Baban Anna Dixit v. State of Maharashtra — 1990 DIGILAW 319 (BOM)

JUDGMENT I. G. Shah, J. - Original accused No.1 whose conviction of the offence punishable under section 306 and 498A of the Indian Penal Code and the sentence of R.I. for 3 years and a fine of Rs. 500/- in default further R.I. for 3 months on the first count and R.I. for one year and a fine of Rs. 100/- in default further R.I for one month on the second count substantive sentences are ordered to run concurrently, passed by the learned Assistant Sessions Judge, Satara in Sessions Case No.2 of 1987 has been confirmed in Criminal Appeal No. 67 of 1987 on the file of the learned Sessions Judge, Satara, has preferred this revision application. 2. Briefly stated the facts giving rise to the present revision application are as under: The present revision petitioner-original accused No.1 was prosecuted and tried for the offences punishable under sections 306 and 498A r/w 34 of the Indian Penal Code along with his father-original accused No.2 and mother-original accused No.3 on an allegation that on 8-6- 1986 at about 8.00 a.m. Bharati, the wife of the present revision petitioner-accused No.1, ignited herself after pouring kerosene on her person and that the accused Nos. 1, 2 and 3 in furtherance of their common intention had abetted Bharati by ill-treating her mentally and physically and Bharati died due to burn injuries caused to her in the said incident ultimately on 13-6-1986 and thereby the three accused had committed the offence punishable under sections 306 and 498A r/w 34 of the Indian Penal Code. The marriage of deceased. Bharati took place about 4-5 years prior to 13-6-1986 and she started residing with the accused No. 1,2 and 3 at Ledegaofa. It appears that Bharati could not pull on well in the family of the accused No.1 and admittedly there were occasions when Bharati did not behave properly in the house of her parents-in-law. On 19-5-1986 marriage of Chandrabhaga, who is the sister of deceased Bharati, was celebrated at Village Nhavi where the parents of deceased Bharati and Chandrabhaga none residing. The accused No.1 being the son-in law was invited to the said wedding and accordingly he had gone to village Nhavi to attend the said wedding. On 19-5-1986 marriage of Chandrabhaga, who is the sister of deceased Bharati, was celebrated at Village Nhavi where the parents of deceased Bharati and Chandrabhaga none residing. The accused No.1 being the son-in law was invited to the said wedding and accordingly he had gone to village Nhavi to attend the said wedding. However, according to the prosecution, it appears that at the time of the said wedding the father-in-law gave two cloth pieces to accused No.1 for stitching manila-shirt and pant being the son-in-law. The prosecution claims that the accused No.1 did not like the said cloth pieces and, therefore, had shown some disapproval of the said cloth pieces to deceased Bharati and the same was conveyed by Bharati to her father. It is also further claimed by the prosecution that due to the said incident the accused No.1 was annoyed and, therefore, he in stead of staying overnight after the marriage at the place of his parents-in-law had left for his village Ladegaon by about 6.30 p.m. It is also the prosecution case that the accused No.1 also did not take his meals which was, arranged at the celebration of the wedding. Thereafter deceased Bharati continued to stay at the house of her parents for few days and then returned to the house of her husband at Ladegaon. It is the prosecution case that due to the said incident at the time of the marriage, the accused No. 1 and his parents started ill-treating Bharati and due to the said ill-treatment, on 8-6-1986 she ignited herself after pouring kerosene on herself. According to the prosecution case, admittedly on 8-6-1986 the accused Nos. 1 and 3 were not at the house inasmuch as the accused No.3 had gone to Pune since about 10 days before the said incident and the accused No.1 had gone out of the Village on that day itself-and only accused No.2, the father-in-law was in the house. At the time of the incident, the accused No.2 was outside the house in the backyard and one Rau was with him. Hearing the shouts raised by Bharati both the father-in-law as well as Rau went running inside the house and noticed that deceased Bharati was in flames and she was shouting to extinguish the flames. The accused No.2 admittedly extinguished the flames with the help of bed-sheets. Hearing the shouts raised by Bharati both the father-in-law as well as Rau went running inside the house and noticed that deceased Bharati was in flames and she was shouting to extinguish the flames. The accused No.2 admittedly extinguished the flames with the help of bed-sheets. Due to the said commotion, neighbours including Bhagubai - D.W.2 carne to the house and she also noticed that deceased Bharati was in flames and the flames were extinguished and that she had suffered burn injuries. Police Patil Ramchandra Yadav - P.W.3 came to know about the said incident and he also went to the spot of incident and thereafter he sent his occurrence report (Exhibit 16) to the Karad Police Station. Head constable Manik Khopade after receiving the occurrence report from Police Patil immediately went to Ladegaon and saw that deceased Bharati, was in critical condition and she was burnt. However, deceased Bharati was in a position to talk and he, therefore, questioned her and recorded her statement (Exhibit 28) with the help and assistance of Police Constable Ingale. It is the prosecution case that deceased Bharati at that time told Head Constable Manik Khopade that for the last two days she was constantly beaten and harassed by her husband, mother-in-law and father-in-law and, therefore, she had poured kerosene on herself and thereafter had ignited herself. Thereafter deceased Bharati was carried through a truck by which the said Constable had come, to Karad. On reaching Karad, she was taken to the hospital. Thereafter on the same day at about 5.30 p.m. the police called for the Taluka Executive Magistrate and got a statement recorded of deceased Bharati which is at Exhibit 42. In the said statement recorded by the Taluka Executive Magistrate, deceased Bharati has stated that she got burnt accidentally as her nylon saree fell on the flames and nobody was responsible for the said incident. It appears that on 8-6-1986 an offence under section 309 was registered against deceased Bharati. It also appears that on 13-6-1986 an A.D. was registered bearing No. 3/86 in respect of the said incident. Later on, on 146-1986 PSI Devrashi went to the spot of incident and he effected a panchanama (Exhibit 14) of the spot of incident. However, it appears that Head Constable Khopade had already drawn the spot panchanama on 8-6-1986 which is at Exhibit 32. On the same day, i.e. 14-6-1986. Later on, on 146-1986 PSI Devrashi went to the spot of incident and he effected a panchanama (Exhibit 14) of the spot of incident. However, it appears that Head Constable Khopade had already drawn the spot panchanama on 8-6-1986 which is at Exhibit 32. On the same day, i.e. 14-6-1986. He also seized the clothes which was given to the accused No.1 by his parents-in-law for stitching shirt and pant. It also appears that he seized a stove from the house of the accused No.1 and it was found that the said stove was not in working order. Panchanama Exhibit 20 in this respect was drawn. PSI Devrashi thereafter recorded statements of several witnesses including Rau and Bhagubai. Thereafter he arrested the accused Nos. l, 2 and 3. 3. Deceased Bharati was given treatment in the hospital after she was lodged in the hospital on 8-9-1986 and while she was under treatment in the hospital she succumbed to her burn injuries on 136-1986. It therefore appears that on 14-6-1986 F.I.R. was given by PSI Devrashi and on the basis of the same offence under sections 306 and 498A of r/w 34 of the Indian Penal Code came to be registered against accused Nos. 1,2 and 3. On due and necessary investigation, PSI Devrashi charge sheeted the accused on 10-9-1986. As the offence under section 306 of the Indian Penal Code is exclusively triable by the Court of Sessions, the case of the accused was committed to the Court of Sessions and the accused were tried before the learned Assistant Sessions Judge, Satara. All the three accused pleaded not guilty and claimed to be tried. Their defence is of total denial. According to them, deceased Bharati died due to accidental catching fire and that they never harassed her or ill treated her so as to abet the offence of suicide. On ... the strength of evidence led before the learned. Assistant Sessions Judge, he found that the prosecution had established that deceased Bharati had committed suicide and that she had committed suicide because of the ill-treatment and curelty meted out to her at the house of the accused No.1, but only accused No.1 was responsible for the offences and keeping with the said findings, the learned Assistant Sessions Judge convicted the accused Nos. 1 ,of the offences punishable under, sections 306 and 498A r/w 34 of the Indian Penal Code. 1 ,of the offences punishable under, sections 306 and 498A r/w 34 of the Indian Penal Code. However, he acquitted the accused Nos. 2 and 3 of the offences of which they were charged. Being aggrieved by the order of conviction and sentence awarded to the accused No.1, he preferred an appeal to the Sessions Court and the said appeal was also dismissed by the learned Session Judge and the conviction and sentence awarded against the accused No.1 were confirmed. Being aggrieved by the said order passed in appeal, the accused No.1 has preferred this revision application. 4. Normally sitting in revision, this Court does not entertaining the criminal revision application of facts and re-appreciate the evidence. But in the present case, it has been rightly urged before me on behalf of the revision petitioner that the learned Sessions Judge who heard the appeal against the order of conviction passed by the Trial Court, had not considered the defence evidence led by the accused at all and, therefore, it is clearly a case of non-application of mind by the learned Sessions Judge who heard the appeal. It is also clear from the judgment of the Trial Court that there are several statements made in the judgment of the Trial Court which clearly indicate that there had been also misreading of the evidence by the Trial Court also. Under these circumstances, though normally this Court does not enter into question of facts and re-appreciate the entire evidence led by the prosecution and the defence, it has become necessary to re-appreciate the entire evidence that was placed before the Trial Court, Sic. Paragraph 5 5. Before I consider two dying declarations; it is necessary to consider some evidence which is on record in respect of the frame of mind of deceased Bharati. Paragraph 5 5. Before I consider two dying declarations; it is necessary to consider some evidence which is on record in respect of the frame of mind of deceased Bharati. It is clear from the evidence of Rajaram P.W.4 which is the father of deceased Bharati that the marriage of deceased Bharati with the accused No.1 took place about 5 years before the date of and that she had also begotten a son who was about 21/2 years of age at the time of the incident From his evidence, it is further clear that during the period of Bharti's stay at the house of her parents in-law she was not behaving in a normal manner and, therefore, he was required to at least write two letters dated 18-1-1986 and 23-6-1983, Exhibits 22 and 24 respectively, trying to inform deceased Bharati to correct her behaviour at the house of her husband. Exhibit 22 is an Inland Letter and Exhibit 24 is a postcard. Both these letters were addressed to the accused No.2. But in the said letters contents are actually addressed to deceased Bharati as there is a practice that after the marriage the father of the girl normally writes letter addressed to the father of the husband of his daughter. In the said letter (Exhibit 22) he was written that he wanted to tell 'his' daughter Bharati that she should behave properly and then only his life has some meaning otherwise he would prefer to die. He has also further stated in the said letter that he wanted to tell Bharati that she should behave well with others. He has also referred to an incident which took place in his presence when deceased Bharati had uttered some insulting words to the Aunt at the house of her parents-in-law. He therefore pleaded with her in the said letter that he would have preferred not to have daughters and that due to the behaviour of Bharati he was put to shame. He has also tried to advice Bharati in the said letter that she should behave well then only her life would be better and she should leave talking in a bad way. He also tried to state in the said letter that she also used to beat her son and speak about him in any manner and due to that the grand parents felt bad about it. He also tried to state in the said letter that she also used to beat her son and speak about him in any manner and due to that the grand parents felt bad about it. He has also tried to advice her that she should not answer back her husband and should not use bad words. He has also further tried to inform her that if she would behave well then only he would come to Ladegaon otherwise he would not come. Thereafter in the said letter he has tried to request the father of his son-in-law that he should try to understand Bharati and treat her like his own daughter and that he should look to his nature and her nature will also change. The contents of the said letter definitely indicate that the behaviour of Bharati at the house of her parents-in-law was not proper and was not even liked by her own father. Similar are the contents of the post care Exhibit 24. In none of these letters there is even a whisper that some ill-treatment was meted out to Bharati at the house of her parents-in-law. Similarly, there is also a letter Exhibit 23 on record which shows that Rajararn- P.W.4 had requested his son-in-law, the accused No.1, to give him Rs. 500/- as he was in need of it. He has also admitted in his evidence that according to his request, the accused No.1 had given him Rs. 500/- This evidence clearly shows 'that the relations from the side of the accused No.1 definitely were cordial and the accused No.1 was not much bothered about the money consideration as such. Apart from this, Rajaram also admitted in his deposition in cross-examination that deceased Bharti was suffering from some mental sickness. He has even admitted that she used to go near the well and on one such occasion he himself had brought her from the well of the accused. He also further admitted that on the eve of "Poornima" and "Amavas" the mental condition of Bharati used to deteriorate and for that purpose he was taking advice from some Dellrushi and about 9 days prior to the incident he had gone to she Bharati as per the advice of Dellrushi. He also further admitted that on the eve of "Poornima" and "Amavas" the mental condition of Bharati used to deteriorate and for that purpose he was taking advice from some Dellrushi and about 9 days prior to the incident he had gone to she Bharati as per the advice of Dellrushi. Therefore, though at some stage in the evidence he has tried to contend that deceased Bharati was not becoming violent due to mental sickness, there is sufficient material in the form of his admission in cross examination which clearly indicates that deceased Bharati was suffering from some mental ailment and probably also had a tendency to commit suicide. It is also clear from his own evidence that such suicidal tendency was also prevailing in other family members of Rajaram. He admitted that his one sister had committed suicide. Similarly one of his brothers had also communed suicide. He however tried to contend that he did not remember about it is difficult to accept that he would not remember that his brother had committed suicide of not. The very fact that he could not deny the "said suggestion itself shows very clearly that the said suggestion also has some substance. Under these circumstances, there is no doubt that the entire family of Rajararn appears to be suffering from some mental disorder and a good number of his family members were having tendency to commit suicide. He also has admitted that mother of deceased Bharati also was suffering from mental sickness and even at the time when deceased Bharati was in her womb she was suffering from such ailment Under these circumstances, while appreciating the evidence on record, it definitely would be necessary to keep in mind that deceased Bharati could be suffering from a mental disorder and had a suicidal tendency. 6. Rajaram has no doubt stated in his deposition that after the incident on 19-5-1986 at the time of the marriage of Chandrabhaga, she was subjected to ill-treatment and harassment at the house of the accused No.1 and had he come to know would if from deceased Bharati. Except- his bare words in this respect, there is nothing else on record. The said evidence, therefore, of Rajararn in the background of his own letters written in the past cannot be accepted; 7. Except- his bare words in this respect, there is nothing else on record. The said evidence, therefore, of Rajararn in the background of his own letters written in the past cannot be accepted; 7. The other piece of evidence which speaks about the suicide of deceased Bharati and the ill-treatment meted out to her after 19- 5-1986 consists of the alleged dying declaration recorded by Head Constable Manik Khopade immediately after the incident on 8-6-1986. The said dying declaration (Exhibit 28) is admittedly recorded by the Head Constable. In the said dying declaration, deceased Bharati is alleged to have told that on the day, at the incident i.e., 8-6-1986, she got up from sleep and thereafter out of anger she poured kerosene on herself and ignited herself with match box. She is also alleged to have stated that since 2 days before quarrels were taking place between herself, her husband, mother-in-law and father-in-law as the mother-in-law admittedly was not even at the village in those two days. It is therefore contended that in view of the said false statement in the said dying declaration, the credibility of the said dying declaration must be held to have been lost and, therefore, the Trial Court as well as the Appellate Court were in error in relying on the said dying declaration recorded by the police Head Constable to hold that the deceased Bharati had committed suicide and it was because of the ill-treatment meted out to her at the house of the accused No.1, particularly in those last two days. It is also contended that the Trial Court actually has tried to find some corroboration to the said dying declaration on the basis of the contents of the panchanama (Exhibit 32) which was effected by Head Constable Manik Khopade. It is contended that the Trial Court felt that there was smell of Kerosene emanating from the floor as well as quilt and mattresses which were noticed in the house where the incident took place. It is contended that the Trial Court felt that there was smell of Kerosene emanating from the floor as well as quilt and mattresses which were noticed in the house where the incident took place. Shri Gole, the learned Counsel appearing for the revision petitioner, also contended that as a matter of fact the prosecution has not been able to establish through legal and cogent evidence that smell of kerosene was emanating from the room and the quilts and mattresses which were in the house on the basis of which the learned Assistant Sessions Judge came to the, conclusion that kerosene must have been sprinkled as claimed by the deceased Bharati in her dying declaration and the smell of kerosene definitely rules out the case of accident as alleged to have been narrated by deceased Bharati in her subsequent dying declaration recorded by the Taluka Executive Magistrate. It is contended that the panch witnesses of the panchanama (Exhibit 32) have not been examined before the Court by the prosecution at all. Even Head Constable Manik Khopade who is alleged to have executed the said panchanama, was not asked about said panchanama at all while he was in witness box. In a very novel and strange way the prosecution had tried to prove this document through PSI Devrashi who admittedly was not present at the scene of offence on 8-6-1986 when the said panchanama is alleged to have executed. It is through the evidence of the said witness PSI Devrashi that the said panchanama (Exhibit 32) was sought to be proved and he only stated that the panchanama is signed by Head Constable Manik Khopade. The contention raised by Shri Gole is well founded. The said panchanama (Exhibit 32) cannot be said to have been proved at all by the prosecution by leading proper and necessary evidence. Therefore, the said panchanama will have to be brushed aside from consideration. If the said panchanama is brushed aside, there is no other evidence to show that there was smell of kerosene emanating from the said room on 8-6-1986 and also from the quilts and mattresses, the circumstance which has been taken into consideration to arrive at a conclusion that the contents of the dying declaration (Exhibit 28) recorded by Head Constable Manik Khopade is truthful and the contents of the subsequent dying declaration are falsified. Apart from this, when it is clear that at least the contention about the mother-in-law in the said dying declaration that quarrels used to take place in the two previous days of 8-6-1986 with the mother-in-law and others are clearly falsified. It is difficult to place reliance on the said document to hold that the said story given in the said dying declaration is the only truth. It is true that a dying declaration can be made the basis of conviction even without any corroboration, but for that purpose the Court must come to a conclusion that it is truthful. But if it finds that there are some traces of untruthful statement in the dying declaration the Court cannot come to a conclusion that it is a truthful one without the corroboration available in the other evidence, and it would not be proper to base conviction on such a dying declaration. In the present case, the matter does not rest here. There is also a dying declaration recorded by the Taluka Executive Magistrate on 8-6-1986 at about 3.30 p.m. and that too at the instance of the police themselves. It is also clear from the evidence of Head Constable Manik Khopade P.W.5 that when the said statement was recorded by the Taluka Executive Magistrate, he was also present. In the said statement recorded by the Taluka Executive Magistrate, deceased Bharati had come down with an entirely different story. In the said statement, she claims that she caught fire accidentally as her saree fell on the flames while she was cooking. Under these circumstances, it is difficult to rely on the fast dying declaration which was recorded by Head Constable Manik Khopade. Manik Khopade had at least come to know at the time of the recording of the said subsequent dying declaration that deceased Bharati had changed her version and was telling that it. was a case of accidental burning. Having come to know this, it was essential for him to go and verify at the spot of incident whether the possibility of such an accident was there or not Even after coming to know of the said subsequent version of deceased Bharati, Head Constable Khopade did not do anything further in the matter. was a case of accidental burning. Having come to know this, it was essential for him to go and verify at the spot of incident whether the possibility of such an accident was there or not Even after coming to know of the said subsequent version of deceased Bharati, Head Constable Khopade did not do anything further in the matter. The investigation officer, it appears, on 14-6-1986 seized the stove from the house of the accused No.1 and then an attempt was made to show that the said stove was not in working condition and, therefore, the story given by deceased Bharati in her subsequent dying declaration could not be true. The learned Sessions Judge has accepted the said contention and has concluded that the subsequent dying declaration recorded by the Taluka Executive Magistrate is false. Unfortunately, for the prosecution, the only witness Bapu P.W.6 of the panchanama Exhibit 30 recorded on 14-6-1986 in respect of the seizure of stove, stated in cross-examination that in his presence the said stove was not put on, and he had no personal knowledge if the said save was in working condition. He has further stated that he had no personal knowledge that if the contents of the panchanama that the said stove was old one and that it was in closed condition are correct or otherwise. (vernacular version). Therefore, it is difficult to accept that the stove was not in working condition when it was seized on 14-6-1986. As a matter of fact, it was necessary for the investigating authorities to seize the stove on 8-6-1986 itself, once they came to know from the subsequent dying declaration given by deceased Bharati that she was burnt in an accidental fire of the stove while cooking. 8. Apart from this, there is one another piece of evidence which also could be treated as a dying declaration. It is an admitted position that Bhagubai was the neighbour of the accused No.1 and, therefore, she also could be a natural and possible witness. It is also clear that the investigating officer had recorded her statement during the course of investigation. It is further clear that she had actual attended the. Court as a prosecution witness but she was not examined and, therefore, the defence took upon itself to examine her a defence witness No.2. It is also clear that the investigating officer had recorded her statement during the course of investigation. It is further clear that she had actual attended the. Court as a prosecution witness but she was not examined and, therefore, the defence took upon itself to examine her a defence witness No.2. She deposed in her deposition that she had gone to the house of the accused and she had seen the condition of deceased Eharati and she inquired with Bharati and she told that on account of accident she was burnt. She was corss-examined by the learned Addl Public Prosecutor appearing for the State and she stoutly refuted the 'suggestion that deceased had informed her that she had committed suicide as she was ill-treated by the accused. There is no reason to disbelieve her evidence. As a matter of fact, the learned Sessions Judge while considering the appeal did not even take into consideration the evidence of any of the defence witnesses. As a matter of fact, it was the duty of the prosecution to examine this witness when it was clear that she was one of the first persons to reach to the place of incident Her statement was also recorded by the police, so it cannot be said that the prosecution was not awone that she was a witness who was concerned with the incident 9. There is one another aspect which needs to be commented upon in this case. Surprisingly, the prosecution did not examine the Taluka Executive Magistrate who admittedly had recorded the subsequent dying declaration of deceased Bharati at the instance of the police. Merely because in the dying declaration recorded by the Taluka Magistrate there were some statements which were not acceptable to the prosecution, it should not have kept back the said document. It was the defence who had to examine the said witness and bring on record the said subsequent dying declaration. It is the duty of the prosecution to produce before the Court all material evidence in respect of the case and leave it to the Court to fine out the truth. If the prosecution felt that the said document of dying declaration was not truthful, definitely it could have even after producing the same urged that the contents of the same were not correct in view of the circumstantial evidence on record. If the prosecution felt that the said document of dying declaration was not truthful, definitely it could have even after producing the same urged that the contents of the same were not correct in view of the circumstantial evidence on record. It is clearly not the case that the Taluka Executive Magistrate had recorded something which was not told by deceased Eharati because it is clear that the said dying declaration was also recorded in the presence of Head Constable Manik Khopade and the medical officer of the hospital. On behalf of the State, it is tried to be contended before me that the dying declaration recorded by the Head Constable Manik Khopade bears the signature of deceased Bharati while the subsequent dying declaration recorded by the Taluka Executive Magistrate does not bear the signature. As a matter of fact, signature does not make any difference in this case as according to the Taluka Executive Magistrate, he could not obtain the signature as deceased Bharati was not in a position to sign at that time. Even the signature on the first dying declaration is clearly not a normal signature. Therefore, it could be very clearly visualised that probably by 3.30 p.m. condition of deceased Bharati had deteriorated to such an extent that physically she was not in a position to put her signature and, therefore, the said signature was not obtained. It is not the contention of the prosecution that no statement actually was made by deceased Bharati before the Taluka Executive Magistrate because there is no such cross-examination at all of the Taluka Executive Magistrate who was called as defence witness. Under these circumstances, merely because there is no signature on the said document (Exhibit 42), it does not mean that the said dying declaration must be brushed aside completely. 10th August 1990 10. On behalf of the State, it was also tried to be contended that there is evidence to show that prior to the recording of the second dying declaration by the Taluka Executive Magistrate, the relatives of the accused No. 1 were there near deceased Bharati and, therefore, there is a possibility that she was coaxed to change her earlier version which was recorded by the Police Head Constable Manik Khopade. The evidence also shows that by the time the dying declaration was recorded by the Taluka Executive Magistrate, the father and the mother of deceased had also reached the hospital and, therefore, it is difficult to accept that when the father of deceased Bharati was also in the hospital, she could be coaxed by the relatives of accused No.1 to change her version so as to absolve the accused. It was also tried to be contended that it appears that on the basis of the dying declaration recorded by the Head Constable and the Police Patil, an offence under Section 309 of the Indian Penal Code was registered by the police and, therefore, it cannot be doubted that deceased Bharati at the initial stage had stated that she had committed suicide. The learned Assistant Sessions Judge has also relied on the said circumstances for accepting the dying declaration recorded by the Head Constable. 11. It is true that there is some material on record by way of a mention in the F.I.R. given by PSI Devrashi that initially on the basis of the report of the Head Constable offence under Section 309 of the Indian Penal Code came to be registered. But if the said dying declaration of deceased Bharati had disclosed that it was due to the harassment and the ill-treatment meted out to her that she had attempted to commit suicide then at least an offence under Section 498A of the Indian Penal Code also could be said to be made out in the said dying declaration itself, and one wonders as to why the offence under that section was not registered against accused Nos. 1,2 and 3 when it is clear that the allegation definitely disclosed that the ill-treatment was by the accused Nos.l, 2 and 3. Absence of registration of the offence under Section 498A of the Indian Penal Code till 14-6-1986 definitely even raises a doubt about the said dying declaration recorded by the Head Constable. Except the word of the Head Constable and the Police Patil, there is no documentary evidence on record to show that the said dying declaration was actually recorded and was produced at the police station by Head Constable Manik Khopade. An attempt is made to state that an entry in this respect was made in the Station Diary. Station Diary is not produced before the Court. An attempt is made to state that an entry in this respect was made in the Station Diary. Station Diary is not produced before the Court. This aspect also has not been taken into consideration by both the Trial Courtas well as the Appellate Court. The offence against accused Nos. 1,2 and 3 admittedly for the first time came to be registered on 14-6-1986. One can understand that offence under Section 306 of the Indian Penal Code could not have been registered till 14-6-1986 as deceased Bharati died on 13-61986. But there is no explanation as to why on the basis of the contents of the first dying declaration no offence under Section 498A of the Indian Penal Code was registered against accused Nos.l, 2 and 3. 12. The learned Assistant Sessions Judge also tried to find some corroboration to the dying declaration recorded by the Head Constable in the evidence of Ramchandra Yadav, the Police Patil. The learned Assistant Sessions Judge observed in para 25 of his judgment that when the Police Patil Ramchandra Yadav went to the spot, he had learnt from the deceased and the persons nearby the vicinity that deceased Bharati had sprinkled kerosene on her person and had set fire to herself. The said observation definitely is incorrect at least to the extent that he had learnt this from the deceased as he has stated in his cross-examination very clearly that when he went to the spot of incident he did not make any inquiry with deceased Bhamti if she had in fact sprinkled kerosene on her person and set her on fire. No doubt he has stated that from the discussion of the villagers he had received the information which he communicated to the police station and that he came to know from the discussion that deceased Bharati had sprinkled kerosene on her person and set herself on fire. So according to his evidence, he had come to the said conclusion only on the basis of the discussion of the villagers. Bharati definitely does not appear to have told anything to him and in spite of that the learned Assistant Sessions Judge has misread the said evidence and concluded that deceased B harati had told the Police Patil that she had committed suicide by sprinkling kerosene on herself and igniting herself. It is clearly misreading of the evidence which was on record. It is clearly misreading of the evidence which was on record. Therefore; the corroboration found in the evidence of Police Patil to the first dying declaration alleged to have been made by deceased Bharati is definitely not available. It also appears that Bhagubai - D. W.2 was brushed aside by the learned Assistant Sessions Judge on the ground that her statement before the Court that deceased Bharati had told that she had caught fire accidentally is inconsistent with the facts and attending circumstances of the case. The learned Assistant Sessions Judge has further observed in para 37 of his judgment that PSI Davarshi has not admitted during the course of his cross examination that witness Bhagubai had informed him that deceased had made a statement before witness Bhagubai that on account of an accident she was set on fire. Really speaking one cannot understand as to how the said statement of PSI Davarshi could be admitted in evidence. It pains me to observe here that the learned Assistant Sessions, Judge has admitted some evidence which is very clearly barred by the provisions of Section 162 of the Code of Criminal Procedure. A statement made by a witness to the police officer during investigation is inadmissible in evidence except by way of contradiction which could be proved as provided under Section 145 of the Evidence Act Even the defence appears to I have asked number of questions as to what had I transpired during investigation to PSI and what was told by the witness before him in the statements recorded by him and all that evidence had been taken on record. All this evidence clearly is inadmissible in evidence. For the same reasons when Bhagubai had stated in her deposition being called as defence witness as to what deceased Bharati had told her, it could not have been ,asked to PSI Davarshi that Bhagubai had not informed him that deceased had made a statement before witness Bhagubai that on account of an accident she was set on fire. For the same reasons when Bhagubai had stated in her deposition being called as defence witness as to what deceased Bharati had told her, it could not have been ,asked to PSI Davarshi that Bhagubai had not informed him that deceased had made a statement before witness Bhagubai that on account of an accident she was set on fire. Section 162 of the Code of Criminal Procedure very clearly lays down that no statement made by any person to the police officer in the course of an investigation under the said chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, us used for any purpose, save as hereinafter provided, at any inquiry of trial in respect of any offence under investigation at the time when such statement was made. The only exception made is by the proviso to the said section. The proviso provides that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act Now, therefore, if the said omission on the part of witness Bhagubai who was called as a defence witness was sought to be brought before the Court as she had not made a statement in respect of deceased Bharati having told her that she had caught first accidentally could be only treated as a contradiction by way of an omission and as the said witness was not called for the prosecution as required under proviso, the said contradiction cannot be brought on record by the prosecution. The learned Assistant Sessions Judge was in error of law in reading the said evidence in favour of the prosecution. This is the only ground on which the learned Assistant Sessions Judge has rejected the evidence of Bhagubai. I do not find any other reason on record. The learned Assistant Sessions Judge was in error of law in reading the said evidence in favour of the prosecution. This is the only ground on which the learned Assistant Sessions Judge has rejected the evidence of Bhagubai. I do not find any other reason on record. At the most it could be said is that the learned Assistant Sessions Judge was also of the view that Bhagubai's statement was inconsistent with the facts and circumstances of the case means the things that were noticed at the time of the panchanama of the scene of offence. Obviously the some panchanama (Exhibit 32) which came to be recorded on 8-6-1986. I have already discussed and held above that panchanama (Exhibit 32) is not at all proved. Therefore, the circumstances stated therein are not proved and, therefore, on the basis of the said circumstances, the learned" Assistant Sessions Judge could not have come to the conclusion that the evidence of Bhagubai is untrustworthy. Under these circumstances, I do find that the learned Assistant Sessions Judge was in error in rejecting the evidence of Bhaghbai completely. I have already stated above that the learned Sessions Judge did not even consider the said defence evidence and, therefore, he was also in error or law. 13. Under these circumstances, it is difficult to accept that the prosecution has in fact established that deceased Bharati died of a suicidal death. The evidence, in this respect, is very unsatisfactory. It could be that she died of an accidental death also. If from the evidence such a possibility cannot be said to have been excluded the defence definitely must get the benefit of the same and it must be held that the prosecution has not established by satisfactory and cogent evidence that deceased Bharati died of a suicidal death. In that event, question of presumption arising under section 113A of the Evidence Act in fact does not arise. In that event, the offence under section 498A would not arise. In that event, question of presumption arising under section 113A of the Evidence Act in fact does not arise. In that event, the offence under section 498A would not arise. However, even if it is assumed that deceased Bharati died of a suicidal death then also though a presumption under section 113A of the Evidence Act would arise in the present case as the marriage had taken place only about 5 years before the said incident, as there is positive indication in the letters of the father of deceased Bharati that she was not behaving properly at the house of her in-laws and from his evidence it is also clear that she had a tendency to commit suicide, it cannot be said that it was due to any harassment or ill-treatment that deceased Bharati had committed suicide. The presumption arising under section 113A of the Evidence Act is definitely a rebuttable one. There is sufficient material on record of this case which can be said Sufficient to rebut the presumption arising in favour of the prosecution. As a matter of fact, I have already found that the evidence led by the prosecution is not sufficient to establish that any ill-treatment or harassment was given to deceased Bharati at the house of her in. laws, much less by the accused No.1. In the view I have taken, the conviction of the accused No. I of the offence punishable under sections 306 and 498A of the Indian Penal Code must be held to be unsustainable and the same will have to be set aside allowing the revision application. Hence the order. 14. The revision application is allowed. The order of conviction of accused No.1 of the offences punishable under sections 306 and 498A of the Indian Penal Code and the sentences awarded thereunder are set aside. Rule made absolute; Fine if recovered be refunded to the petitioner-accused No. 1. Bail bond of the appellant-accused No.1 shall stand cancelled.