ORAL JUDGMENT R. C. CHAVAN, J. :- By this appeal, the appellant takes exception to his conviction for offences punishable under sections 302, 452 and 354 of the Penal Code and sentences of respectively, imprisonment for life and fine of Rs. 1,000/-, rigorous imprisonment for one year and fine of Rs. 500/-, and rigorous imprisonment for six months and fine of Rs. 500/-, inflicted upon him for these offences by the learned 2nd Additional Sessions Judge, Akola, in Sessions Trial No. 38 of 2002. 2. Facts, which led to the prosecution and conviction of the appellant, are as under: The appellant as well as victim Chanda, daughter of Kachuru Gaikwad, were the residents of Village Hatrun. Chanda was about 17 years old and the appellant was 18 years old. Chanda and the appellant were in love with each other and had exchanged a number of chits. It seems that the appellant had been pestering Chanda to allow him to have sexual intercourse with her. However, Chanda did not approve of this. On 10-11-2001, the appellant went to the house of Chanda, when she was alone, and unsuccessfully attempted to have sexual intercourse with her. On the same evening at about 7 p.m., the appellant met one Dilip, the cousin of Chanda, and told Dilip that Chanda was defaming him by claiming to have an affair with him. This led to a quarrel between Dilip and the appellant in front of the house of Chanda. On hearing commotion, Chanda came out, and as she was standing on a platform in front of her house, the appellant took out a bottle of kerosene, sprinkled kerosene on Chanda and set her on fire. Her relations extinguished the fire and took Chanda to Civil Hospital at Akola, where police summoned an Executive Magistrate for recording her dying declaration. On the basis of this dying declaration, an offence was registered. Chanda succumbed to her injuries on 13-11-2001. In course of investigation, police caused post-mortem examination to be conducted after an inquest on the body of Chanda, seized incriminating articles, recorded statements of witnesses and on completion of investigation, sent charge-sheet against the appellant and three others in the Court of Judicial Magistrate First Class, Balapur, who committed the case to the Court of Session at Akola. 3. In course of investigation, police caused post-mortem examination to be conducted after an inquest on the body of Chanda, seized incriminating articles, recorded statements of witnesses and on completion of investigation, sent charge-sheet against the appellant and three others in the Court of Judicial Magistrate First Class, Balapur, who committed the case to the Court of Session at Akola. 3. Since the appellant and three others accused persons pleaded not guilty to the charge of offences punishable under sections 342, 354, 452, 302 and 120-B read with section 34 of the Penal Code, the learned Additional Sessions Judge put them on trial; in course of which, the prosecution examined as many as 16 witnesses. After considering the evidence tendered in the light of the defence that Chanda had in fact committed suicide, which was taken by the accused, the learned Additional Sessions Judge acquitted the remaining three accused persons, but proceeded to convict and sentence the appellant as aforementioned. Aggrieved thereby, the appellant has preferred this appeal. 4. We have heard Shri R. P. Joshi, the learned counsel for the appellant, and Shri S. G. Loney, the learned Additional Public Prosecutor for the State. With the help of both the learned counsel, we have gone through the record to find out whether the conviction of the appellant was justified with reference to the evidence tendered. 5. The notes of post-mortem examination proved by PW 13 Dr. Nikam shows that the victim had sustained about 85% bums. The notes would thus show that Chanda died as a result of bum injuries sustained by her. Since the defence raised is that Chanda had in fact committed suicide and was not killed by the appellant, it would have to be found out whether the evidence tendered supports the conclusion that the appellant was the author of the bum injuries inflicted upon Chanda. 6. The evidence, by which the prosecution has sought to establish this aspect, is in the form of dying declaration of Chanda recorded by PW 2 Shri Ramesh Chandanbatwe, the Executive Magistrate, who had been called at Civil Hospital at Akola. The Magistrate stated in his evidence that after receiving requisition at Exhibit 41 for recording dying declaration, he proceeded to the hospital and requested the Medical Officer on duty to certify whether the patient was conscious and well-oriented. The Magistrate stated in his evidence that after receiving requisition at Exhibit 41 for recording dying declaration, he proceeded to the hospital and requested the Medical Officer on duty to certify whether the patient was conscious and well-oriented. Upon the doctor so certifying, he recorded the statement of the victim as per her narration. According to him, victim Chanda had stated that on 10-11-2001, the appellant entered her house in the morning and attempted to rape her, which attempt was foiled. She stated that in the evening, there was a quarrel; in course of which , the appellant poured kerosene on her person and set her ablaze. She indicated the presence of Dilip, Murlidhar and her mother at the time of incident. PW 2 Executive Magistrate Shri Chandanbatwe, however, stated in cross-examination that he did not know that the dying declaration was to be recorded in question-answer form and, therefore, had recorded it in the narrative. He was not clear as to whether both the thumbs of the patient had also sustained bum injuries and whether the thumb mark appearing in the dying declaration was of the right or left hand or of foot. He denied the suggestion that the patient had not at all made such a dying declaration. He proved the dying declaration at Exhibit 43. 7. PW 11 Dr. Patil claimed to have examined the victim at the instance of the Executive Magistrate and proved his certificates on the dying declaration. Dr. Patil was cross-examined at length about the examination conducted by him in order to find out whether the victim was fit. But it seems that no fault could be found by the learned trial Judge in the evidence of Dr. Patil. 8. The learned Additional Public Prosecutor submitted that it is settled law that even dying declaration of the victim without anything more is sufficient to establish the guilt of the accused. He stated that the dying declaration in the instant case, which had been recorded by PW 2 Shri Chandanbatwe, Executive Magistrate, after the victim was duly certified by PW 11 Dr. Patil to be well-oriented and fit to make a dying declaration, ought to be accepted and, therefore, supported such a finding recorded by the learned Trial Judge. 9. He stated that the dying declaration in the instant case, which had been recorded by PW 2 Shri Chandanbatwe, Executive Magistrate, after the victim was duly certified by PW 11 Dr. Patil to be well-oriented and fit to make a dying declaration, ought to be accepted and, therefore, supported such a finding recorded by the learned Trial Judge. 9. The learned counsel for the appellant submitted that this dying declaration may have been indeed recorded by the Executive Magistrate as deposed to by him. But this declaration itself came after the victim was tutored to state so. The learned counsel submitted that the circumstances appearing from the exchange of chits between the parties would indicate as to what was the state of mind of the victim, which would rule out the possibility of the appellant having inflicted burn injuries upon the victim. He submitted that the dying declaration came to be recorded as a result of influence of one Assistant Sub-Inspector Waman Gaikwad, who was the uncle of the deceased, and was posted at the Local Crime Branch at Akola: PW 6 Suneeta, victim's aunt, had stated that when she had gone to see the victim in the hospital, Assistant Sub-Inspector Waman Gaikwad was also present there. The learned counsel for the appellant submitted that it would be normal and natural for the relations to seek the help of a relation in the Police Department when the victim had been brought to Civil' Hospital at Akola, when Waman Gaikwad was posted in Akola City itself. The learned counsel pointed to the uneasiness of Investigating Officer PW 16 PSI Ujjwal Gaikwad who even denied knowledge that Waman Gaikwad was serving as Assistant Sub-Inspector in Local Crime Branch at Akola. The learned counsel wondered as to how a Police Officer working in the same District would not even know about another Officer. 10. We have no doubt that ordinarily the conviction could be based even on the dying declaration of the victim alone if it inspired confidence of truthfulness. In the instant case, the arguments of the learned counsel for the appellant show that the possibility of victim having committed suicide cannot be ruled out. The numerous chits, which the victim wrote to the appellant, were seized from the appellant's father, and had been duly sent by the Investigating Officer to the State Examiner of Documents, who was examined as PW 15. The numerous chits, which the victim wrote to the appellant, were seized from the appellant's father, and had been duly sent by the Investigating Officer to the State Examiner of Documents, who was examined as PW 15. PW 15 Shri Ranjangaokar proved his opinion at Exhibit 92 and statement of reasons at Exhibit 93. There is no serious dispute about the conclusions drawn by PW 15 Shri Ranjangaokar. He had expressed his inability to give definite opinion in respect of the documents at Exhibits 67, 71 and 73. Excluding these, it would have to be found out from remaining chits from Exhibits 61 to 76 as to what the victim had to convey. The exhibit numbers of the chits do not, according to the learned counsel, correspond to the chronological order. 11. The learned Additional Public Prosecutor pointed out that these chits clearly show that the appellant had been pestering the victim for allowing him to establish physical relationship and the victim had been repeatedly entreating him not to do so. Therefore, he submitted that these letters would show that having been spurned by the victim, the appellant launched attack on the victim. His learned adversary submitted that such conclusion could not be drawn, because the victim had repeatedly declared her love for the appellant, and in letter at Exhibit 70 indicated change of her mind. In this letter, the victim had stated that on Saturday, there would be no one at the house, she would be back from the School after two periods, that he should come to her house on that Saturday, adding that she was ready to cooperate with him. The learned counsel submitted that in this letter, the victim had nowhere stated that it was wrong for the appellant to seek to establish physical relationship. The learned counsel pointed out that the incident had occurred on Saturday and, therefore, the contention of the learned Additional Public Prosecutor that the appellant was enraged on being spurned, has to be rejected. The learned counsel pointed out that the victim had stated in so many words in Chit at Exhibit 69 that she would not be able to live if their affair came to the light and since the affair had come to be known, the victim might have committed suicide. 12. The learned counsel pointed out that the victim had stated in so many words in Chit at Exhibit 69 that she would not be able to live if their affair came to the light and since the affair had come to be known, the victim might have committed suicide. 12. The learned counsel for the appellant drew our attention to two extensive statements recorded by PW 16 PSO Gaikwad at Exhibits 96 and 97, wondering about their necessary when a dying declaration had already been recorded. According to the learned Additional Public Prosecutor, the recording of these statements had become necessary, since the dying declaration had unfolded the incident only in a skeletal form. These statements would show that the victim had informed her mother of the affair including the incident which had taken place in the morning. If the victim had been apprehensive that on the affair being discovered, she would have to die, the learned counsel for the appellant was right in submitting that the consequences of such disclosure to victim's mother could well be imagined and this could be the cause of victim committing suicide. On a careful consideration of the rival contentions, we find it difficult to reconcile the recitals in the chits with theory of homicidal attack by the appellant. 13. Apart from this, the learned counsel for the appellant submitted that the incident of assault itself is improbable, since if the appellant had been aggrieved by his being spurned in the morning, he had an occasion to settle scores when the victim was going to School, as may be seen from the statement Exhibit 96. The appellant had not done anything at that time. The learned counsel submitted that it is impossible that the appellant would attempt to pour kerosene on the person of the victim and set her on fire at her house when everybody could watch them and could even foil his attempt. Further, when the appellant was allegedly quarrelling with Dilip, it is not clear as to how the appellant could get a bottle of kerosene. If the appellant was carrying a bottle of kerosene, PW 14 Dilip could have stated so. Further, when the appellant was allegedly quarrelling with Dilip, it is not clear as to how the appellant could get a bottle of kerosene. If the appellant was carrying a bottle of kerosene, PW 14 Dilip could have stated so. Therefore, according to the learned counsel for the appellant, the whole story of appellant having brought a bottle of kerosene with him in order to set the victim on fire, is artificial and contrived and we see considerable force in this submission. 14. The learned counsel for the appellant next submitted that though in the alleged incident, Murlidhar and Yogita had sustained burn injuries, as can be seen from the evidence of PW 12 Dr. Karale, who proved the medico-legal certificates at Exhibits 84 to 87, these witnesses have not been examined. Instead, PW 14 Dilip, a cousin of the victim, who is .not shown to have sustained any injury in the incident, has. been examined. The reply of the learned Additional Public Prosecutor that it is for the prosecution to decide as to which witnesses should be examined, is too technical. When several persons were present and when there were injured witnesses, whose presence at the spot could not have been denied because of the injuries observed upon their persons, their non-examination, coupled with examination of a person, whose presence is not vouched for by the circumstances, casts a doubt on the credibility of his evidence. 15. We have carefully considered the rival submissions. Though ordinarily the dying declaration of a victim could be sufficient to uphold a conviction, in this case, the dying declaration is not free from suspicion because of the possibility of its recording having been influenced by the victim's uncle ASI Waman Gaikwad, who was posted at Akola. Secondly, since the victim had herself called the appellant when she was to be alone in the house, the appellant, who had been spurned on many past occasions, could not have been so worked up as to recklessly set his love on fire in public gaze. The claim in the dying declaration is also not compatible with the genesis of the incident unfolded in the testimony of PW 14 Dilip, since it is not clear as to how the appellant could have brought a bottle of kerosene. The claim in the dying declaration is also not compatible with the genesis of the incident unfolded in the testimony of PW 14 Dilip, since it is not clear as to how the appellant could have brought a bottle of kerosene. Further the story is artificial, since had the appellant harboured such a design, he could have made such an attempt at a more opportune time and place. Therefore, the story deposed to by PW 14 Dilip that the appellant came and alleged that the victim was defaming the appellant, could be a figment of imagination, and should not have been relied on by the learned trial Judge. Non-examination of two witnesses, who had sustained burn injuries, is equally enigmatic. When the incident is stated to have taken place at 7 p.m. in a populated locality, the prosecution could have brought better witness than PW 14 Dilip, whose presence itself would require some proof. In view of this, we accept the contention of the learned counsel for the appellant that the probability that the incident could have been one of suicide, has not been ruled out by the prosecution evidence. 16. It is settled principle of criminal jurisprudence that when a probability consistent with the innocence of the accused exists, the accused is entitled to acquittal. 17. In view of this, the appeal is allowed. The conviction of the appellant for offences punishable under sections 302, 452 and 354 of the Penal Code and sentences of imprisonment for life and fine of Rs. 1,000/-, rigorous imprisonment for one year and fine of Rs. 500/- and rigorous imprisonment for six months and fine of Rs. 500/- respectively, inflicted upon the appellant for these offences by the learned 2nd Additional Sessions Judge, Akola, are set aside. The appellant is acquitted of the aforesaid offence and be set at liberty if not required in any other case. Appeal allowed.