Judgment R.N.Sahay, J. 1. The appellant Sukumar Gupta has been convicted under Sec. 302/ 498-A of the Indian Penal Code and sentenced to life imprisonment under the former court and three years under the later count. He has also been sentenced to pay a fine of Rs. 5.000.00 2. The appellant was charged, tried and convicted for the murder of his wife Soma Guta on 14-12-1988. The appellant had married the deceased about five years prior to the occurrence. It was a love marriage. A son Totan Gupta had born out of wedlock. It was alleged that though it was a love marriage the appellant after sixmonths of marriage started demanding motorcycle and money from the informant. The informant being a poor man could not fulfil the demand of the appellant. It is stated that the appellant was ill treating his wife on this account. 3. The appellant the deceased and the informant (father of the deceased) lived in the same Mohalla (Jhulan Mandir) in Kishangarij. The informant and his brother were doing coal business. In the morning of 14-12-1988 at 8.30 a.m. Amit Kumar PW5, who was cousin of the deceased happened to go to the flat of the appellant. He had gone there to bring Totan Gupta. He saw the appellant assaulting the deceased with fists and slaps and she was crying. Amit Kumar Das returned and informed. Sukumar Das about the incident. He again went to the house of the appellant and found his sister burning and she was crying that her husband had burnt her. 4. Sandip Kumar Das, PW 6, who is own brother of the deceased also reached there and he also found his sister burning and crying. He put a Chadar on her to extinguish the fire. In the meantime, many persons of Mohalla including the informant and his brother reached. They found Soma Gupta unconscious with severe burnt injuries on her person. She was taken to local hospital where the doctor advised that she be taken to Siliguri as her treatment at Kishanganj was not possible. She had suffered 90% burn injury. 5. Learned Additional Sessions Judge found the appellant guilty on the basis of following circumstantial evidence. (a) The appellant had married the deceased and both of them were living in one: house. She had suffered 90% burn injury. 5. Learned Additional Sessions Judge found the appellant guilty on the basis of following circumstantial evidence. (a) The appellant had married the deceased and both of them were living in one: house. (b) On the day of occurrence i.e., on 14-12-1988 the appellant had assaulted his wife bodly at 8.30 a.m. The wife was found unconscious in his room on account of extensive burn injury. (c) The appellant had absconded and did not take part in the funeral ceremony of the deceased. These circumstances, according to the trial court show that it was accused who set fire his wife in the closed room and thereafter absconded. The trial court also found that the deceased was subjected to cruelty and hence he was guilty under Sec. 498-A of the Indian Penal Code. The trial court has given no finding with regard to dying declaration. 6. The question for consideration is whether the circumstances adverted to by the trial court prove the case against the appellant beyond reasonable doubt. 7. Miss. Kamlesh Jain, learned counsel for the appellant in her able arguments placed the entire evidence and submitted that there is clinching evidence that the door of the room where the deceased has sustained burn injury was closed from inside and it was broken open by the persons of the locality. This fact is established by the evidence of three defence witnesses, namely, Anamika Majumdar. Prakash Kumar Das and Jayant Majumdar. Learned counsel for the appellant submitted that the investigation was highly unfair and the persons living in the apartment, who were most competent witnesses, could not mention in the charge - sheet. They nave been examined as defence witnesses. Learned counsel further submitted that the evidence of Amit Kumar Das that he had seen the appellant assaulting the deceased was throughly unreliable. This witness has not said that there was any dialogue between the husband and the wife when the beating, was taking place. This was extremely unnatural to be accepted. Learned counsel for the appellant further submitted that all the witnesses are close relations of the informant and no independent witness of the locality in which the occurrence had taken place was examined. This was extremely unnatural to be accepted. Learned counsel for the appellant further submitted that all the witnesses are close relations of the informant and no independent witness of the locality in which the occurrence had taken place was examined. She submitted that Sandip Kumar Das and Amit Kumar Das are tutored witnesses which will be clear from the evidence of other witnesses, namely informant and his brother, who have stated that when they reached at the place of occurrence, a large number of people had gathered near the house of the appellant. These two witnesses have said that hone came upstair except the informant and his brother. It is submitted that it is unbelievable that a person seeing his sister burning would not call for help or would not raise alarm to attract the tenants and neighbours. The prosecution case is that PW 5 and PW 6 were first to see the deceased burning in her bed room which was wide open and there was no fetters and she was free. If this was so it would have been natural conduct .of the burning person to came out of the roam to save herself and call other persons to save her. In this context, the evidence of defence witnesses, namely. Ananiika Majumdar Prakash Kumar Das and Jayant Majumdar is very significant. It is stated that they saw smoke coming from the room of Sarna Gupta and brake open the door and found same in unconscious state and then the informant and other relations were informed. It is submitted that the evidence of assault at 8.30 a.m. and dying declaration of the deceased is pure concoctions; Learned counsel for the appellant further submitted that the couple were living happily for five years. They were blessed with a son who was four years old. Reliance is placed on Exts. A. to A/5. The evidence shows that the appellant with Soma was leading happy life. Some met with tragic death. The informant party was not happy with marriage and as such the appellant was implicated in this concocted case. Learned counsel has vehemently argued that there is absolutely no evidence to substantiate the charge against the appellant. The evidence on record is full of infirmity and should have been rejected by the trial court. 8. I have examined the evidence pertaining to the case. Learned counsel has vehemently argued that there is absolutely no evidence to substantiate the charge against the appellant. The evidence on record is full of infirmity and should have been rejected by the trial court. 8. I have examined the evidence pertaining to the case. In my view, the conviction of the appellant is based on insufficient evidence and the charge cannot stand. In Harbans Lal V/s. State of Punjab, also the deceased died .of burn injury while residing in her husbands house. The trial court held that it was not a case of suicide. The appellant must have burnt her to death. There was direct evidence against the appellant, he burnt to death his wife. The trial court in that case had given no credence to the defence witnesses. The Supreme Court held that the only piece of evidence relied upon by the prosecution is the recovery of the dead body with extensive burns from the house of the appellant. That circumstance alone was not sufficient to hold the appellant guilty. It was not conclusive in nature and was not compatible only with the guilt .of the appellant and wholly incompatible with has innocence. This circumstance can only create suspicion about the complicity of the appellant but suspicion cannot held that the High Court erred in not giving due weight to the defence witnesses. The appellant-husband in that case was acquitted. 9. In, Sham Lal V/s. State of Haryana, the husband was tried far the murder of his wife in similar circumstances. Wife died .of burn injuries. The allegation was that the husband appellant was demanding more dowry and at last set her ablaze far not quenching his greed far dowry. The High Court counted some circumstances, in the absence of any eye-witness, and reached the conclusion that the circumstances have concatenated themselves into a complete chain establishing that appellant had killed her by setting her ablaze after dousing her with kerosene. The Supreme Court observed: "It is a certainty that Neelam Rani died under abnormal circumstances. The High Court counted some circumstances, in the absence of any eye-witness, and reached the conclusion that the circumstances have concatenated themselves into a complete chain establishing that appellant had killed her by setting her ablaze after dousing her with kerosene. The Supreme Court observed: "It is a certainty that Neelam Rani died under abnormal circumstances. it is not a case of homicide , it Could be a case of suicide because her death by accident could reasonably by ruled out from all the broad circumstances in this case." With regard to applicability of Sec. 113-B of the Evidence Act, it was held that it was imperative for invoking the aforesaid legal presumption to prove that soon before her death, she was subjected to such cruelty or harassment. The prosecution could only prove that there was persisting dispute between the two sides regarding dowry paid or to be paid, both in kind and in cash. There is no such evidence. The appellant was not found guilty under Sec. 498-A of the IPC. In State of U.P. V/s. Ramesh Prasad Misra, the Supreme Court observed that in dowry death case, it is the duty of the prosecution to establish all the circumstances conclusively to hold that the accused has committed the offence. Witnesses may he prone to speak and in this case, material witnesses have spoken falsehood but the circumstantial evidence will not. The Supreme Court, therefore, warned that it was the duty of the court to carefully scan through the evidence on the anvil of human conduct probabilities and attending circumstances extending all doubts in fm of the accused. 10 I find considerable force in submission of the learned counsel the appellant, the evidence of two brothers of the deceased that the door of room where the deceased was to burnt to death was open does not pear to be trustworthy. There is evidence of the I.O. that he found Kundi broken. The trial court held 1 the dying declaration of the decreed was not reliable. The appellant entitled to a verdict of acquittal as all from the evidence of two brothers garding dying declaration and the c of the room was opened. There is other evidence on which the against to appellant could be stained. The appellant was seen saluting the deceased was also trustworthy. The I.O. failed to record evidence of neighbours who were examined as defence witness. There is other evidence on which the against to appellant could be stained. The appellant was seen saluting the deceased was also trustworthy. The I.O. failed to record evidence of neighbours who were examined as defence witness. There is evidence except the evidence of brother that he was present in house. 11. Learned counsel for the appellant submitted that the evidence garding demand of dowry by appellant was false. The appellant nancial position was very sound whereas the informant was a mar meagre means. 12. Having considered all the and circumstances of the case I have hesitation in coming to the conclusions that the deceased had commit suicide and the appellant was not responsible for the death. The trial co has convicted the appellant on m conjecture surmises and unreliable evidence. 13. For the reasons stated above the appeal is allowed and the conviction of the appellant is set aside. He is acquitted of the charge. The appellant is in custody. He is directed to be released from custody forthwith if not wanted in any other case.