JUDGMENT (per S.R.Dongaonkar, J.) 1. The appellants who interse are mother & son and mother-in-law and husband respectively of deceased Shobha Prakash Khadse, have preferred this appeal to challenge their conviction and sentence imposed by Additional Sessions Judge, Yavatmal, in Sessions Case No. 144/89, for the offences punishable under Section 498-A & 302 r/w Section 34 of the I.P.C., wherein they were sentenced to suffer S.I. for one year and to pay fine of Rs.500/-, in default to suffer S.I. for 3 months for the offence punishable under Section 498-A r/w Section 34 of the I.P.C. and imprisonment for life and fine of Rs.1000/-, in default R.I. for 4 months for the offence punishable under Section 302 r/w Section 34 of the I.P.C. It needs to be mentioned that they were not convicted for the offence punishable under Section 304-B r/w Section 34 of the I.P.C. 2. Briefly stated prosecution case runs as under; Deceased Shobha, who was daughter of P.W. 1 Punaji Bhoyar, r/o. Pangadi and sister of P.W. 2 Devrao Bhoyar, r/o. Pangadi, was married to appellant no. 2 Prakash. 3 Appellant no. 1 Panchafula is her mother in law. After marriage, she started residing in her matrimonial house at Dabha with the appellants. It is alleged that the appellants started harassing and ill-treating her for a demand of radio, which was agreed to be gifted to appellant no. 2 by P.W. 1 Punaji Bhoyar at the time of marriage. It is alleged that on one occasion prior to her death, P.W. 1 Punaji had gone to Dabha and as there was demand of radio and he had agreed to gift the same to him. To settle the matter, he had visited Dabha. He had been to the house of P.W. 3 Sou. Kusum Dahake, who is cousin sister of deceased Shobha. At that time, through the intervention of P.W. 6 Pochiram Dahake, it was agreed upon that the radio would be given to appellant no. 2 later. It is also alleged that deceased Shobha was to be taken back by P.W. 1 Punaji if the demand is not fulfilled and, he had assured to take her back to parental home through her brother. It is alleged that P.W. 4 Nathuji Dahake had also learnt about the visit of P.W. 1 Punaji who had stayed in the house of P.W. 6 Pochiram when he had come to Dabha. It is alleged that P.W. 4 Nathuji Dahake had also learnt about the visit of P.W. 1 Punaji who had stayed in the house of P.W. 6 Pochiram when he had come to Dabha. 3. On the fateful day i.e. on 8.2.1989, it is alleged, at about 6ñ6.30 a.m., there was altercation between the appellants and deceased Shobha and the appellants poured kerosene on her person and set her on fire. She raised hue & cry. People including P.W. 4 Nathuji and P.W. 6 Pochiram gathered there. P.W. 3 Kusum also came there. It is alleged that the said Shobha had shouted saying ìMALA JALALEî. (______________) When P.W. 3 Kusum came there, she saw deceased Shobha sitting on the wooden cot. Thereafter she was taken to Rural Hospital, Pandharkawda. There, her dying declaration was recorded in which she stated that she had caught accidental fire and sustained burn injuries when she was lighting the hearth for preparation of tea. It is alleged by the prosecution that in the hospital she had disclosed to P.W. 5 Prabha Mandekar, who was working as Health Assistant at P.H.C. that her mother-in-law (appellant no.1) had set her on fire. Thereafter for further treatment she was shifted to P.H.C. Pandharkawda and later to Government Hospital, Yavatmal. She, however, succumbed to burn injuries on 9.2.1989. Inquest Panchanama was prepared, so also autopsy was conducted on her dead body. She was found to have suffered death due to extensive burns as recorded in P.M. notes (Exh.52). The cause of death is stated to be 'extensive burns'. Thereafter, it is alleged, on inquiry P.W. 1 Punaji came to know that deceased was being illtreated by the appellants on the ground that their demand for radio was not complied. He also came to know that prior to the incident also, she was ill-treated. Therefore, he lodged report to Police Station Patan (Exh. 69). In that report, he complained that the non-applicants therein i.e. present appellants had ill-treated deceased Shobha for demand of dowry and as the same was not met, they set her on fire and she had disclosed this fact before her death to his niece P.W. 3 Kusum. Crime No. 9/89 for the offences punishable under Sections 498-A, 304-B, 302 r/w 34 of the I.P.C. was registered. Investigation was conducted by P.W. 7 Senior Intelligence Officer, Tiwari. Crime No. 9/89 for the offences punishable under Sections 498-A, 304-B, 302 r/w 34 of the I.P.C. was registered. Investigation was conducted by P.W. 7 Senior Intelligence Officer, Tiwari. As already stated above, prior to this report, inquest panchanama (Exh. 67) was prepared and autopsy was conducted. During investigation, spot panchanama was prepared, so also some articles were seized from the spot. Statements of P.Ws were recorded and after due investigation, charge sheet was submitted against the appellants for the aforesaid offences. 4. Learned trial Judge framed the charge against the appellants for the offences under Sections 498-A, 304-B and 302 r/w Section 34 of I.P.C. The appellants pleaded not guilty to the same. 5. In order to bring home the guilt of the appellants, prosecution examined in all 7 witnesses. P.W. 1 Punaji Bhoyar, P.W. 2 Devrao Bhoyar, P.W. 3 Sou.Kusum Dahake, P.W. 4 Nathuji Dahake, P.W. 6 Pochiram Dahake are the witnesses on the point of alleged harassment to deceased Shobha by the appellants on account of demand of radio. P.W. 3 Kusum, P.W. 4 Nathuji and P.W. 6 Pochiram are also witnesses to the factum of deceased Shobha's disclosure against appellants immediately after the incident when her fire was extinguished. P.W. 5 Prabha Mandekar is the witness to whom allegedly deceased Shoba had disclosed that appellant no. 1 Panchafula, her mother-in-law, had set her on fire and she did not suffer burn injuries of ìher ownî. P.W. 7, Senior Intelligence Officer, Tiwari, is the Investigating Officer. 6. It also needs to be mentioned that at the instance of the trial Court, three witnesses were examined. They are C.W. 1 Dr. Jidhewar, who had attended the deceased in the P.H.C. and at whose instance one Bagwale, compounder of the said Hospital had recorded the statement of the deceased (Exh. 79). C.W. 2 Kumbhare is the Naib Tahsildar and Executive Magistrate, who recorded the dying declaration on requisition as per Exh.88. C.W. 3 Dr. Badodekar is the Medical Practitioner who had examined Shobha before dying declaration (Exh. 88) was recorded by C.W. 2 Kumbhare. Needless to mention that these dying declarations (Exh. 79 & Exh. 88) are to the effect that while lighting hearth for preparation of tea, deceased Shobha had suffered burn injuries, to mean that she had suffered accidental fire. 7. The appellant though did not adduce any evidence, had submitted the statement of their defence. Needless to mention that these dying declarations (Exh. 79 & Exh. 88) are to the effect that while lighting hearth for preparation of tea, deceased Shobha had suffered burn injuries, to mean that she had suffered accidental fire. 7. The appellant though did not adduce any evidence, had submitted the statement of their defence. According to them, there was no demand or settlement of any dowry at the time of marriage of deceased Shobha with appellant no. 2. The amount of Rs. 5,250/- was agreed to be given to the appellant no. 2 as expenses of marriage which was part & parcel of their custom. They did not demand any radio, nor they had ill-treated deceased Shobha for the same. It is also their case that deceased Shobha was brought up in a rich family of P.W. 1 Punaji. She was not willing to live in the joint family of the appellants & her father-in-law, so appellant no. 2 and his brother started living separately on partition of the estate. It is further their case that appellant no. 1 is old and religious lady, she does not even eat mutton, chicken, fish etc., she is highly religious lady and in Chaturmas i.e. 4 Holy Months she does not even take garlic or onion in her food. According to them, deceased Shobha was habituated to non-veg food i.e. mutton, chicken etc., and therefore, she was rather unhappy to live with the appellants. On the day of incident, according to the appellants, deceased Shobha had sustained burns due to accidental fire. She was shifted by appellant no. 2 to the Hospital at Patan-Bori, then to Pandharkawda and thereafter to Yavatmal, however, she expired. On her death, P.W. 1 Punaji, her father, started demanding the golden Dorle to appellant no. 2 and as he did not oblige, he lodged false report against them. Therefore, it is the case of the appellants that deceased had suffered accidental death due to burns and they are not responsible for the same. They also contended that the witnesses examined by the prosecution are relatives of each other and they are deposing false against them. 8. The learned trial Judge having considered the evidence on record came to the conclusion that the prosecution has established that deceased Shobha was being ill-treated by the appellants. They also contended that the witnesses examined by the prosecution are relatives of each other and they are deposing false against them. 8. The learned trial Judge having considered the evidence on record came to the conclusion that the prosecution has established that deceased Shobha was being ill-treated by the appellants. He also found that the two dying declarations which have come through the court-witnesses on record, cannot be relied upon. According to him, the evidence of P.W. 5 Prabha Mandekar is reliable, so also the evidence of other prosecution witnesses. He also noted that the scene of the offence does not show that there was an accidental fire, in fact C.A's report (Exh. 66) shows that kerosene was found on the clothes of the deceased and therefore, it was a clear case of pouring kerosene on the person and setting her ablaze by the appellants. All this ill-treatment, according to him, is established and it was for demand of dowry. Though he did not hold the appellants guilty of the offence punishable under Section 304-B of the I.P.C., he found them guilty of the offence under Sections 498-A and 302 r/w 34 of the I.P.C. and therefore, he convicted and sentenced them accordingly. 9. While challenging the judgment of conviction, Mr.A.V.Bhide, learned counsel for the appellants submitted that the learned trial Judge has based his conviction on the inferences & surmises and they do not withstand vis-a-vis the evidence on record. According to him, the learned trial Judge has swayed away with the moral inferences which cannot take place of proof. He has based his judgment only on the possibilities that as the appellants were present at the time of the alleged incident, they must be responsible for the burn injuries caused to deceased Shobha; which resulted in her death. Further, according to him, the evidence led by the court-witnesses in respect of dying declarations (Exh.79 & 88), which are at two difference places, clearly shed doubts on the prosecution case as regards the cause of burn injuries to the deceased. He has submitted that in any case, it is not established beyond reasonable doubts that the appellants had poured kerosene on the person of the deceased and set her ablaze and therefore, they are responsible for the aforesaid offence. He has submitted that in any case, it is not established beyond reasonable doubts that the appellants had poured kerosene on the person of the deceased and set her ablaze and therefore, they are responsible for the aforesaid offence. According to him, it is a clear case of possibility of suffering accidental burn injuries by the deceased while lighting of hearth for preparing tea and therefore, the appellants are entitled for acquittal. He has further submitted that the prosecution case is unreliable as P.W. 1 Punaji who was present at the time of inquest panchanama of the deceased which took place on 9.2.1989, did not make any complaint at that time to Police and has lodged report very late, which is against the natural reaction of a father in the circumstances of demand of dowry or radio. 10. Per contra, Shri D.B.Yengal, learned A.P.P. for the Respondent- State has contended that dying declarations Exh.79 and Exh.88 are not reliable. At that time deceased Shobha was under the influence of the appellants and therefore, she made incorrect statement as regards the cause of burn injuries to her. According to him, the evidence of P.W. 5 Prabha Mandekar is very trustworthy and it clearly leads to the conclusion that deceased Shobha was set ablaze by appellant no. 1. Further, according to him, the evidence of other witnesses, particularly the father of the deceased, brother of the deceased and her cousin sister P.W. 3 Kusum clearly leads to the inference that deceased Shobha was being ill-treated by the appellants for the demand of radio. He has, therefore, submitted that the learned trial Judge has correctly arrived at right conclusion and therefore, the impugned judgment of conviction & sentence is not liable to be set aside. 11. Here is the case where, some witnesses have been examined as court witnesses on the point of dying declarations made by the deceased. It is necessary to closely note the relevant evidence. C.W. 1 Dr. Jidhewar has deposed that on 8.2.1989 he was working as Medical Officer at P.H.C. Patan Bori. On that day one Shobha Prakash Khadase was brought by the villagers to P.H.C. She was in a condition to speak when she was admitted in the Hospital. He enquired with her as to how she sustained burns. She told that while she was lighting the hearth she caught fire and received burns. On that day one Shobha Prakash Khadase was brought by the villagers to P.H.C. She was in a condition to speak when she was admitted in the Hospital. He enquired with her as to how she sustained burns. She told that while she was lighting the hearth she caught fire and received burns. One Bagwale, Compounder, was present, when she stated so, so he asked Bagwale to write her statement and accordingly he did. Exh. 79 is the dying declaration recorded by him. This Exh. 79 shows that she has stated that when she was lighting the hearth, the backside lap of her sari caught fire all of a sudden and after having caught fire by her Sari, she was not in a position, what she should do and at that time neither her husband nor her mother-in-law were present in the house. There is nothing specific in his cross examination enabling us to say that he has anything to depose false against the prosecution and in favour of the defence. In cross examination, it was suggested to him that he did not examine the said lady nor he had made endorsement on Exh.79 to show that he had examined her and she was fit to make a statement. But the fact remains that the same was ìrecordedî and in fact this witness was cited by the prosecution and as he was not examined by the prosecution, he was called as court witness. 12. No doubt, the said Bagwale is not examined by the Court or by the defence. But that fact by itself, in view of the testimony of C.W. 1 Dr. Jidhewar that the said dying declaration was recorded in his presence, it does not require strict proof. 13. C.W. 2 Naib Tahsildar Kumbhare has also recorded dying declaration (Exh.88). As per this dying declaration, deceased had stated that while lighting the hearth for preparing tea, she put some kerosene in it and all of a sudden there was flaring up of fire and she sustained burn injuries. She stated that her mother-in-law and her husband were present in the house. This statement is recorded by Naib Tahsildar at about 12.50 p.m. on 8.2.19989. It bears the endorsement of Medical Officer C.W. 3 Dr. Badodekar who had certified that she was fit to make statement. She stated that her mother-in-law and her husband were present in the house. This statement is recorded by Naib Tahsildar at about 12.50 p.m. on 8.2.19989. It bears the endorsement of Medical Officer C.W. 3 Dr. Badodekar who had certified that she was fit to make statement. There is nothing specific in their cross examination to show that they have any reason to depose false. The cross examination by the learned A.P.P. does not reveal anything to cast doubts on their testimony. This will mean that the two dying declarations (Exh. 79 & 88) are to the effect that deceased was lighting hearth at the relevant time for preparing tea and at that time she suffered burn injuries due to the same. As there is nothing on record to disbelieve then this would negative the prosecution story, or at the least it would become doubtful. 14. This takes us to consider the evidence of P.W. 3 Kusum Dahakar and P.W. 5 Prabha Mandekar, who are alleged witnesses to the oral dying declarations by deceased Shobha to the effect that the appellants had set fire to her. 15. On close scrutiny of the evidence of P.W. 3 Kusum, it would be seen that she has stated that at the relevant time she was cleaning her court-yard by applying cow-dung i.e. at about 5 a.m. Shobha at that time told, ìMi Jalali, Dhavî . She added saying that Shobha told that she was set ablaze and asked to come for rescue and she went to the house of Shobha. At that time she noticed Shobha was sitting on Baj (wooden cot). She further stated that persons had gathered there and she told that she was set on fire and at that time appellant no. 1 was cleaning the court-yard of her house by applying dung. In the cross examination, she has stated that there are 10-12 houses surrounding the house of the appellants. She further stated that she did not hear hue & cry that 'Shoba burned, Shobha burned' and before she reached there, many persons had gathered, they had extinguished the fire and Shobha was made to lie on the wooden cot. This means that prior to this witness, many other persons had gathered there who must have heard what deceased Shobha had told. But surprisingly none of them is examined by the prosecution. This means that prior to this witness, many other persons had gathered there who must have heard what deceased Shobha had told. But surprisingly none of them is examined by the prosecution. It, therefore, casts doubt on the testimony of this witness, more so because she is close relative of the deceased. Apart from this, in her cross examination, she has stated that she was not visiting the house of Shobha. Therefore, it is some what doubtful that deceased Shobha would tell her that she was set on fire by the appellants. In specific cross examination, she has stated that Shobha told, ìMala Jalali,î She did not tell ìMala Petawaleî. Thus, it clearly appears that in evidence she had given half hearted version of the incident and the prosecution has not adduced the evidence of the persons who had gathered there prior to the reaching of P.W. 3 Kusum who must have heard what deceased Shobha had uttered. Therefore, her evidence cannot lead to the positive inference beyond reasonable doubt that deceased Shobha had positively and categorically made utterances against the appellants. 16. Adverting to the evidence of P.W. 5 Prabha, it appears that she was working Health Assistant at P.H.C. Patan-Bori. Doctor had examined deceased Shobha when she was brought in the Hospital. According to this witness, she told her that had she worked by taking precaution, she could have avoided the incident. At that time she told her that she did not receive burns on her own and started abusing her mother-in-law and she was cursing her i.e. to appellant no.1. Now, this witness was declared hostile first and was cross examined by learned A.P.P. & in her cross examination, she stated that she told Shobha that if she would have worked carefully then she would not have sustained burns. Thereafter Shobha told her why she would burn herself, it was her mother-in-law who set her ablaze and then she started cursing her mother-in-law. She then asked Shobha as to why she told doctor that she received burns when she was igniting hearth, then Shobha told that if she would have told so, then she would not have been brought to hospital for treatment and she wanted to live and not to die. She then asked Shobha as to why she told doctor that she received burns when she was igniting hearth, then Shobha told that if she would have told so, then she would not have been brought to hospital for treatment and she wanted to live and not to die. Ex-facie this evidence may seem to be acceptable, but it would be seen that she did not state anything which can be said to be directly incriminating the appellants in her examination-in-chief. Apart from this, in cross examination, she stated that after the said patient i.e. Shobha was taken to other hospital, she did not inform anything to the Police or for that matter even to her superior and on 14.2.1989 she made disclosure to the police firstly. The incident is on 8.2.1989. Therefore, her late disclosure about the alleged statement by deceased Shobha implicating appellant no. 1 cannot be said to be trustworthy for basing conviction. At any rate, it would be unsafe to base conviction on such evidence. 17. This takes us to consider the material evidence which sought to be relied by the prosecution of P.W. 1 Punaji, P.W. 2 Deorao, father and brother of the deceased and P.W. 6 Pochiram. All of them to some extent support the case of the prosecution regarding the alleged ill-treatment by the appellants. In order to appreciate this evidence on record, it is necessary to see the evidence of P.W. 6 Pochiram. He has turned hostile to the prosecution. He has stated that when people started running after hearing Shobha's hue & cry, deceased Shobha told, ìMaza Ghat Zala Mamaji, Mee Jalaliî. He does not say that it was told by deceased Shobha that appellants had set her on fire. In cross-examination, he was confronted with some contradictions by the learned A.P.P. from his statement. But fact remains that on material points he did not support the prosecution case. Non disclosure of the names of the appellants for having set her on fire immediately after the incident to the police or even to this witness, will make prosecution case doubtful. 18. At this juncture, it is necessary to see the evidence of P.W. 1 Punaji. This witness has first deposed about the settlement of dowry, then about the demand of radio and then about the incident. He has specifically stated that he learnt about the incident from his nephew Ramesh. 18. At this juncture, it is necessary to see the evidence of P.W. 1 Punaji. This witness has first deposed about the settlement of dowry, then about the demand of radio and then about the incident. He has specifically stated that he learnt about the incident from his nephew Ramesh. Then he went to Pandharkawda Cottage Hospital. He came to know that deceased Shobha was taken to Government Hospital, Yavatmal, therefore, he came to Yavatmal and came to know that she was dead and post mortem was done. Now, in earlier part of his evidence, he has deposed as to how the appellants were ill-treating the deceased for the demand of radio and as part of dowry was not paid. With these background, it was expected that he would have lodged report to the police station immediately. But he did not lodge report nor complained to the police till this report was lodged on 11.2.1989, that too at about 16 hours (4 p.m.). It was tried by the prosecution to explain the lodging of late report by saying that on 10.2.1989 P.W. 1 Punaji went to Dabha, visited the house of P.W. 3 Kusum and enquired with Kusum in respect of death of Shobha and when she told him that Shobha was subjected to cruelty by the appellants and they poured kerosene on her person and set her ablaze. Then he went to Police Station Patan and filed the complaint. 19. As already pointed out above, the evidence of P.W. 3 Kusum does not clearly point out that she had witnessed the appellants setting the deceased on fire or hearing directly from deceased Shobha about the act done by the appellants. On the contrary, her version appears to be of general nature. Even the other evidence of P.W. 6 Pochiram led by the prosecution does not support the prosecution case. Therefore, the unnatural conduct of the father of the deceased, clearly makes the prosecution case doubtful. It is rather unexpected vis-a-vis the evidence led by him about the alleged demand of dowry, radio and ill-treatment by the appellants on that count would make him to wait till he makes inquiry with P.W. 3 Kusum for lodging report. 20. It is the case of the prosecution and it seems to be rather established that P.W. 1 Punaji is a rich person. He owns about 26 acres of land. 20. It is the case of the prosecution and it seems to be rather established that P.W. 1 Punaji is a rich person. He owns about 26 acres of land. He takes cotton crops etc. He also stated in cross examination that in intervals they used to take mutton, chicken, fish etc. It has also come in evidence that appellant no. 1 is a religious woman, she does not eat fish, egg, mutton etc., but Shobha used to eat these things. In the month of Chaturmas, the family members of the appellants do not take onion and garlic vide the evidence of P.W. 3 Kusum. Therefore, it is not impossible that she would have been unhappy with the appellants. 21. The evidence of P.W. 1 Punaji and P.W. 2 Devrao, the father and brother of the deceased, suffers from material improvements. As already pointed out above, the evidence of P.W. 3 Kusum and P.W. 5 Prabha also does not incriminate the appellants exclusively and beyond reasonable doubts. The evidence of Court witnesses and the dying declarations (Exh.79 & 88) which came on record through them, clearly sheds doubt on the prosecution case. In such circumstances, it is difficult to hold that the prosecution has established the guilt of the accused/appellants beyond reasonable doubt. 22. The learned trial Judge has accepted the evidence led by the prosecution, particularly the evidence of aforesaid witnesses including that of P.W. 5 Prabha and P.W. 3 Kusum to base the conviction. He has also considered the scene of offence to come to the conclusion that it was not an accidental fire. He has also noticed that C.A's report (Exh. 66) shows that kerosene was found on the clothes of the deceased and therefore, he drew inference that appellants had poured kerosene on her person and set her on fire and also caused harassment to her for demand of dowry. 23. It is the conclusion of the learned trial Judge that the dying declarations which came through C.Ws. were possibly under the pressure of the appellants. However, taking over all view of the matter, it would be seen that, from the dying declaration which came through the Court witnesses on record, there was a case of putting some kerosene on hearth and therefore, the finding of some kerosene on the person of the deceased cannot be said to be totally contrary to the defence. However, taking over all view of the matter, it would be seen that, from the dying declaration which came through the Court witnesses on record, there was a case of putting some kerosene on hearth and therefore, the finding of some kerosene on the person of the deceased cannot be said to be totally contrary to the defence. The learned trial Judge seems to have not considered the evidence which has come through the evidence of Court witnesses in proper perspective. He has also failed to appreciate the unnatural conduct of none less than the father of the deceased in not lodging the report promptly. In these circumstances the case of the prosecution would be more of suspicion than that of the proof based on legally admissible evidence. We have pointed out above that even the evidence of P.W. 3 Kusum and P.W. 5 Prabha does not implicate the appellants clearly and explicitly for the aforesaid offence. Therefore, the judgment of the learned trial Judge appears to be based on clearly erroneous inferences. As such it is liable to be set aside. 24. It is well settled that, ìsuspicion however strong cannot take the place of proof. No judicial decision can rest on mere suspicion. The prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidenceî, vide AIR 1957 SC 637 [Sarwan Singh vs. State of Punjab] and 2005 SCC (Cri.)1468 [Anjlus Dungdung vs. State of Jharkhand]. 25. The result, therefore, is to allow the appeal. It is allowed. The judgment of conviction and sentence of the appellants for the aforesaid offences is hereby set aside and they are acquitted of the said charge. Their bail bonds stand cancelled. They are set at liberty forthwith.