Gujarat High Court
Rasulbhai Tejiyabhai Mandod vs State Of Gujarat on 10 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/844/2016 JUDGMENT DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 844 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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RASULBHAI TEJIYABHAI MANDOD
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Appellant
MR JAY MEHTA APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 10/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole appellant-
accused herein under Section 374(2) of Code of
Criminal Procedure, 1973 (hereinafter referred to as
“the Cr.P.C.” for short) is directed against the
judgment of conviction and order of sentence dated
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09.03.2016 passed by the learned 3rd Additional
Sessions Judge, Dahod in Sessions Case No.199 of
2013, by which the appellant has been convicted
under Section 302 of the IPC and sentenced to
undergo imprisonment for life and pay fine of
Rs.5000/-, in default of payment of fine, to further
undergo additional imprisonment for 3 months. The
appellant-accused is also convicted under Section 436
of IPC and sentenced to undergo 2 years
imprisonment and fine amount Rs.2000/-, in default of
payment of fine, to further undergo imprisonment for
2 months. The court has directed that the sentences
were to run concurrently.
2. Facts and circumstances giving rise to this appeal are
as under:
2.1 The ppellant-accused Rasulbhai was having two
wives and both the wives along with their respective
children total in numbers 9, were residing in one roof
at Village: Gulbar, Taluka: Garbada, Dist: Dahod. The
deceased Kamlaben was the second wife and out of
their wedlock, four daughters and one son was born
out. The appellant-accused was doubting the
character of the deceased Kamlaben and for the said
reason, the matrimonial dispute arose between the
parties and she was subjected to mental and physicalPage 2 of 26
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harassment by the appellant-accused. Prior to the
incident, there were an occasions for the deceased to
leave her matrimonial home because of harassment
meted out to her by the accused and upon
intervention of the community persons and family,
she agreed to live with the accused.
2.2 On 26.06.2013, the accused went to Village: Garbada
and on the same day came back in the noon at about
12:00 p.m. The deceased was working the farm near
the house. The accused called her and directed her to
make tea. When the deceased was in preparation of
the tea, the appellant-accused raising the dispute
about her illicit relations with the neighbouring
persons, poured kerosene oil from the plastic cane
lying in the house and lit her on fire, as a result of
which, she tried to ran away from the place but she
could not succeeded and fell on the floor and due to
flames of fire, the house was gutted into the fire. On
account of said incident, relatives and neighbours
were came over there and tried to extinguish the fire.
On arrival of emergency 108 mobile van, she was
taken to the Government Hospital, Dahod and due to
worsen condition, the doctor referred her to higher
centre at Vadodara, but, the relatives of the deceased
admitted her in the private hospital at Dahod.
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2.3 PW.1 – Abhaysingh Taviyad, PSI, Garbada Police
Station received a vardhi from the police station and
immediately he rushed to the hospital and in the
presence of Medical Officer, he inquired from the
deceased about the facts of the incident. The
deceased Kamlaben in her statement before PW.1,
stated that at about 12 o’ clock, the appellant-
accused made allegation that she was having illicit
relations with the neighbouring persons and raising
the said dispute, he took the plastic cane and poured
the kerosene oil and set her on fire. She has also
stated that, due to said incident, her house also burnt
and destroyed. She has also stated that, the relatives
and neighbouring persons took her to Government
Hospital and then she had been transferred to K.K.
Hospital, Dahod for further treatment.
2.4 PW1 after recording the statement in the form of
dying declaration, sent it to the Station Officer,
Garbada Police Station and same had been registered
as C.R. No.84 of 2013 and an offences being
registered punishable under Sections 307 and 436 of
the IPC.
2.5 The investigation was entrusted to PW.1. He had
called the Executive Magistrate for recording the
statement of deceased by written letter. The PW.3 –
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Executive Magistrate got information on 26.06.2013
at about 5 o’clock in the evening and after half an
hour, he reached at the Civil Hospital, Burns
Department where he recorded the statement of the
deceased and before recording the statement, the
opinion of treating doctor was sought about the
consciousness and fit condition of the deceased to
record the statement. The statement in the form of
dying declaration was taken by the PW.3 and after
completion thereof, he again sought endorsement of
the treating doctor about the consciousness of the
deceased. The I.O. – PW.1 took visit the place of
incident and in the presence of independent
witnesses, he collected necessary samples for
chemical analysis and also seized a plastic cane. The
I.O. recorded the statements of relevant witnesses
before whom the deceased had orally disclosed her
about the incident .
2.6 The treatment of the deceased was continued from
26.06.2013 to 06.07.2013 as she suffered 85 to 90%
burn injuries all over the body. The deceased
Kamlaben succumbed to her injuries on 06.07.2013
and she passed away in the private hospital at Dahod.
2.7 The I.O. – PW.1 sent the dead body of the deceased
for post-mortem at Civil Hospital where PW.2
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conducted post-mortem on the body of the deceased
and prepared a P.M. Note at Exh.11 wherein the cause
of death opined that, she died due to burn injuries
and septicemia.
2.8 The I.O. – PW.1 handed over the investigation to
PW.16 – R.S. Patel who obtained the medical evidence
and treatment case papers of the deceased. He also
arrested the accused and seized and recovered the
clothes which the accused had worn at the time of
incident and finally, found sufficient material against
the accused-appellant and accordingly, chargesheet
came to be filed before Magisterial Court, Garbada
who committed the case to the Sessions Court,
Dahod.
3. After due framing of charge and upon the accused
pleading not guilty, trial commenced before the 3 rd
Additional Sessions Judge, Dahod. In the course of
trial, prosecution adduced the following documentary
and oral evidence in support of its case:
Oral evidence
PW 1 – Exh. 6 Abheysingh Nanijibhai Taviyad
PW 2 – Exh. 8 Dr. Munira Jainnuddin Kharodawala, medical
officer
PW 3 – Exh. 12 Bhabor Ramanbhai Ratnabhai
PW 4 – Exh. 15 Chuniyabhai Rupabhai Bhabor
PW 5 – Exh. 17 Kilanbhai Teriyabhai MedaPage 6 of 26
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PW 6 – Exh. 18 Kajuben Kasnabhai Damor
PW 7 – Exh. 20 Dituben Metabhai Mandor
PW 8 – Exh. 21 Vinodbhai Kanjibhai Kharad
PW 9 – Exh. 22 Sukiyabhai Kanjibhai Kharad
PW 10 – Exh. 23 Savitaben Sukiyabhai Kharad
PW 11 – Exh. 29 Ramanbhai Nanjibhai Kharad
PW 12 – Exh. 25 Jabubhai Valabhai Kharad
PW 13 – Exh. 30 Ramniben Rasulbhai Mandod
PW 14 – Exh. 31 Netabhai Nurabhai Mandod
PW 15 – Exh. 32 Rajubhai Netabhai Mandod
PW 16 – Exh. 34 Rakeshkumar Sumanbhai Patel
PW 17 – Exh. 39 Dr. Krushnakumar Amratlal Shah, medical
officer
PW 18 – Exh. 45 Dr. Dharmendrakumar Sureshchandra
Agrawal, medical officerThe prosecution also adduced following documentary
evidence:
Documentary evidence
Exh. 6 Complaint
Exh. 16 Panchanama of place of crime
Exh. 26 Inquest panchanama
Exh. 27 Panchanama of examination of accused
Exh. 28 Panchanama of seizure of clothes of accused
Exh. 14 Dying declaration
Exh. 11 Post mortem note
Exh. 35 Primary report of FSL
Exh. 36 Forwarding letter by Garbada Police Station to FSL
Exh. 37 FSL report
Exh. 38 Letter forwarded for addition of charge of Section
302 IPC
Exh. 41 Medical certificate
4. After closure of prosecution evidence, the appellant
was questioned under Section 313 Cr.P.C. to which he
stated that, he was innocent of all charges leveled and
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the family members of the deceased, on the basis of
suspicion, have falsely implicated him and as such, he
has not committed any offence. Though opportunity
was extended, no evidence was tendered from the
side of the appellant-accused.
5. The learned Sessions Judge after appreciating oral as
well as documentary evidence on record, proceeded
to convict the appellant-convict herein for the offence
under Sections 302 and 436 of the IPC, against which
he has preferred this appeal.
6. Mr. Pratik Barot, learned counsel for the appellant
assails the conviction and sentence mainly on the
following grounds:
(i) The case of the prosecution rests on the two
dying declarations;. one recorded by PW-1 –
PSI – A.N. Taviyad and another one was
recorded by PW-3 – R.R. Bharor, Executive
Magistrate. The statement recorded by the
police, in the form of FIR Exh. 7, cannot be
relied upon as at relevant time, aunt of the
accused was present when it was recorded.
Admittedly, at the time of recording aforesaid
two dying declarations, there is no
endorsement by the doctor indicating the
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mental condition of the deceased to the
effect that, she was in a fit and sound
condition to make the statement. The close
relatives as well as neighbour have not
supported the alleged two dying declarations
and case to the prosecution. The doctors who
had examined the deceased namely – Dr. K.
A. Shah, PW-17 and Dr. D. S. Agrawal, PW-18,
have categorically stated that the deceased
suffered 85 to 90% burn injuries. The
deceased suffered burn injuries over lips,
nose, chicks and majority of the face. As per
opinion of Dr. Agrawal PW-18, considering the
condition of the deceased, she find difficulty
in speaking as well as to understand the
question to be asked to her about the
incident. Admittedly she died after 10 days
and the cause of death was septicemia. The
Executive Magistrate PW-3, while recording
the statement, was not satisfied himself that
the deceased was conscious and able to
speak and in his testimony also, he has not
said about his satisfaction about fit state of
mind of the deceased.
In such circumstances, it was submitted
that, the learned trial Court was failed to
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appreciate the evidence in its true
prospective as at relevant time the deceased
was not in a fully conscious and in a fit state
of mind.
(ii) Mr. Barot, learned counsel in the aforesaid
facts and circumstances would urge that it is
on record that, the deceased was not having
capacity to narrate the facts of the incident,
then, such declarations should be rejected
and it is highly unsafe to place reliance on it,
as where it is suspicious, the same should not
be acted upon without corroborative
evidence.
(iii) In alternative, learned counsel Mr. Barot
would urge that, the appellant could not have
been convicted under Section 302 of the IPC
particularly when the death was on account
of septicemia and at maximum, a case could
have traveled upto the limits of offences
under Section 304 of the IPC.
In the aforesaid submissions, it would
urge that, the trial Court has committed
grave error while convicting the accused on
the basis of two dying declarations, as the
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prosecution measurably failed to prove the
case against the appellant accused beyond
reasonable doubt and therefore, he prayed
that, there being merits in the appeal and it
may be allowed and conviction be set aside
and the appellant may be acquitted of the
charge of murder or in alternate, the
conviction may be modified to be punishable
under Section 304 of the IPC.
7. On the other hand, Mr. Jay Mehta, learned APP,
vehemently opposed the contentions, and submitted
that the conviction of the accused can be based on
the basis of dying declaration if it is wholly reliable
and it requires no corroboration. That the prosecution
has proved beyond reasonable doubt that the accused
appellant was suspecting fidelity of his wife and same
has been disclosed by the deceased in her two
statements Exh.7 and Exh. 14. The Doctor PW-17 and
PW- 18 have opined that despite of sustaining injuries
over the face, the deceased was having capacity to
understand the question and able to speak and same
has been corroborated by the certificate Exh. 41. In
such circumstances, the trial court was justified in
believing the statements of deceased and has not
committed any error either on law or on facts, while
convicting the appellant for the act of murder. The PM
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doctor as well as the treating doctors have
categorically opined that the injuries were serious in
nature and death could be possible when someone
poured kerosene and burn alive and 90% injuries were
sufficient in ordinary course to cause the death. In
such circumstances, referred to above, Mr. Mehta,
learned APP prayed that there being no merits in the
appeal filed by the appellant accused and same may
be dismissed.
8. With the help of learned counsel for the parties, we
have gone through the entire evidence on record and
it may be necessary to refer the relevant and
necessary evidence adduced by the prosecution.
8.1 Abheysingh Taviyad (PW-1) – PSI, Garbada Police
Station had recorded the statement of the deceased
(Exh. 7) and he deposed that, on 26.06.2013, after
receiving the call from the PSO, Garbada Police
Station, he went to Private Hospital namely K.K.
Surgical at Dahod, where deceased was admitted for
further treatment. After preliminary inquiry of the
deceased, he has recorded the statement of the
deceased and recorded what she had stated before
him. The witness PW-1, after registration of the
offence was entrusted the investigation and during
the investigation, he went to the place of occurrence
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and in presence of independent two witnesses and
FSL officer, he drew the panchnama of place of
occurrence and seized the plastic cane of 5 lt.
allegedly lying at the place. He also deposed that he
called the Magistrate by written intimation to him for
recording of the Dying Declaration. In the cross-
examination, the witness admitted that, at the time
of recording complaint, aunt of the deceased was
present. The witness has denied to the suggestion
that, at the instant of family members of the
deceased, he recorded the complaint.
8.2 Bhabhor Ramanbhai Ratnabhai (PW-3) – The
Executive Magistrate, has deposed that, on
26.06.2013, he had been intimated by PSO –
Ratansingh, Dahod Town Police Station about
recording of the statement of the deceased. The
witness has stated that, at about 5-00 PM, he
received the intimation and reached at the Civil
Hospital, Dahod at about 5-25 PM. He met the doctor
Agrawal, PW-18, who had made the endorsement on
the written information that, the deceased was
conscious and able to give statement. After taking
the endorsement, he made preliminary inquiry, then
proceeded to record the statement of the deceased
and completed the statement at about 5.-45 PM and
whatever deceased had stated, he has recorded her
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statement in form of question and answer, which he
produced at Exh. 14. In the cross-examination, he
admitted that, the statement was recorded on the
printed form. The witness has denied that, at the
instance of family members and relatives of the
deceased he mentioned the facts of the incident in
the declaration Exh. 14. The witness has admitted
the facts that the entire face of the deceased was
burnt.
8.3 It is relevant to refer in brief the facts of the FIR –
Exh. 7, disclosed by the deceased before PW-1. In the
FIR, she has stated that, since last one and half
years, her husband – appellant accused suspecting
her fidelity and alleged that, she is maintaining illicit
relationship with neighbouring persons and on that
ground of and on dispute arose and she was
physically abused by him. So far as incident is
concerned, she has stated that at about 12-00
o’clock came back from Garbada and asked her to
make a tea and when she was preparing the tea, the
husband again alleged that, she is maintaining illicit
relationship with neighbouring person and then, he
poured a kerosene and lit her on fire and in these
regard, she stated further that she was caught by
the accused and did not permit her to run away, as a
result, she fell on the floor and meanwhile, her entire
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house was under the flame and destroyed. She
stated further that after hearing the hue and cry, her
aunt and neighboring persons came to rescue and
take her to Civil Hospital, Dahod and thereafter, she
admitted in the private hospital namely K.K. Hospital.
8.4 In order to appreciate the testimony of PW-3 –
Executive Magistrate, let us examine in brief the
contents of Dying Declaration Exh. 14. The
statement is in question and answer form and 17
questions including proposed endorsement of the
doctor seems to be in a printed form. On the point of
incident, she had narrated that, by raising the
dispute of her alleged maintaining illicit relations with
the neighbouring persons, her husband poured
kerosene and lit her on fire and her house is also
destroyed due to fire.
8.5 Dr. Munira Kharodawala (PW-2) – who had conducted
the Postmorum on the body of the deceased, she
noticed superficial to deep extensive second and
third degree of burn injuries whole over the body,
except, external genitine, right foot and heir and
according to her opinion, the cause of death was due
to septicemia due to extensive deep second and third
degree burn injuries. She had further opined that, if
anyone burnt alive by pouring kerosene, such kind of
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injuries could have been possible and in the ordinary
course of nature, the injuries were sufficient to cause
death. In the cross-examination, she admitted that,
the deceased suffered 90% burn injuries and her face
was totally burnt.
8.6 Dr. Krushnakumar Amratlal Shah (PW-17), who was
Medical Officer of K.K. Surgical Hospital, Dahod has
stated that at about 9-00 PM the deceased was
brought before him and according to his opinion, the
deceased suffered 85 to 90% burn injuries on the
different parts of the body as mentioned in the
certificate Exh. 41 and stated further that at relevant
time, she was conscious and able to speak. In the
cross-examination, the witness has denied the
suggestion that due to burn injuries over the face,
she could not able to speak and understand the
question. It is admitted that, the history of incident
was given by the relative of the deceased. He also
admitted that, the dying declaration Exh. 14,
recorded by the Executive Magistrate, has not been
recorded in his hospital. He also admitted that, the
face, lips and tongue of the deceased were burnt.
8.7 Dr. Dharmendra Agrawal (PW-18) deposed that, on
26.06.2013 at about 3.55 PM, he was on duty as a
Medical Officer with Dahod General Hospital and at
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that time, the deceased was brought by her relatives
and according to her, she was burnt alive by her
husband. The doctor has stated that for recording the
dying declaration, he informed the Dahod Police
Station by intimation Exh. 46 and at about 5-25 PM,
the Executive Magistrate PW-3 came at the hospital
for recording the dying declaration and at that time,
the endorsement made by him that deceased was
conscious and able to speak. He has also stated that
after completion of recording of the statement at
about 5-45 PM, he again made endorsement about
consciousness and state of mind of the deceased. In
the cross-examination, he admitted that, the
endorsement which he supposed to made was found
in a printed form. He also admitted that, he did not
remain present before the patient while recording the
statement. He also admitted that, the deceased
suffered burn injuries over lips, nose, chicks and face.
He also admitted that, even the person is conscious
in such situation, would find difficulty in
understanding the question. He also admitted that
deceased was under great pain and her condition
was critical.
9. The prime contention is that, at relevant time, the
deceased was not in a position to make her
statement as she was not in a fit state of mind and at
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the instance of deceased’s relatives, the police as
well as the Executive Magistrate recorded the
statements Exh. 7 and Exh. 14. Before adverting to
the said contention, it would be fruitful to refer the
principles governing the appreciation of dying
declaration, discussed by the Supreme Court
(Paniben Vs. State of Gujarat, AIR 1992 SC 1817). In
the said judgment, the following propositions on the
aspect of appreciation of dying declarations being
discussed, which reads thus:
“(i) There is neither rule of law nor of prudence
that dying declaration cannot be acted
upon without corroboration.
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration.
(iii) This Court has to scrutinise the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration.
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(iv) Where dying declaration is suspicious it
should not be acted upon without corroborative
evidence.
(v) Where the deceased was unconscious and
could never make any dying declaration the
evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does
not contain the details as to the occurrence, it
is not to be rejected.
(viii) Equally, merely because it is a brief
statement, it is not be discarded. On the
contrary, the shortness of the statement itself
guarantees truth.
(ix) Normally the court in order to satisfy
whether deceased was in a fit mental condition
to make the dying declaration look up to the
medical opinion. But where the eye witness has
said that the deceased was in a fit and
conscious state to make this dying declaration,
the medical opinion cannot prevail.
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(x) Where the prosecution version differs from
the version as given in the dying declaration,
the said declaration cannot be acted upon.
(xi) Where there are more than one statement
in the nature of dying declaration, one first in
point of time must be preferred. Of course, if
the plurality of dying declaration could be held
to be trustworthy and reliable, it has to be
accepted.”
10. It can be thus seen that, once the dying declaration is
found to be authentic inspiring confidence of the
court, then the same can be relied upon and can be
sole basis for conviction without any corroboration.
However, before accepting such dying declarations,
court must be satisfied that it was rendered
voluntarily, consistent and credible and devoid of any
tutoring. Once such conclusion is reached, a great
deal of sanctity is attached to a dying declaration and
it can form the sole basis for conviction.
11. Having regard to the facts and circumstances to the
present case and on perusal of the evidence on
record, the point arise for our consideration as to
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whether the two dying declarations can be held to be
true and voluntarily and can be relied upon?
12. In the instant case, the incident took place on
26.06.2013 at about 12-00 noon and the deceased
immediately taken to the Civil Hospital, Dahod. The
Dahod Town Police Station, at about 4-45 PM
received information about the incident and as per
Exh. 13, through constable Ratansingh, the Executive
Magistrate was informed at about 5-00 PM directing
him to record the statement of the deceased. In such
circumstances, we are of the opinion that, the dying
declaration allegedly recorded by the Executive
Magistrate was taken at the Civil Hospital, Dahod and
same fact being narrated by Dr. D. S. Agrawal, PW-
18. The Executive Magistrate is the disinterested
person. On perusal of his oral testimony, we do not
find any material that at the time of recording the
statement, the relatives of the deceased were
present. So far as consciousness and fit condition of
the deceased is concerned, the Executive Magistrate
in his cross-examination has stated that before
recording the statement, he made preliminary inquiry
about the condition of the deceased. We have
carefully examined the dying declaration Exh. 14 and
found that, the questions asked were in printed form
but the answer of the questions being written by the
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Executive Magistrate himself and same has not been
in a printed form. The Exh. 14, dying declaration
would further shows that, on the top of the page,
except the signature of the doctor, the endorsement
of consciousness and free state of mind of the
deceased is in printed form. However, when
declaration was completed i.e. at about 5-45 PM, Dr.
Agrawal in his own handwriting, noted that the
patient was fully conscious and able to give
statement. In these peculiar facts and circumstances,
we have no doubt that the Exh. 14 the statement was
recorded in a mechanical manner and doctor has not
applied his mind. Thus, where the doctors i.e. PW-17
and PW-18, proving the facts that the deceased was
in a fit to make statement, and she survived also for
10 days, her statement in relation to her cause of
death could not be rejected merely because of 85%
burn injuries found on her body. In such
circumstances, when medical evidence says that
despite of face injuries, the deceased could able to
speak and understand the questions and in absence
of any inherent and apparent defects like
truthfulness and tutoring while recording the
statement (Exh.14), we satisfied that, the deceased
was conscious and fit state of mind and she could be
able to give her statement. So far as statement Exh.
7 is concerned, which was recorded by the police
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personnel and on examination of it, we do not found
any inconsistency with the declaration Exh. 14. The
issue raised about its reliability, contending that the
aunt of deceased were remained present throughout
the recording of the statement, but at the same time,
nothing brought on record that, the version narrated
by the deceased was tutored one and at the instance
of aunt, the police PW-1 recorded the statement.
Thus, the deceased made consistent dying
declarations before the police as well as Magistrate
and therefore, we do not found that the statements
were result of tutoring, prompting or a product of
imagination.
13. In the result, we are of the view that the two dying
declarations relied by the prosecution are true,
voluntary and credible and in absence of any defect
thereof, the submission made on behalf of the
appellant accused that the declarations cannot be
acted upon, has no merits.
14. The next question for consideration would be the trial
court justified in convicting the appellant for the
offence under Section 302 of the IPC?.
15. The defense has raised the contention that, the
deceased died after 10 days due to septicemia and
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the maximum the case could have traveled upto the
limit of the offense under Section 304 of the IPC?
16. We have examined the medical evidence, more
particularly, the testimonies of treating doctors as well
as the doctor who had conducted the PM of the body
of the deceased. It is not in dispute that, the deceased
suffered 85 to 90% deep burn injuries on her body. It
is relevant to note that, the death would not have
occurred but for the injuries as referred by the medical
doctors, caused the death of the deceased. On
account of burn injuries, the complications like
infection etc had been arisen, which has resulted into
death. In such circumstances, when the deceased
suffered 90% burn injuries and considering the impact
of the flame, the entire house burnt and destroyed
which suggestive of the fact that, the appellant
accused had intention to cause death and the injuries
to the deceased which were sufficient in ordinary
course to cause death, in our considered opinion, the
case of the appellant would squarely fall under the
second and third limb of Section 300 of IPC.
17. In view of the aforesaid discussions, after analysis of
the evidence and impugned judgment of conviction,
we are satisfied that, prosecution has proved its case
with sufficient oral and documentary evidence,
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beyond all reasonable doubt, that the appellant was
the author of the crime and the trial Court has rightly
found the appellant accused guilty for act of murder
punishable under Sections 302 of the IPC and thus, we
do not find any scope for interference with the
findings of conviction and sentence recorded by the
trial Court.
18. So far as, charge of Section 436 is concerned, we find
no evidence to prove the said charge. Section 436
says that whoever commit mischief by fire intending
to cause or knowing it to be likely that he will thereby
cause, the destruction of any building ordinarily used
as a human dwelling shall be punished. In the instant
case, on perusal of two dying declarations, it is not
proved and established that the accused with an
intention to destroy the house poured kerosene on her
wife. The situation was such that due to causing of
such injuries, the house where the deceased was
lived, got flame of fire. In such circumstances, in our
opinion, the ingredients of Section 436 in the facts of
the present case, in the absence of any evidence, are
not attracted and therefore, the prosecution failed to
prove the said charge. As a result of which, the
conviction for the offence under Section 436 is not
maintainable in law and is hereby set aside. The fine
amount, if any, under the offence under Section 436
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paid by the accused, shall be refunded to him.
19. In the result, this conviction appeal is partly allowed to
the aforesaid extent. So far as conviction and
sentence under Section 302 is concerned, is hereby
confirmed and upheld and appeal to that extent is
hereby dismissed. R&P, if any, be sent back to the trial
Court forthwith. In view of the dismissal of the Appeal,
CR.M.A.2/24 does not survive and disposed of
accordingly.
(ILESH J. VORA,J)
(HEMANT M. PRACHCHHAK,J)
P.S. JOSHI
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