JUDGMENT : Rakesh Kumar, J. The present Appeal has been preferred against the judgment of conviction of aforesaid three appellants in Sessions Trial No. 513 of 2012/TR No. 29 of 2012 ( arising out of Karande P.S. Case No. 44 of 2011 ) passed by learned Ad-hoc Additional Sessions Judge - I, Sheikhpura. All the three appellants by judgment dated - 10.04.2013 were convicted for commission of offence under Section 498A/34, 304B of the Indian Penal Code , 1860 (hereinafter referred to as the "I.P.C.") and Section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the "D.P. Act"). By order dated: 11.04.2013 appellant no. 1 - Dharmendra Mahato (husband of the deceased) under Section 304B of the I.P.C. was sentenced to undergo rigorous imprisonment for life, whereas, other two appellants namely- Shakunti Devi @ Durgabati Devi (mother of appellant - 1 & mother -in-law of deceased) and appellant no. 3 - Sushma Devi (sister of appellant no. 1) under Section 304B of the I.P.C. were sentenced to undergo rigorous imprisonment for seven years. All the appellants under Section 498A / 34 of the I.P.C. were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/- each. In default of payment they were directed to additionally undergo imprisonment for three months. Under Section 4 of the D.P. Act all the three appellants were sentenced to undergo imprisonment for six months and to pay a fine of Rs. 1000/- each. In default of payment of fine they were directed to further undergo simple imprisonment for one month. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed by Sri Vijay Kumar Trivedi, learned Ad-hoc Additional Sessions Judge - I, Sheikhpura (hereinafter referred to as the "trial judge") in Sessions Trial No. 513 of 2012/TR No. 29 of 2012 (arising out of Karande P.S. Case No. 44 of 2011). 2. Short fact of the case is that on 16.12.2011 at 18.50 Hours (6.50 P.M.) in Emergency Ward of Sadar Hospital, Sheikhpura one probationer Sub Inspector of Police Sri Mukesh Kumar Verma (P.W. 9) recorded fardbyan of Bindu Devi (deceased)/ wife of appellant no. 1. In the fardbyan the informant disclosed that her marriage was solemnized with appellant no. 2. Short fact of the case is that on 16.12.2011 at 18.50 Hours (6.50 P.M.) in Emergency Ward of Sadar Hospital, Sheikhpura one probationer Sub Inspector of Police Sri Mukesh Kumar Verma (P.W. 9) recorded fardbyan of Bindu Devi (deceased)/ wife of appellant no. 1. In the fardbyan the informant disclosed that her marriage was solemnized with appellant no. 1 - Dharmendra Mahato, S/o Yamuna Mahato three years back in the village - Sijhuri, P.S. -Karande, district - Sheikhpura as per Hindu rites. About six months back after donga she had come to her husband's house and with her husband , mother-in-law and father - in-law led peaceful life, however, two months after donga her husband , mother-in-law, father-in-law, devar and nanad started torturing her and compelling her to bring Rs. 50,000/- as dowry on which she replied that whatever was to be given that has already been given by her father at the time of marriage and now it was difficult to make any payment since his father was a poor person. Due to the said reason repeatedly the informant was being tortured and compelled to bring money. She further disclosed that on the same day i.e. on 16.12.2011 which was Friday at about 3.30 P.M. she developed some abdominal pain which was intimated to her husband, mother-in-law and father-in-law, then she was threatened that she will be done to death. One hour thereafter while she was lying on bed with abdominal pain, her mother- in- law (appellant no. 2), father- in- law, nanad, devar along with her husband entered into the room and locked the room from inside. Her husband brought container of kerosene oil and sprinkled the same over her body, then mother-in-law, father-in-law, nanad and brother of her husband all caught her and thereafter her father -in-law lighted machis and threw it on her person. Fire caught her clothes and she started crying, however, all the accused persons after locking room from outside fled away. She raised alarm thereafter neighbourers arrived there and extinguished the fire. In the meanwhile, her brother - Srikant Mahto (P.W. 4) arrived there and with his help she was carried to Sadar Hospital, Sheikhpura where she was under treatment. She claimed that her husband - Dharmendra Mahato (appellant no. 1), father-in-law/Yamuna Mahato (since died), mother-in-law/Shakunti Devi @ Durgabati Devi (appellant no. In the meanwhile, her brother - Srikant Mahto (P.W. 4) arrived there and with his help she was carried to Sadar Hospital, Sheikhpura where she was under treatment. She claimed that her husband - Dharmendra Mahato (appellant no. 1), father-in-law/Yamuna Mahato (since died), mother-in-law/Shakunti Devi @ Durgabati Devi (appellant no. 2), brother of her husband Sakendra Mahto (case referred to Juvenile Justice Board ) and sister of her husband - Sushma Devi (appellant no. 3 ) conniving with each other with common intention had administered torture and by putting her on fire tried to kill her. She further stated that her fardbyan was read over to her by her brother - Srikant Mahto (P.W. 4) and after finding it correct in presence of Srikant Mahto she put her right thumb impression. The said fardbyan was also signed as witness by Srikant Mahto (P.W. 4). On the basis of the said fardbyan on 17.12.2011 at 16.00 hours (4.00 P.M.) a formal F.I. vide Karande P.S. Case No. 44 of 2011 was registered for the offence under Sections 341/342/307/ 498A/34 of the I.P.C. and Sections 3/4 of the D.P. Act against the aforesaid three appellants and Yamuna Mahato (father of appellant no. 1) and Sakendra Mahto (younger brother of appellant no. 1). 3. After investigation, on 10.06.2012 charge-sheet was submitted against all the five F.I.R. named accused persons for the offence under Sections 304(B)/34 of the I.P.C. After filing of the charge-sheet it appears that younger brother of appellant no. 1 Sakendra Mahto claimed juvenility, and as such, his case was referred to the Juvenile Justice Board. Thereafter, on 26.06.2012 learned Chief Judicial Magistrate, Sheikhpura took cognizance of the offence and on 26.06.2012 the case was committed to the court of Sessions, and as such, it was numbered as Sessions Trial No. 513 of 2012. On 30.07.2012 charge was jointly framed against the remaining four accused persons which includes the aforesaid three appellants under Section 498A, 302, 304B of the I.P.C. and Section 3 /4 of the D.P. Act. Thereafter, evidence commenced, however, due to death of accused - Yamuna Mahto (father of appellant no. 1) on 01.08.2012 his case stood abated. 4. During the trial to establish its case from the prosecution side altogether ten witnesses were examined. P.W. 1 (Parmeshwari Devi), P.W. 2 (Sita Devi) and P.W. 3 (Janki Devi) are co-villagers of the accused persons. Thereafter, evidence commenced, however, due to death of accused - Yamuna Mahto (father of appellant no. 1) on 01.08.2012 his case stood abated. 4. During the trial to establish its case from the prosecution side altogether ten witnesses were examined. P.W. 1 (Parmeshwari Devi), P.W. 2 (Sita Devi) and P.W. 3 (Janki Devi) are co-villagers of the accused persons. P.W. 4 (Srikant Mahto) though in the fardbyan was described by the deceased ( informant ) as her brother, in his evidence has stated as if he was distant relative of the informant, who proved his signature on the fardbyan, which was marked as Ext. 1. This witness as well as P.W. 5 -Vikash Kumar [Son of P.W. 4 -Srikant Mahto] were declared hostile. P.W. 2 ( Sita Devi ) was also declared hostile. P.W. 6 -Soma Devi [mother of the deceased] though deposed entirely contrary to the prosecution case, she was not declared hostile. Similarly, P.W. 7 - Krishna Nandan Mahto (father of the deceased) has also not supported the prosecution case, he too was not declared hostile. P.W. 10 (Dr. Anil Kumar) who was posted on 20.12.2011 in the Patna Medical College and Hospital had conducted post-mortem examination on the dead body of the deceased. P.W. 9 (Mukesh Kumar Verma) who had recorded the fardbyan of the informant (deceased) had proved the fardbyan, which was marked as Ext. 2/1 and Bishweshwar Prasad Yadav (P.W. 8) was the Officer- in-charge of Karande Police Station on the date of occurrence and he is the Conducting Officer who submitted charge-sheet also. 5. After completion of prosecution evidence, on 01.02.2013 statement of accused persons under Section 313 of the Code of Criminal Procedure, 1973 ( hereinafter referred to as the "Cr.P.C.") was recorded in which appellants claimed to be innocent and also claimed that at the time of occurrence they were not present at the place of occurrence. From the defence side altogether six witnesses were examined to substantiate that the appellants at the time of occurrence were not present at the place of occurrence. A defence has been taken that deceased on her marriage with appellant no. From the defence side altogether six witnesses were examined to substantiate that the appellants at the time of occurrence were not present at the place of occurrence. A defence has been taken that deceased on her marriage with appellant no. 1 was not satisfied and this was the reason that she was not willing to come to her husband's house and by force she was asked to reside with her husband, and thereafter, due to such reason, she had committed suicide by putting herself on fire. 6. Sri Jagdish Prasad, learned counsel, assisted by Sri Bhimsen Prasad, learned counsel for the appellants after referring aforesaid evidences has argued that all the appellants have been held guilty and sentenced in a case of no evidence. He submits that of-course initially prosecution had come out with a case that the case was based on dying declaration of the deceased but on perusal of the fardbyan itself vis-a-vis post-mortem examination report of the deceased it appears that fardbyan appears to be not believable. It is evident that in a case of burn injury having about 95% injury the injured was in any event not in a position to make any statement what to talk of detailed description which has been shown in the fardbyan of the deceased. He submits that the doctor who conducted post-mortem examination on the dead body of the deceased was examined as P.W. 10 and in the post- mortem examination he had noticed that the deceased was having 95 % burn injury. Sri Jagdish Prasad, learned counsel for the appellants has argued that in a case of more than 70% burn injury it would be difficult for anyone to make any statement whereas in the present case deceased had received 95 % burn injury and in such injured condition it was impossible for her to make such specific description in the fardbyan as to when she was married with appellant 1, for what time she remained with her husband and how she was tortured and was forcibly burnt. It has also been argued that though fardbyan of the injured (deceased) was shown to be recorded in the Sadar Hospital, the Investigating Officer had not bothered to get any certification from the doctor in the Emergency Ward as to whether the injured was in a condition to make such statement or not . It has also been argued that though fardbyan of the injured (deceased) was shown to be recorded in the Sadar Hospital, the Investigating Officer had not bothered to get any certification from the doctor in the Emergency Ward as to whether the injured was in a condition to make such statement or not . He submits that it is settled law that in absence of certification of doctor in a case of recording fardbyan in hospital the said fardbyan may not be treated as dying declaration. He submits that if the fardbyan in the case is not treated as dying declaration, there is nothing in the case to show that the appellants were directly or indirectly involved in the case, rather it was a case of voluntary suicide by the deceased without any provocation from the appellants side. 7. Sri Jagdish Prasad, learned counsel for the appellants has argued that in the case mother and father of the deceased were the best persons to depose as to whether the victim before the occurrence had ever informed them regarding torture for non-fulfillment of dowry or not. He submits that on the contrary mother and father both have deposed that their daughter was not happy on her marriage with appellant no. 1 and she was not willing to go to her husband's house. It has also come in their evidence that they put pressure on the deceased to reside with her husband and within few days when she was left to her husband's house she voluntarily committed suicide. Besides this, it has been argued that the neighbourers of the appellants have also come forward to depose but they too had stated that the wife of appellant no. 1 herself had put fire on her and committed suicide. Sri Jagdish Prasad, learned counsel for the appellants has further argued that at best the so-called brother who had put signature on the fardbyan was the best person to state as to whether the deceased had made any such fardbyan or not, however, in the present case the said person i.e. Srikant Mahto was examined as P.W. 4 and to the reasons best known to the prosecution he was declared hostile and he has only identified his signature on the fardbyan, which was marked as Ext. 1. 1. On aforesaid grounds it has been argued that the learned trial judge in a case of no evidence has incorrectly passed judgment of conviction and sentence, which requires to be set aside. 8. Sri Ajay Mishra, learned Additional Public Prosecutor tried to defend the prosecution case, however, he was not in a position to satisfy the court as to whether in a case of 95% burn injury the informant (deceased) was in a position to give such descriptive fardbyan or not, but he insisted that fardbyan is virtually the last word of the deceased, and as such, the learned trial judge relying on the fardbyan has passed judgment of conviction and sentence, which may not be interfered with. 9. Besides hearing, learned counsel for the parties, we have minutely examined entire evidences available on record and after going through the same we are prima facie satisfied that in view of aforesaid evidences there was no reason for the learned trial judge to pass judgment of conviction and sentence. We have already discussed in detail as to what informant (deceased) had stated in her fardbyan. On going through the fardbyan it is difficult to rely on the prosecution case that the said fardbyan was given by the injured who was having 95% burn injury. It is not a case that in hospital few words were stated by the injured and she disclosed regarding involvement of the accused persons but in the fardbyan right from the very beginning it has been described as to when marriage of injured (deceased) was performed with appellant no. 1, when after ruksaddi she went to the house of her husband, what torture was administered and what amount was demanded. All those things create serious doubt in the mind of the Court as to whether in such injured condition one can make such detailed statement. Moreover, we are in agreement with the submission of learned counsel for the appellants that in the hospital once fardbyan of injured was being recorded certification by doctor was necessary. Of- course in absence of such certification entire prosecution case may not be brushed aside, but in view of the peculiar facts and circumstances of the present case non-availability of certification by doctor also creates some doubt. Of- course in absence of such certification entire prosecution case may not be brushed aside, but in view of the peculiar facts and circumstances of the present case non-availability of certification by doctor also creates some doubt. Even P.W. 4 (Srikant Mahto) in the fardbyan was shown to be brother of the injured (deceased ) however at the time of evidence P.W. 4 has stated otherwise, which indicates that he was distantly related with the deceased. This witness i.e. P.W. 4 who is the only witness to the fardbyan has also not supported the prosecution case. In absence of any corroboration by the witness to the fardbyan certainly the said fardbyan cannot be termed as dying declaration. 10. In the case P.W. 1 (Parmeshwari Devi) - co-villager of the appellants has accepted that deceased as a co-villager was her daughter- in- law and her marriage was solemnized with Dharmendra Mahato (appellant no. 1). She in paragraph -2 has stated that the in -laws of the deceased had gone outside for their work and in the meanwhile Bindu Devi (deceased) had put herself on fire. She further stated that she was unaware as to whether in between husband and wife there was any dispute or not. This witness examined as prosecution witness though had not supported the prosecution case, was not declared hostile by the prosecution. Meaning thereby that evidence of this witness may not be ignored particularly on the point that deceased herself had put herself on fire and at the time of occurrence none of the appellants were present at the place of occurrence. 11. P.W. 2 (Sita Devi) - one another co-villager of the appellants deposed in paragraph -2 that deceased was not willing to reside with her husband and 10-15 days back she had come to her in-law's house. In paragraph -3 she further stated that when the in-law's of deceased were not in house Bindu Devi put herself on fire. Due to such burn injury she was not in a position to speak. This witness was thereafter declared hostile as requested by learned Public Prosecutor. 12. P.W. 3 (Janki Devi) - another co-villager of the appellants has reiterated that the deceased herself had put herself on fire. Due to such burn injury she was not in a position to speak. This witness was thereafter declared hostile as requested by learned Public Prosecutor. 12. P.W. 3 (Janki Devi) - another co-villager of the appellants has reiterated that the deceased herself had put herself on fire. She further indicated that about 10-15 days back deceased had come to her in-law's house and she was not liking her inlaw's house and this was the reason that by sprinkling kerosene oil she ignited machis. This witness has also not been declared hostile. 13. Similarly, P.W. 4 (Srikant Mahto) whose presence has been shown as per fardbyan since he put his signature on the fardbyan and informant (deceased) in her fardbyan had also disclosed that after injury she was carried by this witness and Others to hospital, has not supported the prosecution case and he also reiterated the same stand which was taken by other witnesses that victim herself had tried to commit suicide. This witness has identified his signature on the fardbyan which was marked as Ext. 1. This witness was declared hostile. 14. P.W. 5 (Vikash Kumar) is none else but the son of P.W. 4 (Shrikant Mahto) and he too was declared hostile. 15. Now the most important witnesses were the mother and father of the deceased who were examined as P.W. 6 (Soma Devi) and P.W. 7 (Krishna Nandan Mahto). In paragraph -2 of the evidence of P.W. 6 she stated that in the in-law's house the deceased with her husband remained only for fifteen days and thereafter by putting herself on fire she died in Government Hospital, Patna. In paragraph -4 she stated that Bindu (deceased) was not interested to go to her in law's house and with a view to maintain social image she had compelled her to go to her in- law's house. She further reiterated that her daughter was not liking her husband and this was the reason for the occurrence. P.W. 6 was not declared as hostile witnesses. 16. Father of the deceased- P.W. 7 (Krishna Nandan Mahto) in his evidence in paragraph - 2 has stated that his daughter had never intimated him as to whether anything had ever happened against her in her in- law's house. P.W. 6 was not declared as hostile witnesses. 16. Father of the deceased- P.W. 7 (Krishna Nandan Mahto) in his evidence in paragraph - 2 has stated that his daughter had never intimated him as to whether anything had ever happened against her in her in- law's house. In paragraph -13 of his cross- examination he stated that before Police at Patna and Sheikhpura he had given statement that his daughter was not liking her husband nor she was willing to go with him. In paragraph -14 he stated that by force to save social image he sent his daughter and this was the reason that she put herself on fire. In paragraph - 17 of his cross -examination he further stated that his daughter had informed him that she was not willing to continue relation with her husband . In paragraph - 18 of the cross -examination he while identifying all the four accused persons which includes the aforesaid three appellants stated that they had not burnt his daughter. This clearly indicates that it was not a case of dowry death. 17. At this juncture it would be necessary to incorporate the evidence of Dr. Anil Kumar (P.W. 10) who conducted postmortem examination on the dead body of the deceased. He had proved the post -mortem examination report, which was marked as Ext. 3. On 20.12.2011 this witness was posted in P.M.C.H. and on the same day he conducted post -mortem examination on the dead body of the deceased which was conducted at 3.30 P.M. on 20.12.2011 and in the post-mortem examination he noticed the following facts:- "External finding:- She was thin built. Rigor mortis present all over body. No sign of decomposition. Fooly's IV Cells, incitic and intravenous eathalen right foot. Scalp hair sinerd and bandaged burn wound found as detailed in para below. On removal of bandage, anti-mortem burn wound was found all over body, both upper limb, both lower limb, neck on anterior and posterior of surface and face except part of both sole and (all together 95% burn). Burn was epidermal to dermal in thickness. Internal finding on dissection:- Cranial and spinal canel:- Maninges conjusted. Thorax:- Lung both congested. Heart:- Right side chamber contained blood and left side empty. Abdomen:- Liver, spleen and kidney all congested. Stomach:- Yellow color fluid and its mucosa was normal. Urinary bladder:- Empty and uterus N.A.D. (no abnormality detected). Burn was epidermal to dermal in thickness. Internal finding on dissection:- Cranial and spinal canel:- Maninges conjusted. Thorax:- Lung both congested. Heart:- Right side chamber contained blood and left side empty. Abdomen:- Liver, spleen and kidney all congested. Stomach:- Yellow color fluid and its mucosa was normal. Urinary bladder:- Empty and uterus N.A.D. (no abnormality detected). Opinion:- I. Cause of death- ante-mortem burn and its complication. II. Time elapse since death- 06 to 24 hours approximately" In his cross -examination in paragraph - 5 he stated that in case of 40 % burn injury also death can be caused, however, in his evidence as well as on examination of the post-mortem examination report it is evident that dead body was having 95 % burn injury. 18. P.W. 9 (Mukesh Kumar Verma) had only recorded fardbyan of the deceased and he proved the fardbyan, which was marked as Ext. 2/1. 19. P.W. 8 (Bishweshwar Prasad Yadav) on the date of occurrence was posted as Officer - in - Charge in Karande Police Station and he had drawn the formal F.I.R., which was marked Ext. 2. He conducted investigation and he had also submitted charge-sheet. In his evidence he has stated that after the occurrence he visited the place of occurrence, however he did not notice any smoke nor smell of kerosene oil at the place of occurrence. On going through the evidence of P.W. 8 we are of the opinion that in such cases particularly in case of burning this should not have been the approach of the Investigating Officer to conduct investigation in such a manner. Moreover, on examination of the evidence of P.W. 8 (Investigating Officer) it is difficult to come to a conclusion as to what was the actual place of occurrence. 20. In defence in the statement of the appellants which was recorded under Section 313 of the Cr.P.C. they had taken the same stand that at the time of occurrence they were not present. This fact has also been corroborated in the defence evidence. In the case from the defence side six witness were examined, namely: Rajendra Mahto (D.W. 1), Kapildev Mahto (D.W. 2), Shibu Mahto (D.W. 3), Shanti Devi (D.W. 4), Mushtaque Ansari (D.W. 5) and Arun Kumar (D.W. 6). 21. This fact has also been corroborated in the defence evidence. In the case from the defence side six witness were examined, namely: Rajendra Mahto (D.W. 1), Kapildev Mahto (D.W. 2), Shibu Mahto (D.W. 3), Shanti Devi (D.W. 4), Mushtaque Ansari (D.W. 5) and Arun Kumar (D.W. 6). 21. Normally, in a criminal trial it is not necessary to place much reliance on the evidence of defence witnesses but in view of peculiar facts and circumstances of the present case certainly we may lend some reliance on defence evidence. Even if for the time being we ignore the defence evidence on examination of prosecution evidence we are satisfied that prosecution has miserably failed to establish its case beyond all reasonable doubt, and as such, it is fit a case for interfering with the judgment of conviction and sentence. Accordingly, judgment of conviction dated -10.04.2013 and sentence dated : 11.04.2013 passed by Sri Vijay Kumar Trivedi, learned Ad-hoc Additional Sessions Judge - I, Sheikhpura in Sessions Trial No. 513 of 2012/TR No. 29 of 2012 (arising out of Karande P.S. Case No. 44 of 2011 ) is hereby set aside. 22. The Appeal is allowed. 23. In this case appellant no. 2 and 3 are on bail, and as such, they are discharged from liability of their bail bonds. So far appellant no. 1 is concerned, he is in custody and since judgment of conviction and sentence has been set aside, it is hereby directed to release him forthwith, if not required, in any other case. 24. The Appeal stands allowed.