JUDGMENT : Mr. Deepak Maheshwari, J. This criminal appeal has been filed by the accused appellant Naval Kishore against the judgment dated 22.02.1992 passed by the learned Additional District & Sessions Judge, Chabra in Criminal Regular Case No. 66/1991 whereby, the learned trial Court has convicted the accused appellant for the offence punishable under Section 306 IPC and has awarded rigorous imprisonment for six years and also imposed a fine of Rs. 500/- in default of payment of which, rigorous imprisonment for one month has been awarded. 2. As per the prosecution story, at about 9:20 pm on 23.12.1990, Dying Declaration of Smt. Madhvi (Ex. P/19) was recorded by the SDM, Chabra in Government Hospital, Chabra. The statement given by her is as follows :- "esjk uke ek/koh gS eSa ulZ gwWa uou us 2 nks lky rd lkFk j[kk eq>s /kks[kk ns fn;k] eSaus mlds lkFk nqckr ugha djh ;g ckr 5-30 cts ikyh esa gqbZ uoy us /kks[kk nsus ls eSaus vkx yxk yh] uoy us V~kalQj djok fy;kA eSaus dsjkslhu Mkydj vkx yxk yhA" 3. Thereafter, on 25.12.1990, Smt. Madhvi died of the burn injuries at about 1:45 am. Post-mortem examination was conducted in which, the cause of death was found to be shock due to 100% burn. After conducting complete investigation, charge-sheet was filed against the accused appellant Naval Kishore for the offence punishable under Section 306 IPC. 4. The learned trial Court framed the charge under Section 306 IPC against the accused appellant Naval Kishore, which was read over to him, as follows:- "fd vkius fnukad 23-12-1990 dks 5-30 cts ds yxHkx xzke ikyh esa e`rdk ek/kohyrk iRuh Hkaojflag mez 26 lky fuoklh foosdkuUn ikdZ] ckjka us vkRe gR;k dh] ftl vkRe gR;k dk mRizsj.k vki }kjk ;g dgdj fd;k x;k fd ejuk gks rks ejtk eq>dks rsjs ls dksbZ ysuk nsuk ugha gSA tcfd vki mlls [kkrs ihrs Fks vkSj og vkils 'kknh djuk pkgrh FkhA bl izdkj vkius e`rdk ek/koh dks vkRegR;k djus ds fy;s nq"izsfjr fd;kA bl izdkj vkius Hkk0n0la0 dh /kkjk 306 Hkk0n0la0 ds v/khu naMuh; vijk/k fd;k] tks fd bl U;k;ky; ds izlaKku esa gSA" 5. To substantiate the charge, the prosecution got as many as 14 witnesses examined including father of the deceased PW-3 Jagbandhu Nath, her mother PW-4 Gayatri Devi, her sister PW-5 Vijay Lata, her brother PW-10 Heera Lal, as also Investigating Officer PW-11 Janardhan Singh Jhala, SDM Chhabra PW-12 Pradeep Kumar and other relevant witnesses. As many as 20 documents were also tendered into evidence by the prosecution side. The accused was examined under Section 313 Cr.P.C. in the light of the evidence produced by the prosecution. 6. After hearing the arguments of both the sides, the learned trial Court convicted the accused and awarded him sentence, as mentioned above vide judgment dated 22.02.1992. 7. The learned counsel for the accused appellant has assailed the judgment on the ground that Doctor, who conducted the post-mortem examination has not been examined. Dying declaration (Ex.P/19), most important piece of evidence upon which the trial Court has relied upon while passing the judgment suffers from serious infirmities. No Doctor has been examined in respect of exhibit P/19, who had certified the deceased to be fit to give statement. It is not proved that who called PW-12, who recorded the Dying Declaration of the deceased and how he happened to come to record her statement. SDM, Chabra himself has not recorded the Dying Declaration and it has been written by his LDC PW-13 Kausal Kishore. Prior to recording of the statement, father, mother, brother and sister of the deceased came to the hospital and met her for a long time. Thus, it cannot be presumed that the statements were given on her free will. The learned counsel for the accused appellant has also put forth the argument that no questions were put to the accused with regard to the post-mortem report (Ex.P/8) and the Dying Declaration (Ex.P/19) during his examination under Section 313 Cr.P.C., therefore, these documents cannot be relied upon while passing any judgment against the accused-appellant. 8. He has further contended that no prosecution witness has deposed that the accused instigated deceased Smt. Madhvi or in any way intentionally aided Smt. Madhvi to commit suicide. On the contrary, all the witnesses have categorically shown their ignorance as to how the deceased committed suicide and what was the role played by the accused in the incident which took place. 9. On the contrary, all the witnesses have categorically shown their ignorance as to how the deceased committed suicide and what was the role played by the accused in the incident which took place. 9. The learned counsel for the accused appellant has submitted that as per the prosecution witnesses, at the most, it has come out that the accused appellant has deceived Smt. Madhvi as he was going to Kota on his transfer but he has submitted that any transfer during the Government job is not within the control of the employee, therefore, it cannot be argued against the accused that he intentionally aided and abetted the offence. 10. The learned counsel for the accused appellant has further argued that the charge framed against the accused has not been proved by the prosecution story beyond reasonable doubt. It has been alleged against the accused that he uttered to deceased Madhvi “... ... ... ^^---- ---- ejuk gS rks ejtk eq>dks rsjs ls dksbZ ysuk nsuk ugha gS---- -----** ... ... ...” No witness has stated that these statements were ever made by the accused and thereby, deceased was compelled to commit suicide. The learned counsel for the accused appellant thus submitted that the prosecution has miserably failed to prove the charge levelled against the accused and the judgment passed by the learned trial Court is bereft of any merit and is, thus, liable to be quashed and set aside. 11. Per contra, the learned Public Prosecutor has supported the judgment passed by the learned trial Court saying that the prosecution has succeeded in proving the charge beyond reasonable doubt and the conviction and sentence passed by the learned trial Court is liable to be upheld. 12. In my considered view, it was bounden duty of the prosecution to bring home the charge levelled against the accused by way of producing sufficient and cogent evidence. The main ground of accusation for the offence under Section 306 IPC upon which, charge has been framed against the accused is that he uttered Smt. Madhvi that ^^---- ---- ejuk gS rks ejtk eq>dks rsjs ls dksbZ ysuk nsuk ugha gS---- -----** 13. It is beyond dispute that sufficient evidence has been produced by the prosecution to the effect that the accused Naval Kishore and the deceased Madhvi, though, not married with each other, they were living together in a single room. It is beyond dispute that sufficient evidence has been produced by the prosecution to the effect that the accused Naval Kishore and the deceased Madhvi, though, not married with each other, they were living together in a single room. Father, mother, sister and neighbours of the deceased have clearly narrated this fact but none of them have averred in their statements that the accused ever told the deceased that if she wants she may die and he has got no business with her, therefore, the main ground on which the charge has been framed against the accused does not stand proved by the prosecution evidence. 14. Section 306 of IPC speaks that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The factum of abetment is to be inferred in view of Section 107 of IPC. 15. On scrutinising the evidence adduced by the prosecution witnesses in this regard, it is found that PW-3 Jagbandhu Nath, father of the deceased has narrated that she told him that Naval has deceived her but on asking how Naval has deceived her, she refused to reply. PW-3 has also stated that he does not know what sort of relations were there between Naval and his daughter. Similarly, mother of the deceased PW-4 Gayatri Devi has also narrated that she does not know what sort of relations were existing between Madhvi and the accused. She has deposed that on asking her daughter that how she got burnt, she simply told her that Naval is going from Pali and he is a poor fellow who would have to suffer. It is thus clear that even on putting a very specific question to her, deceased Madhvi did not tell her mother about any allegation which could be attributed to the accused to instigate her, or in any way abet her to commit suicide. Madhvi is simply said to have told that she herself will take revenge from Naval. 16. Sister of deceased PW-5 Vijay Lata has also stated that when she went to meet Madhvi in the hospital, she told her that Naval has deceived her and he is going to Kota, leaving her alone. Madhvi is simply said to have told that she herself will take revenge from Naval. 16. Sister of deceased PW-5 Vijay Lata has also stated that when she went to meet Madhvi in the hospital, she told her that Naval has deceived her and he is going to Kota, leaving her alone. Madhvi also told her that she need not to worry and she (Madhvi) would take revenge at her own. 17. Brother of deceased PW-10 Hiralal has also narrated that in the Hospital Madhvi told him that Naval has deceived her and after getting recovered, she will take revenge at her own. During cross-examination, he has also shown his ignorance about the nature of relations between his sister and the accused but has narrated that they were living in a single room. 18. Taking into consideration all the statements given by all the close family members of the deceased Madhvi, it is clear that no evidence has come up against the accused to the effect that he in any way abeted Madhvi to commit suicide. So the charge framed against him under Section 306 of IPC cannot be said to have been proved. 19. On considering the aspect of Dying Declaration (Ex.P/19), the objections raised by learned counsel for the accused appellant about its legality appear to be well founded. No statement has been appended by the medical expert on Dying Declaration (Ex.P/19) that Madhvi was in fit mental condition to give her statement. 20. Hon'ble Supreme Court in case of Mohar Singh & Ors. v. State of Punjab, reported in AIR 1981 SC p.1578 has clearly mandated that Dying Declaration not attested by a doctor present there smacks of concoction and cannot be relied upon. 21. Further, Dying Declaration also suffers from the infirmity that the SDM, who was authorised to record the statement, has not recorded it by himself. PW-13 Kaushal Kishore, working as LDC under him, has recorded Ex.P/19, who is not authorised person to do so. Even a slight variation in recording the statement from the statement given by deceased can make a lot of difference. When the statement is recorded by some other person, then the possibility of variation essentially creeps in. This possibility has arisen in Ex.P/19 because it has not been recorded by the SDM himself but by his LDC PW-13 Kaushal Kishore. So Ex.P/19 cannot be relied upon. 22. When the statement is recorded by some other person, then the possibility of variation essentially creeps in. This possibility has arisen in Ex.P/19 because it has not been recorded by the SDM himself but by his LDC PW-13 Kaushal Kishore. So Ex.P/19 cannot be relied upon. 22. Though the Dying Declaration is alleged to have suffered from so many infirmities and lacunaes as contended by learned counsel for the accused appellant but even ignoring those documents, if Dying Declaration is taken into consideration as it is, then also, it only alleges against Navan that he got himself transferred and, thus, he deceived Madhvi despite having been living together for two years, that is why Madhvi poured kerosene on her and set herself on fire. 23. In this regard, contention raised by learned counsel for the accused appellant appears logical that the option was not lying with the accused either to keep himself posted at the same place or to get a transfer order issued. Agreeing to the contention, the Court is of the view that simply because accused was transferred to Kota, it cannot be inferred that he deceived Madhvi and abeted her to commit suicide. 24. So far as the objection raised by learned counsel for the accused appellant regarding not examining the Doctor, who has conducted the post-mortem examination is concerned, it is worth mentioning that the post-mortem report Ex.P/8 is found to have been admitted during trial by the learned counsel appearing for the accused, therefore, it was not needed to get the Doctor examined. Moreover, as per the statements of the prosecution witnesses, it is proved beyond doubt that the deceased Smt. Madhvi set herself on fire and died of the burn. 25. But despite this proved situation, it also goes to the route of the case that PMR (Ex.P/8) and Dying Declaration (Ex.P/19) have not been referred to the accused for getting his explanation during his examination under Section 313 Cr.P.C. The whole prosecution story hinges upon these two important documents but not allowing the accused to give any explanation as regards these documents deprives him of his valuable right. Thus, these documents cannot be read against him. 26. Thus, these documents cannot be read against him. 26. Hon'ble Supreme Court while passing judgment in case of Shaikh Maqsood v. State of Maharashtra, reported in 2009 AIR SCW 4308 has held that accused is liable to be acquitted when no question is put to him as regards the circumstances appearing against him. 27. Similar view has been expressed by Hon'ble Supreme Court in case of Ajay Singh v. State of Maharashtra, reported in AIR 2007 SC p.2188. 28. Hon'ble Supreme Court has expressed the similar view in case of Nirmal Pasi & Anr. v. State of Bihar, reported in JT 2002 (6) SC p.28 in which it has been held that piece of incriminating evidence relied on by the prosecution must be put to the accused in his statement under Section 313 Cr.P.C., enabling him to offer such explanation as he may choose to do. 29. Learned trial Court while taking the Dying Declaration (Ex.P/19) into consideration has inferred at Page No.9 of the judgment that had the deceitful act of the accused been to break the friendship only, then it would not be a cause to commit suicide but if the relations between them were alike husband and wife and if there was any dispute in those relations, then it might become a cause for committing suicide. The learned trial Court has thus inferred that due to break of such intimate relations Madhvi was compelled to commit suicide. But looking to the statements given by close family members of the deceased as have been discussed above, it is crystal clear that nobody has narrated that Madhvi and accused Naval were residing as husband and wife or were maintaining such relations, therefore, the inference drawn by learned trial Court appears to be based on conjectures and surmises and cannot be said to be based upon any evidence. Thus, the inference drawn by learned trial Court in this regard does not appeal to logic and is thus not acceptable. 30. Learned counsel has also argued that mens rea is an important factor to be proved for convicting the accused for the offence punishable under Section 306 I.P.C. whereas while going through the prosecution evidence, it is clear that nothing has come out against the accused appellant that he had any mens rea to abet the deceased to commit suicide. 30. Learned counsel has also argued that mens rea is an important factor to be proved for convicting the accused for the offence punishable under Section 306 I.P.C. whereas while going through the prosecution evidence, it is clear that nothing has come out against the accused appellant that he had any mens rea to abet the deceased to commit suicide. Learned counsel for the accused appellant has also referred to various judgments in this regard. 31. In Swamy Prahaladdas v. State of M.P. & Anr., reported in 1999 Cr.L.R. (SC) 141, it was found that during quarrel, the appellant told the deceased “to go and die”, but these words were considered to be casual in nature, which are often employed in the heat of passion and it was held that no mens rea reflects from the act. 32. In similar situation, Hon'ble Apex Court held in case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, reported in 2002 Cri.L.J. p.2796 that telling the deceased “to go and die” does not constitute the ingredient of instigating him to commit suicide. 33. If the evidence adduced in the present case in hand is scrutinised in view of the above referred judgments, it is clear that no such words were uttered by the accused. No evidence has come that the accused ever quarreled with the deceased or abeted her to commit suicide. Hence, the judgment of conviction passed by learned trial Court is not found sustainable in the eye of law. 34. Learned trial Court has also made this presumption in his judgment that leaving the deceased alone by the accused while she got burnt and not accompanying her to the hospital also goes against him and shows his conduct. In my considered opinion, this is not such an act or omission of the accused upon which it can be inferred that he has abeted the deceased to commit suicide. Some positive act or omission must have been proved against the accused to bring his conduct within the four corners of the offence punishable under Section 306 I.P.C., which is missing in this case. In view of above discussions, the judgment dated 22.02.1992 passed by the learned trial Court convicting the accused appellant for the offence punishable under Section 306 I.P.C. and awarding him substantive sentence of rigorous imprisonment of six years along with fine of Rs. In view of above discussions, the judgment dated 22.02.1992 passed by the learned trial Court convicting the accused appellant for the offence punishable under Section 306 I.P.C. and awarding him substantive sentence of rigorous imprisonment of six years along with fine of Rs. 500/- is found liable to be quashed and set aside. 35. Accordingly, the appeal is allowed and the judgment dated 22.02.1992 passed by Additional District & Sessions Judge, Chabra is hereby quashed and set aside and the accused appellant Naval Kishore is acquitted of the offence punishable under Section 306 IPC. The accused appellant is on bail. His bail bonds stand discharged.