IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 512 of 1997 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MS. JUSTICE NISHA M. THAKORE =============================================

Approved for Reporting Yes No √

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STATE OF GUJARAT Versus KALUBHAI AMARSHI AGHARA =============================================

Appearance:

MS VRUNDA SHAH, APP for the Appellant(s) No. 1 MR NEERAJ SONI(3433) for the Opponent(s)/Respondent(s) No. 1 =============================================

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 07/04/2025

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal filed by the Appellant-State under Section 378 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) against the judgment and order of acquittal dated 01.03.1997 passed in Sessions Case No.120 of 1995 wherein the learned Additional Sessions Judge, Jamnagar (hereinafter referred to as "the trial Court") has acquitted the respondent-accused Kalubhai Amarshi Aghara for the offence punishable under Sections 302 and 498A of the Indian Penal Code, 1860, (for short, "the IPC").

2. The case of the prosecution as per the Charge at Exh.1 and in the complaint dated 12.03.1995, Exh.35 registered by the deceased – Jashuben is that on 12.03.1995, after the deceased instigate her husband of sitting idle and not going to work, the accused got irritated, and assaulted her by giving kick and fists blows, and poured kerosene on her from a tin and bottle and set her ablaze.

3. It is further narrated by the deceased (complainant) in the complaint dated 12.03.1995, that after she was set ablaze by the accused, she ran out in the open space (faliya) and on hearing her shouts, the neighbors also gathered and at that moment, her husband –accused had thrown a quilt on her and tried to extinguish the fire, and at that moment her sisters-in-law – Bhanuben Babubhai (PW-10) and Rajuben Bhupat (PW-4) also arrived along with the other persons from the adjacent area, who saved her and thereafter, she was taken to the hospital by the accused along with one Chhotugar Samgar (Mahraj) (PW-11). She has narrated that due to this incident, she has suffered burn injuries on her face, hands, chest and also on stomach. It is alleged by her that her husband, who was sitting idle and was having the habit of consuming liquor became annoyed and poured the kerosene on her and set her ablaze. She has further stated that she was conscious at the time of recording of the complaint. The complaint is recorded by the Police Sub Inspector, City “B” Division Police Station, Jamnagar. The complaint at Exh.35 also bears the toe imprint of her right foot. It also bears the endorsement of a doctor at 1:15 p.m., who has certified that “the patient is fully conscious and well oriented at time place person. Thus, this can be treated as “dying declaration” of the deceased.

4. The prosecution has tried to bring home the charge on the basis of documentary as well as ocular evidence, however, the trial Court has acquitted the accused from the offence, for which he was charged. In order to establish the guilt of the accused, the prosecution has examined total 17 witnesses, and 19 documentary evidence before the trial Court. The accused, in his defence, has also examined the Defence Witness – Shantaben Jadavbhai at Exh.62.

5. Learned Additional Public Prosecutor Ms.Vrunda Shah, at the outset, while inviting the attention of this Court to the dying declaration at Exh.18 recorded by the Executive Magistrate (PW-03) – Hiren Chandrakant Purohit at Exh.16 has submitted that the dying declaration categorically establishes the complicity of the accused in the offence. She has submitted that the deceased has firmly elaborated the role attributed to the accused in pouring kerosene on her and setting her ablaze.

6. Learned APP has also placed reliance on the first tr