JUDGMENT

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

[1.0] This appeal is directed under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for short) against the impugned judgment and order of acquittal dated 11.10.1999 passed by the learned Sessions Judge, Bharuch in Sessions Case No.226/1997, whereby, the learned Sessions Court acquitted the respondent – accused for the offence punishable under Section 302 and 506(1) of the Indian Penal Code, 1860 (for short “IPC”).

[2.0] The following noteworthy facts emerges from the record of the appeal:

[2.1] The prosecution case in brief is that the deceased complainant is Bhabhi (sister in law) of the respondent – accused and on 31.05.1997, the accused demanded money from the complainant which on being denied by the complainant, the accused threatened the complainant by saying that if the complainant will not give him money, he will click obscene photographs of the complainant and will show them to her family members and will defame the complainant. It is further the prosecution case that since the complainant was cleaning the primus stove, the accused sprinkled kerosene from the said primus stove on the complainant and set ablaze the complainant and tried to kill the complainant pursuant to which the complainant sustained severe burn injuries and died during her treatment.

[2.2] Therefore, on 02.06.1997, the FIR being I-CR No.64/1997 came to be registered against the respondent – accused initially for the offence punishable under Sections 307 and 506(1) of the IPC came to be filed. At the end of the investigation, charge-sheet was filed against the accused before the trial Court on 03.07.1997. However, during the treatment, the complainant died on 03.09.1997 and therefore, section 302 of the IPC came to be added. Since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated and charge came to be framed below Exh.3 for the offence under Section 302 and 506(1) of the IPC.The accused pleaded not guilty and claimed to be tried.

[2.3] At the trial, in order to bring home the charges levelled against the accused, the prosecution examined in total 21 witnesses and also relied upon 26 documentary evidences.

[2.4] After recording the evidence, further statement of the accused under Section 313 of the CrPC came to be recorded wherein the accused pleaded not guilty.

[2.5] Upon hearing the arguments on behalf of the prosecution and the defence, the learned Trial Court acquitted present respondent – accused from the charges for offence under Sections 302 and 506(1) of the IPC vide impugned judgment and order of acquittal dated11.10.1999 in Sessions case No.226/1997, as mentioned above.

[3.0] Heard learned advocates appearing for the respective parties.

[4.0] Learned APP Ms. Shruti Pathak has submitted that the learned Trial Court committed an error in appreciating the evidence though there was ample evidence on record to convict the accused.

[4.1] Ms. Pathak, learned APP has further submitted that there were two consistent dying declarations and though duly proved coupled with evidence of the independent witness, who had seen the accused, who happens to be brother in law of deceased, fleeing away after the incident and through his evidence, prosecution has proved the case beyond reasonable doubt though the learned trial Court has committed an error in ignoring the evidence of said witness and acquitted the accused. Referring to the evidence of Executive Magistrate, learned APP has submitted that Executive Magistrate is an independent witness and has nothing to do with the accused and no grudge or animosity with accused and therefore, there was no reason for the learned trial Court to discard the evidence of Executive Magistrate. She has further submitted that the learned trial Court has committed an error in discarding the evidence of Executive