Judgment : A. S. CHANDURKAR, J. :- The appellant herein takes exception to his conviction under Sections 302, 498-A and 436 of the Indian Penal Code (hereinafter referred to as Penal Code for short) by judgment dated 9th December 2009. By said judgment passed in Sessions Trial no. 136 of 2009 by the learned 5th Additional Sessions Judge Nagpur, the appellant has been sentenced to undergo rigorous imprisonment for life for offence punishable under Section 302, rigorous imprisonment for two years and fine of Rs. 500/- in default to suffer rigorous imprisonment for one month for offence punishable under Section 498-A and further to suffer rigorous imprisonment for four years and fine of Rs. 500/- in default to suffer rigorous imprisonment for one month for offence punishable under Section 436 of the Penal Code. 2. The facts as can be gathered from the material on record are that, the appellant was married to one Mira in the year 1996. They were having a son Pravin. The appellant was stated to be habituated to having liquor and used to beat Mira. On 15th December 2008 between 2 P. M. to 3 P. M. a quarrel took place between Mira and the appellant. It is the case that the appellant assaulted Mira, poured kerosene on her person and set her on fire thereby causing her death. The investigation commenced on the basis of complaint lodged on the same day. On completion of the postmortem examination and other formalities including the investigation the charge sheet was filed against the appellant before the learned Magistrate. The case was thereafter committed for trial to the Sessions Court. The appellant pleaded not guilty and hence was tried. On conclusion of the trial the appellant was convicted in the manner stated above. Hence present appeal under Section 374(2) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code for short) has been preferred by the appellant. 3. Shri U. R. Phasate, learned counsel appearing for the appellant has submitted that in absence of any cogent evidence the appellant has been wrongly convicted by the Sessions Court. It is submitted that the depositions of P. W. 1 and P. W. 2 are those of interested witnesses. It is further submitted that the conduct of P. W. 2 after seeing the incident was unnatural. It is submitted that the depositions of P. W. 1 and P. W. 2 are those of interested witnesses. It is further submitted that the conduct of P. W. 2 after seeing the incident was unnatural. The learned counsel therefore submitted that the prosecution had failed in proving beyond reasonable doubt the guilt of the appellant. It was submitted that the appellant was therefore entitled to be acquitted. 4. Shri S. S. Doifode, learned Additional Public Prosecutor on the other hand supported the conviction of the appellant as recorded by the Sessions Court. It was submitted that there was sufficient evidence on record to prove the guilt of the appellant. It was submitted that even if P. W. 1 and P. W. 2 were interested witnesses, their depositions could not be discarded only on said account. It was submitted that there was sufficient material on record to hold that the prosecution had proved beyond reasonable doubt the guilt of the accused. The learned Additional Public Prosecutor therefore sought dismissal of the appeal. 5. We have heard the respective counsel and we have also given our anxious consideration to the entire material on record. P. W. 1 Suresh Andhe was examined vide Ex. 6. He is the brother of deceased Mirabai. It is stated that appellant had married Mirabai in the year 1996. This witness has stated that the appellant was addicted to liquor and was not doing any work. He used to beat Mirabai frequently. His sister had come to reside with him since 7 to 8 months before her death. He has stated that on 15th December 2008 he came to know that his sister had sustained severe burn injuries. He had thereafter gone to the house of the appellant where he saw the body of his sister with severe burn injuries. He thereafter filed report with the police authorities. In his cross examination this witness has stated that he did not file any complaint against the appellant prior to aforesaid incident. He has denied the suggestion that his sister was suffering from mental disorder and hence she used to come to Nagpur for treatment. It was also suggested that his sister died on account of accidenta1 burn injuries while cooking but said suggestion is denied. 6. P. W. 2 Pravin who was the son of appellant and Mirabai was examined vide Ex. 9. It was also suggested that his sister died on account of accidenta1 burn injuries while cooking but said suggestion is denied. 6. P. W. 2 Pravin who was the son of appellant and Mirabai was examined vide Ex. 9. He was aged 10 years when he deposed. He has stated that his father used to quarrel with his mother. He has stated that on the day of the incident he was at home. His father climbed on the manglore tiles of the house, jumped inside and poured kerosene on his mother after which he set her on fire. He has stated that he was watching the incident and his father thereafter ran away from the house. Thereafter he went to school and returned from the school at 5 P. M. In his cross examination he has stated that he had come to Court with his maternal uncle. He has denied the suggestion that he had been tutored or that his mother was suffering from mental disorder. 7. P.W. 3 Narayan Gajbhiye who was a neighbour was examined below Ex. 11. He has referred to the quarrel between the appellant and Mirabai. He has stated that on the day of the incident the appellant had asked his wife at about 2 P. M. as to why she had not cooked meals. Mirabai then stated that though the appellant had gone to Saoner for bringing vegetable oil, he had returned without it and under the influence of liquor. He has stated that thereafter Pravin came from the school and the appellant was assaulting his wife by hand. He has further stated that when he asked the accused why he was beating his wife and tried to intervene the appellant tried to assault him with stone and closed the doors of his house. He stated that he then went to his field and at about 3 P. M. he received message from Ghotekar that the appellant had set fire to his house and that his wife was inside. He has stated that the house was almost completely burnt and the appellant was not on the spot. In his cross examination this witness has admitted that incident of burning of the house of the appellant did not occurr in his presence. He did not call his neighbours when the quarrel between the appellant and his wife was taking place. He has stated that the house was almost completely burnt and the appellant was not on the spot. In his cross examination this witness has admitted that incident of burning of the house of the appellant did not occurr in his presence. He did not call his neighbours when the quarrel between the appellant and his wife was taking place. He has admitted that he was Police Patil and was acquainted with the police. 8. Spot Panchanama was duly prepared on 15th December 2008 (Ex. 13). P. W. 3 Narayan Gajbhiye had acted as witness for said panchanama. It has been stated therein that the house was having tin roof. As the entire house was burnt no items could be found there. 9. P. W. 4 Gopal Sudha has been examined below Ex. 14. This witness was serving as a Teacher in Zilla Parishad Primary School at Telangkhedi. P. W. 2 Pravin was studying in said school. It is stated that on 15th December 2008 the school was working from 10 A.M. to 5 P.M. with recess from 1.30 P.M. to 2 P.M. He has stated that in the second session that started at 2.45 P.M. he did not see the students. He saw many students in front of the house of P.W. 2. He too went there and found that the whole house was burnt. He opened the doors and found the body of the mother of Pravin totally burnt. In his cross examination omission to state before the police that on said day he did not see the students after lunch time was put to him. 10. P. W. 5 Komal Gunjarkar has been examined vide Ex. 15. She was the neighbour of the appellant. This witness was declared hostile. She has denied that she stated before the police that the appellant had poured kerosene on Mirabai and had set her on fire. 11. Dr. Pravin Wakode was examined as P.W. 8 (Ex. 26), he conducted the postmortem examination of Mirabai. He found that the body was completely charred. He found carbon particles in the lungs. According to him the cause of death was cardiorespiratory arrest along with asphyxia with hypo volemic shock caused due to burn. The postmortem report is at Ex. 27. In his cross examination he has stated that he could not tell the exact time of death of Mirabai. 12. He found carbon particles in the lungs. According to him the cause of death was cardiorespiratory arrest along with asphyxia with hypo volemic shock caused due to burn. The postmortem report is at Ex. 27. In his cross examination he has stated that he could not tell the exact time of death of Mirabai. 12. P. W. 7 Bhaskar Awatade has been examined below Ex. 18. He was the Investigating Officer. He has referred to the spot panchanama, inquest panchanama and the arrest form of the appellant. In his cross examination he has stated that no burnt articles or ash was seized from the spot. It was suggested that Mirabai died on account of injuries sustained accidentally while cooking. He has denied the suggestion that the appellant was falsely implicated. 13. In so far as the homicidal death of Mirabai is concerned the same has been duly proved in view of the medial evidence in the form of postmortem report at Ex. 27. The cause of death is on account of shock caused due to burns. Body of Mirabai was recovered from the house as is clear from the spot panchamama (Ex. 13). The house was also completely burnt. It is thus clear that the prosecution has succeeded in proving the homicidal death of Mirabai. 14. In so far as charge against the appellant of having caused the death of Mirabai by putting her on fire after pouring kerosene it would be necessary to examine the material on record in that regard. P.W. 1 Suresh Andhe has not witnessed the aforesaid incident. In so far as P. W. 2 is concerned he stated that his father climbed on the manglore tiles of the house, jumped inside and after pouring kerosene on his mother set her on fire. He has stated that he watched the incident and thereafter went to the school. He further returned to the house at 5 P. M. This witness is a child witness and was staying with his maternal uncle when he deposed. The deposition of P.W. 4 his teacher will also have to be examined for the purpose of seeking corroboration. P. W. 4 has however stated that when the afternoon sessions of the school started at 2.45 P. M. he did not see any students. He saw several students in front of the house of P.W. 2 Pravin. The deposition of P.W. 4 his teacher will also have to be examined for the purpose of seeking corroboration. P. W. 4 has however stated that when the afternoon sessions of the school started at 2.45 P. M. he did not see any students. He saw several students in front of the house of P.W. 2 Pravin. This witness does not state that after going back from the site to his school he noticed P. W. 2 Pravin in the school though P. W. 2 states that he was at school till 5 P. M. The version of P. W. 2 of returning to the school after watching the aforesaid incident is not corroborated in the evidence of P. W.4. More over the conduct of P. W. 2 of going back to the school after witnessing the incident does not appear to be natural. The immediate conduct even from the child would normally have been of seeking some help if said child would have seen his mother on fire. Another factor that makes the version of P. W. 2 Pravin doubtful is that, he has stated in his deposition that his father had climbed on the mangalore tiles and thereafter jumped into the house. He had thereafter poured kerosene and put her on fire. The spot panchanama however refers to tin roof on the house and there is no reference to any manglore tiles (Ex. 13). It is therefore highly doubtful as to whether P. W. 2 actually witnessed the incident as stated by him. Besides said witness there is no other eye witness to said incident. As the deposition of P. W. 2 is not corroborated by the evidence of P. W. 4 it would not be safe to rely only on the evidence of P. W. 2 for holding the appellant guilty of having set Mirabai on fire. 15. The appellant was immediately arrested at 10 P.M. on 15th December 2008 (Ex. 24). There are however no burn marks on his body. In his examination under Section 313 of the Code he has stated that his wife was mentally ill and she might have committed suicide. The aforesaid defence is a probable defence. P. W. 1 in his cross examination has admitted that he had not filed any complaint prior to aforesaid incident against the appellant. In his examination under Section 313 of the Code he has stated that his wife was mentally ill and she might have committed suicide. The aforesaid defence is a probable defence. P. W. 1 in his cross examination has admitted that he had not filed any complaint prior to aforesaid incident against the appellant. It may be noted that the appellant and Mirabai were married in the year 1996 while the incident took place on 15th December 2008. Hence for almost 12 years there was no complaint filed as regards the ill treatment of Mirabai by the appellant. In view of the aforesaid and in absence of any other evidence on record, appellant's conviction under Section 498-A of the Penal Code also cannot be sustained. 16. On considering the entire material available on record we find that the prosecution has failed to prove beyond reasonable doubt that it was the appellant who had set Mirabai on fire after pouring kerosene on her. There is no corroboration to the evidence of P.W. 2. His testimony is further shattered by the spot panchanama wherein there is no reference to mangalore tiles. The conduct of said witness is also not natural and hence it would not be safe to base the conviction of the appellant on his sole testimony. Thus considering the above material on record we feel that the appellant is entitled for the benefit of doubt. The prosecution therefore has failed to prove beyond reasonable doubt the guilt of the appellant. There is further no evidence of the appellant having committed offence punishable under Section 436 of the Penal Code. The appellant is therefore entitled to be acquitted. Hence the following order: Appeal is allowed. Judgment and order is quashed and set aside. Appellant be set at liberty forthwith if not required in any other case. Appeal allowed.