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. 1, Ahmedabad in Sessions Case No. 27 of 2010, by which the learned trial court has convicted the original accused for the offences punishable under sections 302 and 506(1) of Indian Penal Code and has sentenced to undergo life imprisonment for the offence punishable under section 302 of Indian Penal Code, original accused has preferred the present Criminal Appeal. 2. The case of the prosecution in nutshell is as under: The original complainant Dharmendra Ratilal Shah, son of the deceased Manjulaben Chetansinh lodged a compliant at Shardaben Hospital in the burns ward, against the accused, which was recorded by one P.S.I. Somabhai Lalabhai Suraliya of Naroda Police Station for offences punishable under sections 307 and 506(1) of the Indian Penal Code. Thereafter, on 26/04/2009, the deceased succumbed to her injuries and a report was forwarded by the investigating officer for removal of section 307 and adding of section 302 of Indian Penal Code. It was alleged in the said First Information Report by Dhamendra Ratilal Shah, aged 32 years, Occupation Rickshaw driving, resident of Naroda, Ahmedabad that he is residing at the above address with his mother Manjulaben and his sister Kiranben. He has further stated that he owns a CNG rickshaw bearing registration No. GJ-1-AY-318 and from morning eight to evening five one Jitendra Mohanbhai Solanki drives the rickshaw and from evening five onwards to morning eight he himself drives the rickshaw. He has further stated that his mother has married his father Ratilal shah and out of the wedlock they had three children namely the complainant himself and his two sister namely Mamtaben and Vandnaben, however, his father was not of stable mind and, therefore, 18 years ago his mother fell in love with the present accused and started living with him and they both started residing together as husband and wife. During the relationship, Manjulaben gave birth to daughter named Kiranben and during which period the present accused bought two houses in the name of Manjulaben located at Naroda Ahmedabad bearing House No. D/63 and D/96. During the relationship, Manjulaben gave birth to daughter named Kiranben and during which period the present accused bought two houses in the name of Manjulaben located at Naroda Ahmedabad bearing House No. D/63 and D/96. He has further stated that 11 years ago Chetansinh (the Present accused) started having relationship with some other woman namely Jagrutiben, which resulted in the dispute between Manjulaben and Chetansinh for both the houses and further ended in Civil Suits which apparently Manjulaben won. Thereafter, on 16/04/09 at around 9 pm the complainant, his mother and sister were sitting outside the house and at that time Jitendra Solanki came with the rickshaw and parked it and joined them. At around 9.45 pm the present accused came on his motorbike, parked the motorbike; came towards the house and started abusing Manjulaben and telling her to vacate the house, and in response, Manjulaben went inside the house and the present accused followed her inside the house and locked the door from inside and shouted that he would kill her today. Thereafter, the complainant, his sister Kiranben and Jitendrabhai tried to open the door, however, they could not, and therefore, they approached the back door of the house, which also was locked, and thereafter they broke the back door and saw that Manjulaben was set on fire and therefore, the complainant tried to extinguish the fire but he could not, and at that time Jitendra Solanki poured a bucket of water on Manjulaben by which the fire extinguish. Meanwhile the accused had escaped from the front door. Thereafter, 108 Ambulance was called and Manjulaben was taken to the hospital for treatment. 2.1. That the aforesaid First Information Report, which was registered with Naroda Police Station, was investigated by one Kalusinh Bhathisinh Khant, Police Inspector, Naroda Police Station. He recorded statement of the concerned witnesses; he prepared panchnama of the place of incident, he sent yadi to the Executive Magistrate to record dying declaration of the deceased; he also recorded statement of the victim who subsequently died in the hospital while taking treatment; he also collected material against the accused in the form of earlier complaint given by the victim and the proceedings initiated against the accused under sections 107 and 115 of the Code of Criminal Procedure; he also arrested the accused. 2.2. 2.2. After conclusion of the investigation, investigating officer filed charge-sheet against the accused for the offences punishable under sections 302 and 506(1) of Indian Penal Code. 2.3. As the case was exclusively triable by the learned Court of Sessions, the learned Metropolitan Magistrate committed the case to the Additional Sessions Court, Fast Track Court No. 1, Ahmedabad which was numbered as Sessions Case No. 27 of 2010, which ultimately was transferred to the Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad. 2.4. The learned trial court framed Charge against the accused for the offences punishable under sections 302 and 506(1) of Indian Penal Code. 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 examined the following finesses:- ORAL EVIDENCE S. No. Particulars Exhibit 1. Jyotsnaben Babubhai Makwana – Panch Witness 5 2. Hitesh Ramanlal Solanki – Panch Witness 7 3. Amit Pravinbhai Vyas – Panch Witness 9 4. Dr. Alpesh Gordhanbhai Gangani – PW 12 5. Jitendra Mohanbhai Solanki – eye witness 14 6. Ashwin Ashokbhai Modi – PW 15 7. Kishorbhai Bhogilal Khatri – Executive Magistrate 16 8. Ashabhai Sureshbhai Bhudbhujan – PW 20 9. Kiranben Chetansinh Jhala – eye witness 21 10. Geetabeen Babubhai Prajapati – PW 22 11. Mamtaben Rameshbhai Mahendrabhai Shah – PW 24 12. Sanjay Gordhanbhai Vaghani – Doctor 25 13. Pannaben Mukundbhai Barot – PW 28 14. Somabhai Lalabhai Suroliya – PW 30 15. Kalusinh Bhathisinh Khant I.O. 35 16. Shankar Nanjibhai Ninama – PW 48 2.6. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidence:- DOCUMENTARY EVIDENCE S. No. Particulars Exhibit 1. First Information Report 31 2. Charge 32 3. Panchnama of the place of offence 36 4. Worthy given to Shardaben Hospital 37 5. Letter written to FSL and primary analysis report 34 6. Yadi sent to Executive Magistrate for recording dying declaration 17 7. Dying declaration 18 8. Panchnama of the seizure of the clothes of the accused and panchnama of the body of the accused 10 9. Inquest Panchnama 6 10. Postmortem report 13 11. Application made by the deceased to Naroda Police Station and letter of the investigating officer 38 12. Application made by the deceased to Naroda Police Station and letter of the investigating officer 39 13. Inquest Panchnama 6 10. Postmortem report 13 11. Application made by the deceased to Naroda Police Station and letter of the investigating officer 38 12. Application made by the deceased to Naroda Police Station and letter of the investigating officer 39 13. Report for addition of offence u/s. 302 of IPC 40 14. Letter of sending of Muddamal to the FSL 41 15. Acknowledgment of FSL for receipt of the muddamal 42 16. Forwarding letter of the FSL 43 17. Report of the FSL 44 2.7. That after closing purshis was submitted by the prosecution, Further Statement of the accused under section 313 of the Code of Criminal Procedure came to be recorded. In the Further Statement, the accused denied having committed any offence and he also denied that at the time of accident he was present. In his Further Statement under section 313 of the Code of Criminal Procedure, the original accused requested to exhibit one application/complaint given by one Manuji Chhabaji Barot, which was given against the victim in Naroda Police Station. Therefore, the aforesaid complaint alleged to have been given by one Manuji Chhabaji Barot - ex-tenant of the property for which there was a dispute between the accused and even the deceased victim, now deceased. The learned trial court exhibited the said complaint as Ex. 47. 2.8. At the conclusion of the trial and on appreciation of evidence, more particularly dying declaration of the deceased Ex. 18 and the deposition of the Executive Magistrate, who recorded dying declaration and deposition of the daughter of the accused as well as deceased namely Kiranben Chetansinh Jhala PW No. 9 Ex. 21, by the impugned judgment and order, the learned trial court has held the original accused guilty for the offences punishable under sections 302 and 506(1) of Indian Penal Code and the learned trial court has sentenced the original accused to undergo life imprisonment. 2.9. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the original accused has preferred the present Criminal Appeal. 3. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has vehemently submitted that in the facts and circumstances of the case, the learned trial court has materially erred in convicting the original accused for the offences punishable under sections 302 and 506(1) of Indian Penal Code. 3.1. Mr. 3. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has vehemently submitted that in the facts and circumstances of the case, the learned trial court has materially erred in convicting the original accused for the offences punishable under sections 302 and 506(1) of Indian Penal Code. 3.1. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that while holding the accused guilty for the offences punishable under sections 302 and 506(1) of Indian Penal Code, the learned trial court has not properly appreciated Ex. 47 - the complaint given by Manuji Chhabaji Barot against the deceased in which it was alleged that the deceased used to give threat to him that she will see to it that he is falsely implicated in the case and she commits suicide. It is submitted that thus, from the aforesaid complaint it is clear that the deceased was having tendency of committing suicide. It is submitted that, therefore, the learned trial court has not properly appreciated the defence that the deceased might have committed suicide. 3.2. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that the learned trial court has materially erred in not relying upon deposition of PW No. 5 - Jitendra Mohanbhai Solanki. It is submitted that the said prosecution witness is an independent witness and an eye witness to the entire incident. 3.3. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that the learned trial court has materially erred in not relying upon the deposition/evidence of PW No. 9 Kiranben Chetansinh Jhala. 3.4. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that the learned trial court has materially erred in not relying upon the deposition/evidence of PW No. 11 Mamtaben Rameshbhai Shah, who also happens to be daughter of the deceased from the first husband. 3.5. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that even according to the PW Nos. 5 and 9, after the incident upto 3 to 4 days, the deceased was not conscious and therefore, her statement that the deceased told her about the entire incident involving the present accused is not believable. 3.5. Mr. P.K. Pancholi, learned advocate appearing on behalf of the original accused has further submitted that even according to the PW Nos. 5 and 9, after the incident upto 3 to 4 days, the deceased was not conscious and therefore, her statement that the deceased told her about the entire incident involving the present accused is not believable. Making above submissions it is requested to allow the present appeal and quash and set aside the impugned judgment and order of conviction. 4. Present appeal is opposed by Mr. Rakesh Patel, learned Additional Public Prosecutor appearing on behalf of the State. He has submitted that in the present case, the prosecution has been successful in proving the case against the accused by leading cogent evidence. 4.1. Mr. Rakesh Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that in the present case, there is a dying declaration of the deceased - Ex. 18, recorded by the Executive Magistrate in which the deceased has categorically stated that her husband - accused had poured kerosene on her and set her ablaze by matchstick. It is submitted that the dying declaration has been proved by the prosecution by leading cogent evidence and by examining the Executive Magistrate as well as the Doctor. It is submitted that, therefore, the learned trial court has rightly convicted the original accused relying upon the dying declaration produced at Ex. 18. 4.2. Mr. Rakesh Patel, learned Additional Public Prosecutor appearing on behalf of the State has further submitted that even Kiranben Chetansinh Jhala PW No. 9, who has been examined at Ex. 21, who is the daughter of the accused as well as deceased has categorically stated that the accused came to the house of her mother and that there was quarrel and the accused entered into the house of the deceased and that her father - accused closed the door and poured kerosene on her and set her ablaze by matchstick. She has further submitted that she has categorically stated that having heard shouting of her mother, her brother Dharmendra and one Rickshaw driver broke open the door and at that time, her father - original accused ran away. She has further submitted that she has categorically stated that having heard shouting of her mother, her brother Dharmendra and one Rickshaw driver broke open the door and at that time, her father - original accused ran away. It is submitted that she has been fully cross-examined by the defence, however, defence has not been successful in bringing out anything against the prosecution and that she has fully supported the case of the prosecution. It is submitted that, therefore, the learned trial court has rightly convicted the original accused. By making above submissions, it is requested to dismiss the present appeal. 5. Heard the learned advocates appearing on behalf of the respective parties at length. 5.1. We have gone through the impugned judgment and order of conviction passed by the learned trial court in detail. We have considered the findings recorded by the learned trial court recorded while convicting the original accused for the offence under Sections 302 and 506(1) of Indian Penal Code. We have re-appreciated the entire evidence on record. 5.2. At the outset, it is required to be noted that in the present case, the prosecution has been successful in proving the case against the accused that there was dispute going on between the accused and the deceased (husband and wife) with respect to the properties. 5.3. That the deceased succeeded in the litigation and therefore, the same was not liked by the accused. Therefore, the accused went to the house where the deceased was staying with her son and daughter for which there was already dispute earlier and in which the deceased succeeded. The accused insisted for transfer of the property in his name, however, the deceased refused. The accused went to the house where the deceased was staying and he closed the door and poured kerosene on the deceased and set her ablaze by matchstick. The aforesaid is proved by the prosecution by examining Kiranben PW No. 9, who has been examined at Ex. 21. The evidence of the said PW No. 9 is reliable and trustworthy. 5.4. Even there is dying declaration recorded by the Executive Magistrate produced at Ex. 18. The aforesaid is proved by the prosecution by examining Kiranben PW No. 9, who has been examined at Ex. 21. The evidence of the said PW No. 9 is reliable and trustworthy. 5.4. Even there is dying declaration recorded by the Executive Magistrate produced at Ex. 18. The incident occurred approximately at 9.30 at night and that immediately the deceased was taken to the hospital and immediately yadi was sent to the Executive Magistrate for recording dying declaration of the deceased which was received by the Executive Magistrate at about 2.50 hours in the early morning of 17/4/2009 and dying declaration was recorded at 15.25 hours in the early morning. In the dying declaration Ex. 18 the deceased has categorically stated that her husband had poured kerosene on her as her husband told him to give signature for selling the property bearing No. 96 but she refused and therefore, the accused poured kerosene on her and set her ablaze. The dying declaration has been proved by examining the Executive Magistrate. Even in the Vardhi which was sent by the police to the Executive Magistrate, there is an endorsement that the patient is conscious. He has also categorically stated that at the time of recording the dying declaration he got himself satisfied that the patient was conscious. Under the circumstances, the dying declaration has been duly proved. As observed hereinabove, in the dying declaration, the deceased has categorically stated that her husband - accused herein had poured kerosene on her and set her ablaze by matchstick. Considering the overall facts and circumstances of the case, it cannot be said that the learned trial court has committed any error in convicting the accused for the offence punishable under section 302 of Indian Penal Code. 5.5. Now, so far as the submission on behalf of the accused that the learned trial court ought to have considered and/or relied upon the deposition of the PW No. 5 - Jitendra Mohanbhai Solanki. However, it is required to be noted that the said witness has been declared hostile. Under the circumstances, the learned trial court has rightly not relied upon the deposition of PW No. 5, who has turned hostile and who is declared hostile witness. 5.6. However, it is required to be noted that the said witness has been declared hostile. Under the circumstances, the learned trial court has rightly not relied upon the deposition of PW No. 5, who has turned hostile and who is declared hostile witness. 5.6. On re-appreciation of the entire evidence on record, we are of the opinion that the prosecution has been successful in proving the motive for the accused to cause death of the deceased and that the prosecution has been successful in proving that the accused poured kerosene on the deceased and set her ablaze by matchstick. 5.7. Now, so far as reliance placed upon Ex. 47 by the accused i.e. complaint alleged to have been given by Manuji Chhabaji Barot against the deceased in the year 2008, in which it was alleged that the deceased gave threat to him that she will falsely implicate him and that if he does not vacate the premises, she would commit suicide, is concerned, it is required to be noted that first of all, the person who gave the complaint against the deceased has not been examined as defence witness and therefore, the contents of the allegations made in the aforesaid complaint are not proved. On the contrary, the prosecution has brought on record the proceedings initiated by the deceased against the accused under sections 107 and 115 of the Code of Criminal Procedure. 5.8. Considering the aforesaid facts and circumstances of the case when the prosecution has been successful in proving the case against the accused and consequently when the learned trial court has convicted the original accused for the offence under section 302 of Indian Penal Code for having killed his wife by pouring kerosene on her and by setting her at blaze by matchstick, we see no reason to interfere with the impugned judgment and order of conviction passed by the learned trial court and we agree with the findings recorded by the learned trial court while holding the original accused guilty for the offence punishable under section 302 of the Indian Penal Code. 6. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad in Sessions Case No. 27 of 2010 is hereby confirmed. 6. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Ahmedabad in Sessions Case No. 27 of 2010 is hereby confirmed. Registry is directed to sent R & P of the case to the learned trial court forthwith.