(1.) THIS appeal is directed against the judgement and order dated 30th July, 1997 passed by the learned Additional Sessions Judge, Camp Modasa in Sessions Case No.106 of 1995, whereby he has acquitted the accused of the offences punishable under sections 498-A and 306 read with section 114 of the Indian Penal Code.
(2.) MR . K. L. Pandya, learned Additional Public Prosecutor drew the attention of the court to the record and proceedings of the case to submit that though several witnesses have not supported the prosecution case, the prosecution has duly proved the dying declaration of the deceased through the evidence of the Executive Magistrate and as such, the contents thereof are required to be accepted. It was submitted that, thus, the conviction can be based solely upon such dying declaration. Referring to the dying declaration, it was submitted that the deceased was subjected to mental harassment by the accused persons who were constantly quarrelling with her and as such, have instigated her to commit suicide. It was submitted that before the incident, her brother- in-law had slapped the husband of the deceased and had pushed her and as such, within a close proximity to the incident, the deceased had been subjected to harassment, thereby instigating her to commit suicide. Under the circumstances, the provisions of section 498-A as well as section 306 of the IPC are clearly attracted in the present case and as such, the learned Judge was not justified in acquitting the accused of the said offences.
(3.) REFERRING to the deposition of the Executive Magistrate, it was pointed out that the said witness is not even in a position to state as to what is the name of the doctor who had made the endorsement on the dying declaration. It was submitted that the Executive Magistrate is not in a position to identify the Medical Officer who had made such endorsement. It was further submitted that the said Medical Officer has also not been examined by the prosecution to prove that he has made such endorsement or that the patient was in a conscious state of mind. It was submitted that under the circumstances, no conviction can be based on the basis of such defective dying declaration.