Judgment : (A.H. Joshi, J.) 1. Five accused were tried in Sessions Case No.139 of 2011. They were charged for commission of offences under section 302 read with sec. 34, 498A read with sec. 34, 323 read with sec.34, 504 read with sec.34 and 506 read with sec. 34 of the Indian Penal Code. 2. Substance of the charge is ill-treating, intimidating, causing hurt, ill-treatment for dowry related demand and murder of Dipali wife of accused no.1 by pouring kerosene on her person and setting her to fire on 3.8.2011 at about 11.30 a.m. 3. Three out of five accused were convicted by learned Additional Sessions Judge, Dhule in Sessions Case No.139 of 2011 for offences under section 498A and 302 read with sec. 34 of the Indian Penal Code. Each of them was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer further R.I. for one month for offence punishable under sec. 498A read with sec. 34 of the Indian Penal Code and imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer further R.I. for three months for offence punishable under section 302 read with sec.34 of the Indian Penal Code. This is an appeal against said conviction and sentence. 4. Heard both sides. Perused the record. 5. Witnesses:- (a) P.W.4 Indubai mother and P.W.5 Rajesh Patil brother of deceased Dipali are not the eyewitnesses. They are the witnesses of ill-treatment; (b) Other witnesses crucial for the case are P.W.3 Dr. Ajit Patil, who has conducted post mortem examination, panch, photographer, examined to prove the peripheral facts; (c) P.W.2 Pradip is a star witness, who reached the place of incident when Dipali was amidst the fire; 6. Testimonies of P.W.4 Indubai and P.W.5 Rajesh reveal that the marriage was solemnized in the year 2000. There were some bickerings between couple. Dipali had arrived at her parents house and again returned. There was exchange of notices. All that these witnesses say is that they have suspicion that husband and in-laws have burnt Dipali. Father-in-law had evil eye on Dipali. Dipali was ill-treated. These witnesses apprehend that accused must have murdered Dipali. 7. The post mortem examination report (Exh.63) reveals the cause of death to be shock following thermal burns. Deceased had sustained 100% burns of second and third degree. Father-in-law had evil eye on Dipali. Dipali was ill-treated. These witnesses apprehend that accused must have murdered Dipali. 7. The post mortem examination report (Exh.63) reveals the cause of death to be shock following thermal burns. Deceased had sustained 100% burns of second and third degree. These facts are proved by P.W.3 Dr. Ajit Patil, and this aspect is undisputed. 8. P.W.2 Pradip Patil has stated in paragraph 3 of examination-in-chief as follows:- "When I came to the first floor I noticed that Deepali was burning and the people were extinguishing the fire none from the family of Deepali was present at the house. It did not happen that there used to be frequent quarrel at one hand with Deepali and the accused on the other hand." (quoted from paper-book page no.77) 9. The version of P.W.2 Pradip does not support the prosecution. He was declared hostile and was cross-examined by A.P.P. 10. In the cross-examination P.W.2 Pradip has confirmed that police had recorded his statement and the contents of the statement were read out to him and were correct. 11. In answer to further questions in the cross-examination by Public Prosecutor P.W.2 has, however, stated that he did not state before the police version marked 'A', 'B' and 'C' Exhs.78, 79 and 80 seen in the statement as recorded by police. Relevant portions from cross-examination of P.W.2 Pradip by learned A.P.P. read as follows:- "4. .... After my statement was recorded it was read over to me and I was satisfied that it was recorded correctly. My statement was recorded in Dhule Taluka Police Station. 5. The contents of portion mark A of my statement now read over to me were not stated by me to police. The contents of portion mark B of my statement now read over to me were also not stated by me to police. 6. Not correct to suggest that Deepali had sustained 100% burns and therefore she was not in a position to talk. The contents of portion mark C of my statement now read over to me were also not stated by me to police. It is correct to suggest that after Deepali got burnt she was carried to the hospital by her father in law Dinkar Patil by Ambulance." (quoted from paper-book page nos.78 & 79) 12. The contents of portion mark C of my statement now read over to me were also not stated by me to police. It is correct to suggest that after Deepali got burnt she was carried to the hospital by her father in law Dinkar Patil by Ambulance." (quoted from paper-book page nos.78 & 79) 12. Had the statements marked as Exhs.78, 79 and 80, in which this witness had named all five accused as present in the house (i.e. the portions marked 'A', 'B' and 'C' from the statement recorded by police remained intact, the fate of case would have been different. 13. No other evidence was brought by the prosecution to prove that the case is one of custodial death. 14. Considering the sole testimony of P.W.2 Pradip, on the basis of which prosecution asserts that accused are guilty, and the appellants have been held guilty, turns out to be a solitary piece that too of a hostile witness who did not support his own version and the case of prosecution. 15. Perusal of testimonies of witnesses P.W.4 and 5 mother and brother reveals that exact text of ill-treatment has not come on record. All that is suggested is hearsay, namely, what Dipali had told to them. 16. The result is that charge, namely, causing hurt, intimidation, ill-treatment over dowry related demand and murder with common intention, is not at all suggested, much less proved. 17. Had the custody of the deceased with that of the accused been proved, section 106 of the Indian Evidence Act would have come into play. Even in that eventuality, it would have been a border line case standing between suicide and a custodial death unsupported by presumption in view that the marriage was more than eight years old on the date of the incident. 18. In the result, appeal succeeds. The judgment and order of conviction challenged in this appeal is liable to be and is hereby set aside. 19. Judgment and order of conviction passed in Sessions Case No.139 of 2011 by Additional Sessions Judge, Dhule is set aside. 20. Appellants be set at liberty forthwith, unless required in any other case. Fine, if paid, be refunded to them.