JUDGMENT V. Ramkumar, J. 1. The revision petitioner (M. Moidu) who was the sole accused in SC 72 of 1993 on the file of the Addl. Asst. Sessions Court, Thalassery challenges the conviction entered and the sentence passed against him for an offence punishable under S.306 IPC as confirmed by the Sessions Judge, Thalassery in the judgment dated 18/05/1994 in Crl. Appeal No. 256 of 1994. 2. THE CHRONOLOGICAL EVENTS The following is the chronological narration of the facts and events as unfolded by the oral and documentary evidence: A. Accused Moidu then aged 18 years and belonging to Poyiloor married deceased Sakeena then aged 18 years and hailing from Kadavathoor which is situated about 7 kms. away from Poyiloor. The marriage was on 27/03/1988. It was an arranged marriage and conducted in accordance with the custom and rites of Muslim community. B. After the marriage, Sakeena was taken to her matrimonial home called Kattoth House in Poyiloor North in Thrippangottur Amsom. It is a building having upstair portion. There are eight other neighbouring houses situated very near to Kattoth House. C. Ext. D1 is a letter sent by Kuttiali (PW 1) the father of deceased Sakeena to Mammu, the father of the accused. In this letter dated 29/06/1988 PW 1 sent pleasantries to Mammu and expressed complete satisfaction over the happy matrimony of his daughter. D. The Occurrence: At about 11 a.m. on 26/11/1988 hearing the loud weeping and wailing from Kattoth House, the neighbours including PW 10 (T. P. Chandran) rushed to the said house. PW 10 is residing 30 metres away from Kattoth house. On reaching there PW 10 noticed that many people had thronged the house. The room on the upstairs of Kattoth house was seen locked from inside. Soon the door was broke open and PW 10 and others entered the room. In the inner room they found Zakeena in a burnt condition. Zakeena was seen tied to the garner with two rounds of rope around her waist. She was in a standing posture with both her hands stretched apart. Those who went inside the room cut the knots. Zakeena was soon carried downstairs and was rushed to the Government Hospital, Thalassery. E. At 11.50 a.m. on 26/07/1988 Zakeena was examined by PW 7 (Dr. Raveendran), Assistant Surgeon of Government Hospital, Thalassery. Ext. P3 is the wound certificate hurriedly prepared by PW 7. Those who went inside the room cut the knots. Zakeena was soon carried downstairs and was rushed to the Government Hospital, Thalassery. E. At 11.50 a.m. on 26/07/1988 Zakeena was examined by PW 7 (Dr. Raveendran), Assistant Surgeon of Government Hospital, Thalassery. Ext. P3 is the wound certificate hurriedly prepared by PW 7. The doctor found Mymoonath (Zakeena) aged 18 years, C/o. Moidu, Kattoth House, P. O. Poyiloor in an unconscious state with 50% burns. She was stated to have been brought by Mahamood, a relative. She was referred to the Medical College Hospital, Kozhikode. Except stating the above details PW 7 had not filled up columns 7 and 11 to 18 of Ext. P3 wound certificate. Regarding the history and alleged cause what is written in Ext. P3 is the following: - XXX . (She was found in the room burnt all over the body). Zakeena was then rushed to the Medical College Hospital, Kozhikode and admitted as an inpatient. (Ext. P4 postmortem certificate shows that her I. P. Number was 30264). F. PW 1 (Kuttiali), the father of Zakeena was in Bangalore. Hearing the news about Zakeenas episode, he came to Kerala and reached Poyiloor in the night of 26/07/1988. G. On 27/07/1988 at about 9.30 a.m. PW 1 gave Ext. P1 first information statement about the occurrence to PW 11 (Chappan Nambiar, ASI, Kolavalloor Police Station). The said statement was given from the Medical College Hospital. This is what PW 1 told PW 11 in Ext. P1 FIS. "Sakeena was given in marriage to the accused four months ago. On the previous day his daughter had poured kerosene all over her body and had set fire to herself. She has been admitted in the Medical College Hospital in a serious condition. The members of PW 1s family and the family of Moidu the husband of Zakeena have been getting along very cordially and lovingly after Zakeenas marriage. Zakeena has been living very happily and she had not told him or others about any difficulty in her matrimonial home. He does not know the reason as to why Zakeena attempted to commit suicide by pouring kerosene on her body and setting fire to herself."� H. In the body note prepared by PW 11 and seen incorporated in Ext. Zakeena has been living very happily and she had not told him or others about any difficulty in her matrimonial home. He does not know the reason as to why Zakeena attempted to commit suicide by pouring kerosene on her body and setting fire to herself."� H. In the body note prepared by PW 11 and seen incorporated in Ext. P7 FIR the ASI after seeing the body of Zakeena has observed that her entire body is burnt and except for a portion behind the head her entire hair has been charred. She is lying unconscious with both her eyes closed. After reaching the Kolavalloor Police Station PW 11 registered the case at 6.30 p.m. on 27/07/1998 as Crime No. 57 of 1998 against Zakeena under S.309 IPC for attempting to commit suicide. I. PW 12 (P. K. Balachandran) the Sub Inspector of Police, Kolavalloor visited the house of occurrence namely Kattoth House on 28/07/1988 and prepared Ext. P6 scene mahazar as per which he seized MOs 1 to 9. J. On 28/07/1988 while undergoing treatment in the Medical College Hospital, Zakeena delivered a still born foetus. K. At 4.30 p.m. on 28/07/1988 PW 12 held inquest over the dead foetus. PW 1 (Kuttiali) and his wife Aysha (PW 2) were questioned at the time of the said inquest. Ext. P8 is the inquest report prepared by PW 12. L. On 30/07/1988 PW 9 (Dr. A. Ramachandran), Professor of Forensic Medicine and Police Surgeon, Medical College Hospital, Kozhikode, conducted postmortem over the aforesaid foetus. Ext. P5 is the postmortem certificate issued by PW 9. In Ext. P5 certificate, PW 9 has opined that it is a dead male foetus with an intra uterine life of above 4 months and below five months. PW 9 when examined before Court has also given evidence in terms of the above opinion and no clarification whatsoever was sought by the Public Prosecutor with regard to the age of the foetus as convincingly stated by PW 9. (The evidence of PW 9 coupled with Ext. P5 certificate shows that Zakeena was pregnant on the date of her marriage on 27/03/1988). M. On being informed from the Medical College Hospital that Zakeena had regained consciousness, PW 11 (the ASI of Police) claims to have gone to the Medical College Hospital and recorded her statement on 06/08/1988. (The evidence of PW 9 coupled with Ext. P5 certificate shows that Zakeena was pregnant on the date of her marriage on 27/03/1988). M. On being informed from the Medical College Hospital that Zakeena had regained consciousness, PW 11 (the ASI of Police) claims to have gone to the Medical College Hospital and recorded her statement on 06/08/1988. (But the said statement has not been produced by the prosecution). PW 13 (Ittoop) the Dy.S.P., Thalassery would say that he had seen the statement in the case diary files but he too has not offered any explanation for the non - production of the said statement before Court. N. On 06/08/1988 PW 11 submitted an application before the Judicial II Class Magistrate, Kunnamangalam, requesting the Magistrate to record the dying declaration of Zakeena. This written request is found along with Ext. P2 dying declaration. In the said request it is stated that Zakeena was unconscious and was not in a position to give a statement on 27/07/1988 and while undergoing treatment she has regained consciousness on 06/08/1988 and according to Dr. P. K. Appukuttan (PW 6) Zakeenas condition continues to be in danger and there is the likelyhood of Zakeena bidding farewell to this world. O. On 06/08/1988 at 5.30 p.m. Sri. Mohammed Ali (PW 5) who was the Judicial Magistrate of II Class, Kunnamangalam and who had only two years of judicial service proceeded to the Medical College Hospital, Calicutt and recorded Ext. P2 dying declaration of Zakeena running into 10 pages. Ext. P2 dying declaration is recorded in a narrative form in the presence of Aysha (PW 2 the mother of Zakeena) and one P. P. Abdul Rahman, paternal uncle of Zakeena and also Dr. P. K. Appukuttan (PW 6). On all the pages towards the bottom we find the signature of PW 5 (the Magistrate) and the right thump impression of Zakeena. At the foot of Ext. P2 statement on the last page (that is page No. 10) of Ext. P2 there is an endorsement as follows: "Patient is conscious and she can give a coherent speech."� Below the said endorsement there is the signature of PW 6 (Dr. Appukuttan) as well as his designation seal indicating that he is the Professor of Plastic Surgery. P2 statement on the last page (that is page No. 10) of Ext. P2 there is an endorsement as follows: "Patient is conscious and she can give a coherent speech."� Below the said endorsement there is the signature of PW 6 (Dr. Appukuttan) as well as his designation seal indicating that he is the Professor of Plastic Surgery. (PW 6 has admitted during evidence that after recording the dying declaration the Magistrate came to his room and obtained his signature on Ext. P2 dying declaration). On the last page of Ext. P2 there is the left thump impression of PW 2 Aysha and the signature of P. P. Abdul Rahman. PW 5 has once again signed at the foot of page 10. (It is pertinent to note that while according to PW 5 the dying declaration was taken in the presence of PWs 2 and 6 and P. P. Abdul Rahman, PWs 2 and 6 would deny their presence when the statement was taken by PW 5. Among the aforesaid persons P. P. Abdul Rahman was not examined before Court). P. Ext. P2 dying declaration by Zakeena recorded in vernacular Malayalam is to the following effect: "My marriage was on 17/03/1988. It was with lot of hopes that I went to my husbands house. I wished to talk a lot to my husband. I waited for my husband. But he did not come. I slept alone. I waited till the morning. Next day also I slept alone. The second day my husband came and slept suddenly. Next day also he slept. The fourth day after the marriage he kicked me. I did not lie on the cot till the morning. I lay on the floor. After my bath I gave tea to father. I too had tea. At that time I did not see my husband. I saw him only in the night. After 1 1/2 months of marriage I told my husband that I am pregnant. I told him that the child should be brought up. Then he told me to do whatever I wanted to do and he does not want to know anything about it. Asked to consult a doctor. Did not consult the doctor. Husband appropriated one of my rings and had sold the same. After selling the same I was not taken to the doctor. Then he told me to do whatever I wanted to do and he does not want to know anything about it. Asked to consult a doctor. Did not consult the doctor. Husband appropriated one of my rings and had sold the same. After selling the same I was not taken to the doctor. Eventhough he said that they would go on the next day they did not go. Next day went to see four or five movies. All moneys were expended. Four of my rings were taken by him. Father gave me Rs.500/- on the day of Valiya perunnal. On the eve of the Valiya perunnal at 10 O clock in the night I was dragged out of the bathroom and pushed out. I was asked as to whom did I want to show by getting into the bathroom. If I went to bed before that my husband would beat me for some reason or the other. While I was sleeping he used to poke at my belly stating that he would abort my pregnancy. When I said that I want to go home for the Id, he hit me on my head. When I cried he beat me on my chest and head saying that he will kill me. I fell unconscious. Shafeeq had seen me being beaten. When he asked as to why I am beaten, he told that he will kill me. On the night of Id also he caught hold of my hair and abused me calling and said that it will be my deadbody if I am seen here again. Husband went out saving that he could get ladies on paying Rs. 8/-. Mother - in - law said that it was not her sons child but it is somebody elses. She used to say that the pregnancy is due to somebody elses. Once my mother - in - law beat me for breaking a glass. Mother - in - law said that I am always lying down. The day after Id my husband beat me with a stick saying that he is going to Vadakara and if I am seen here when he returns, my deadbody will be seen here. If I wear good dress he will ask whether anyone is coming to see me. Day after Id mother - in - law told me that you have somebody elses pregnancy. If I wear good dress he will ask whether anyone is coming to see me. Day after Id mother - in - law told me that you have somebody elses pregnancy. I went to the room upstairs and set myself ablaze with a matchstick after pouring kerosene on my feet. Then I rolled on the ropes. Then my body was completely burnt. The neighbours came. I was taken to the hospital. The reason for my doing this is due to the threat by my husband that when he returns if he finds me he will cut me with a chopper and kill me. Husband will not take me out anywhere saying that I am black in complexion. I am fed up with the conduct of my husband and my mother - in - law. I am almost mad. They did not give me food. That is why I did this."� Q. On 12/08/1988 at about 1.30 a.m. Zakeena while undergoing treatment in the Medical College Hospital, succumbed to the extensive burn injuries sustained by her. R. At about 2.35 p.m. on 12/08/1988 PW 14 (V. V. Balan) Special Tahsildar, Kozhikode held inquest over the deadbody of Zakeena and at that time he questioned PW 2. PW 1 was not available then. S. On 13/08/1988, PW 13 (K. Ittoop) Dy.S.P. Thalassery took over the investigation of the case. T. On 01/09/1988 PW 13 submitted a report before the Judicial Magistrate of II Class, Koothuparamba to the effect that Zakeena the accused who had attempted to commit suicide has succumbed to the burn injuries that his investigation had revealed that Zakeena committed suicide due to the mental and physical harassment by her husband Moidu and mother - in - law Aysha and requested to delete S.309 IPC and instead add S.498A IPC. U. On 01/09/1988 PW 13 arrested Moidu the husband of Zakeena and Ayzha the mother - in - law of Zakeena and produced both of them before the Judicial Magistrate of the Second Class, Koothuparamba along with a remand report. The bail application of A1 (Moidu) was rejected by the Magistrate on 01/09/1988 and A1 was remanded to judicial custody. A2 was, however, released on bail she being an old woman. The bail application of A1 (Moidu) was rejected by the Magistrate on 01/09/1988 and A1 was remanded to judicial custody. A2 was, however, released on bail she being an old woman. V. Since the altered offence punishable under S.498A IPC could not be tried by the II Class Magistrate, on 01/09/1988 PW 13 submitted a report before the Magistrate to transfer the case records to the Addl. Chief Judicial Magistrate, Thalassery. Accordingly, the records of the case were transferred to the Court of the Addl. Chief Judicial Magistrate, Thalassery. W. On 03/09/1988 the Sessions Judge (Sri. K. P. Bala Narayana Marar (who subsequently became a Judge of this Court and who later passed away after his retirement) granted bail to A1 (Moidu). X. On 20/02/1989 PW 13 concluded the investigation and prepared the final report (charge - sheet). Y. On 16/05/1989, PW 13 submitted the final report before the Addl. Chief Judicial Magistrate, Thalassery, against Moidu (the revision petitioner herein) then shown as aged 21 years and his mother Aysha (35 years) charge - sheeting them for an offence punishable under S.498A read with S.34 IPC. The allegations in the charge - sheet are to the following effect: "Zakeena, aged 18 years, D/o. Kuttyali of Eranjolikandi of Thrippangottur amsom and Kadavathur desom was married by Moidu, S/o. Mammu of Kattoth House in Poyiloor on 27/03/1988. While Zakeena was residing in her matrimonial house, A1 and A2 started scolding and harassing her and inflicted corporal torture on her by alleging that she was not good looking, that her people had cheated them by promising wealth and that she had brought her pregnancy from her house. Unable to bear the incessant cruelty and ill - treatment by A1 and A2, Zakeena on 26/07/1988 at about 11 a.m. from the room on the upstair portion of the house belonging to the accused persons poured kerosene on her body and set fire to herself with a view to commit suicide. Zakkeena was admitted in the Medical College Hospital, Calicut with extensive burns and while undergoing treatment there she succumbed to the burns at 1.30 in the night of 11/08/1988. The two accused persons have thereby committed an offence punishable under S.498A read with S.34 IPC. Z. On 17/05/1989 the Addl. Chief Judicial Magistrate took cognizance of the offence and registered the case as CC 102 of 1988. Aa. The two accused persons have thereby committed an offence punishable under S.498A read with S.34 IPC. Z. On 17/05/1989 the Addl. Chief Judicial Magistrate took cognizance of the offence and registered the case as CC 102 of 1988. Aa. THE FIRST TRIAL: On 25/07/1989, the Addl. Chief Judicial Magistrate framed charge against the two accused persons for the offence punishable under S.498 A read with S.34 IPC and posted the case for evidence. Ab. On 16/08/1991 A2 (Aysha) was reported to be dead. Thereafter the trial proceeded with A1 (revision petitioner) alone on the array of accused. In the trial 8 witnesses were examined and two documents were marked. Ac. On 11/06/1993 Sri. P. Ubaid, the Addl. Chief Judicial Magistrate while conducting the trial observed that the offence which was prima facie made out was really one punishable under S.306 IPC and since the said offence was exclusively triable by a Court of Sessions, invoking S.323 read with S.209 CrPC Sri. Ubaid committed the case to the Court of Session, Thalassery. Ad. After receipt of records the Sessions Judge, Thalassery, made over the case to the Addl. Assistant Sessions Judge, Thalassery, for trial. Ae. THE SECOND TRIAL: On 31/01/1994 Sri. C. V. K. Unni, the Addl. Assistant Sessions Judge, Thalassery, framed a charge against the revision petitioner for an offence punishable under S.306 IPC. On the revision petitioner pleading not guilty to the charge framed against him, the prosecution was permitted to adduce evidence in support of its case. Af. On 21/07/1994, the evidence for the prosecution was started. Strangely enough, the Officer who presided over the Addl. Assistant Sessions Court was none other than Sri. P. Ubaid, the Addl. Chief Judicial Magistrate who had earlier committed the case to the Court of Session at the fag - end of the trial of CC No. 102 of 1989. Ag. The prosecution altogether examined 14 witnesses as PWs 1 to 14 and got marked 9 documents as Exts. P1 to P9 and 9 material objects as MOs 1 to 9. Ah. After the close of the prosecution evidence the revision petitioner was examined under S.313(1)(b) CrPC with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. P1 to P9 and 9 material objects as MOs 1 to 9. Ah. After the close of the prosecution evidence the revision petitioner was examined under S.313(1)(b) CrPC with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He submitted before Court that after Zakeena had sustained the burn injuries, she had delivered a child and at that time there was an altercation between her father PW 1 and his father and he was thereafter implicated in this false case on account of the enmity arising out of the said dispute. He is innocent. Ai. The learned Addl. Assistant Sessions Judge, (Sri. Ubaid) Thalassery, after trial, as per judgment dated 30/08/1994 found the revision petitioner guilty of the offence punishable under S.306 IPC and sentenced him to rigorous imprisonment for four years. On appeal preferred by the revision petitioner as Crl. Appeal No. 256 of 1994 before the Sessions Judge, Thalassery, the learned Sessions Judge as per judgment dated 18/05/1996 dismissed the appeal confirming the conviction entered and the sentence passed against the appellant. Hence this revision. 3. THE BAR ASSISTANCE I heard Sr. Advocate Sri Janardhana Kurup ably assisted by Adv. Sri. Jai George, appearing for the revision petitioner and Adv. Sri. P. R. Jayakrishnan, the learned Public Prosecutor, who defended the State. 4. The only point which arises for consideration in this Revision is as to whether the conviction entered and the sentence passed against the revision petitioner suffer from any illegality, irregularity or impropriety so as to warrant interference by this Court. 5. THE POINT . The Courts below have mainly relied on the oral testimony of PWs 1 to 3 and Ext. P2 dying declaration recorded by PW 5 (JSCM, Kunnamangalam) to hold that it was the matrimonial cruelty meted out by the revision petitioner (A1) and his mother (A2 - who died before the commencement of the trial in this case) which drove Zakeena to commit suicide. 6. THE PROSECUTION WITNESSES PWs 1 and 2 (Kuttiali and Aysha) are the parents of deceased Zakeena. PWs 3 and 4 (Pathu and Aboobacker) are the neighbours of Zakeena at Kadavathoor. PW 5 (Mohammedali) was the Judicial Second Class Magistrate, Kunnamangalam who recorded Ext. P2 dying declaration of Zakeena. PW 6 (Dr. 6. THE PROSECUTION WITNESSES PWs 1 and 2 (Kuttiali and Aysha) are the parents of deceased Zakeena. PWs 3 and 4 (Pathu and Aboobacker) are the neighbours of Zakeena at Kadavathoor. PW 5 (Mohammedali) was the Judicial Second Class Magistrate, Kunnamangalam who recorded Ext. P2 dying declaration of Zakeena. PW 6 (Dr. P. K. Appukuttan) was the Professor of Plastic Surgery in the Medical College, Hospital, Kozhikode. He claims to have certified that Zakeena was fit to give a statement to the Magistrate. PW 7 (Dr. Raveendranath) was the Assistant Surgeon in the Government Hospital, Thalassery who referred Zakeena to the Medical College Hospital. He proved Ext. P3 incomplete wound certificate. PW 8 (Dr. Raveedranathan @ Ravi) was the Assistant Professor of Forensic Science, Medical College Hospital, Kozhikode. He conducted the autopsy over the deadbody of Zakeena and issued Ext. P4 postmortem certificate. PW 9 (Dr. Ramachandran) conducted autopsy over the dead male foetus delivered by Zakeena and issued Ext. P5 postmortem certificate as per which the foetus was having an intra uterine life of above 4 months and below 5 months. PW 10 (Chandran) is a neighbour of the accused. He was one among those who broke upon the door and rescued Zakeena who was seen burnt all over her body. PW 11 (Chappan Nambiar) was the ASI of Kolavalloor Police Station who recorded Ext. P1 FI Statement of PW 1 and registered Ext. P7 FIR against Zakeena for an offence punishable under S.309 IPC. PW 12 (P. K. Balachandran) was the Sub Inspector of Kolavalloor Police Station who held inquest over the dead foetus and prepared Ext. P8 inquest report. PW 13 (Ittoop) was the Dy.S. P., Thalassery who conducted the subsequent investigation culminating in the laying of charge. PW 14 (V. V. Balan) was the Special Tahsildar, Kozhikode who held inquest over the dead body of Zakeena and prepared Ext. P9 inquest report. 7. JUDICIAL EVALUATION The evidence of PWs 1 to 6 can now be considered. PW 1 (Kuttiali) is the father of Zakeena. He was in Bangalore at all relevant times and he came to Kozhikode only after the hospitalisation of Zakeena pursuant to the occurrence on 26/11/1988. The acts of cruelty deposed to by PW 1 are the following: i) Zakeena was unhappy and uneasy in her matrimonial home. ii) Her husband and mother - in - law were treating her very badly. The acts of cruelty deposed to by PW 1 are the following: i) Zakeena was unhappy and uneasy in her matrimonial home. ii) Her husband and mother - in - law were treating her very badly. iii) Soon after the marriage Zakeena became pregnant and her pregnancy was four moths old when she died by committing suicide. Zakeena used to be harassed saying that she had brought the pregnancy with her and that Moidu the revision petitioner was not the father of the child in her womb. iv) Her husband told her that his friends were teasing and ridiculing him on account of her instant pregnancy and he therefore compelled her to abort her pregnancy. But she resisted the same. v) Her husband used to tell her that she was not beautiful and was dark in complexion and that he married her yielding to the pressure of his father and that he does not want her. vi) Even on the first night her husband did not step his foot into the nuptial chamber. The next day he reluctantly came to the room when compelled to do so. vii) Her husband used to manhandle her daily. viii) Even on the day she sustained the burns he had beaten her with the stem of a palm leaf. After beating her he went out saying that he should not see her when he returned. ix) Her husband used to harass her saying that her father cheated him and did not give him assets. x) Her husband had sold her gold ring. xi) It was unable to bear the cruelty and ill - treatment by her husband and mother - in - law that Zakeena decided to commit suicide by self immolation. According to PW 1 the above acts of cruelty were revealed to him by Zakeena after she regained consciousness pursuant to her sustaining the burn injuries. But according to his wife Aysha (PW 2) she was aware of the miseries of Zakeena in her matrimonial home as narrated to her by Zakeena herself when after her marriage Zakeena came and stayed with her for 10 days and that was 20 days prior to the occurrence. It is admitted by PW 1 that it was after meeting his wife (PW 2) that on 27/07/1988 he gave Ext. P1 FIS. In Ext. It is admitted by PW 1 that it was after meeting his wife (PW 2) that on 27/07/1988 he gave Ext. P1 FIS. In Ext. P1 the categoric statement of PW 1 is that his daughter was very happy in her matrimonial home and both the families were keeping very cordial relations and he does not know the reason which prompted Zakeena to attempt to commit suicide. Ext. D1 letter sent by PW 1 on 29/06/1988 (i.e. 3 months after the marriage of Zakeena) to Mammu, the father of the accused also shows the joy and happiness of PW 1 over his daughters alliance. This suggests that it was after the death of Zakeena that PW 1 and his family members began to take a diametrically opposite stand in the matter. The case of the revision petitioner is also that the two fathers fell out each other pursuant to the return of Zakeenas ornaments as evidenced by Exts. D4 and D5 receipts proved by DW 2 who participated in the talks. 8. PW 2 (Aysha) is the mother of Zakeena. According to her Zakeena who had studied up to the 10th standard had come and stayed in her house three times after her marriage and on the 3rd occasion Zakeena had stayed for 10 days. It was during her 3rd visit that Zakeena had allegedly divulged her miseries in her matrimonial home. In her chief examination PW 2 said that after 10 days stay Zakeena went to her matrimonial home along with her brother Asharaf. But in cross - examination she said that Zakeena went back along with her husband and Zakeena was reluctantly accompanying her husband. PW 2 had no case when she was questioned by the police during inquest that Zakeena was ill - treated in her matrimonial house. She categorically denied that she was present when PW 5 (Magistrate) recorded the dying declaration of Zakeena. But PW 5 fairly conceded that the dying declaration of Zakeena was recorded in the presence of PW 2, P. P. Abdul Rahman (paternal uncle of Zakeena) and Dr. P. K. Appukuttan (PW 6). According to PW 2 after recording the dying declaration the Magistrate called her and Abdul Rahman to another room and took their signatures in the dying declaration. A perusal of Ext. P. K. Appukuttan (PW 6). According to PW 2 after recording the dying declaration the Magistrate called her and Abdul Rahman to another room and took their signatures in the dying declaration. A perusal of Ext. P2 dying declaration would indicate that the acts of cruelty recorded there are the very same acts spoken to by PWs 1 and 2. Much strain is not necessary to infer that the case of cruelty put forward by PW 2 is nothing but an after - thought. As mentioned earlier, Ext. P5 post - mortem certificate and the unchallenged testimony of PW 9 show that Zakeena on her death (which was exactly after four months of her marriage) was carrying a 4 1/2 to 5 month old child in her womb which means that on the date of her marriage she was pregnant. If according to PW 2 the last mensus of Zakeena was on the previous day of her marriage, then the intra - uterine age of a foetus conceived after the marriage could only be less than 3 1/2 months. 9. PW 3 (Pathu) is a neighbour of Zakeena at Kadavathur. According to her, when Zakeena after her marriage, came to her parental home at Kadavathoor for 10 dayss stay in accordance with the custom, Zakeena is alleged to have divulged to PW 3 the miseries and ill - treatment which she had put up with in her matrimonial home. When even the parents of Zakeena were not aware of the alleged matrimonial cruelty to Zakeena, it is unlikely that the girl would have confided with this middle aged woman (PW 3) about her sufferings including a demand for assets and an allegation that she was pregnant on the date of her marriage. She had no such case before the police. She too claims to have been with Zakeena in the hospital and it is quite likely that she also would have played a major role in influencing and conditioning Zakeena to give a garbled version to the Magistrate (PW 5). 10. PW 4 (Aboobacker) is yet another neighbour of Zakeena at Kadavathoor. Even the Courts below did not give much credence to the testimony of this witness. He is admittedly related to PW 1 and claims to be like a member of the family of PW 1. 10. PW 4 (Aboobacker) is yet another neighbour of Zakeena at Kadavathoor. Even the Courts below did not give much credence to the testimony of this witness. He is admittedly related to PW 1 and claims to be like a member of the family of PW 1. He would have it that two days prior to the occurrence he had met Zakeena in her matrimonial home and at that time Zakeena is alleged to have divulged to him the very same acts of cruelty as were revealed by PWs 1 to 3. This witness also had no such case when questioned by the police. It is pertinent to note that PW 10 who is also a neighbour of the revision petitioner had no case that the revision petitioner and Zakeena were not on cordial terms. On the contrary, he would say that he was not aware of any discordant note between the revision petitioner and Zakeena. 11. The only other material relied on by the Courts below to enter a conviction against the revision petitioner is Ext. P2 dying declaration recorded by PW 5 the Magistrate. A perusal of Ext. P4 postmortem certificate and the body note recorded in Ext. P7 FIR will clearly show that Zakeena had sustained extensive born injuries almost affecting her entire body. Even the testimony of PW 10 shows that when they broke open the door and entered the room the body of Zakeena was fully burnt. She was brought to the Government Hospital, Thalassery and thereafter to the Medical College Hospital, Kozhikode in an unconscious state. After the occurrence on 26/07/1988, it was on 06/08/1988 that she is alleged to have regained consciousness. A statement allegedly recorded by PW 11 the ASI of Police, from Zakeena on that day has been suppressed. If this case of PW 11 was true it was a vital document whose existence was confirmed by PW 13 but not produced before Court. A statement allegedly recorded by PW 11 the ASI of Police, from Zakeena on that day has been suppressed. If this case of PW 11 was true it was a vital document whose existence was confirmed by PW 13 but not produced before Court. In Sheikh Meheboob v. State of Maharashtra, 2005 KHC 640 : 2005 (10) SCC 387 : 2005 (2) KLT SN 39 : AIR 2005 SC 1805 : 2005 (2) KLD 123 the Apex Court accepted the argument of the appellant / accused therein that failure on the part of the prosecution to produce a vital document whose existence was affirmed by a witness leaves a yawning gap in the story of the prosecution and that it would give rise to an adverse inference that had the document been produced it would have disproved the case of the prosecution. 12. The possibility of tutoring deceased Zakeena by her mother, PW 2, her paternal uncle Abdul Rahman and even by PW 3 cannot be ruled out because all of them were there near her in the Medical College Hospital. Although PWs 2 and 3 would deny their presence at the time of PW 5 recording Zakeenas dying declaration, the Magistrate has admitted that PW 2 the mother of Zakeena, PW 6 Dr. Appukuttan and Abdul Rahman the paternal uncle of Zakeena were present when he recorded Zakeenas dying declaration. The statement of the Magistrate gains corroboration from Ext. P2 statement itself wherein the signatures of PW 6 and Abdul Rahman and the left thump impression of PW 2, the mother of Zakeena are to be found. A perusal of Ext. P2 dying declaration goes to show that it contains all the overt acts attributed to the revision petitioner and his mother by PWs 1 to 4. Hence, even if Zakeena was in a position to give a statement on 06/08/1988 it is nothing but an inspired and tutored statement given under the influence of the aforesaid close relatives who were interested in hiding the truth and implicating the accused. (See -- P. Mani v. State of Tamil Nadu, 2006 KHC 383 : AIR 2006 SC 1319 : 2006 (3) SCC 161 : JT 2006 (2) SC 607 : 2006 CriLJ 1629, Mohan Lal and Others v. State of Haryana, 2007 KHC 3225 : 2007 (9) SCC 151 : JT 2007 (3) SC 602. Ext. (See -- P. Mani v. State of Tamil Nadu, 2006 KHC 383 : AIR 2006 SC 1319 : 2006 (3) SCC 161 : JT 2006 (2) SC 607 : 2006 CriLJ 1629, Mohan Lal and Others v. State of Haryana, 2007 KHC 3225 : 2007 (9) SCC 151 : JT 2007 (3) SC 602. Ext. P2 dying declaration is running into 10 pages and is in a narrative form. It is improbable that Zakeena would have given such a long statement in the precarious condition in which she was at that point of time. (See -- Mohar Singh and Others v. State of Punjab, 1981 KHC 735 : AIR 1981 SC 1578 : 1981 Supp SCC 18 : 1981 SCC (Cri) 638 : 1981 CriLJ 998). Shakuntala v. State of Punjab, AIR 1994 SC 220 5 was a case resting mainly on a dying declaration. Apart from the inconsistencies in the dying declaration, medical evidence showed that the burns sustained by the lady were cent percent and for some time she was unconscious and was not in a fit condition to make a statement. The Apex Court eschewed the dying declaration from consideration holding that it was unsafe to base a conviction on such dying declaration. It must be remembered that at that point of time Zakeena herself was an accused for an offence punishable under S.309 IPC and she would have been interested in exculpating herself and pointing an accusing finger at her husband and mother - in - law. It will be unsafe to rely on Ext. P2 dying declaration for the inherent inconsistency contained in the statement itself. Going by the testimony of PW 10 (Chandran) he had seen Zakeena tied down to the garner with both hands stretched and two rounds of rope were seen tied around her waist. But in Ext. P2 what she has stated is that she poured kerosene on her feet and then lighted a matchstick and set fire to her legs and then rolled on the rope. It is pertinent to note that PW 10 did not notice any mark of rolling on the ropes. But in Ext. P2 what she has stated is that she poured kerosene on her feet and then lighted a matchstick and set fire to her legs and then rolled on the rope. It is pertinent to note that PW 10 did not notice any mark of rolling on the ropes. In the face of such glaring inconsistency it will be unsafe to rely on such a statement as was observed by the Supreme Court in Shakuntala v. State of Punjab, 1995 KHC 700 : AIR 1994 SC 220 : 1995 Supp (4) SCC 498 : 1994 SCC (Cri) 1781. There is also the added infirmity of the statement having not been read over to Zakeena as enjoined in Bakshish Singh v. State of Punjab, 1957 KHC 477 : AIR 1957 SC 904 : 1957 KLT SN 163 : 1958 SCR 409 : 1957 CriLJ 1459. What Ext. P2 statement contains is the right thump impression of Zakeena on all the pages. PW 5, the Magistrate himself has admitted that both hands of Zakeena were bandaged and her face was completely burnt. Ext. P4 postmortem certificate shows that her right thump had a healing burn injury. Under these circumstances, it is difficult to believe that the thump impression found on all pages of Ext. P2 are the right thump impression of Zakeena as it purports to do. (See -- State of Punjab v. Gian Kaur, 1998 KHC 588 : AIR 1998 SC 2809 : 1998 (2) KLT SN 74 : 1998 CriLJ 2061 : 1998 AIR SCW 1407 : 1998 (2) CRIMES 25 : JT 1998 (2) SC 563 : 1998 (2) SCALE 393 : 1998 SCC (Cri) 942 : 1998 (3) Supreme 179 ). Even though PW 5 (the Magistrate) claims to have ascertained before - hand the fitness of Zakeena to give a coherent statement to PW 5, it is admitted that the endorsement from PW 6 (Dr. Appukuttan) to the effect that Zakeena was fit to give a statement, is obtained only on the last page (page No. 10) of Ext. P2 after the entire dying declaration has been recorded PW 6 (doctor) himself was a chance witness who had not treated Zakeena. He is a plastic Surgeon who had not performed any surgery on Zakeena. He happened to be there only because he was on rounds in the wards. P2 after the entire dying declaration has been recorded PW 6 (doctor) himself was a chance witness who had not treated Zakeena. He is a plastic Surgeon who had not performed any surgery on Zakeena. He happened to be there only because he was on rounds in the wards. According to PW 6, he was not present when the dying declaration was taken and after recording the dying declaration the Magistrate came to his room and obtained his signature below the endorsement on the last page of Ext. P2 that Zakeena was fit to give a coherent speech. 13. It has already been observed that there is unimpeachable medical evidence to show that on the date of marriage Zakeena was pregnant. It is not known as to whether her pregnancy was known to the accused on the date of her marriage. But there is evidence of PW 2 to the effect that the revision petitioner had refused to step his foot into the nuptial chamber even on the first night. On the 2nd night also he had to be compelled to enter the bed room. Ext. P2 also contains similar statements. Possibly, the revision petitioner got some hint about her pregnancy and he might have even expressed his remonstrance in accepting her as his life's partner. When the husband discovers that his wife is pregnant through somebody, naturally all his dreams about a happy matrimony will stand shattered. Moidu also might not have been an exception. Hence, if on realising the shocking fact about the bride Moidu reacted violently or used some rude language at her, that certainly cannot be a reason to commit suicide. In Sanju alias Sanjay Singh Sengar v. State of M.P., 2002 KHC 1270 : AIR 2002 SC 1998 : 2002 (5) SCC 371 : 2002 SCC (Cri) 1141 : 2002 CriLJ 2796 the Apex Court held that even a remark to the deceased to go and die would not amount to instigation to commit suicide. In Kunju v. State, 1986 KLT SN 17 (Case No. 33) a Division Bench of this Court observed as follows: "When ladies are faced with disappointments in life or find their environment so unhealthy or unhappy, it is possible that they become desperate and decide to end their life forgetful of the consequences. Suicide is a means of handling aggressive impulses generated by frustration. Suicide is a means of handling aggressive impulses generated by frustration. Feelings of revenge can also be associated with it. Sensitive and sentimental women when they are tired of life due to unexpected behaviour from relations can become desperate to any extent. The spirit of revenge can even force them to commit suicide with a view to destroy those who are considered responsible for their maladies in life. The feeling of helplessness in future life and the gloomy future are factors which could prompt a lady to do the extreme."� It is nobodys case that the death of Zakeena was homicidal. On the contrary, the admitted case is that she committed suicide. Even in Ext. P2 statement she told the Magistrate that she committed suicide by pouring kerosene over the body and setting herself ablaze. May be, it was her guilty feeling which triggered the stimulus to end her life for all. But her husband was not to be blamed for that. 14. It is really unfortunate that the revision petitioner became the victim of a concatenation of adverse circumstances. It was with great expectations that at the age of 18 he unsuspectingly beckoned Zakeena into a seemingly blissful wedlock. But on the date of marriage itself he realised, to his utter dismay and shock, that the bride was pregnant. Evidently, Zakeena who was presumably pregnant through somebody was being thrust upon Moidu. The fate was again cruel to him. Those who were responsible for foisting her on Moidu made an orchestrated attempt to see that the parting gift of Zakeena also was a false implication. Moidu had to undergo the ordeal of two trials - one at the hands of the Addl. Chief Judicial Magistrate and another at the hands of the Addl. Assistant Sessions Judge. The unique feature of this case is that the trials at both levels were conducted by the very same judicial officer. I refrain from making any comments at the way in which an inexperienced counsel (also presumably thrust upon him by party men) conducted Moidus case before the Trial Court. No attempt was made to confront the prosecution witnesses with their case diary statements or their depositions in the earlier trial. I refrain from making any comments at the way in which an inexperienced counsel (also presumably thrust upon him by party men) conducted Moidus case before the Trial Court. No attempt was made to confront the prosecution witnesses with their case diary statements or their depositions in the earlier trial. Had it not been for the long delay of 22 years, I would have ordered a retrial for the poor lawyering and deficiency in service by following the dictum laid down in Abdul Razak v. State of Kerala, 2009 KHC 1027 : ILR 2009 (4) Ker. 84 : 2009 (3) KLJ 343 : 2009 (4) KLT SN 60. The destiny of Moidu continued to be bleak when the Sessions Judge also mercilessly dismissed his appeal. This revision was filed by him way back in the year 1996. Justice eluded him when the plea on his behalf that there was non - compliance of S.232 CrPC thereby vitiating the trial was met with disfavor by a learned Single Judge making a reference of the case and the case eventually finding its way to a Full Bench through a Division Bench to finally hold that non - compliance of S.232 CrPC is not that fatal. (Vide -- Moidu v. State of Kerala, 2009 (3) KHC 89 : 2009 (3) KLT 369 (FB) : 2009 (2) KLD SN 198 : 2009 (2) KLJ 744 : ILR 2009 (3) Ker. 538. It was the prime youth of this hapless man which was lost in the expensive forensic battle. Every seemingly innocuous circumstance betrayed him and the outcome was a verdict of guilty for instigating the suicide of Zakeena who was the real accused who had committed the matrimonial infidelity of hiding the pre - marital conception. No soul wept for him and he paid the price for being indigent. What a sense of social justice with a constitutional vision! In this case the majesty of law always emerged victorious forgetting that its triumph was after holding "justice"� a captive prisoner throughout. The judicial prosecution drove him from the Magisterial forum to the still fearsome Sessions Court where also no ray of hope was forthcoming. What a sense of social justice with a constitutional vision! In this case the majesty of law always emerged victorious forgetting that its triumph was after holding "justice"� a captive prisoner throughout. The judicial prosecution drove him from the Magisterial forum to the still fearsome Sessions Court where also no ray of hope was forthcoming. The concern behind the 50 pages of the Judgment of the Trail Court and that of the Lower Appellate Court, was probably to steer clear of a reference to the pre - marital adventure or accident of Zakeena at the cost of Moidu. 15. The conviction entered and the sentence passed by the Court below overlooking the above vital aspects of the matter cannot be sustained. In fact, the Courts below were misreading and misinterpreting the evidence and have failed to appreciate the evidence in the proper perspective. This gives rise to an error of law which needs to be corrected by this Court notwithstanding the fact that the jurisdiction exercised by this Court is the rarefied revisional jurisdiction. The conviction entered and the sentence passed by the Courts below are accordingly set aside. The revision petitioner is found not guilty of the offence punishable under S.306 IPC and is acquitted thereunder. He shall be set at liberty forthwith. His bail bonds are cancelled.