JUDGMENT 1. - This appeal has been filed under Section 374 Cr.P.C.. by accused appellant Onkar Singh against the judgment dated 11.1.1999 passed by learned Additional Sessions Judge, Rajsamand in Session Case No. 48/97 by which he has been convicted under Section 498-A IPC and sentenced to two years rigorous imprisonment with a fine of Rs. 1000/- and in default to further undergo 15 days rigorous imprisonment. He has also been convicted under Section 302 IPC and sentenced to life imprisonment with a fine of Rs. 500/- and in default to further undergo one months rigorous imprisonment. 2. 24 years old Smt. Geeta married about 10 years ago with accused appellant Onkar Singh received extensive burn injuries on the evening of 16.3.1997 at her own residential house in village Semal while cooking meal. Her father-in-law Shankar Singh tried to save her and, therefore, received burn injuries on his hands vide injury memo Ex.P. 33. Her family members were informed immediately and she was forthwith taken to Government Hospital, Udaipur for treatment where she died on 21.3.1997 due to these burn injuries. She recorded a dying declaration Ex.P. 23 on 17.3.1997 through P.W.22 Shobhalal Mundra, SDM. Before she died a written FIR Ex.P.6 was lodged by P.W.7 Dalu Singh on 17.3.1997 not only against husband Onkar Singh put also against Shankar Singh father-in-law, Kani Bai mother-in-law and Nari Bai jethani. After usual investigation Onkar Singh accused appellant was charged under Section 120 B, 302 and 498-A IPC whereas the remaining acquitted accused were charged under Section 109, 120-B and 302 IPC. 3. Accused persons pleaded not guilty and claimed trial, therefore, 23 witnesses were examined and 34 documents were exhibited on behalf of the prosecution. In statement given under Section 313 Cr.P.C. all the accused persons denied all the averments and pleaded not guilty. Four witnesses were examined in defence. Thereafter the learned trial court by a detailed judgment gave benefit of doubt to remaining three accused persons and acquitted them whereas accused appellant Onkar Singh was convicted and sentenced as stated above. 4. Mr. Mehta, learned counsel for the appellant took us through the evidence available on the record and impress upon us that there was not an iota of evidence implicating the accused for the offences. Even in dying declaration Ex.P23 it has not been specifically mentioned that accused appellant Onkar Singh poured kerosene oil and burnt the deceased. 4. Mr. Mehta, learned counsel for the appellant took us through the evidence available on the record and impress upon us that there was not an iota of evidence implicating the accused for the offences. Even in dying declaration Ex.P23 it has not been specifically mentioned that accused appellant Onkar Singh poured kerosene oil and burnt the deceased. On the contrary there is abundant evidence on the prosecution side that deceased Geeta was a childless lady inspite of being married a decade ago and was fed up with her life because her husband and in-laws were also not giving her better treatment and, therefore, chances of her committing suicide cannot be ruled out. The learned trial court has not carefully scrutinised and scanned the prosecution evidence causing miscarriage of justice. 5. On the contrary learned Public Prosecutor has supported the impugned judgment. 6. We have carefully considered the rival contentions. 7. P.W.3 Kishan Singh is father of the deceased, P.W. 4 Dhapu is mother of the deceased, P.W.5 Mangu Singh and P.W.7 Dalu Singh are uncles of the deceased, P.W.6 Leela is sister of deceased, and P.W.16 Man Singh is brother-in-law of deceased. These witnesses do not belong to the place of occurrence and naturally they cannot be eye witnesses to the occurrence, all these witnesses have admitted in their depositions that they have been informed about the occurrence at their residences by the in-laws of Geeta and, therefore, they straightway went to the hospital at Udaipur where Geeta as also some other persons told them that she has been burnt by her in-laws. The other set of evidence is of P.W.12 Vardi Singh and P.W.13 Haguri, both are occupying the house in the neighbourhood of the place of occurrence and P.W.18 Jagdish Chandra is the Investigating Officer. Remaining witnesses relates to either the seizure memos or attesting witnesses and, therefore, their testimony of the involvement of the accused appellant in the crime is immaterial. 8. The dying declaration Ex.P23 though was recorded by P.W.22 Shobhalal Mundra yet it does not contain the time when it was recorded. Even P.W.22 Shobhalal Mundra in his testimony also does not disclose that at what time Ex.P.23 was recorded. It is also not in question answer form. 8. The dying declaration Ex.P23 though was recorded by P.W.22 Shobhalal Mundra yet it does not contain the time when it was recorded. Even P.W.22 Shobhalal Mundra in his testimony also does not disclose that at what time Ex.P.23 was recorded. It is also not in question answer form. Though at the top of Ex.P.23 there is an endorsement of a doctor that the patient is conscious and well oriented, yet the above endorsement also does not indicate any time and date when it was mentioned. Even the doctor who made this, endorsement has neither been named nor examined in the trial court. Even assuming that Geeta may have been conscious and well oriented at the time when she recorded dying declaration Ex.P.23 that also does not implicate the accused appellant in a charge of murder. In Ex.P.23 also it has not been mentioned that Onkar Singh her husband has put kerosene oil on her and set her on fire. On the contrary according to the dying declaration when Geeta was cooking food somebody sprinkled kerosene on her and set on fire. She could not know who did it. The kerosene as usually was lying near the stove. It is further mentioned that at that time her husband, father in law, mother in law and jethani were at the house. Therefore, this dying declaration does not implicate the accused appellant in the offence. Had the husband burnt Geeta she should have specifically stated so in her dying declaration. 9. P.W.4 Dhapu is mother of the deceased. In her cross examination it has come that this witness told her daughter Geeta that she had burnt herself which Geeta denied. However, not only P.W.4 Dhapu in her examination in chief corroborated the version of dying declaration that somebody poured kerosene and put her on fire but also her father P.W.3 Kishan Singh, her uncle P.W.5 Mangu Singh, her brother-in-law P.W.16 Man Singh have unequivocally deposed in the trial court that in hospital upon inquiry Geeta told them that when she was preparing meal somebody poured kerosene and put her on fire. Even to these witnesses Geeta has not disclosed the name of the person who poured kerosene and set her on fire. 10. Even to these witnesses Geeta has not disclosed the name of the person who poured kerosene and set her on fire. 10. P.W.5 Leela sister of the deceased and P.W.7 Dalu Singh uncle of the deceased have for the first time in the trial court stated that upon their inquiry Geeta told them that she has been burnt to death by her husband, father-in-law. mother-in-law and jethani. When these witnesses were confronted by their police statements that why they have not deposed so to the Investigating Officer they have turned tables and have come with an explanation that similar statement was also given by them to the Investigating Officer. Had it been so, atleast P.W.18 Jagdish Chandra should have stated so who has recorded their statements. Therefore, there was not an iota of evidence on the record that accused appellant Onkar Singh poured kerosene oil and set Geeta on fire yet on conjectures and surmises the learned trial court has come to the conclusion that at the time of occurrence Geeta alongwith her husband was residing separately and, thereafter, except her husband who else would have poured kerosene and set her on fire. 11. In criminal cases the prosecution has to built its own case and have to stand upon its own legs and unless ana until offence is proved beyond reasonable doubt conviction cannot be based upon it. When in dying declaration Ex.P.23 itself it has been specifically mentioned that not only her husband Onkar Singh accused appellant but father-in-law, mother-in-law and jethani were present at the place of occurrence and similarly it has come in evidence of the prosecution witnesses that deceased was residing with her in-laws, simply because P.W.4 Dhapu stated that Geeta separated herself from her in-laws some times before the occurrence, cannot be said that at the time of occurrence Geeta was alone in the house alongwith the accused appellant. Had it been so, atleast Shankar Singh father-in-law of the deceased and acquitted by the trial court may not have received burn injuries on his hands as found proved by Ex.P.23 prepared by P.W.19 Dr. Pramod Kumar Mathur. Had it not been so, atleast P.W.4 Dhapu mother of the deceased may not have asked Geeta that she had burnt herself. Even then she did not name the person who dropped kerosene and set her on fire. 12. Pramod Kumar Mathur. Had it not been so, atleast P.W.4 Dhapu mother of the deceased may not have asked Geeta that she had burnt herself. Even then she did not name the person who dropped kerosene and set her on fire. 12. P.W.18 Jagdish Chandra Investigating Officer has also stated that in site plan Ex.P2 the cooking stove was at place `A' where there was no sign of burning and in his investigation it has come that she was not burnt while cooking meal. Though Geeta was burnt at place `A' yet the place of cooking was at place `C' in Ex.P2. At place `A' no parapherxula relating to cooking was found which indicates that Geeta was not burnt while cooking meals. 13. There were other circumstances also in favour of the accused persons. Had they burnt Geeta, atleast they should have not tried to save her and received burn injuries in lieu thereof. Neither they should have informed the parents of the deceased nor should have they immediately taken her to hospital for treatment. All these circumstances were in favour of the accused persons. Coupled with that there was not an iota of evidence implicating accused appellant in the offence of murder. When for a decade Geeta was living with her husband why shall suddenly she be burnt to death by her in-laws. There is not an iota of evidence with regard to demand of dowry neither in the HR nor in dying declaration nor in any of the police statements. Though some witnesses in the trial court tried to state so but the trial court has not found them truthful. 14. It seems that the learned trial court has not adopted a rational approach and have neither shifted and scanned the evidence of the prosecution in proper manner nor have reached to the correct conclusion. The judgment is replete with the surmises and conjectures, assumption presumptions and seems to be figment of imagination. Therefore, miscarriage of justice has been done. 15. Consequently, we do not find any merit in the impugned judgment, set aside the same, accept the appeal, acquit accused appellant Onkar Singh for all the offences. He is in jail, if not required in any other offence, be released forthwith.Appeal allowed. *******