JUDGMENT Mr. Arvind Kumar, J.:- The appellants were tried and ultimately convicted under Sections 449 and 302 read with Section 34 IPC by the learned Sessions Judge, Kapurthala by dint of judgment dated 14.8.2001. Under the first head rigorous imprisonment for ten years with a fine of Rs.5000/- each has been awarded while under the second head life imprisonment and a fine of Rs.10,000/- each has been imposed. In case of default of payment of fine under any head, the defaulter was further required to undergo rigorous imprisonment for three and six months respectively. Both the sentences were ordered to run concurrently. 2. The facts, necessary for the disposal of instant appeal be noticed first. Appellant Sunita @ Ashu is the wife of brother of co-appellant Kiran Kumar @ Gora and they were residing at Palahi Gate, Phagwara. One Sunita, who was also the resident of same locality, had fallen in love with Kiran Kumar. It is the case of the prosecution that Kiran Kumar @ Gora promised to marry with Sunita, which he did not fulfill and about a day prior to 20.3.1999 solemnized marriage with the younger sister of appellant Sunita @ Ashu. 3. Coming to the day of occurrence i.e. on 20.3.1999 a written intimation was received by the police about the admission of said Sunita in a burnt condition in the hospital, upon which ASI Iqbal Singh (PW12) firstly approached Mr. Manjinder Singh, Judicial Magistrate (PW2) and moved an application (Ex.PE) for recording the statement of Sunita. Consequently, (PW2) Manjinder Singh, JMIC went to the hospital and submitted request (Ex.PF) for recording the dying declaration of injured Sunita. Dr. Kailash Kapur (PW4) vide opinion (Ex.PF/1) declared her fit to give statement and accordingly dying declaration (Ex.PG) was reduced into writing by the Judicial Magistrate and at the last Dr. Kailash Kapur again gave his opinion (Ex.PG/1) regarding fitness of Sunita during the course of her statement. In her statement Sunita apprised the police about her love affairs with Kiran @ Gora and stated that despite the assurance given to her by Kiran @ Gora to marry her, he performed marriage last night by customs of “Chunni”. In the noon time, Ashu and Gora came to her house and at that time she was alone. In her statement Sunita apprised the police about her love affairs with Kiran @ Gora and stated that despite the assurance given to her by Kiran @ Gora to marry her, he performed marriage last night by customs of “Chunni”. In the noon time, Ashu and Gora came to her house and at that time she was alone. Gora caught hold of her from arms while her sister-inlaw sprinkled the oil and set her on fire and then they ran away. She further went on saying that out of her affairs with Gora one son was born but the child was lifted by the accused on the assurance to give Rs.15,000/-. According to her Gora and Ashu burnt her in order to kill, so that she (Sunita) would not disclose her love affairs with Gora to the newly wedded wife of Gora. 4. After the formalities, ASI Iqbal Singh got the copy of the dying declaration on 22.3.1999 and consequently, case FIR No. 24 dated 22.3.1999 was registered against the accused under Sections 307, 452, 34 IPC was registered at Police Station City Phagwara. The site plan of the place of occurrence was got prepared. Unfortunately, on 25.3.1999 Sunita breathed her last and the offence was converted to Section 302 IPC. Dr. Balbir Singh (PW1) conducted the post-mortem on the dead body and in his opinion Sunita died due to septicemic shock leading to cardio respiratory arrest. This witness also found more than 90% burn over the body of the deceased, which were ante-mortem in nature. 5. Later the investigations were taken over by (PW13) SI Sital Singh, who arrested the accused Gora on 10.4.1999 and also recorded the statements of Surinder Pal (PW5) and Jaswinder Pal (PW6), the brother and uncle respectively of the deceased. 6. (PW10) SI Raj Balwinder Singh also investigated the case partially and on completion of investigation submitted the final report under Section 173 Cr.P.C. 7. On appearance, the learned trial Court charge-sheeted the accused under Sections 449 and 302 read with Section 34 IPC. During trial, the prosecution examined as many as 13 witnesses in all, including PW3. Dr. Jatinder Sachar who initially admitted Sunita and treated her and formal witnesses PW7 HC Ram Nath, PW8 C. Makhan Singh and PW9 ASI Ram Lubhaya. On appearance, the learned trial Court charge-sheeted the accused under Sections 449 and 302 read with Section 34 IPC. During trial, the prosecution examined as many as 13 witnesses in all, including PW3. Dr. Jatinder Sachar who initially admitted Sunita and treated her and formal witnesses PW7 HC Ram Nath, PW8 C. Makhan Singh and PW9 ASI Ram Lubhaya. The prosecution examined one Shesh Lal as PW11 who claimed that on 3.4.1999 both the accused suffered extra judicial confession before him in the presence of one Madan Lal regarding the murder of Sunita by them on 20.3.1999 by setting her ablaze. 8. When examined under Section 313 Cr.P.C. the case of the accused was of their false implication. Both the accused, more or less, took the same stand. According to them Sunita(since deceased) wants to marry Gora, but since her character was not free from doubt and she had delivered an illegitimate child, Gora was not interested to marry her. A day prior to the occurrence marriage of Gora was performed with Bindu, younger sister of accused Sunita @ Ashu and thus, out of frustration Sunita set herself on fire and only due to vengeance she named them at the instance of her parents and brother in order to implicate them falsely in this case. Accused Sunita @ Ashu took the plea of alibi as well. 9. In their defence they examined Kamla as DW1 and Shoba as DW2, who deposed about the delivery of Sunita (since deceased) to a male child. 10. The learned trial Court, on conclusion of trial and the evidence adduced by the prosecution, held the appellants guilty under Sections 449 and 302 read with Section 34 IPC and sentenced them in the manner indicated above. 11. We have heard learned counsel for the appellants as well as learned State counsel and with the assistance rendered by them, have carefully gone through the records of the case. 12. In the instant case the death of Sunita due to burns is not in dispute. According to the prosecution she was murdered by the appellants while according to the latter she committed suicide following the frustration which she underwent on her remaining unsuccessful to perform marriage with Gora, who solemnized marriage with Bindu, the sister of appellant Sunita @ Ashu, a day before the incident. 13. According to the prosecution she was murdered by the appellants while according to the latter she committed suicide following the frustration which she underwent on her remaining unsuccessful to perform marriage with Gora, who solemnized marriage with Bindu, the sister of appellant Sunita @ Ashu, a day before the incident. 13. To substantiate the charges against the appellant, the prosecution examined Surinder Pal (PW5) and Jaswinder Pal (PW6), the uncle and brother respectively of the deceased. PW5 claimed that on 20.3.1999 on hearing the shrieks, he went to the house of Sunita and noticed her in burnt condition and she told him that Gora had caught hold of her arms while Ashu poured kerosene oil on fire and set her ablaze. So far as the gist of statement of PW6 Jaswinder Pal is concerned, he stated that on 20.3.1999 he had seen the accused coming out of his house in a perplexed condition and they ran towards their house. He heard the cries of his sistere and when she went inside, he saw her in burnt condition and his uncle Surinder Pal also came there and on enquiry Sunita told them that Gora and Ashu had set her on fire after pouring kerosene oil. To the same effect is the dying declaration (Ex.PG) suffered by Sunita, prior to her death. 14. We have gone through the testimonies of both the aforesaid witnesses and in our considered opinion both of them have been introduced witnesses and were not present at the time of occurrence. It is a matter of record that the statements of both the witnesses were recorded on 17.4.1999 i.e. after about 28 days of the occurrence, by SI Sital Singh, who took over the investigation of the case from earlier investigating officer PW12 ASI Iqbal Singh. The statement of PW12 ASI Iqbal Singh reveals that on 22.3.1999 he met Surinder Pal and neither of the persons to whom he came across during investigation, including Surinder Pal, Satpal and Jaswinder Pal gave any statement regarding the occurrence and it is only on 17.4.1999 they got their statements under Section 161 Cr.P.C. before the SI Sital Singh and thereby disclosed that the deceased, before her death, told to them that she had been burnt by the accused. Another intrinsic circumstance to show the untruth of their statements is that ASI Iqbal Singh got the aforesaid FIR registered on 22.3.1999 only on the basis of dying declaration (Ex.PG) of Sunita recorded by the Magistrate on 20.3.1999. Both of them claimed that they were present in the hospital at the time when statement of Sunita (Ex.PG) was recorded by the Magistrate, but there is nothing on record which is suggestive of the fact that why the statements of PW5 Surinder Pal and PW6 Jaswinder Pal were not recorded. Had Sunita told them that she had been burnt by the accused, there was no occasion for them to keep mum, whilst it was expected of them to get the case promptly registered on the basis of their own statement. There is no dispute that if a witness professes to know about the incriminating circumstance against a person, it is expected of him to inform the same to the police or the relatives and if he does not inform it without any cogent reason, statement of such a person is bound to lose its value. This is clearly indicative of the fact that they were not present at the spot and no such oral dying declaration was made by the deceased to them. However, in view of the close relationship and affection with the deceased, they have exaggerated to the extent of making of oral dying declaration by the deceased to them, which, in the light of discussion above, cannot be believed to have made to them. 15. The another circumstance is of making of extra judicial confession by the accused persons before PW.11 Shesh Lal. As noticed above, he claimed that the accused had come to him on 3.4.1999 and admitted their involvement in the murder of Sunita, in the presence of one Madan Lal. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. On a close look to the testimony of PW.11 Shesh Lal, we find some amount of artificiality in the evidence of this witness. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. On a close look to the testimony of PW.11 Shesh Lal, we find some amount of artificiality in the evidence of this witness. This witness was neither Sarpanch nor the Ward member of that locality where the accused were residing. Therefore, there was no reason for accused to repose faith in him to seek their protection. Further Most of all what makes his evidence doubtful is his not informing the police about the confession, because after the alleged extra judicial confession by the accused on 3.4.1999, he remained silent and passed on no information to the police. Had he been so reputed person or a vigilant citizen, he must have passed on the information to the police that the accused were the real perpetrator of the crime, but the reasons best known to him, he remained silent. Furthermore, Madan before whom the extra judicial confession was allegedly made, was not examined by the prosecution. In this background, we think it not safe to rely on the theory of extra judicial confession, propounded by prosecution on the strength of the statement of PW.11 Shesh Lal. 16. Now, this led us to examine the truthfulness of dying declaration (Ex.PG) made by the deceased before the learned Judicial Magistrate. From the material on record, it is no doubt true that the deceased was very much hopeful of her marriage with appellant Kiran @ Gora, but a day before the incident, younger sister of appellant Sunita @ Ashu was married to Kiran @ Gora. Her mental situation can be understood from the fact that in the noon time there was assurance from the side of the accused regarding her marriage with Kiran @ Gora, but in the night the marriage of latter took place with none else but younger sister of Sunita @ Ashu. Even the perusal of her statement (Ex.PG) reveals that earlier also the child born to her was taken by the accused and handed over to some other lady, for which she was assured of giving Rs.15,000/- in lieu thereof. In the end of her statement she stated that Gora assured me of marriage, but now he has performed marriage. Even the perusal of her statement (Ex.PG) reveals that earlier also the child born to her was taken by the accused and handed over to some other lady, for which she was assured of giving Rs.15,000/- in lieu thereof. In the end of her statement she stated that Gora assured me of marriage, but now he has performed marriage. It appears that she was under such a trauma that she finds no other way except to end her life. Simultaneously, there was a possibility that her emotional disorder engendered by frustration and a feeling to take revenge on both the accused, overpowered her to such an extent that she became psychotic and developed a tendency to end her life. In the landmark judgment of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984(4) Supreme Court Cases, 116, the Hon’ble Supreme Court had an occasion to deal with the issue pertaining to the murder or suicide. In that case the psychological aspect of deceased’s personality was examined to find tendency to commit suicide; kind of persons who are prone to commit suicide and the factors responsible for development of such a tendency. Not only this, the revenge fantasies associated with the suicide were also considered. When the observations made in the Sharad’s case (supra) are examined in the light of the facts and circumstances of the case in hand, where the dreams of Sunita (since deceased) to start a married life with Kiran @ Gora were shattered, we have no hesitation to conclude that Sunita (since deceased) took the drastic step to end her life. But under the spirit to take revenge from the appellants, she named them as the persons who set her on fire, obviously for the reason that appellant Kiran @ Gora had solemnized marriage with the younger sister of appellant Sunita @ Ashu. Thus, this part of her dying declaration cannot be termed as voluntary, but is an outcome of the revenge fantasies, feeling of which was going on her mind at that time. The case can be looked from another angle. There is a saying in the criminal law that human probabilities are always important than the witnesses. The witnesses may tell lie, but not the circumstances. The case can be looked from another angle. There is a saying in the criminal law that human probabilities are always important than the witnesses. The witnesses may tell lie, but not the circumstances. Had Kiran @ Gora having any intention to murder Sunita, he could have done so a day prior in the noon when an assurance had been given to her for marriage. Further the apprehension that Sunita may not tell Bindu, the wife of Kiran @ Gora about her relations with him, could be with Kiran @ Gora alone and there was no occasion or reason for appellant Sunita @ Ashu to accompany him in the commission of the crime. Hence, the charge under Section 302 IPC against the appellants is not sustainable. 17. We have conclude that the death of Sunita was not homicidal; the evidence on record is not worth of any credence to connect the appellants with the death of Sunita, the ancillary charge under Section 449 IPC against the appellants must also fail. 18. For the reasons recorded above, the instant appeal is allowed. The judgment and order of the conviction and sentence of the appellant is set aside and they are acquitted of the charges framed against them. ---------0CJK0------------