home upon assurance that, he will take care and no further ill-treatment being given to her. On this premise, the deceased wife Jaya along with child aged about 1 year and more, came to village: Balapur, at her matrimonial home. After 15 days from her returning back, the appellant had started to harass her and used to beat her on the petty issue of household work. The wife was having suspicion about the character of the appellant, as he maintaining extra marital affairs with someone. When the deceased asked the appellant about said relationship, the appellant took it otherwise and the dispute arise between them. In these background facts, on 16.02.2006, the husband being a diamond polisher, had gone to village: Bagasara and at about 12-00 O’clock he returned back to his village. There was no one in the house, because the father and mother of the accused went to village: Gundali to attend the after death rituals.

The husband after taking lunch, again went to village and when he came back, the deceased had inquired from him that where he had gone. On this issue, the dispute arose, as a result, the husband appellant slapped the deceased for twice. The deceased requested the appellant not to beat her and told that she does want to