JUDGMENT : 1. Exception, in the present appeal, is to judgment and order of conviction passed by learned 2nd Ad hoc Additional Sessions Judge at Nagpur dated 28.3.2003 in Sessions Trial Case No.76 of 1997. Appellant, accused No. 2 in the Trial, stands convicted by learned Additional Sessions Judge at Nagpur for the offence punishable under Section 306 of the Indian Penal Code, 1860 and is directed to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.5,000/- and in default of payment of fine amount to suffer 1 year rigorous imprisonment. 2. I have heard learned counsel Shri S.S. Jaiswal for the appellant and learned Additional Public Prosecutor Shri R.S. Nayak for the respondent/State. With their able assistance, I have gone through entire record and proceedings. 3. Appellant Padmakar along with Bandu s/o Laxman Dongre, husband of deceased Surekha, faced charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code, 1860. According to the charge, appellant Padmakar, in furtherance of common intention which is shared with acquitted accused No.1 Bandu, on 4.5.1996 abetted the deceased to commit suicide. After a full-fledged Trial, accused No.1 Bandu was acquitted. No appeal was filed by the State challenging acquittal of accused No.1 Bandu. 4. PW-9 Police Sub Inspector Baban Pandurang Palase at Narkhed Police Station, received case papers in respect of deceased Surekha from hospital. On the basis of the said, he registered an offence vide Crime No.103 of 1996 punishable under Section 306 of the Indian Penal Code, 1860 against appellant Padmakar. In pursuance to investigation, in respect of the said offence, he visited spot and drew spot panchanama Exhibit 24. On 6.5.1996, he seized a chit from acquitted accused No.1 Bandu under seizure panchanama Exhibit 43. He has also recorded statements of the prosecution witnesses. From evidences of these prosecution witnesses it is brought on record that offence was also registered against appellant Padmakar on the basis of report lodged by deceased Surekha vide Crime No.99 of 1996 punishable under Sections 458 and 354 of the Indian Penal Code, 1860. This particular offence was registered on 27.4.1996 for the occurrence dated 25.4.1996. 5. To bring home the guilt of appellant Padmakar, there is no other material available on record against him except two written dying declarations. Those two dying declarations are found at Exhibits 30 and 35. 6. This particular offence was registered on 27.4.1996 for the occurrence dated 25.4.1996. 5. To bring home the guilt of appellant Padmakar, there is no other material available on record against him except two written dying declarations. Those two dying declarations are found at Exhibits 30 and 35. 6. Dying declaration Exhibit 30 is recorded by PW6 Police Sub Inspector Yadaorao Sitaram Deshmukh whereas dying declaration Exhibit 35 is recorded by PW4 Naib Tahsildar and Executive Magistrate Ramesh Nagorao Chandekar. 7. As per dying declaration Exhibit 30, prosecution claims that deceased Surekha made her statement with PW6 Police Sub Inspector Yadaorao Deshmukh that when her husband went to their grocery shop and when deceased was alone in the house prior to 9 days of the incident, appellant Padmakar outraged her modesty and from that time she used to think that there was no point in remaining alive and, therefore, she poured kerosene on herself and set her ablaze. It is also stated in dying declaration Exhibit 30 that she was angry upon appellant Padmakar and, therefore, she has set herself on fire. 8. Dying declaration Exhibit 35 states that appellant Padmakar came to outrage her modesty 9 days ago and he had outraged her modesty and since then he is absconding and she is fearing him she has poured kerosene on herself and set her ablaze. 9. From aforesaid two dying declarations, it is crystal clear that there is a common thread in dying declarations that prior to 9 days of commission of suicide appellant Padmakar outraged her modesty and, therefore, she has committed suicide. Close scrutiny shows that in dying declaration Exhibit 30 she has stated that after her modesty was outraged it was her in mind for 9 days that what is the use of she being a living creature and, therefore, she has committed suicide. However, in dying declaration Exhibit 35 she claims that after her modesty was outraged, appellant Padmakar is absconding and there is a threat to her from him and, therefore, she committed suicide. 10. Therefore, on aforesaid closure scrutiny, it is clear that on material aspect both dying declarations are different from each other. However, in dying declaration Exhibit 35 she claims that after her modesty was outraged, appellant Padmakar is absconding and there is a threat to her from him and, therefore, she committed suicide. 10. Therefore, on aforesaid closure scrutiny, it is clear that on material aspect both dying declarations are different from each other. It is already brought on record that in respect of incident of outraging modesty, the matter was already reported to the police and the offence was already registered against appellant Padmakar as it is brought on record by first information report Exhibit 53. Further, there is no evidence available on record to show that during the period of these 9 days, deceased Surekha was under depression. This, in my view, is necessary since there is no proximate live link of incident of outraging modesty and commission of suicide. No doubt true that different persons may react differently to the same situation. However, when prosecution claims that for an act of outraging modesty deceased was abetted by appellant Padmakar to commit suicide, in that event it was primary duty of the prosecution to establish that connecting evidence in that behalf. Failure on the part of prosecution to establish that connecting evidence, in my view, benefit has to be extended in favour of appellant. It is cardinal principle of law that till the guilt is proved by the prosecution beyond reasonable doubt, the accused is having presumption in his favour in respect of his innocence. The Court should not be in rush to destroy the said presumption unless cogent evidence is available on record against the accused person. 11. Dying declaration Exhibit 30 is recorded by PW6 Yadaorao Deshmukh. This prosecution witness when was serving as Police Sub Inspector on 4.5.1996, received a telephonic message from hospital that Surekha is admitted in hospital in a burnt condition. Therefore, he went to the Government Hospital at Narkhed. There, he gave a letter Exhibit 39 to the Medical Officer and requested to give his opinion as to whether Surekha is in a position to give her statement. As per evidence of PW6 Yadavrao, the doctor gave opinion that Surekha is in a condition to give statement and, therefore, he recorded her dying declaration. The original record shows that below Exhibit 30 there is an endorsement, “fit to statement.” 12. As per evidence of PW6 Yadavrao, the doctor gave opinion that Surekha is in a condition to give statement and, therefore, he recorded her dying declaration. The original record shows that below Exhibit 30 there is an endorsement, “fit to statement.” 12. From the evidence of PW6 Police Sub Inspector Yadavrao Deshmukh, it is clear that in order to ascertain physical as well as mental condition of Surekha, he gave requisition to the doctor to examine her and to give his certificate. For the reasons best known to the prosecution, the doctor, who has given his opinion regarding fitness of Surekha, is not examined by the prosecution. Thus, endorsement made below Exhibit 30 “fit to give statement” remained to be proved. 13. It is settled law that it is not necessary that in an every case a doctor, who examines patient, should be examined as a witness before the Court. However, before recording the statement of injured if the scribe himself is satisfied about the fitness of injured and is of the opinion that statement can be recorded then in that event scribe can proceed to record the statement. 14. The evidence of PW6 Police Sub Inspector Yadavrao Deshmukh is totally silent nor Exhibit 38, a contemporaneous document, shows any noting by Yadavrao that he himself was satisfied about physical as well as mental condition of Surekha before recording her dying declaration. The conviction can be secured and maintained on the basis of dying declaration provided such dying declaration inspires confidence. It to be noted that declarant is not available to the cross-examination. Therefore dying declaration should be absolutely free from all doubts. From the evidence of PW6 Yadavrao Deshmukh it is clear that he has not ascertained himself in respect of mental as well as physical condition of Surekha. Further, the doctor, who gave fitness certificate, is not examined. With the result, fitness certificate is not duly proved. Therefore, it would be rather risky to accept dying declaration Exhibit 30 since nothing is available on record in respect of fitness both physical and mental of declarant Surekha before recording her dying declaration. 15. Another dying declaration is at Exhibit 35. It is recorded by PW4 Naib Tahsildar and Executive Magistrate Ramesh Chandekar. This prosecution witness on 4.5.1996 received a letter from Narkhed Police Station whereby it was requested that he should record a dying declaration of Surekha. 15. Another dying declaration is at Exhibit 35. It is recorded by PW4 Naib Tahsildar and Executive Magistrate Ramesh Chandekar. This prosecution witness on 4.5.1996 received a letter from Narkhed Police Station whereby it was requested that he should record a dying declaration of Surekha. Accordingly, he went to Narkhed Police Station and, thereafter, he requested the doctor to give statement. The doctor has given an opinion and, thereafter, he recorded dying declaration Exhibit 35. Here also, the doctor is not examined nor the fitness certificate given by the doctor is proved. 16. However, in case of dying declaration Exhibit 35, from the witness box PW4 Ramesh Chandekar claims that he personally verified that injured was in a state of mind to give her statement. Merely because he claims so in his evidence, the Court should not readily accept such evidence especially when the statement of Surekha was recorded on 4.5.1996, and evidence of PW4 Ramesh Chandekar was recorded after a period of 6 years. Dying declaration Exhibit 35 sans any detail that he made any preliminary enquiry with injured Surekha to ascertain in respect of her mental state of affair. It was expected from PW4 Ramesh Chandekar to note his observations in Exhibit 35 in respect of fitness of Surekha. Further, other doubtful circumstance is noticed by this Court in respect of Exhibit 35. Original of Exhibit 35 shows that at the end there is a left hand thumb impression. PW4 Naib Tahsildar and Executive Magistrate Ramesh Chandekar has written as under: “since right hand is burned, thumb impression of left hand is there.” Dying declaration Exhibit 30 is recorded by PW6 Police Sub Inspector Yadaorao Deshmukh. Original of said document shows that it does not have any thumb impression. On the contrary, below there is a note “xxxx.” Thus, one dying declaration, which is recorded on 4.5.1996, speaks that it is impossible to obtain thumb impression or signature because of burning of both hands. Whereas, another dying declaration Exhibit 35, which is also recorded on 4.5.1996, is having thumb impression of left hand. 17. Further, perusal of column No. 17 of postmortem report Exhibit 58 shows that both upper limbs are charred to the extent of 18%. If that be so, appearance of left hand thumb impression on dying declaration Exhibit 35 is a suspicious circumstance, is the finding by this Court. 18. 17. Further, perusal of column No. 17 of postmortem report Exhibit 58 shows that both upper limbs are charred to the extent of 18%. If that be so, appearance of left hand thumb impression on dying declaration Exhibit 35 is a suspicious circumstance, is the finding by this Court. 18. Appellant Padmakar, who was also prosecuted for the offences punishable under Sections 458 and 354 of the Indian Penal Code, 1860, is already acquitted by learned Magistrate, as it could be seen from the observations made by learned Judge of the Court below in the impugned judgment. However, in my view, said acquittal has no bearing on the decision of the present appeal. It was for the prosecution to prove beyond reasonable doubt that deceased Surekha made dying declarations Exhibits 30 and 35. As seen above, there are suspicious circumstances which caste a serious doubt about said two dying declarations. If there are doubts, naturally benefit has to be extended in favour of accused. Consequently, I pass the following order: ORDER (i) The criminal appeal is allowed and disposed of. (ii) Judgment and order of conviction passed by learned 2nd Ad hoc Additional Sessions Judge at Nagpur dated 28.3.2003 in Sessions Trial Case No.76 of 1997 is hereby quashed and set aside. (iii) Appellant Padmakar s/o Fakiraji Dongre is acquitted of the offence punishable under Section 306 of the Indian Penal Code, 1860. (iv) Bail Bonds of the appellant stand cancelled.