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2016 DIGILAW 724 (GUJ)

State of Gujarat v. Lilabhai Rajabhai Kadcha

2016-04-01

M.R.SHAH, MOHINDER PAL

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Porbandar (hereinafter referred to as "trial Court") in Sessions Case No. 9/2005 by which the learned trial Court has acquitted the respondent herein - original accused for the offences punishable under Sections 307, 498-A of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") the State has preferred the present criminal appeal. 2. It was the prosecution case that before four years the accused Lilabhai Rajabhai married victim Hiriben. After their marriage they lived at Kadch village. Since last two years they were staying at Chaya village. That this was the second marriage of the accused with Hiriben. As per the case of the prosecution, after sometime of the marriage, the accused started beating his wife and giving physical torture. That due to harassment by the accused, Hiriben even went to her parents with her minor son. She informed her parents that the accused used to spend more money and he was beating her and subjecting her to physical torture and harassment. That after some days Hiriben's father-in-law and mother-in-law went to Rewda village and bring the victim back and gave them assurance that in future accused shall not beat her and will not give her physical torture. However, her son was kept at Kadch village at her in-law's house. 2.1 As per the case of the prosecution, on 20.10.2005 in morning at about 8 a.m. Hiriben gave tea to accused and she took breakfast. That on the earlier night accused tortured her and thereafter she could not sleep for whole night. Therefore, Hiriben asked that why he harassed her due to which she could not sleep for whole night, the accused became angry and took the kerosene from the cane lying in his house, poured the kerosene on her and set her ablaze by the match stick. Hiriben/victim started burning and screaming, however the accused told her "to die" and did not take her to hospital and infact he ran away. The victim came out from the house and was shouting, hearing the noise the neighbors came out from their houses and gathered. Later on one Santokben took the victim to the hospital in auto-rickshaw for treatment. The victim was admitted in the hospital at Porbandar for treatment. Dr. The victim came out from the house and was shouting, hearing the noise the neighbors came out from their houses and gathered. Later on one Santokben took the victim to the hospital in auto-rickshaw for treatment. The victim was admitted in the hospital at Porbandar for treatment. Dr. Nurul Amin Khudkhudiya informed the Kamlabaug Police Station and Janva Jog entry in the station diary was made. That as the marriage span was only 4 years, the Deputy Superintendent of Police, Porbandar Shri Vipul Agarwal was informed who was in-charge of the investigation. He immediately went to the Bhavsinhji Hospital, Porbandar. He recorded the statement of the victim and in it she stated that her husband had poured the kerosene on her in the morning at 8.30 a.m. and set her ablaze by match stick. The complaint was sent to the Kamlabaug Police Station which was registered as FIR. The aforesaid FIR was investigated by the Dy. S.P. Shri Vipul Agarwal (PW-13). He sent the Yadi to the Executive Magistrate for recording the dying declaration. That at this stage it is required to be noted that earlier prior to the Dy. S.P. Shri Vipul Agarwal - Investigating Officer started the investigation, the Executive Magistrate was already called and he recorded the statement/Dying Declaration of the victim in which she stated that she sustained the injuries by stove while preparing the tea. That the said first dying declaration was recorded by the Executive Magistrate at 10.30 a.m. Immediately thereafter the statement of the victim was recorded by the Dy. S.P. Shri Agarwal in which the victim stated that her husband poured the kerosene on her and set her ablaze by match stick. That thereafter the Investigating Officer - Dy. S.P. sent the yadi to the Executive Magistrate for recording his dying declaration and the second dying declaration came to be recorded at about 12.55 p.m. in which she categorically stated that her husband was harassing her, beating her, on the earlier night there was a quarrel and that at 8.30 a.m. in the morning, her husband poured kerosene on her and set her ablaze by match stick. That the Investigating Officer recorded the statement of the concerned witnesses, he also tried to arrest the accused, however accused was not traceable and he was absconding. The Investigating Officer prepared the panchnama of the place of incident. That the Investigating Officer recorded the statement of the concerned witnesses, he also tried to arrest the accused, however accused was not traceable and he was absconding. The Investigating Officer prepared the panchnama of the place of incident. The Investigating Officer also recovered the clothes of the victim/pieces of the clothes of the victim and sent it to the FSL. That after about 2 months the accused came to be arrested. At the time of arrest the accused was having burn injuries on her palm and on legs. Therefore, she was sent to Dr. Vipul Nanalal Modha (PW-15, Exh. 43) - Medical Officer, Bhavsinhji Hospital, Porbandar. He examined the victim and found that on the back side and palm of the left hand and on the left leg there were old burn injuries. 2.2 That at the conclusion of the investigation the Investigating Officer filed the charge-sheet against the accused for the offences punishable under sections 307 and 498-A of the IPC. At this stage it is required to be noted that in the meantime the victim remained in the Bhavsinhji Hospital, Porbandar as an indoor patient upto 18.03.2005, however because of the financial condition and/or other reasons though she did not fully recover, she got discharge from the hospital and was taken to her father's house and there she was being given the treatment. However, subsequently, she succumbed to the injuries and died at her parents' house. However, prior thereto the charge-sheet was already filed against the accused for the offences punishable under sections 307 and 498-A of the IPC. 2.3 As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Porbandar, which was transferred to the case of the learned Presiding Judge (4th Fast Track Court), Porbandar, which was registered as Sessions Case No. 9/2005. 2.4 Thereafter, the learned trial Court framed the charge against the accused for the offences punishable under Sections 307 and 498-A of the IPC and section 135 of the Bombay Police Act. The accused pleaded not guilty and therefore, he came to be tried by the learned trial Court for the aforesaid offences. 2.5 To prove the case against the accused the prosecution has examined the following witnesses:- S. No. Name of Witness Exhibit 1. Dahiben Valjibhai 10 2. Santokben Nathabhai 11 3. Dr. Nurul Amin Khudkhudiya 13 4. The accused pleaded not guilty and therefore, he came to be tried by the learned trial Court for the aforesaid offences. 2.5 To prove the case against the accused the prosecution has examined the following witnesses:- S. No. Name of Witness Exhibit 1. Dahiben Valjibhai 10 2. Santokben Nathabhai 11 3. Dr. Nurul Amin Khudkhudiya 13 4. Aebhabhai Ramabhai Odedara 17 5. Dudabhai Nathabhai 18 6. Sakarben Bhimabhai 19 7. Bharatbhai Maganlal 20 8. Hemrajbhai Naranbhai Dodiya 22 9. Maniben Jivabhai 23 10. Arjanbhai Bhoja 24 11. Lakhman Mastri 26 12. Ukabhai Goganbhai 27 13. Shri Vipul C. Agarwal (Police Superintendent) 29 14. Abaumar Hamidbhai Aarab 33 15. Dr. Vipul N. Modha 43 16. Yogeshbhai C. Thanki (E.M. who took D.D.) 47 17. P.I. Dhanjibhai Thakarjibhai Vadaliya (I.O.) 49 2.6 Through the aforesaid witnesses the prosecution also brought on record the following documentary evidences:- S. No. Documentary Evidences Exhibit 1. Report made to PSO 31 2. Report made by PSO 37 3. V.H.F. Message 30 4. Yadi written to on Duty Medical Officer, Bhavsinhji Hospital, Porbandar 50 5. Yadi made to Executive Magistrate, Porbandar 38 6. V.H.F. Message 39 7. Special Report 40 8. Yadi made to Executive Magistrate, Porbandar 41 9. Panchnama of place of incident 21 10. Preliminary Report of FSL, Porbandar 32 11. Report made to PSI, Ranavav 53 12. Report made to ASP, Porbandar 54 13. Letter written to FSL, Junagadh 51 14. Muddamal Dispatch Note 52 15. Letter of FSL, Junagadh 55 16. Letter of ASP, Porbandar 56 17. Arrest Panchnama of accused Lila Raja 28 18. Yadi written to on Duty Medical Officer, Bhavsinhji Hospital, Porbandar 44 19. Report made to PSO 57 20. V.H.F. Message 58 21. Panchnama of seizure of clothes of accused 25 22. Medical examination certificate of the victim 16 23. Letter written to FSL, Junagadh 60 24. Muddamal Dispatch Note 59 25. Letter written to FSL, Junagadh 61 26. Letter of FSL, Junagadh 62 27. Muddamal examination report of FSL, Junagadh 63 28. Original Driving Declaration 48 29. Original complaint of Hiriben w/o Lila Raja taken by Investigating Officer 82 30. Medical certificate of injuries of accused 45 31. Letter written by FSL to PSI, Kamlabaug Police Station 64 32. Examination report of F.S. Laboratory, Junagadh 65 33. Muddamal examination report of F.S. Laboratory 66 34. Letter of F.S. Laboratory, Junagadh 67 35. Original Driving Declaration 48 29. Original complaint of Hiriben w/o Lila Raja taken by Investigating Officer 82 30. Medical certificate of injuries of accused 45 31. Letter written by FSL to PSI, Kamlabaug Police Station 64 32. Examination report of F.S. Laboratory, Junagadh 65 33. Muddamal examination report of F.S. Laboratory 66 34. Letter of F.S. Laboratory, Junagadh 67 35. Muddamal examination report to F.S. Laboratory, Junagadh 68 At this stage it is required to be noted that as after filing of the charge-sheet, the victim died on 05.06.2005, the prosecution submitted the application Exh. 13 to add the charge for the offences punishable under section 302 of the IPC. However, the learned trial Court disposed of the said application by observing that after the evidence is led, looking to the evidence the charge can be framed/altered and therefore, the learned trial Court disposed of the said application at that stage vide order dated 07.10.2005. 2.7 That after the closing purshis submitted by the prosecution, further statement of the accused came to be recorded under section 313 of the Code of Criminal Procedure, 1973. He denied having committed any offence. He also stated that he want to examine the Executive Magistrate who recorded the first dying declaration as his defence witness and though not permissible, the learned trial Court permitted the Executive Magistrate who recorded the first dying declaration, as the Defence Witness. At this stage it is required to be noted that both the dying declarations were recorded by the same Executive Magistrate Shri Yogeshbhai Thanki and infact he was examined as a prosecution witness by the prosecution. Therefore, once the said Executive Magistrate was already examined as prosecution witness, there was no question of examining him as D W, as whatever the defence questions in the defence were required to be asked in the cross-examination of the said prosecution witness and he could not have been examined as Defence Witness. Still, the learned trial Court has permitted the accused to examine the Executive Magistrate who recorded the first dying declaration as Defence Witness. Still, the learned trial Court has permitted the accused to examine the Executive Magistrate who recorded the first dying declaration as Defence Witness. 2.8 That at the conclusion of the trial, by impugned judgment and order and mainly on the ground that there are two dying declarations and in the first dying declaration the victim stated that she got the burn injuries by the flames of the stove while preparing the tea, by giving benefit of doubt, the learned trial Court has acquitted the original accused. 2.9 Feeling aggrieved and dissatisfied with the impugned judgment and order, the State has preferred the present Criminal Appeal. 3. Ms. Moxa Thakkar, learned Additional Public Prosecutor has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially erred in acquitting the original accused. It is vehemently submitted by Ms. Thakkar, learned Additional Public Prosecutor that in the present case the learned trial Court has acquitted the original accused by giving benefit of doubt solely on the ground that there are two contradictory dying declarations. 3.1 It is vehemently submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that the learned trial Court has not properly appreciated the case on behalf of the victim/prosecution and/or the explanation of the deceased as to why she made a statement before the Executive Magistrate while giving first dying declaration that she sustained the injury because of the flames of the stove. It is submitted that the Executive Magistrate who recorded both the dying declarations has categorically stated in his deposition that when he recorded the second dying declaration in which she stated that her husband poured the kerosene on her and set her ablaze by match stick, the victim was asked about her first statement which was recorded in the first dying declaration and asked that in the first statement/dying declaration, she had stated that she had sustained the burn injuries by the flames of the stove while preparing the tea, she stated that at that time she made the said statement because she was under fear and threat as her husband while running away gave threats. It is submitted that the learned trial Court has not properly appreciated the fact that the statement recorded by the Dy. It is submitted that the learned trial Court has not properly appreciated the fact that the statement recorded by the Dy. S.P. Shri Agarwal which was thereafter recorded as FIR was immediately after her first dying declaration and even the second dying declaration was also recorded within few hours i.e. at 12.55 p.m. and at that time no relatives on the parental side of the victim were present as they reached the hospital in the evening. It is submitted that therefore, the learned trial Court ought to have appreciated that as such when her second dying declaration was recorded, there was no pressure on her and/or she was under influence of any of her relatives. 3.2 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that even otherwise the learned trial Court ought to have appreciated that the version which was given by the victim in the first dying declaration has not been supported by any corroborative evidence. It is submitted that on the contrary the version and the statement recorded in the second dying declaration has been fully corroborated and supported by other evidences and what is stated by the deceased in the second dying declaration is plausible. It is submitted that from the panchnama of the place of incident, the carbo/open cane of kerosene was found. It is submitted that from the FSL report it is established and proved that there was a smell of kerosene on the burnt clothes of the victim. It is submitted that even the burn injuries which were sustained by the victim were plausible only by pouring kerosene on her. It is submitted that even the Dr. Khudkhudiya has categorically stated that the burn injuries sustained by the victim were plausible and/or possible by pouring kerosene on her. It is submitted that therefore the learned trial Court ought to have convicted the original accused relying upon the second dying declaration and even the statement made by the victim before the Dy. S.P. Shri Vipul Agarwal. 3.3 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that even subsequently the victim died because of the burn injuries for failure of the kidneys which were due to the burn injuries sustained by her. It is submitted that all throughout the victim was taking the treatment and as such she remained in the hospital as an indoor patient upto 18.03.2005. Moxa Thakkar, learned Additional Public Prosecutor that even subsequently the victim died because of the burn injuries for failure of the kidneys which were due to the burn injuries sustained by her. It is submitted that all throughout the victim was taking the treatment and as such she remained in the hospital as an indoor patient upto 18.03.2005. 3.4 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that even the learned trial Court has not properly appreciated and considered the fact that the incident had taken place in the house of the victim and the accused. It is submitted that immediately after the incident, the accused ran away and even did not take any care to take his wife to the hospital for medical treatment. It is submitted that Santokben, the neighbor took the victim to the Bhavsinhji Hospital, Porbandar. It is submitted that the accused absconded for approximately two months and thereafter, after two months he appeared before another police station i.e. Madhavpura Police Station and thereafter, the accused was arrested. It is submitted that the aforesaid conduct on the part of the accused has not been appreciated by the learned trial Court. 3.5 It is further submitted by Ms. Thakkar, learned Additional Public Prosecutor that even the learned trial Court has not properly appreciated the fact that when the accused was arrested, he was found having burn injuries on the back of the palm of the left hand and also on the left leg. It is submitted that the aforesaid injuries have not been explained by the accused. It is submitted that the aforesaid vital aspects have not been at all considered and/or appreciated by the learned trial Court. It is submitted that therefore the learned trial Court has committed an error in acquitting the original accused by giving benefit of doubt. 3.6 It is further submitted that as the victim died after the filing of the charge-sheet, an application was given by the prosecution to add and/or alter the charge for the offence punishable under section 302 of the IPC by giving application Exh. 13, however the learned trial Court disposed of the said application by observing that after the evidence is led, considering the evidence on record, the charge can be altered and/or framed. 13, however the learned trial Court disposed of the said application by observing that after the evidence is led, considering the evidence on record, the charge can be altered and/or framed. It is submitted that however at the time of trial the learned trial Court has not altered and/or added the charge for the offence punishable under section 302 of the IPC. It is submitted that in any case the learned trial Court ought to have convicted the original accused for the offence punishable under section 307 of the IPC. 3.7 Ms. Thakkar, learned Additional Public Prosecutor has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Nallam Veera Stayanandam and Others vs. Public Prosecutor, High Court of A.P. (2004) 10 SCC 769 in support of her submission that learned trial Court ought to have relied upon the second dying declaration which is plausible and which is reliable and ought to have convicted the original accused for the offence punishable under section 307 of the IPC relying upon and/or considering second dying declaration recorded by the Executive Magistrate produced at Exh. 48. Making above submission it is requested to allow the present criminal appeal and quash and set aside the judgment and order of acquittal and consequently to convict the original accused for the offence for which he was charged/tried more particularly for the offence punishable under section 307 of the IPC and to impose the maximum punishment provided for the offence punishable under section 307 of the IPC. 4. Present appeal is vehemently opposed by Shri Saiyed, learned Advocate appearing on behalf of the original accused. It is vehemently submitted by Shri Saiyed, learned Advocate appearing on behalf of the original accused that as such present is an appeal against the order of acquittal and therefore, unless and until it is found by the Appellate Court that the findings recorded by the learned trial Court are perverse and/or contrary to the evidence on record, the interference of this Court against the order of acquittal, in exercise of appellate jurisdiction is not called for. 4.1 It is submitted that in the present case the prosecution has not been successful in proving by leading cogent evidence that as such the victim died because of the burn injuries. 4.1 It is submitted that in the present case the prosecution has not been successful in proving by leading cogent evidence that as such the victim died because of the burn injuries. It is submitted that nothing is on record as such to show that the victim died because of the burn injuries. It is submitted that as such the victim died after a period of approximately 5 months from the date of incident. It is submitted that even the Dr. Khudkhudiya has categorically stated in his deposition that the victim got discharge from the hospital on 18.03.2005 against the medical advice. It is submitted that therefore the learned trial Court has rightly acquitted the original accused for the offence punishable under section 307 of the IPC. It is further submitted by Shri Saiyed, learned Advocate appearing on behalf of the original accused that even it was the case of the accused from the very beginning that he was never present at the time of incident and as stated by him in his 313 statement, as he was a driver he had gone out. It is submitted that therefore also the learned trial Court has not committed any error in acquitting the original accused. It is vehemently submitted by Shri Saiyed, learned Advocate appearing on behalf of the original accused that in the present case as such there are two contradictory dying declarations, both recorded by the Executive Magistrate. It is submitted that when the first dying declaration was recorded by the Executive Magistrate at about 10.30 a.m., the victim categorically stated that she sustained the burn injuries by the flames of the stove while preparing the tea. It is submitted that at that point of time the victim did not stated that her husband poured kerosene on her and set her ablaze by match stick and therefore, she sustained the injuries. It is submitted that subsequently in the second dying declaration which was recorded by the very Executive Magistrate, the victim alleged and/or stated that her husband had poured kerosene on her and set her ablaze by match stick. It is submitted that therefore when there are two contradictory dying declarations recorded one after another immediately and when the learned trial Court has acquitted the original accused by giving benefit of doubt, the same is not required to be interfered by this Court in exercise of the appellate jurisdiction. It is submitted that therefore when there are two contradictory dying declarations recorded one after another immediately and when the learned trial Court has acquitted the original accused by giving benefit of doubt, the same is not required to be interfered by this Court in exercise of the appellate jurisdiction. 4.2 It is submitted that merely because the accused has failed to explain the burn injuries on his hand and leg and/or has failed to lead any defence evidence as to where he was for two months and/or where he was on the date of incident, the accused cannot be held guilty for the offence punishable under section 307 of the IPC. Making above submissions it is requested to dismiss the present criminal appeal. 4.3 He has further submitted that even the learned trial Court has not committed any error in acquitting the original accused for the offence punishable under section 498-A of the IPC. It is submitted that as such no case is made out at all for the offence punishable under section 498-A of the IPC and therefore, the learned trial Court has rightly acquitted the original accused even for the offence punishable under section 498-A of the IPC. 4.4 Shri Saiyed, learned Advocate appearing on behalf of the original accused has alternatively submitted that in case this Court is of the opinion that the accused had committed the offence punishable under section 307 of the IPC, in that case he requested to impose the lesser punishment and not to impose any maximum punishment. It is submitted that considering the fact that the incident had occurred in the year 2005 and by now 11 years have passed and the accused has to maintain his son, it is requested not to impose the maximum punishment provided under section 307 of the IPC. 5. Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court more particularly the findings recorded by the learned trial Court and the reasoning given by the learned trial Court while recording the findings while acquitting the original accused. We have re-appreciated the entire evidence on record. 5. Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court more particularly the findings recorded by the learned trial Court and the reasoning given by the learned trial Court while recording the findings while acquitting the original accused. We have re-appreciated the entire evidence on record. 5.1 From the impugned judgment and order passed by the learned trial Court it appears that the learned trial Court has acquitted the original accused who was charged and tried for the offence punishable under sections 307 and 498-A of the IPC by giving him benefit of doubt mainly on the ground that in the present case there are two contradictory dying declarations and also on the ground that the prosecution has failed to prove that victim died after a period of 5 months because of the burn injuries. 5.2 On considering the evidence on record it is true that in the present case there are two dying declarations, one dying declaration was recorded by the Executive Magistrate at about 10.30 a.m. in which the victim stated that he sustained the burn injuries by flames of the stove while preparing the tea. It appears that when the aforesaid dying declaration was recorded, at that time neither any statement of the victim nor any FIR was registered and at that time only a Janva Jog entry was made and the case was registered as Accidental Death case. It appears from the evidence on record more particularly the deposition of Shri Vipul Agarwal, Dy. S.P. (PW-13), who has been examined at Exh. 29, as it was a case of bride burning and the incident happened within a period of four years of the marriage. The investigation was handed over to him and immediately he rushed to the hospital and recorded the statement of the victim. The victim in her statement recorded by the IO which was recorded immediately and within short time of the first dying declaration, the victim specifically stated that her husband poured the kerosene on her and set her ablaze by match stick. The said statement was thereafter recorded as FIR. Immediately thereafter the IO sent the Yadi to the Executive Magistrate for recording the dying declaration. The said statement was thereafter recorded as FIR. Immediately thereafter the IO sent the Yadi to the Executive Magistrate for recording the dying declaration. It has come on record that at the time when the Yadi was sent to the Executive Magistrate for recording the dying declaration, the IO was not aware that prior thereto the dying declaration was already recorded. The second dying declaration has been recorded at 12.55 p.m. in which, as observed hereinabove and even as per the deposition of the doctor as well as the dying declaration the victim categorically stated that there used to be quarrel between the accused and the victim and on the earlier night also there was a harassment by the husband due to which she could not sleep and thereafter at about 8.30 a.m. when she told her husband why he harassed her, her husband i.e. the original accused became angry and poured kerosene on her and set her ablaze by match stick. Therefore, when there are multiple dying declarations/two dying declarations as in the present case, it was the duty of the Court to weigh and/or consider each dying declaration independently on its own merit as to its evidentiary value. It was the duty of the Court to consider each dying declaration independently and on merits and to consider which of them is plausible and/or supported and/or corroborated by any other evidence. 5.3 Identical question came to be considered by the Hon'ble Supreme Court in the case of Nallam Veera Stayanandam and Others (Supra). Before the Hon'ble Supreme Court also it was a case of multiple dying declarations and in the said decision the Hon'ble Supreme Court has observed that when there are multiple dying declarations, it is the duty of the Court to consider each dying declaration independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is further observed by the Hon'ble Supreme Court in the said decision that in such a situation the Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. It is further observed by the Hon'ble Supreme Court in the said decision that in such a situation the Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. Now, applying the law laid down by the Hon'ble Supreme Court to the facts of the case on hand, this Court is required to consider each dying declaration in its correct perspective and satisfy which one of them reflects the true state of affairs. 5.4 Now, considering the evidence on record both oral as well as documentary and even the medical evidence and the burn injuries sustained by the victim, we are of the opinion that what is stated in the first dying declaration which was recorded at 10.30 a.m. does not reflect the true state of affairs. In her first statement/dying declaration recorded by the Executive Magistrate, she stated that from the burning stove her saree got fire while she was preparing tea. However, the same does not seem to have been corroborated by any evidence on record more particularly the medical evidence and the burn injuries sustained by her. From the medical evidence on record and even as per the deposition of Dr. Khudkhudiya, who treated the victim at Bhavsinhji Hospital, Porbandar, the victim sustained the following injuries. "O/E Pt. Conscious feely oriented for Time & Place L/E superficial burns over face neck chest Anteriary antaior abdomen both arms & forearms L homol both flanks upper 1/3 both thighs anteriarly 36-40%" Dr. Khudkhudiya had categorically stated in his deposition that aforesaid entries were plausible and possible by pouring kerosene on her. Even on considering the burn injuries sustained by the victim, we are of the opinion that the injuries were not possible and/or plausible because of her saree catching fire because of the burning stove while preparing the tea. She sustained the injuries on chest, arms, forearms, palm, face and back which were possible if the kerosene is poured on her so stated by her in her second dying statement/declaration before the Executive Magistrate and even in her statement before the concerned Dy SP, which was subsequently recorded as FIR. She sustained the injuries on chest, arms, forearms, palm, face and back which were possible if the kerosene is poured on her so stated by her in her second dying statement/declaration before the Executive Magistrate and even in her statement before the concerned Dy SP, which was subsequently recorded as FIR. While recording the second statement/dying declaration, the victim had categorically clarified her first statement/dying declaration and has stated that because she was under fear of her husband, as he threatened her while running away, she did not state the true and correct facts. 5.5 It is also required to be noted at this stage that the second dying declaration which was recorded at about 12.55 p.m., which was recorded by the very Executive Magistrate, the victim was conscious. At that time she was not under the influence of any other family members more particularly the family members on her parental side as from the evidence it appears that her parents and other relatives could reach the hospital in evening. Therefore, there is no reason to doubt the second dying declaration. There is no reason to doubt the correctness and genuineness of the second dying declaration (Exh. 48), which as such is supported and corroborated by other evidences on record as discussed hereinabove. Under the circumstances, the learned trial Court has materially erred in not believing the second dying declaration (Exh. 48) recorded by the Executive Magistrate which was recorded at 12.55 p.m. in which the victim categorically stated the manner in which the incident had taken place and she categorically stated that earlier also she was subjected to harassment and that on the earlier night also there was harassment by the husband due to which she could not sleep and when she made complaint in the morning that why he was harassing her due to which she could not sleep, her husband poured kerosene on her and set her ablaze by match stick. Under the circumstances, the aforesaid aspects have not been at all considered by the learned trial Court and the learned trial Court has acquitted the original accused by giving benefit of doubt solely on the ground that there are two contradictory dying declarations. Under the circumstances, the aforesaid aspects have not been at all considered by the learned trial Court and the learned trial Court has acquitted the original accused by giving benefit of doubt solely on the ground that there are two contradictory dying declarations. However, while learned trial Court has not at all done the exercise which he was supposed to and as observed by the Hon'ble Supreme Court in the case of Nallam Veera Stayanandam and Others (Supra), each dying declaration was required to be considered independently on his own merit as to its evidentiary value and the learned trial Court ought to have considered each of the dying declarations in its correct perspective and ought to have undertaken the exercise to satisfy itself as to which one of them reflect the true state of affairs. Under the circumstances, the learned trial Court has materially erred in acquitting the original accused by giving benefit of doubt. 5.6 Even the learned trial Court has not properly appreciated other surrounding circumstances and even the conduct on the part of the accused. The incident had taken place in the house of the accused where he was staying with his wife. The incident had occurred at about 8.30 a.m. in the morning. Immediately after the incident the accused ran away even deserting the wife in the burning condition. He did not take the victim to the hospital. The victim was taken to the husband by the neighbor Santokben. The accused absconded for two months. He in the meantime did not even take care of his wife. The victim remained as an indoor patient at Bhavsinhji Hospital, Porbandar for about two months upto 18.03.2005 and thereafter for whatever reason, may be because of the financial condition and/or for other reason, her father took her to their house and the medical treatment continued at the parental house of the victim. The accused has not at all explained as to where he was for all these two months. He has also not led any defence evidence to prove his defence so stated in 313 statement that whether he was at any other place on the date of incident. 5.7 It is also required to be noted at this stage that even when after a period of two months the accused was arrested, he was having burn injuries on his leg and left hand. 5.7 It is also required to be noted at this stage that even when after a period of two months the accused was arrested, he was having burn injuries on his leg and left hand. She was examined and/or treated by Dr. Vipul Modha. In the 313 statement the accused has categorically admitted having taken treatment of burn injuries but he denied having burn injuries on the hand and the leg. The accused has not explained at all his above burn injuries. The aforesaid aspects were required to be considered by the learned trial Court and while appreciating the evidence, the learned trial Court while considering the case of the prosecution was required to consider the aforesaid conduct on the part of the accused and non-explanation of his burn injuries as well as his running away from the place of the incident immediately after the incident and thereafter his non-availability and/or absconding for two months. 5.8 Even otherwise it is required to be noted that from the place of incident the carbo/open cane of kerosene has been found. Even the clothes/pieces of clothes of the deceased were sent to the FSL and as per the FSL, kerosene was found on her clothes, which establishes and proves that at the time of incident the kerosene was poured on her. The aforesaid aspect has also not been considered by the learned trial Court. 5.9 At this stage it is required to be noted that after the charge-sheet was filed, the victim died on 05.06.2005. It has come on record from the deposition of the parents of the victim that after she took discharge from the hospital, her treatment was continued at home and from the local doctor and that both her kidneys failed and because of the failure of kidneys, which was because of the extensive burn injuries, she died. Therefore, an application was given below Exh. 13 by the prosecution to add the charge for the offence punishable under section 302 of the IPC and consequently to alter the charge, however the learned trial Court at the relevant time disposed of the said application by observing that after the evidence is led and on considering the evidence the charge can be altered. 13 by the prosecution to add the charge for the offence punishable under section 302 of the IPC and consequently to alter the charge, however the learned trial Court at the relevant time disposed of the said application by observing that after the evidence is led and on considering the evidence the charge can be altered. However, subsequently the learned trial Court has not at all considered the aforesaid aspect and has not added the charge for the offence punishable under section 302 of the IPC. It is also required to be noted that even considering the fact that incident had taken place within the period of 4 months from the marriage and the deceased died in a suspicious circumstances, even the charge for offence punishable under section 304(B) was required to be added, but for whatever reason the accused was not charged and consequently tried for the offence punishable under section 304(B). Be that as it may, considering the evidence on record as discussed hereinabove, the accused can be held guilty for the offence punishable under section 307 of the IPC. When it is established and proved, as observed hereinabove, that the accused poured kerosene on the victim and set her ablaze by match stick and even considering the fact that the victim died after a period of approximately 5 months, the accused can be held guilty for the offence punishable under section 307 of the IPC. The act on the part of the accused of pouring kerosene and setting her ablaze by match stick, the intention of the accused was very clear. Even from the aforesaid the accused could have been tried for the offence punishable under section 302 of the IPC, however when the accused was not charged for the offence punishable under section 302 of the IPC though a specific application was given by the prosecution to add the charge, we rest the matter there and consider the case whether the accused can be said to have committed the offence punishable under section 307 of the IPC or not. Considering the aforesaid facts and circumstances and aforesaid discussion and on re-appreciation of evidence as above, we are of the opinion that the finding recorded by the learned trial Court while acquitting the original accused by giving the benefit of doubt are perverse and as such contrary to the evidence on record and the same has resulted into miscarriage of justice and therefore, interference of this Court in exercise of appellate jurisdiction is called for. 6. In view of the above and for the reasons stated above, the impugned judgment and order passed by the learned trial Court acquitting the original accused for the offence punishable under section 307 of the IPC cannot be sustained and the same deserves to be quashed and set aside and the respondent herein - original accused is required to be held guilty for the offence punishable under section 307 of the IPC. No case is made out for the offence punishable under section 498-A of the IPC. The learned trial Court has rightly acquitted the original accused for the offence punishable under section 498-A of the IPC. 6.1 Now, so far as the sentence to be imposed while convicting the original accused for the offence punishable under section 307 of the IPC is concerned, Ms. Thakkar, learned Additional Public Prosecutor has requested to impose maximum punishment provided for the offence punishable under section 307 of the IPC. On the other hand Shri Saiyed, learned Advocate appearing on behalf of the original accused has requested to take lenient view and impose lesser punishment by submitting that by now 11 years have passed and that the accused is also required to take care of his son. 6.2 However, merely because some time has passed while deciding the present appeal, no lenient view can be taken. As observed by the Hon'ble Supreme Court in the case of Abdul Waheed vs. State of Uttar Pradesh, (2016) 1 SCC 583 , it is the duty of the Court to award proper sentence having regard to the manner in which the offence was committed. It is further observed that undue sympathy would do more harm to the criminal justice system undermining the public confidence in the efficacy of the system. It is further observed that undue sympathy would do more harm to the criminal justice system undermining the public confidence in the efficacy of the system. It is further observed by the Hon'ble Supreme Court in the case of Raj Bala vs. State of Haryana and Others, (2016) 1 SCC 463 that a Court, while imposing sentence, has a duty to respond to the collective cry of the society. It is further observed that a Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality. At this stage it is required to be noted that even the son of the accused was, even at the time of incident, not residing with the original accused but was residing with his parents. Under the circumstances, on the aforesaid ground there is no reason to take a lenient view and to impose lesser punishment. However, in the facts and circumstances of the case, we are of the opinion that if the accused is sentenced to undergo 10 years' Rigorous Imprisonment with fine of Rs. 1000/- and in default to undergo further 3 months' Rigorous Imprisonment the same would meet the ends of justice and it can be said to be justice done to departed soul/victim. 7. In view of the above and for the reasons stated above, present Criminal Appeal is allowed in part. Impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Porbandar in Sessions Case No. 9/2005 insofar as acquitting the respondent herein - original accused for the offence punishable under Section 307 of the Indian Penal Code, 1860 is quashed and set aside and the respondent herein - original accused is hereby held guilty for the offence punishable section 307 of the Indian Penal Code, 1860 and sentenced to undergo 10 years' Rigorous Imprisonment with fine of Rs. 1000/- and in default of payment of fine to undergo further 3 months' Rigorous Imprisonment. The impugned judgment and order is confirmed insofar as acquitting the respondent herein - original accused for the offence punishable under section 498-A of the Indian Penal Code, 1860. Time to surrender to the accused to undergo remaining sentence is hereby granted upto 02.05.2016. The imprisonment already undergone by the respondent herein - original accused be given set off in accordance with law. Time to surrender to the accused to undergo remaining sentence is hereby granted upto 02.05.2016. The imprisonment already undergone by the respondent herein - original accused be given set off in accordance with law. Registry is directed to send the Record & Proceedings of the case to the learned trial Court forthwith.