(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The appellant original accused has filed the present appeal challenging judgment and order dated 6th January 2004 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Gandhinagar in Sessions Case No.48 of 2001 whereby the learned Additional Sessions Judge convicted and sentenced the appellant accused for the offence under Section 302 read with Section 114 of IPC and sentenced her to undergo RI for life.
In present incident it is Paliben who is deceased. The appellant is said to have poured kerosene and lit the match stick. On the information of this incident being given by Paliben, the investigation was conducted. After investigation the charge-sheet was filed. After examination of the witnesses, the trial court came to the conclusion that the case is held proved against the present appellant and one another accused Shobhanaben was acquitted. The conviction was based on the basis of the dying declaration recorded by the police in the complaint and the dying declaration as recorded by the learned Magistrate Exhibit 13 so also the statement of eye witness, Mukesh, PW No.4, son of the deceased. Learned counsel for the appellant stated that PW No.4 is a child witness and his evidence could not be relied upon. HE further submitted that there was no reason why would the present appellant commit the offence because, there was no relation between the sister-in-law and the deceased. However, due to some mental frame of the deceased, the name of the present accused-appellant has been taken by deceased in her dying declaration. Similarly, another accused, namely, Shobhanaben, whose name was also though taken by the deceased in her complaint, came to be acquitted. Therefore, it may be said that half of the prosecution case has been disbelieved by the trial court.
Per contra, learned Additional Public Prosecutor has submitted that holding of the deceased while dousing her and lighting her is a possibility which may or may not happen and therefore benefit was given to co-accused, Shobhanaben. The part played by the appellant Madhuben is in no way of any doubtful character. Therefore, in a case where the deceased could give the name of the accused and the description and where there is a consistency in the statements of the deceased, it can be said that the prosecution has brought the guilt home. The dying declaration stands corroborated by the testimony of PW No.4, who is eye witness. Though he is a child witness, his age is of 12 years and he is a student of Class 7 and therefore he is able to understand the implication of his statement. In that view of the matter, there is no infirmity in the dying declarations of the deceased.
We have heard the learned counsel for the parties and perused the record. The case of the prosecution is consistent in the complaint, in the dying declaration recorded before the Magistrate and so much so as an added assurance, in the history of the patient recorded by the Doctor. All these statements, one oral and two written Dying Declarations, get enough corroboration from PW No.4, child witness. The trial Court has given detailed reason and in our considered view no fault has been committed by the trial court. Since the accused has not explained as to how the incident has taken place, she has not explained any thing in her statement u/s 313 of Code of Criminal Procedure, 1973 nor has led any evidence, we are of the opinion that the conviction has been rightly recorded by the trial Court. The appeal being meritless is dismissed.
In the result, the appeal has no merit and the same is dismissed. The appellant has to serve out the sentence as imposed by the learned trial Judge.
(Bhagwati Prasad, J.) (J.C.Upadhyaya, J.) *mohd Top