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2016 DIGILAW 754 (GUJ)

State of Gujarat v. Jyotshnaben

2016-04-06

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.01.2006 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 80 of 2003, by which the learned Trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code, the appellant-State has preferred the present appeal under Section 378 of the Criminal Procedure Code, 1973. 2. The prosecution case, in the nutshell, is as under:- "2.1 That on the date of the incident i.e. on 27.03.2003, the deceased (mother-in-law) and the accused (daughter-in-law) were alone in the house and the husband of the victim (deceased) and the son had gone to the work place. At about 10.00 a.m. in the morning, when the deceased was cutting vegetable, at that time, the accused quarreled with the deceased for doing the household work more particularly with respect to fetching water and the accused got angry and told the deceased that she is not doing any work and she should be killed and she poured kerosene on the deceased set her ablaze by matchstick. The deceased came out in burning condition and shouted for the help. The neighbours reached at the place of incident. Even, the husband of the deceased, who was nearby temple, having heard the shout of the deceased, reached at the place of the incident-house of the accused as well as deceased and tried to save her. The husband of the deceased took the deceased to the G.G. Hospital, Jamnagar for treatment. On receiving the Vardhi, the Police Sub-Inspector - Laxmansinh Shabhai Rathod reached at the hospital. He recorded the statement of the deceased (Exhibit 50), which was ultimately, registered as First Information Report being C.R. No. I-94/2003 before the City "A" Division Police Station, Jamnagar for the offence punishable under Section 307 of the Indian Penal Code. The condition of the deceased was very critical. Thereafter, the investigation was handed over to one Jayvirsinh Gajubha Zala (P.W.15) and thereafter, by one Vikramsinh Dashrathsinh Gohil (P.W.17), Police Inspector, City "A" Division Police Station. He, immediately, sent the yadi to the Executive Magistrate for recording the dying declaration of the deceased. The condition of the deceased was very critical. Thereafter, the investigation was handed over to one Jayvirsinh Gajubha Zala (P.W.15) and thereafter, by one Vikramsinh Dashrathsinh Gohil (P.W.17), Police Inspector, City "A" Division Police Station. He, immediately, sent the yadi to the Executive Magistrate for recording the dying declaration of the deceased. After having obtained the necessary endorsement that victim was conscious, the Executive Magistrate recorded the dying declaration of the victim at about 1.00 p.m. which was completed at about 1.30 p.m. That, while taking treatment in the hospital, the deceased died on 02.04.2003. Therefore, the offence punishable under Section 302 of the Indian Penal Code came to be added. That the Investigating Officer Shri Jayvirsinh Gajubha Zala (P.W.15), during the course of the investigation, recorded the statement of the concerned witnesses. He prepared the panchnama of the place of incident. He also sent a yadi to the Executive Magistrate for the inquest panchnama. He also recovered the muddamal articles from the place of the incident including the Can of kerosene, clothes of the deceased as well as flaxen cloth. He sent all the articles to the Forensic Science Laboratory. He also got postmortem report. After completion of the investigation and having found prima facie case, the Investigating Officer filed the charge-sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code, in the Court of learned Chief Judicial Magistrate, First Class, Jamnagar. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Jamnagar which was numbered as Sessions Case No. 80/2003. That the learned Trial Court framed the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty and, therefore, she came to be tried by the learned Trial Court for the aforesaid offence." 3. To prove the case against the accused, the prosecution examined following witnesses:- P.W.1 Lakha Parbat Gojiya Exhibit 12 P.W.2 Dr. Gambhirsinh Samusinh Oinam Exhibit 13 P.W.3 Rashmikant Chhaganlal Chhipa Exhibit 18 P.W.4 Prabhaben Keshavji Exhibit 22 P.W.5 Bipingiri Ranchhodgiri Exhibit 23 P.W.6 Ranchhodgar Devgar Exhibit 24 P.W.7 Radhaben Naranbhai Exhibit 27 P.W.8 Pithabhai Pujabhai Exhibit 29 P.W.9 Savjiben Pethabhai Exhibit 30 P.W.10 Naranbhai Ranmaldas Exhibit 31 P.W.11 Jentibhai Virajibhai Patel Exhibit 33 P.W.12 Ramshi Pala Exhibit 34 P.W.13 Dr. Piyush Vrujlalbhai Kansagara Exhibit 35 P.W.14 Dr. Piyush Vrujlalbhai Kansagara Exhibit 35 P.W.14 Dr. Diganj Rajnikant Sikotara Exhibit 39 P.W.15 Jayvirsinh Gajubha Zala Exhibit 41 P.W.16 Laxmansinh Shabhai Rathod Exhibit 49 P.W.17 Vikramsinh Dashrathsinh Gohil Exhibit 53 4. Through the aforesaid witnesses, the prosecution brought on record following documentary evidences:- 1. Original Complaint Exhibit 50 2. Extract of Vardhi informing about admitting the victim for treatment Exhibit 45 3. Yadi for registration of offence Exhibit 43 4. Panchnama of place of offence Exhibit 51 5. Arrest Panchnama Exhibit 37 6. Yadi to the Executive Magistrate for recording dying declaration Exhibit 19 7. Inquest Panchnama Exhibit 15 8. Inquest Form Exhibit 16 9. Yadi for Postmortem Exhibit 14 10. Postmortem Note Exhibit 17 11. Yadi to the F.S.L. Officer for carrying out inspection of the place of offence Exhibit 52 12. Yadi to F.S.L. Junagadh for muddamal analysis Exhibit 55 13. Certificate of authority Exhibit 56 14. Dispatch Note Exhibit 57 15. Receipt regarding muddamal being received Exhibit 58 16. Forwarding letter for sending analysis report by F.S.L. Junagadh Exhibit 59 17. Analysis report Exhibit 60 18. Application for addition of section Exhibit 54 19. Message of serious offence Exhibit 44 5. After the closing pursis submitted by the prosecution at Exhibit 61 and dropping the witnesses other than those who were examined by the prosecution, further statement of the accused came to be recorded under Section 313 of the Cr. P.C. in further statement, the accused stated that the false case filed against her. She further stated that at the time of incident, she was not present in the house and that she had gone to the house of one Hamirbhai for fetching drinking water. She further stated that her mother-in-law (deceased) was of very angry nature and that they were to stay separately from 01.04.2003 which was not liked by her mother-in-law (deceased) and, therefore, she was not happy with them. She further stated in her further statement that for water to be used for other purpose they having visited in falia. She further stated that for cooking, they were having traditional chula. 6. The accused did not lead any defence witnesses including examining Hamirbhai or any other person to prove that at the time of incident, she had gone to the house of Hamirbhai for fetching drinking water and that she was not present in her house. 7. She further stated that for cooking, they were having traditional chula. 6. The accused did not lead any defence witnesses including examining Hamirbhai or any other person to prove that at the time of incident, she had gone to the house of Hamirbhai for fetching drinking water and that she was not present in her house. 7. At the conclusion of the trial, by disbelieving and/or discarding the dying declaration produced at Exhibit 32 and even the complaint which was given by the deceased herself (Exhibit 50), by impugned judgment and order, the learned Trial Court has acquitted the original accused by giving her benefit of doubt, which has given rise to the present appeal. 8. Mr. Rakesh Patel, learned Additional Public Prosecutor appearing on behalf of the appellant-State has vehemently submitted that in the facts and circumstances of the case, the learned Trial Court has materially erred in acquitting the original accused for the offence under Section 302 of the Indian Penal Code. 8.1 It is submitted by learned Additional Public Prosecutor that in the present case, the prosecution has been successful in proving the case against the accused that she poured kerosene on the deceased and set her ablaze by matchstick by leading cogent evidence. 8.2 It is submitted by learned Additional Public Prosecutor that in the present case, as such, it can be said that there are three dying declarations. It is submitted that the first dying declaration was in the form of the history given to the doctor; second dying declaration was in the form of the statement/complaint given by the deceased herself which was recorded by the P.S.I. - Laxmansinh Shabhai Rathod, which was subsequently registered as F.I.R. and the third dying declaration was recorded by the Executive Magistrate. 8.3 It is submitted by learned Additional Public Prosecutor that in all dying declarations, deceased specifically and categorically stated that at about 10.00 a.m. in the morning there was quarrel took place between accused and deceased for doing household work and the accused told the deceased that she is not doing any work and she became angry and she poured kerosene on the deceased and set her ablaze by matchstick. Therefore, it is submitted by the learned Additional Public Prosecutor that learned Trial Court ought to have convicted the original accused for the offence punishable under Section 302 of the Indian Penal Code. Therefore, it is submitted by the learned Additional Public Prosecutor that learned Trial Court ought to have convicted the original accused for the offence punishable under Section 302 of the Indian Penal Code. 8.4 It is submitted by learned Additional Public Prosecutor that as such, the Trial Court has committed a grave error in not believing the dying declaration (Exhibit 32) and the complaint (Exhibit 50) which was given by the deceased herself on the ground that there are contradictions with respect to the place of the incident as well as with respect to the cause for the accused to pour kerosene on her. 8.5 It is submitted by learned Additional Public Prosecutor that as such, the learned Trial Court has not appreciated the fact that even if there are some contradictions, in that case also, the contradictions were not such material contradictions for which dying declaration of the deceased recorded by the Executive Magistrate and even the complaint, which was given by the deceased herself before the Police Sub Inspector, were required to be discarded. 8.6 It is submitted by learned Additional Public Prosecutor that even looking to the injuries, which were sustained by the deceased, were possible by pouring kerosene on her. It is submitted that the deceased had sustained injuries on the chest, head, hairs and the entire body, except legs and backside of the body. It is submitted that the same is corroborated by medical evidence and the deposition of the doctor. 8.7 It is submitted by learned Additional Public Prosecutor that even from the report of the F.S.L. it is proved that there was kerosene poured on the deceased. It is submitted that from the clothes of the deceased recovered, the kerosene has been found. The aforesaid is proved from the F.S.L. report. It is submitted that therefore, the learned Trial Court has materially erred in acquitting the original accused. 8.8 It is submitted by learned Additional Public Prosecutor that the findings recorded by the learned Trial Court while acquitting the original accused are perverse and on misinterpretation of the evidence on record. It is submitted that the learned Trial Court has, as such, committed a grave error in acquitting the original accused by giving benefit of doubt. 8.8 It is submitted by learned Additional Public Prosecutor that the findings recorded by the learned Trial Court while acquitting the original accused are perverse and on misinterpretation of the evidence on record. It is submitted that the learned Trial Court has, as such, committed a grave error in acquitting the original accused by giving benefit of doubt. 8.9 It is submitted by learned Additional Public Prosecutor that even in the present case, it has been established and proved that the accused and the deceased were not having good relation and that, earlier, they were residing separately and, thereafter, again the accused and her husband (son of the deceased) again came to reside and, thereafter, the incident had taken place. 8.10 It is submitted by learned Additional Public Prosecutor that as such, the incident had taken place at about 10.00 a.m. in the morning. It is submitted that though in the further statement of the deceased recorded under Section 313 of the Criminal Procedure Code, the accused has stated that she had gone to the house of one Hamirbhai for fetching drinking water, no defence witness has been examined by her including Hamirbhai. It is submitted that therefore, the learned Trial Court ought to have convicted the original accused for the offence for which she was tried. 8.11 Making above submissions and observations, it is requested to allow the present appeal and to quash and set aside the impugned judgment and order passed by the learned Trial Court and, consequently, to convict the original accused for the offence punishable under Section 302 of the Indian Penal Code and to impose maximum punishment provided for the offence under Section 302 of the Indian Penal Code. 9. The present appeal is vehemently opposed by Mr. Y.M. Thakore, learned advocate appearing on behalf of the respondent-original accused. 9.1 Learned advocate appearing on behalf of the respondent-original accused has submitted that in the present case, the learned Trial Court has rightly acquitted the accused by giving her benefit of doubt. It is submitted by the learned advocate for the accused that the present appeal is against the impugned judgment and order of acquittal. 9.1 Learned advocate appearing on behalf of the respondent-original accused has submitted that in the present case, the learned Trial Court has rightly acquitted the accused by giving her benefit of doubt. It is submitted by the learned advocate for the accused that the present appeal is against the impugned judgment and order of acquittal. It is submitted by the learned advocate for the accused that unless and until, the Appellate Court finds that the findings recorded by the learned Trial Court are perverse and contrary to the evidence on record, which has resulted into miscarriage of justice, the interference of the Appellate Court is not called for. It is submitted that in the present case, while acquitting the original accused by giving her benefit of doubt, the learned Trial Court has given cogent reasons and the findings recorded by the learned Trial Court, on appreciation of evidence and, therefore, the impugned judgment and order of acquittal is not required to be interfered with. 9.2 It is submitted by the learned advocate appearing on behalf of the respondent-accused that in the present case, the learned Trial Court has rightly discarded and/or disbelieved the dying declaration - Exhibit 32 and the complaint given by the deceased - Exhibit 50. It is submitted that the cogent reasons have been given by the learned Trial Court are, while discarding the dying declaration of the deceased Exhibit 32 and the complaint given by her at Exhibit 50. 9.3 It is submitted by the learned advocate appearing on behalf of the respondent-accused that considering the contradictions in the complaint at Exhibit 50 as well as dying declaration at Exhibit 32, which are, as such, material contradictions more particularly material contradictions with respect to the place of the incident and the cause alleged for the accused to commit the offence, the learned Trial Court has rightly disbelieved and/or discarded the dying declaration at Exhibit 32 and the complaint at Exhibit 50. 9.4 It is submitted by the learned advocate appearing on behalf of the respondent-accused that from the postmortem note and the inquest panchnama, it emerge that the deceased had sustained 98% burn injuries and that she was having the bandages of the entire body. 9.4 It is submitted by the learned advocate appearing on behalf of the respondent-accused that from the postmortem note and the inquest panchnama, it emerge that the deceased had sustained 98% burn injuries and that she was having the bandages of the entire body. It is submitted that however, from the complaint - Exhibit 50 as well as dying declaration - Exhibit 32, there appears to be a left hand thumb impression of the deceased, which was not possible at all. It is submitted that therefore, when both dying declaration - Exhibit 32 and the complaint - Exhibit 50 given by the deceased, having the thumb impression, creates doubt and, therefore, the learned Trial Court has rightly discarded the dying declaration - Exhibit 32 and the complaint which was given by the deceased at Exhibit 50. 9.5 It is submitted by the learned advocate appearing on behalf of the respondent-accused that as admitted by Dr. Diganj Rajnikant Shikotara, P.W.14, the history on the case paper at Exhibit 36 was not in his handwriting and that it was recorded by some other doctor and that even the handwriting on the entire Exhibit 36 and the history recorded in Exhibit 36 is differed. It is submitted that therefore, the history which was alleged to have been given by the deceased before the doctor recorded in Exhibit 36 cannot be believed. 9.6 It is submitted by the learned advocate appearing on behalf of the respondent-accused that even Dr. Diganj Rajnikant Shikotara, P.W.14 has stated that he cannot say whether the injuries sustained by the victim (deceased) were by pouring kerosene by herself or by some other person. 9.7 It is submitted by the learned advocate appearing on behalf of the respondent-accused that even P.W.2 - Gambhirsinh Samusing Oinam, who performed postmortem had stated in the cross-examination that it is true that the injuries sustained by the deceased were possible by pouring kerosene by the deceased herself from the kerosene Can recovered i.e. muddamal article No. 1. 9.8 It is submitted by the learned advocate appearing on behalf of the respondent-accused that considering the aforesaid facts and circumstances and when the dying declaration at Exhibit 32 and the complaint (Exhibit 50) which was given by the deceased herself are doubtful and not reliable, the learned Trial Court has rightly discarded the same and rightly acquitted the original accused. Therefore, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. 9.9 In the alternative, the learned advocate appearing on behalf of the respondent-accused has submitted that at the most, it can be said that the case may fall under Section 304 Part II of the Indian Penal Code. It is submitted that there was no intention on the part of the accused to cause death of the deceased. It is submitted that even as per the complaint - Exhibit 50 which was given by the deceased herself, the incident had occurred on the spur and all of a sudden and because of the household work, she became angry and she poured kerosene on her. It is submitted that the case may not fall under any of the clauses of Section 300 of the Indian Penal Code and the case may fall under Section 304 Part - II of the Indian Penal Code. 9.10 It is submitted by the learned advocate appearing on behalf of the respondent-accused that the incident had occurred in the year 2003 and by now 13 years have been passed. It is submitted that the accused is having two minor daughters and one son and, therefore, it is requested to impose lessor punishment even for the offence under Section 304 Part - II of the Indian Penal Code. 10. Heard learned advocates appearing on behalf of the respective parties at length. 11. We have considered in detail the impugned judgment and order of acquittal passed by the learned Trial Court. We have gone through the offence recorded by the learned Trial Court, while acquitting the original accused by giving benefit of doubt. We have re-appreciated the entire evidence on record. 12. At the outset, it is required to be noted that in the present case, the accused was charged for the offence punishable under Section 302 of the Indian Penal Code for having killed her mother-in-law by pouring kerosene on her and, setting her ablaze by matchstick. 13. At the outset, it is required to be noted that the deceased sustained 98% burn injuries. Immediately, she was taken to the hospital. That she died, while taking treatment in the hospital after a period of 5 days. The incident occurred at 10 a.m. in the morning on 27.03.2003 and the deceased was died on 02.04.2003. 13. At the outset, it is required to be noted that the deceased sustained 98% burn injuries. Immediately, she was taken to the hospital. That she died, while taking treatment in the hospital after a period of 5 days. The incident occurred at 10 a.m. in the morning on 27.03.2003 and the deceased was died on 02.04.2003. The cause of death mentioned in the postmortem report is "died due to infected burns." As per column No. 17 of the postmortem report and even as per the deposition of the doctors who treated the deceased and even as per P.W.2 - Gambhirsinh Samusing Oinam, who performed postmortem, the deceased sustained following injuries:- 17. Surface wounds and injuries :- Their nature, position dimensions, directions and associated haemorehage, foreign body (if any) to be accurately stated their probable age and cause to be noted. If bruises be present, what is the condition of the subcutaneous tissues? ABOUT 95 TO 98% DERHOEPIDERHO BURNS SEEN ALL OVER THE BODY, EXCEPT THE FOLLOWING :- (1) BACK OF SCALP (2) SOME AREAS OVER THE OTHER SIDES OF BOTH THIGHS (3) SOME AREAS OF UPPER PARTS OF INNER THIGHS (4) MOST PARTS OF TOES AND SOLES AREAS OF REDDENING AND BLACKENING WITH PEELING OF EPPIDAMUS N.B. (When injures are numerous and cannot be mentioned within the space available they should be mentioned in a separate paper which should be singed) SEEN AT THE PLACES, FRONT SCALP HAIRS AND OTHER BODY HAIRS SHOW SINGLE EFFECTS VENE SECTION MARKS PRESENT ON BOTH ANKLES : Thus, the prosecution has been successful in proving that the death of the deceased was a homicidal death. At this stage, it is required to be noted that even it was/is not the case of the accused that the death of the deceased was not homicidal death. Thus, it is established and proved that the death of the deceased was a homicidal death. 14. It is required to be noted that in the present case and even from the evidence on record both oral as well as documentary evidence, it can be said that there are three dying declarations on record. One in the form of complaint at Exhibit 50 which was given by the deceased herself, which came to be recorded by P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector. One in the form of complaint at Exhibit 50 which was given by the deceased herself, which came to be recorded by P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector. In the complaint which was given by the deceased herself i.e. Exhibit 50, the deceased had categorically stated that at about 10.00 a.m., because of the dispute and quarrel, the accused became angry and that she poured kerosene on her and set her ablaze by matchstick. The said complaint was registered as FIR. The complaint which came to be given by the deceased herself (Exhibit - 50) has been duly proved by the prosecution by examining P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector of Jamnagar "A" Division Police Station. From the record, it appears that the said statement was recorded at G.G. Hospital immediately at about 2.00 p.m. in the said complaint (Exhibit 50), the thumb impression of left hand of the deceased was taken. P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector, who recorded the statement of the deceased has explained why the thumb impression of the left hand of the deceased was taken. He has categorically stated in his deposition and even in the complaint at Exhibit 50 that there is an endorsement that as on the right hand thumb of the deceased, there was bandaged and, therefore, the thumb impression of the left hand is taken and even on the dying declaration which was recorded by the Executive Magistrate, the left hand thumb impression of the deceased was taken. P.W.16 -Laxmansinh Shabhai Rathod, Police Sub Inspector who recorded the statement of the deceased which clearly stated that at the time when the deceased gave statement/complaint before him, which was subsequently registered as FIR, the deceased was conscious. Even from the medical papers, it appears that the deceased was conscious upto 01.04.2003. In the complaint (Exhibit 50) which was given by the deceased herself, she had categorically stated that the accused had poured kerosene on her and set her ablaze by matchstick. There is no reason to doubt, the complaint which was given by the deceased herself, was recorded by P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector Exhibit 50). 15. In the complaint (Exhibit 50) which was given by the deceased herself, she had categorically stated that the accused had poured kerosene on her and set her ablaze by matchstick. There is no reason to doubt, the complaint which was given by the deceased herself, was recorded by P.W.16 - Laxmansinh Shabhai Rathod, Police Sub Inspector Exhibit 50). 15. Even in the dying declaration which was recorded by the Executive Magistrate, was recorded at about 1.00 p.m. which ended at 1.30 p.m. it was categorically stated that in the morning at 10.00 a.m., the accused had poured kerosene on deceased and set her ablaze by matchstick. The dying declaration which was given by the deceased had been duly proved by the prosecution by examining the Executive Magistrate, who is an independent witness. There is no reason to doubt of the Executive Magistrate, who recorded dying declaration (Exhibit 32). 16. However, from the reasoning, which was given by the learned Trial Court, it appears that the learned Trial Court has discarded the dying declaration (Exhibit 32) and the complaint which was given by the deceased (Exhibit 50), on the ground that there are contradictions in both the dying declaration as well as complaint with respect to the place of the incident and also with respect to the cause. However, on considering the entire dying declaration at Exhibit 32 and the complaint at Exhibit 50 as well as panchnama of the place of the incident, it cannot be said that there are material contradictions in the dying declaration, Exhibit 32 as well as the complaint, Exhibit 50 for which both of them are required to be discarded. It is required to be noted that in the dying declaration as well as the complaint which was given by the deceased herself, she has categorically stated and she is constant in her version that the accused poured kerosene on her and set her ablaze by the matchstick. The aforesaid has not been, at all, considered and/or appreciated by the learned Trial Court. The learned Trial Court has, unnecessarily, given much weightage on contradictions with respect to the place of incident which has observed hereinabove, as such, the same cannot be said to be such material contradictions which create doubt about the prosecution case as well as dying declaration and the complaint which was given by the deceased herself. 17. The learned Trial Court has, unnecessarily, given much weightage on contradictions with respect to the place of incident which has observed hereinabove, as such, the same cannot be said to be such material contradictions which create doubt about the prosecution case as well as dying declaration and the complaint which was given by the deceased herself. 17. Even the burn injuries sustained by the deceased by pouring kerosene on her by accused has been established and proved by the prosecution by leading cogent evidence. From the F.S.L. report, it emerges that there was kerosene on the clothes of the deceased as well as on the cotton which was found from the place of incident. Even from the injuries which were sustained by the deceased, all such injuries were possible by pouring kerosene on her by some other person and not by herself. At this stage, it is required to be noted that as such, it has never the case on behalf of the accused that the deceased herself poured kerosene on herself. From the medical evidence as well as postmortem note, it appears that the burn injuries which were sustained by the deceased herself on the head, hair, chest and entire body except foot and the backside of the body. Even P.W.2 - Dr. Gambhirsinh Samusing Oinam (Exhibit 13) who has performed the postmortem, has categorically stated that the injuries mentioned in column No. 7 sustained by the deceased were possible by pouring kerosene on her by another person. Therefore, the aforesaid injuries sustained by the deceased were, as such, possible by pouring kerosene on her by accused. Considering the aforesaid facts and circumstances of the case, the learned Trial Court has committed a grave error in acquitting the original accused by giving benefit of doubt by discarding dying declaration - Exhibit 32 and the complaint - Exhibit 50 which was given by the deceased herself. 18. Considering the findings recorded by the learned Trial Court and observation hereinabove, the learned Trial Court has materially erred in discarding the evidence in the form of dying declaration - Exhibit 32 and the complaint - Exhibit 50 given by the deceased herself. The findings recorded by the learned Trial Court, while acquitting the original accused, by giving the benefit of doubt are not only contrary to the evidence on record, but perverse which has resulted into miscarriage of justice. The findings recorded by the learned Trial Court, while acquitting the original accused, by giving the benefit of doubt are not only contrary to the evidence on record, but perverse which has resulted into miscarriage of justice. We are of the opinion that in this case, the interference of this Court is required in exercise of appellate jurisdiction. 19. At this stage, it is required to be noted that the incident had taken place in the house of the accused and the deceased, and all were, at the relevant time staying together. The accused has stated in her further statement that at the time of incident she was not present at her house and that she had gone to the house of one Hamirbhai for getting drinking water. However, no defence witness has been examined by the accused to prove that at the time of incident she was not present and she had gone to get drinking water to the house of one Hamirbhai nor any other witnesses have been examined to prove the said defence. As observed hereinabove, the incident had taken place at 10.00 a.m. in the house where the deceased and the accused were staying together. 20. Now at the most upto alternative submission made by learned advocate appearing on behalf of respondent-accused is that the case may not fall under Section 300 of the Indian Penal Code but it may fall under Section 304 Part II of the Indian Penal Code, is required to be considered. However, at this stage, it is required to be noted that as observed hereinabove, the prosecution has been successful in proving that the accused had poured kerosene on the deceased and set her ablaze by matchstick. 21. It is a case on behalf of the State that the case would fall under explanation 4 to Section 300 of the Indian Penal Code. In support of the above submission, learned Additional Public Prosecutor for the State has relied upon the decision of the Hon'ble Supreme Court in the case of Patel Maheshbhai Ranchhodbhai and Others vs. State of Gujarat, (2014) 14 SCC 657 (paragraph Nos. 15 to 18). In support of the above submission, learned Additional Public Prosecutor for the State has relied upon the decision of the Hon'ble Supreme Court in the case of Patel Maheshbhai Ranchhodbhai and Others vs. State of Gujarat, (2014) 14 SCC 657 (paragraph Nos. 15 to 18). However, even from the complaint (Exhibit 50) given by the deceased herself and the cause for the accused to commit the offence i.e. quarrel took place in the morning with respect to the household work and thereupon accused stated that she is not doing any work and, thereafter, she became angry and poured kerosene on the deceased and set her ablaze by matchstick, we are of the opinion that the case may not fall under Section 300 of the Indian Penal Code, but the case fall under Section 304 Part I of the Indian Penal Code. 22. In view reasons stated above, the accused is held guilty for the offence under Section 304 Part I of the Indian Penal Code. 23. We have heard the accused, who is present in the Court on sentence. She has requested to pass appropriate order with respect to the sentence by submitting that she has three minor children aged between 12 to 16 years i.e. two daughters and one son and, therefore, it is requested to impose lesser punishment. 24. We have heard learned advocates appearing on behalf of the respective parties on sentence and even having heard the accused on sentence and considering the fact that the accused committed the offence, while she became angry with respect to the household work and the incident had occurred on the spur. In the facts and circumstances of the case, we are of the opinion that while convicting the original accused under Section 304 Part I of the Indian Penal Code, if the accused is sentenced to undergo seven years rigorous imprisonment with fine of Rs. 2,500/- and in default to undergo three months rigorous imprisonment, the same can be said to be just and adequate punishment commensurate with gravity of the offence. 25. In view of the above, the present appeal succeeds. 2,500/- and in default to undergo three months rigorous imprisonment, the same can be said to be just and adequate punishment commensurate with gravity of the offence. 25. In view of the above, the present appeal succeeds. The impugned judgment and order dated 20.01.2006 passed by the learned Sessions Judge, Jamnagar in Sessions Case No. 80 of 2003 by which the learned trial Court has acquitted the original accused for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside. The original accused is held guilty for the offence punishable under Section 304 Part - I of the Indian Penal Code and is sentenced to undergo 7 years RI with fine of Rs. 2,500/- and in default of payment of fine, to undergo further three months' RI. It goes without saying that whatever the punishment the accused has undergone, if any, shall be given set off in accordance with law. Since, the impugned judgment and order is being reversed and the respondent-original accused is being held guilty for the offence punishable under Section 304 Part - I of the Indian Penal Code and she is sentenced to undergo 7 years RI with fine of Rs. 2,500/- and in default of payment of fine, to undergo further three months' RI, the respondent-accused is required to be taken into custody forthwith to undergo remaining sentence. At this stage, Mr. Thakore, learned advocate appearing on behalf of the respondent-accused has requested to grant time to the accused to surrender before the concerned Court to undergo the remaining sentence. Considering the facts and circumstances of the case, time to surrender to the original accused to undergo the remaining sentence as per the present judgment and order is hereby granted upto 06.06.2016. The accused to surrender before the concerned Court to undergo the remaining sentence as per the present judgment and order on or before 06.06.2016. The Registry is directed to send back the Record and Proceedings to the concerned trial Court, forthwith.