ORDER 1. This appeal is directed against the judgment dated 28.6.2000 passed by the Second Additional Sessions Judge, Dabra, District Gwalior in ST No.219/99 by which the appellant has been convicted under section 304B of IPC and sentenced to undergo rigorous imprisonment for ten years and under section 498A of IPC and sentenced to undergo rigorous imprisonment for three years with a fine of Rs.500/- with default stipulation. 2. The facts of the case are that in the intervening night of 25-26th of March, 1999, deceased Ranjana was brought to Government Hospital, Dabra. On examination, Dr. Ahmed found that Ranjana has sustained 100% burns. He recorded her dying declaration. In her dying declaration, she stated that she was burnt accidentally because of the stove. After treatment, she was referred to J.A. Hospital, Gwalior for further treatment. She was brought to the hospital by her husband. Deceased died on 26.3.1999 at 11:30 a.m. A marg intimation was registered at the police station. She was married to the appellant on 16.5.1998. As per the post-mortem report, she died due to burn injury. It is alleged that the appellant demanded scooter as dowry and due to non-fulfilment of his desire, he used to ill-treat the deceased. After investigation, police filed the charge-sheet under section 304B and 498A of IPC. The case was committed to the Sessions Court and the charge was framed under section 498A and 304B and in the alternative 306 of IPC against the appellant. The trial Court acquitted the appellant under section 306 of IPC but found him guilty under section 304B and 498A of IPC and convicted accordingly. 3. It is not in dispute that the deceased died in suspicious circumstances within seven years of her marriage. The question is whether the deceased committed suicide or her death was accidental and she was being illtreated due to demand of dowry. 4. This case is based on the dying declaration of the deceased recorded by Dr. Ahmed (AW1). His report is EX.D-4 and the oral statement given by the deceased Ranjana to her mother Smt. Asha (PW2) subsequent to her dying declaration before her death. 5. EX.P-6 is the post-mortem report of the deceased. As per the postmortem report, the cause of death is due to cardio respiratory failure as a result of bum and complications. The nature of death should be decided on the basis of circumstantial evidence. 6. 5. EX.P-6 is the post-mortem report of the deceased. As per the postmortem report, the cause of death is due to cardio respiratory failure as a result of bum and complications. The nature of death should be decided on the basis of circumstantial evidence. 6. Now, the next point is to see under what circumstances, the deceased died. In this behalf, the prosecution examined, in all, five witnesses, out of which Kishanlal (PW1) is the father of the deceased while Smt. Asha (PW2) is the mother of the deceased and Bharatlal (PW3) is the uncle of the deceased. 7. Kishanlal (PW l) stated that after marriage, when his daughter came to his house, she informed that she was being ill-treated due to demand of scooter. It is also stated by him that the appellant had never demanded for scooter and this fact has been informed by his daughter. On the date of incident, about the incident two boys came to his residence and informed that her daughter is seriously ill then he and his wife Smt. Asha (PW2) came to the hospital. When he asked her daughter about the incident, she could not tell anything but she deposed to his wife Smt. Asha (PW2) that as the scooter was not given so she was burnt. Police prepared Panchanama EX.P-2 and also seized the articles from the place of occurrence. The seizure memo is EX.P-3. In cross-examination it is admitted by the witness that his daughter was brought to the hospital by the appellant in burnt condition and on the same night they went to Gwalior alongwith the deceased at Dabra hospital. He could not know how his daughter was burnt because she could not tell him about the incident. When his daughter died and he returned to Dabra then he lodged the report at police station. It is admitted by the witness that last rites of the deceased were performed by the appellant and till then he did not lodge any report to the police station. It is also submitted by the witness that when for the first time his daughter informed about the demand of scooter or the ill-treatment, he did not make any report to the police station. It is also submitted by the witness that when for the first time his daughter informed about the demand of scooter or the ill-treatment, he did not make any report to the police station. In para 10, it is submitted by the witness that in Gwalior hospital, police personnel enquired about the matter and took his statement but he denied his previous statement recorded as EX.D-3. He also stated in his statement that he told that appellant ill-treated his daughter due to demand of dowry but why this fact is not mentioned in his statement, he cannot say anything about this. As per para 1 of the statement, there appears material omission and contradiction about his previous statement recorded as EX.D-3. 8. Smt. Asha (PW2) who is the mother of the deceased and wife of Kishanlal (PW1) is an important witness because after the dying declaration recorded by the doctor, the deceased is also alleged to state her oral statement to her mother on which the prosecution has very much relied on. According to the witness, her daughter informed that as the scooter was not given to the appellant as dowry, she was being ill-treated by the appellant and also told that at the time of Diwali when she came to her house then she told that the appellant had instructed her to talk about the scooter to her parents. But this fact is omitted in her police diary statement which is EX.D-1. The witness in para 2 stated that she went to Dabra hospital where her daughter was lying on the table and on the next day she went to Gwalior hospital where her daughter was unconscious. At the hospital, the father-in-law of the deceased and mother-in-law of the deceased had also come and when mother-in-law of the deceased enquired about the condition of the deceased, she replied that ask from your son. Then she asked her daughter about the incident then she replied that she has not told the correct thing to anybody even to the doctor and the real fact is that the appellant lit her fire. He asked for scooter and also demanded money for drinks. But what she has deposed in Court statement in paras 2 and 5, these facts in her police diary statement are omitted. She has also stated in para 6 that at Gwalior hospital the deceased was unable to see anybody. He asked for scooter and also demanded money for drinks. But what she has deposed in Court statement in paras 2 and 5, these facts in her police diary statement are omitted. She has also stated in para 6 that at Gwalior hospital the deceased was unable to see anybody. She has identified the voice and when the in-law of the deceased asked about the incident as stated above except herself nobody was present and when the deceased told to her about the incident, none of the family members of the appellant was present. 9. Bharatlal (PW3) stated that after marriage when the deceased came to her parents house, she informed about the demand of scooter by the appellant and appellant himself lit the deceased fire. But in cross-examination the witness told that this fact has been brought to his notice by his sister after two days of the death of the deceased but this fact was also omitted in his police diary statement EX.D-2. 10. Police also examined R.K. Singh (PW5), SDO(P) who has investigated the matter and prepared the spot map EX.P-5 and also the seizure memo Ex.P-3. In para 3, he also deposed that he had no knowledge whether on 27th March, 1999 the report was lodged by the father of the deceased. The witness also stated that on 1.4.1999 the statement of Kishanlal (PW 1) was not taken as his earlier statement had already been taken by the CSP. 11. Shivsingh (PW4) is the witness of spot map which is EX.P-5 and the seizure memo EX.P-3 by whom the articles were seized from the place of occurrence vide EX.P-3. The police has not proved the dying declaration which was recorded by Dr. Ahmed (DW1) which is EX.D-4. The dying declaration recorded by Dr. Ahmed is as under : Certified that patient Ranjana w/o Hari Shankar r/o Usha Colony has been examined by me. I found her fully conscious and fit for statement. Time 00.40 a.m. Signed dt. The police has not proved the dying declaration which was recorded by Dr. Ahmed (DW1) which is EX.D-4. The dying declaration recorded by Dr. Ahmed is as under : Certified that patient Ranjana w/o Hari Shankar r/o Usha Colony has been examined by me. I found her fully conscious and fit for statement. Time 00.40 a.m. Signed dt. 26.3.1999 rqEgkjk uke D;k gS & jatuk rqEgkjs ifr dk D;k uke gS & gjh’kadj rqEgkjh mez D;k gS & 20 o”kZ dgk¡ jgrh gks & Å”kk dkyksuh] MsM gkml ds ikl Mcjk esa gh rqedks D;k gks x;k gS & eSa ty xbZ gw¡ dc dh ckr gS & vkt jkr dks 11 cts dh fQj D;k gqvk & eSa jksVh xje dj jgh Fkh LVkso QV x;k] jksVh xje ugha dj ikbZ] ihNs ls lkM+h esa vkx yx xbZ vkSj eSa ty xbZ vkSj dkSu Fkk & ogk¡ vkSj dksbZ ugha Fkk esjk vkneh lks jgk Fkk rqedks fdlh us cpk;k Fkk ;k ugha & esjs llqj vkSj vkneh us vkx cq>kbZ Fkh rqedks fdlh us tyk;k D;k & ugha rqedks vkSj dqN dguk gS D;k & vkSj dksbZ ckr ugha gSA Certified that above patient remained fully conscious during her full above statement and at present is conscious. Signed by Dr. Ahmed dated 26.3.1999 The dying decaration recorded by Dr. Ahmed is in question and answer form and the doctor has been examined as defence witness No.1. He deposed that he was posted as Medical Officer at Dabra Hospital on the intervening night of 25 and 26th March, 1999. Deceased Ranjana was brought to the hospital and she was in hundred per cent burnt condition. He took the dying declaration of the deceased and also intimated the matter to the police Dabra. The letter is EX.D-5. The dying declaration is Ex.D4. The signatures of the deceased and all the witnesses were also taken at the dying declaration and she was certified about the mental condition before and after recording of the statement. 12. It is apparent that the witnesses who were produced by the prosecution, all were family members of the deceased and irrespective of this fact, the statements of PW 1, PW2 and PW3 are contradictory because in their police diary statements Ex.D-1, EX.D-2 and EX.D-3 there appear material contradictions and omissions. 13. 12. It is apparent that the witnesses who were produced by the prosecution, all were family members of the deceased and irrespective of this fact, the statements of PW 1, PW2 and PW3 are contradictory because in their police diary statements Ex.D-1, EX.D-2 and EX.D-3 there appear material contradictions and omissions. 13. It is further submitted that the trial Court made its own observation that kerosene stove cannot burst. There is no evidence on record on this point and the trial Court in para 24 of its judgment given the finding without any basis. The trial Court has ignored the material contradictions and omissions and the statement given by the deceased to her mother could not be relied. Furthermore the trial Court has ignored the dying declaration which was recorded by the Dr. Ahmed without any basis and ground. It is also submitted that the demand of scooter as dowry is not proved by the prosecution witnesses because on this point there are material contradictions and omissions of the important witnesses like father Kishanlal (PW1) and mother Smt. Asha (PW2). Apart from this, there is no evidence that there was demand of scooter or ill-treatment was given to the deceased. It is also submitted that the whole prosecution story is suspicious and the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. 14. Counsel for the State submits that there was smear of kerosene oil from the body of the deceased and he further submitted that the gas stove are not usually burst and if had the stove was burst then the hair could not have been burnt. The prosecution relied on the oral dying declaration of the deceased which was given by her to her mother. 15. Now, the crux of the matter is that whether the dying declaration recorded by the Dr. Ahmed is reliable or the oral statement given by the deceased before her death to her mother can be relied on. 16. Dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable. Corroboration may be necessary when the same is infirm. Ahmed is reliable or the oral statement given by the deceased before her death to her mother can be relied on. 16. Dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable. Corroboration may be necessary when the same is infirm. In this case, the first dying declaration which was recorded in an question and answer form which is Ex.D-4 was recorded by the doctor on duty and before recording of the dying declaration he has certified that the mental condition of the deceased was satisfactory to give the statement and after recording the statement, he again certified that the mental condition during the statement was satisfactory. 17. Dying declaration recorded by the doctor bears the signatures of the deceased and also it was recorded in presence of the witnesses which was duly proved during the evidence. The oral dying declaration which was stated by PW2 at J.A. Hospital before her death is a weak piece of evidence and infirm because it does not support the corroborative evidence which was available on record because there are material contradictions and omissions in the statements of PW 1 and PW2, the parents of the deceased about the demand of dowry and in their first police diary statements which were recorded by police at Dabra. The father of the deceased had not disclosed anything about the ill-treatment or demand of dowry. Father of the deceased (PW1) admitted that when he asked her daughter about the cause of death, she did not disclose anything. Father of the deceased (PW1) himself admitted at Gwalior hospital that the deceased stated that she was burnt by her husband. But the statement given by the deceased cannot be accepted because it has no corroborative evidence regarding the demand of dowry or that she was burnt by the husband because this fact she never disclosed at the time of first dying declaration which was very elaborate and recorded by the doctor in the question and answer form Furthermore, in this case, the evidence regarding the demand of dowry is not sufficient because on this point there are material contradictions and omissions in the statements of both the witnesses. Before the date of occurrence, the father of the deceased, the mother of the deceased and the deceased herself never made any complaint against the husband for demand of dowry. 18. Before the date of occurrence, the father of the deceased, the mother of the deceased and the deceased herself never made any complaint against the husband for demand of dowry. 18. The statement of PW2 shows about the oral dying declaration. Nobody was present at the time when the deceased told her mother the facts and secondly she died soon after the statement at that time what was her mental condition, it is also not proved. The prosecution has failed to establish that there was persistent demand of scooter by way of dowry from the parents of the deceased. Although she died due to bum yet she had not made any complaint against anybody in the dying declaration EX.D-4. Therefore, from her own written dying declaration, it is not proved that the appellant is responsible for bums of the deceased. The evidence disclosed that her husband took her to the hospital. He remained present in the hospital throughout till her death and also performed her last rites till then there was no complaint made by the parents of the deceased about the demand of dowry or the death was caused due to the act of the appellant. Therefore, the oral dying declaration which was given by the deceased to her mother i.e. PW2 is a very weak and infirm in comparison to the recorded dying declaration EX.D-4. 19. In view of the above discussion, it is not established that the appellant is responsible for the death of the deceased, hence, death due to demand of dowry is not established, therefore, the presumption under section 113B would not be applicable. 20.Therefore, the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. It is an established principle that suspicion, however strong, cannot take place of proof. In the circumstances, the findings recorded by the trial Court cannot be sustained and deserves to be set aside. Therefore, the judgment of conviction and sentence as recorded' by the trial Court is hereby set aside. The amount of fine, if realized, shall be returned to the appellant. Consequently, the appeal stands allowed.