JUDGMENT - V.K. BARDE, J.:---The appellant is convicted of offence punishable under sections 498-A and 306 of the Indian Penal Code by the learned Sessions Judge, Aurangabad, in Sessions Case No. 166 of 1990. Hence, this appeal against the conviction and sentence. 2. The case of the prosecution is as follows: Vijaya was married with the accused Dhananjay about 17 years prior to 15-6-1989. She had one daughter of 13 years of age and a son of 11 years of age. She was working as a teacher in school. Dhananjay, the accused, was working as a driver in one company at Aurangabad. Dhananjay was addicted to liquor and he used to beat Vijaya when she refused to give him money to purchase liquor. 3. On 14-6-1989 at about 5 a.m. a quarrel took place between Vijaya and accused Dhananjay and he beat her. Being fed up with this usual ill treatment, Vijaya poured kerosene on her person from the stove and set her ablaze. Nobody came to rescue her. She did not raise hue and cry. So, the children also did not wake up. Then she poured water on her person from the bucket, wrapped a chaddar around herself and rolled on the mattress to put off the fire. Then, Yogesh, her son, ran to her mother's house and called her. Her mother then took her to the Government Medical College Hospital at Aurangabad. 4. Dr. Chavan, Medical Officer, was on duty in the hospital at about 6 a.m. when Vijaya was brought there. He recorded history of the case and she told him that her husband was alcoholic and always quarrels took place between herself and her husband. So, she set herself afire by pouring kerosene and lighting match stick. The history was recorded by the doctor on the case papers. He made a report to the Police Chowki. Vijaya had received 64 per cent, burn injuries. She was admitted in the hospital and was being treated there, but she expired on 18-6-1989. Meanwhile, on the basis of report made by Shakuntalabai, mother of Vijaya, on 15-6-1989, crime was registered against the accused for offences punishable under section 498-A, I.P.C., and section 306 was added after the death of Vijaya. The panchanama of place of incident, the inquest panchanama on the dead body were prepared. Meanwhile, on the basis of report made by Shakuntalabai, mother of Vijaya, on 15-6-1989, crime was registered against the accused for offences punishable under section 498-A, I.P.C., and section 306 was added after the death of Vijaya. The panchanama of place of incident, the inquest panchanama on the dead body were prepared. The dead body was sent for postmortem examination and the doctor reported that the death was due to septicaemic shock due to 65 percent, superficial and deep burns. After recording statements of witnesses, charge-sheet was submitted against the accused before the Chief Judicial Magistrate, Aurangabad. The case was committed to the Court of Sessions. 5. The learned Sessions Judge framed charge against the accused for offences punishable under sections 498-A and 306 of the Indian Penal Code. The accused pleaded not guilty. His defence is that he is falsely implicated in the case, because the parents of Vijaya were on cross terms with him. Vijaya caught fire because the stove burst. He put off the fire and then his brother in law and sister took Vijaya to the hospital. 6. Through the evidence of Dr. Chavan and Dr. Achwal, the prosecution has proved that Vijaya had received burn injuries to the extent of 65 per cent, and she was hospitalised at about 6 a.m. on 14-6-1989. The postmortem examination report is at Exhibit 18 and it makes clear that death was due to septicaemic shock due to 65 per cent, superficial and deep burns. The accused also had not denied that Vijaya had received burn injuries at about 5 a.m. on 14-6-1989. In such circumstances, it is only to be seen whether Vijaya committed suicide and the accused abetted the commission of suicide. 7. The prosecution is relying upon the history recorded by Dr. Chavan while admitting Vijaya in the hospital and the dying declaration recorded by the Executive Magistrate Mugadiya. There is also the evidence of Shakuntalabai, the mother of Vijaya, and Rajendra, the brother of Vijaya. 8. Shakuntalabai, P.W. 1, in her deposition at Exhibit 10 has stated that the marriage of Vijaya took place about 18 years ago. Vijaya was staying at Aurangabad. She had completed D.Ed. course and she was a primary teacher. The accused also shifted to Aurangabad and was staying with Vijaya. 8. Shakuntalabai, P.W. 1, in her deposition at Exhibit 10 has stated that the marriage of Vijaya took place about 18 years ago. Vijaya was staying at Aurangabad. She had completed D.Ed. course and she was a primary teacher. The accused also shifted to Aurangabad and was staying with Vijaya. She has stated that the accused was addicted to liquor since beginning and his father had sent him to Aurangabad with a view that under the supervision of Vijaya, he would give up drinking habits, but the accused did not give up his drinking habits. He became a hardened drunkard. He used to borrow money from neighbours and some times he used to extract money from his wife. He used to quarrel with Vijaya and at times he used to beat her. Whenever Vijaya was refusing to give money for purchasing liquor, he was beating her. Vijaya was visiting her house and at that time she was telling her about the ill treatment and beating. However, later on, the accused prevented her from visiting her parents house. She then started visiting her sister's house, Nilima Takalkar, and she used to make complaints to Nilima about the ill treatment being given by the accused. The F.I.R. is at Exhibit 11 and in the F.I.R. it is mentioned that since about 8 to 9 years, the accused was consuming liquor and was ill treating Vijaya when she refused to give money for purchasing liquor and Vijaya used to tell about this to herself and her husband Pandharinath. 9. The learned Counsel for the accused appellant has pointed that while in the F.I.R. it is mentioned that the accused developed habit of drinking about 8 to 9 years prior to lodging of the F.I.R. in the deposition, Shakuntalabai states that since beginning the accused was addicted to liquor. It means that the witness is exaggerating and, therefore, her deposition is not believable. The other minor discrepancies in her evidence before the Court and in the F.I.R. are also pointed out by the learned Counsel for the defence. 10. Rajendra, P.W. 2, in his deposition at Exhibit 12 has stated that his sister Vijaya was married to the accused. The accused was working as tractor driver in the factory, where Rajendra was also employed. He has stated that the accused was addicted to drinking. 10. Rajendra, P.W. 2, in his deposition at Exhibit 12 has stated that his sister Vijaya was married to the accused. The accused was working as tractor driver in the factory, where Rajendra was also employed. He has stated that the accused was addicted to drinking. He was spending all his salary for purchasing liquor and whenever he was in need of money, he used to take money from his wife Vijaya. Vijaya was serving as teacher and she was staying with the accused. He has stated that whenever the accused was returning home in drunk condition, he used to beat Vijaya. Vijaya was making complaints to him that the accused was beating her. 11. Here, there is difference between the deposition of Shakuntalabai and that of Rajendra. Rajendra is not stating that the accused was beating Vijaya when she refused to give money. He only states that the accused used to beat Vijaya when he was returning home in drunk condition. So, there is no corroboration to the statement of Shakuntalabai that the accused was demanding money from Vijaya for purchasing liquor and whenever she was refusing to give money, he was beating her. 12. Rajendra has stated that he asked Vijaya as to why she set herself on fire and she told that she was disgusted with the conduct of the accused and his misbehaviour, as he was frequently beating her under the influence of liquor and, therefore, she set herself on fire. It is in the evidence of Rajendra that on taking Vijaya to the hospital, the police from the Police Chowki was called and that Police Officer immediately recorded statement of Vijaya. The learned Counsel for the appellant has pointed out that statement of Vijaya is not brought before the Court and it is not known what she stated about the cause of the burn injuries. 13. Dr. Chavan, P.W. 4, in his deposition at Exhibit 23, has stated that Vijaya was brought to the hospital at 6.15 a.m. on 14-6-1989. In response to his queries, she gave the history of burn injuries on 14-6-1989 at 5 a.m. as her husband is alcoholic and there were always quarrels between the husband and the wife and, therefore, she set herself on fire by kerosene and match stick. In response to his queries, she gave the history of burn injuries on 14-6-1989 at 5 a.m. as her husband is alcoholic and there were always quarrels between the husband and the wife and, therefore, she set herself on fire by kerosene and match stick. The learned A.P.P. has argued that the doctor in the usual course of business asked for the history and the patient has given this history. It was recorded in the M.I.C. register by the doctor and thumb impression of Vijaya was obtained below the statement. So, this is most reliable piece of evidence. 14. However, it has to be noted that the doctor had not recorded the history in the language of Vijaya. It appears that he translated whatever Vijaya stated. Vijaya was well-educated. Even then, instead of taking her signature, he obtained her thumb impression. Further more, in this statement, there is nothing as to what happened on the early morning of 14-6-1989 between Vijaya and the accused. It simply means that she was fed up with her husband and, therefore, she set herself on fire. This cryptic statement recorded by the doctor cannot be made ground for conviction. 15. The other important witness is Advocate Mugadiya, P.W. 3, and his deposition is at Exhibit 28. He has stated that he was appointed as Special Executive Magistrate and on 14-6-1989 at about 12.30 p.m., one Constable brought a letter from the Police Station wherein it was requested to him to record statement of a woman, who was burnt and admitted in the Medical College Hospital. He has stated that he immediately rushed to the hospital. The Constable was with him. The Constable took him to the bed where the lady was lying. He has stated that he then contacted the doctor in-charge and asked him to report whether the lady was in position to give statement. The Constable handed over a letter to the doctor, wherein also the same request was made. He has stated that the doctor made an endorsement on the office copy of the letter given by the Constable and he had certified that the victim was conscious and capable to give the statement. 16. The witness has further stated that he then went to the bed of the victim and apprised her that he was the Executive Magistrate and that he wanted to record her statement. 16. The witness has further stated that he then went to the bed of the victim and apprised her that he was the Executive Magistrate and that he wanted to record her statement. He asked the police and other relatives, who were near the bed, to go away. He put certain questions regarding her name, address, etc., and she properly answered those questions. So, he was convinced that she was in a position to give the statement. He has further stated that he then put certain questions to her as to why, how, and when the incident occurred. She then replied those questions and he started to record her statement. He has stated that he recorded statement as per her dictation, as she was educated. He gave the statement to her to read, she read it and admitted that to be correct. He then obtained her signature below the statement. He put his own signature on the statement. The statement so recorded was handed over to the Constable, while the carbon copy of the statement was retained by the witness. The statement is at Exhibit 21 and the carbon copy is at Exhibit 20. 17. The learned Counsel for the defence has argued that on this statement, the time of recording the statement is not mentioned. There is also no endorsement from the doctor on the statement that the patient was conscious and was physically and mentally fit to give statement. The doctor was not present when the statement was being recorded to ascertain that the patient was in fit and proper condition to give the statement and, therefore, the statement is not believable. 18. Dr. Achwal, P.W. 6, in his deposition at Exhibit 32, has stated that he had examined Vijaya in between 6.30 a.m. and 7 a.m. and then he had asked the C.M.O. to arrange for recording the dying declaration of Vijaya. Then, in between 1 and 2 p.m., the Police Constable with the Magistrate contacted him. The Police Constable gave him a letter wherein it was requested that he should examine the patient and report about her condition. He had stated that he examined Vijaya again and he found her quite conscious and capable to give the statement. Then he made endorsement on the office copy of the letter signed it and handed it over to the Constable. He had stated that he examined Vijaya again and he found her quite conscious and capable to give the statement. Then he made endorsement on the office copy of the letter signed it and handed it over to the Constable. He had endorsed, “that the patient is conscious oriented and in the state of giving statement.” He has stated that when the Magistrate started recording the statement, he left that place to attend other work. The letter bearing the endorsement of the doctor is at Exhibit 30. 19. Head Constable Dube, P.W. 5, in his deposition at Exhibit 29, has stated that on 14-6-1989, the M.I.C. report received from the hospital at the Police Chowki was entrusted to him by the P.S.I. for inquiry. It was given to him at about 10.30 a.m. Immediately thereafter, he prepared a letter addressed to the Executive Magistrate, requesting him to record dying declaration of Vijaya. He contacted Mugadiya and both of them then went to the hospital. He then wrote another letter to the doctor in-charge of the ward to report whether Vijaya was in a position to give statement. The doctor made an endorsement on the office copy of the letter, which is at Exhibit 30. The Executive Magistrate was then taken to the bed where Vijaya was lying. The Magistrate asked him to leave the ward and he left the ward. Later on, the Magistrate handed over the dying declaration to him. 20. The endorsement at Exhibit 30 indicates that the doctor gave the certificate at about 1.45 p.m. The Executive Magistrate states that the Head Constable contacted him at 12.30 p.m. and thereafter immediately he and the Constable went to the hospital. Then how is it that more than one hour was taken to obtain the certificate from the doctor. There is no explanation to that effect. There is also no explanation from the Head Constable that when he received the papers regarding M.I.C. at 10.30 a.m., why he took time till 12.30 p.m. to reach the Executive Magistrate. If all this timing is taken into consideration, then it becomes important that there should have been timing on the dying declaration as to when it was recorded. But that is not done by the Executive Magistrate and that is one point which creates doubt about the dying declaration. 21. If all this timing is taken into consideration, then it becomes important that there should have been timing on the dying declaration as to when it was recorded. But that is not done by the Executive Magistrate and that is one point which creates doubt about the dying declaration. 21. In the dying declaration, Exhibit 21, it is noted that on 14-6-1989, at about 5 to 5.15 a.m., the accused quarrelled with Vijaya and beat her. She was fed up with this every day trouble and, therefore, she poured kerosene from the stove on her person and set herself ablaze. In the history recorded by the doctor, there is nothing indicating that a quarrel had taken place between the accused and Vijaya at about 5 a.m. before Vijaya set herself on fire. So also, Rajendra in his deposition does not state that Vijaya told him that a quarrel had taken place between her and the accused and thereafter she set herself on fire. Thus, the circumstance of quarrel between the accused and Vijaya is introduced for the first time in the dying declaration. 22. The learned A.P.P., has argued that the circumstance that there was quarrel between the accused and Vijaya is mentioned in the F.I.R. lodged by Shakuntalabai, on 15-6-1989 at Exhibit 11. However, it has to be noted that this F.I.R. is lodged after the recording of the dying declaration and so, there may be the statement in the F.I.R. on the basis of the statement in the dying declaration. 23. In this respect, the deposition of Shakuntalabai is worth considering. She has stated in her examination in chief that while Vijaya was being taken to the hospital, she had talked with her and then Vijaya told her that she was totally disgusted and frustrated in the life due to the accused's misconduct and misbehaviour. So, she thought it necessary to end her life by setting herself ablaze. So, here, in the deposition, she is not stating that there was quarrel between the accused and Vijaya before Vijaya set herself on fire. The deposition indicates that only because of the behaviour of the accused, she was fed up and she set herself on fire. So, the dying declaration is not finding proper corroboration with respect to this aspect of the case. 24. The deposition indicates that only because of the behaviour of the accused, she was fed up and she set herself on fire. So, the dying declaration is not finding proper corroboration with respect to this aspect of the case. 24. In the dying declaration, firstly Vijaya is giving her name, age, occupation and residence, and thereafter again, she is stating that, “I Sou. Vijaya Dhananjay Kulkarni”, poured kerosene on the person from the stove and set herself ablaze. Furthermore, she states that, “My son, Yogesh Dhananjay Kulkarni, aged 11” and then she states that, “My mother, Shakuntalabai Pandharinath Kalkar was called” by her son. At all these three places, she is giving full names as per the contention of the Executive Magistrate and this clearly indicates that, artificially the statement is recorded. In ordinary course, she would not have given her name again and she would not have given the full names of her son and mother. So, it clearly appears that the statement is not recorded in the words of Vijaya. The Executive Magistrate has taken care to record the full names of Vijaya, her son and her mother and that creates doubt about the dying declaration. 25. In the dying declaration, Exhibit 21, it is mentioned that her husband was standing near her, but he did not help her. On the contrary, the evidence on record indicates that the accused had tried to put off the fire. His hands were burnt. He was admitted in the hospital for the treatment. Rajendra as well as the Head Constable have admitted this situation. It clearly means that entire false statement is made by Vijaya that her husband did not help her and that also creates doubt about the genuineness of the dying declaration. 26. The accused has taken a stand that Vijaya was lighting the stove, and when she was pumping the stove, the stove burst and she had caught fire. While, it is the case of the prosecution that Vijaya poured kerosene on her person from the stove and then set herself ablaze. The pieces of saree of Vijaya were attached by the police during the course of investigation but the same were not sent to the C.A. to ascertain whether there was the trace of kerosene on the pieces of saree. The pieces of saree of Vijaya were attached by the police during the course of investigation but the same were not sent to the C.A. to ascertain whether there was the trace of kerosene on the pieces of saree. A vital link is not established by the prosecution to substantiate the statement in the dying declaration that kerosene was poured by Vijaya on her person. In the medical evidence, of Dr. Chavan, there is no mention that there was smell of kerosene. In such circumstances, the prosecution case becomes weaker by not bringing on record the evidence with respect to traces of kerosene on the clothes of Vijaya. 27. The learned A.P.P. has argued that when the panchanama was prepared, the stove was seen at that place and its stopper was removed and was lying near it. So, this circumstance corroborates the statement in the dying declaration. However, it has to be noted that the panchanama was prepared on 14-6-1989 at about 2 p.m. So, time from 5 a.m. to 2 p.m. had elapsed and there was no proper guard at the place of the incident. 28. There is also doubt about the timing of the panchanama. H.C. Dube had gone to the hospital along with the Executive Magistrate. According to the endorsement on Exhibit 30, the time was about 1.45 p.m. Head Constable was in the hospital till the statement of Vijaya was recorded. He received the statement of Vijaya from Executive Magistrate. It must have been received in between 2 p.m. and 3 p.m. Then how is it that the panchanama of the place of incident was also prepared by the same H.C. in between 2 p.m. and 3 p.m. at the house of Vijaya. Timing is clearly mentioned on panchanama, Exhibit 15. Either Head Constable was at the house of Vijaya in between 2 and 3 p.m. to prepare the panchanama or he was in the hospital waiting to obtain the dying declaration recorded by the Executive Magistrate. He could not have been at both the places at the same time. This also creates doubt about the prosecution case. 29. Though the prosecution has proved that Vijaya died due to burn injuries, the prosecution has failed to prove that she committed suicide and further that she committed suicide because of the ill-treatment given to her by the accused. He could not have been at both the places at the same time. This also creates doubt about the prosecution case. 29. Though the prosecution has proved that Vijaya died due to burn injuries, the prosecution has failed to prove that she committed suicide and further that she committed suicide because of the ill-treatment given to her by the accused. She might have been frustrated because of the habit of drinking of the accused, but it cannot be said that by cultivating the habit of drinking, the accused abetted the incident of suicide of Vijaya. With respect to ill treatment, there is no sufficient evidence especially when the dying declaration cannot be relied upon fully. 30. In view of this, the appeal is allowed. The order of conviction and sentence passed by the learned Sessions Judge, Aurangabad, on 29-1-1991 in Sessions Case No. 166 of 1990 is set aside. The accused is acquitted of the offence punishable under sections 498-A and 306 of the Indian Penal Code. His bail bond shall stand cancelled. Fine, if paid, be refunded to him. Appeal allowed. -----