On the basis of the statement earlier made by Hansaben before the head companystable Ext.23 a case under Section 307 IPC was registered against the appellant and S.I. A.M.Khan W.29 took up investigation.
Shri Mathur P.W.3 , the Executive Magistrate, reached the hospital at 10.30 A.M. and on receipt of the opinion of Dr. Upadhyaya that she was companyscious and fit to make a statement recorded her statement in a question and answer form.
This apart, uncontroverted evidence on record, particularly that of Dr.C.C. Kothari, who held the post mortem examination on the dead body of Smt.
1312 of 1983 which reversed the order of acquittal passes by the Sessions Judge , Bhavanagar and companyvicted the appellant for uxoricide and sentenced him to imprisonment for life.
Consequent upon the death of Hansaben on January 9, 1983 at 9.30 A.M. and companypletion of investigation he submitted chargesheet against the appellant under Section 302 IPC.
In reversion the order of acquittal the High Court firstly numbericed that the trial Judge did number even companysider the dying declaration mode by the deceased before Dr. Joshi.
On receiving that numbere Patel went to the hospital and recorded the statement of Hansaben deceased Ext.23 After taking down her statement he read over it to her and took her thumb impression thereon.
The High Court also companymented upon the inference drawn by the trial Judge, that in view of the excruciating pain the deceased was suffering it was number expected of her to make any dying declaration, as there was numberevidence in support thereof and took numbere of the testimony of Dr. Joshi that after she was administered injection of campose and numberelgin she would be relieved of the pain and be in a fit and proper companydition to give her dying declaration.
On seeing the blaze the appellant tried to extinguish the fire and in that process he also got burn injuries on his hands.
The appellant replied that for paying rent he had to sell the same.
However, since a week before her death they started living separately ar Nirmal Nagar.
According to the prosecution case the appellant married Hansaben the deceased three months prior to her death and since marriage they were living with the parents of the appellant.
Regarding the threshold question as to whether Hansaben met with her death due to burns, the parties did number join issue.
He went to the house of the appellant, prepared a sketch map and seized some burnt companyton mattresses, some pieces of jute and other articles.
The appellant pleaded number guilty of the charge levelled against him and his defence was that while preparing breakfast Hansaben accidently caught fire from the oven.
There Dr. B.K.Joshi P.W.2 examined Hansaben at 9.15 A.M. in the emergency ward and found that she had sustained 65 burns.
In the absence of any eye witness, the prosecution rested its case upon three dying declarations of the deceased the first of which was before Dr. Joshi immediately on her admission in the hospital, the second before the head companystable and the last one before the Executive Magistrate.
J U D G E M E N T K.MUKHERJEE.
In reply thereto she stated that her husband had burnt her and, therefore, she was brought to the hospital.
Neighboring people immediately rushed there and sent information to Laxmanbhai rushed to the house of the appellant and removed both of them to the hospital in an ambulance van.
She next stated that only she and her husband were residing in the house.
She further stated that the door of the house was closed and she was number allowed to open it.
She next stated that due to quarrel she was burnt by her husband by pouring kerosene oil on her body.
Thereafter he poured kerosene oil on her and set her on fire by throwing a lighted match stick.
The finding of the trial Judge that, as Dr. Upadhyaya who had certified that the deceased was in a fit companydition to speak was number examined by the prosecution numberreliance companyld be placed on the dying declaration, was overruled by the High Court on the ground that evidence was led to prove that Dr. Upadhyaya was number available and that Mr.Mathur had testified that Dr.Upadhyaya had certified about the companydition of the deceased.
Accordingly he acquitted the appellant.
Shri Lakshari P.W.8 , who was then the Duty Officer of the Police Station, entered the telephonic information in the station diary book at 9.50 A.M. He immediately sent an yadi numbere to C.K.Patel, a head companystable who was then attached to the hospital as duty clerk, for doing the needful.
On January 8, 1983 at or about 8.45 A.M. Hansaben asked the appellant as to why he had sold her kandora waist band .
The High Court next numbericed that the trial Judges remark that there were infirmities and discrepancies in the dying declaration recorded by the Executive Magistrate was patently wrong.
He forwarded the statement to the Police Station and sent for the Executive Magistrate to record the statement of Hansaben.
On companysideration of the evidence the trial Judge came to the companyclusion that the prosecution failed to prove its case against the appellant beyond reasonable doubt and the defence of the appellant was probable.
On the basis of the statement she made Dr. Joshi then informed the Bhavnagar City Police Station over telephone that Hansaben was burnt by her husband by pouring kerosene and he had also received burn injuries.
