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2020 DIGILAW 418 (GUJ)

Rameshbhai Chanabhai Rojasra v. State of Gujarat

2020-03-06

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 28.01.2005 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot in Sessions Case No. 102 of 2001 (hereinafter be referred to as “the Trial Court”) the accused have preferred Criminal Appeal No. 286 of 2005 against their conviction and sentence, whereas, the State Government has preferred Criminal Appeal No. 1563 of 2005 for enhancement of sentence imposed upon the accused. 2. By impugned judgment and order, the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot has convicted the accused for the offence punishable under Sections 498-A and 306 of the Indian Penal Code as under: “The appellant no. 1 has been convicted and sentenced to suffer R.I. For a period of 3 years and to pay a fine of Rs. 300/- in default, he is directed to suffer R.I. for 6 months for the offence punishable u/s. 498-A of I.P.C. Further, the appellant No. 1 has been convicted and sentenced to suffer R.I. for a period of 5 years and to pay a fine of Rs. 500/- in default, he is directed to suffer R.I. for 1 year for the offence punishable u/s. 306 of I.P.C. The appellant no. 2 has been convicted and sentenced to suffer R.I. for a period of 1 year and to pay a fine of Rs. 100/- in default, she is directed to suffer R.I. for 3 months for the offence punishable u/s. 498-A of I.P.C. Further, the appellant No. 2 has been convicted and sentenced to suffer R.I. for a period of 2 years and to pay a fine of Rs. 100/- in default, she is directed to suffer R.I. for 6 months for the offence punishable u/s. 306 of I.P.C. The appellant no. 3 has been convicted and sentenced to suffer R.I. for a period of 1 year and to pay a fine of Rs. 100/- in default, she is directed to suffer R.I. For 3 months for the offence punishable u/s. 498-A of I.P.C. Further, the appellant no. 3 has been convicted and sentenced to suffer R.I. for a period of 3 years and to pay a fine of Rs. 100/- in default, she is directed to suffer R.I. for 6 months for the offence punishable u/s. 306 of I.P.C.” 3. 3 has been convicted and sentenced to suffer R.I. for a period of 3 years and to pay a fine of Rs. 100/- in default, she is directed to suffer R.I. for 6 months for the offence punishable u/s. 306 of I.P.C.” 3. As both these criminal appeals having been arise from the same judgment and order, these appeals are heard together and are being disposed of by this common judgment. 4. Brief facts of the prosecution case are as under. 4.1 According to the prosecution case, the incident has happened on 15.02.2001 at about 7.00 pm at the house of accused No. 1 in Rajkot city. In the said incident, wife of accused No. 1 and daughter-in-law of accused No. 2 namely Kailashben sustained burn injuries and ultimately, she died on 06.03.2001. Accused No. 3 Shardaben is the wife of Ashwinbhai who is elder brother of accused No. 1. 4.2 It is the case of the prosecution that the marriage of deceased Kailashben with accused No. 1 was solemnized one year prior to the date of incident. It is alleged that there was constant quarrel prior to one month of the incident and on the date of the incident, deceased was treated with physical and mental cruelty by the accused. It is also alleged that accused No. 1 had illicit relation with accused No. 3 Shardaben i.e. Jethani of deceased Kailashben. According to the prosecution case, due to this illicit relationship, there was quarrel between accused No. 1 and deceased Kailashben, due to which, she went to her parental home. It is alleged that thereafter, the deceased was persuaded and she was brought back to her matrimonial home. 4.3 It is the case of the prosecution that on the day of incident, there was marriage ceremony of son of aunt (faiba) of accused No. 1. It is alleged that accused No. 1 has not taken the deceased with him and the quarrel took place between them and accused No. 1 alone went in the marriage ceremony. It is alleged that thereafter, the deceased went to her parental home during noon hours and she returned back at about 6.30 pm. It is alleged that the deceased informed her mother and has borrowed money from her mother and came black to her house at 6.30 pm. It is alleged that thereafter, the deceased went to her parental home during noon hours and she returned back at about 6.30 pm. It is alleged that the deceased informed her mother and has borrowed money from her mother and came black to her house at 6.30 pm. It is alleged that her husband was not returned back and, thereafter, accused No. 3 and mother-in-law have again started taunting her and caused mental and physical cruelty. It is alleged that therefore, the deceased was fed-up and she has sprinkled kerosene from the plastic can on herself. Prior to that her jethani and mother-in-law have told that she is prostitute and better die. On such taunting, she ablaze her. It is alleged that while she was under flame, jethani and mother-in-law ran away. At that point of time, the deceased shouted and hence, neighbours gathered there and brought her to the Civil Hospital. 4.4 Initially, on the aforesaid allegations, the deceased filed complaint and same was registered for the offence punishable under Sections 498-A and 114 of the Indian Penal Code against all the accused. Thereafter, the deceased succumbed to the burn injury on 06.03.2001. Hence, the offence punishable under Section 306 of Indian Penal Code was added in the FIR. 4.5 On registration of the FIR, the Investigating Officer started investigation. During the investigation, the accused were arrested and the Investigating Officer has recorded the statements of various witnesses and prepared necessary panchnama thereof and got documentary evidence in the shape of medical evidence. 5. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate First Class for the alleged offences. Thereafter, as one of the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No. 102 of 2001. 6. The charge against the accused came to be framed by the Trial Court, vide Exhibit-1 for the aforesaid offence. The accused pleaded not guilty to the charge and pleaded for trial. 7. 6. The charge against the accused came to be framed by the Trial Court, vide Exhibit-1 for the aforesaid offence. The accused pleaded not guilty to the charge and pleaded for trial. 7. To prove the case, the prosecution has examined the following witnesses:- PW-1 Rajendra Shantilal Doctor Exh.20 PW-2 Shri N.N. Gohel Ex-Magistrate Exh.24 PW-3 Lilavatiben Rabubhai Witness Exh.30 PW-4 Shantaben Virajibhai Witness Exh.31 PW-5 Sureshbhai Ukabhai Panch Witness Exh.37 PW-6 Prafulgiri Samgiri Panch Witness Exh.39 PW-7 Kankuben Manjibhai Panch Witness Exh.40 PW-8 Batukbhai Dayaljibhai P.S.I. Exh.44 PW-9 Shri K.P. Jadeja A.S.I. Exh.47 PW-10 Mukeshbhai Virajibhai Witness Exh.52 PW-11 Shri R.K. Madhvi A.S.I. Exh.55 8. The prosecution has also produced the following documentary evidence:- S. No. Particulars Exhibit 1 Police Yadi 21 2 P.M. Note of Kailashben 22 3 Police Yadi to record of D.D. 25 4 Original D.D. of Kailashben 26 5 Original case paper 36 6 Panchnama of scene of offence 38 7 Inquest panchnama 41 8 Arrest panchnama of accused 42 9 Forwarding letter 48 10 Station Diary Entry No. 23/2001 49 11 Station Diary Entry No. 24/2001 50 12 Letter of P.S.O. 51 13 Original F.I.R. 56 9. After closure of the evidence of the prosecution, the defence side has examined the following witnesses:- DW-1 Ashwinbhai Chanabhai Rojasra Exh.62 DW-2 Hasmukhbhai Goganbhai Bavaliya Exh.63 10. After closure of the evidence, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 came to be recorded, wherein also, the accused have denied of having committed any offence and stated that they have been falsely implicated in the alleged offence. 11. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused from the charges leveled against them for the offence under Sections 306 and 498-A of the Indian Penal Code and, ultimately, the Trial Court passed the judgment and order of sentence as referred to hereinabove. 12. Heard Mr. S.B. Tolia, learned advocate for Mr. H.S. Tolia, learned counsel for the appellants and Ms. Maithili Mehta, learned Additional Public Prosecutor for respondent- State. 13. Mr. Tolia, learned counsel for the appellants has vehemently submitted that there is no cogent, clear and convincing evidence against the appellants. While inviting the attention of the Court to the oral evidence on record, Mr. H.S. Tolia, learned counsel for the appellants and Ms. Maithili Mehta, learned Additional Public Prosecutor for respondent- State. 13. Mr. Tolia, learned counsel for the appellants has vehemently submitted that there is no cogent, clear and convincing evidence against the appellants. While inviting the attention of the Court to the oral evidence on record, Mr. Tolia, learned counsel has submitted that the entire case is based on the solitary evidence in the nature of the dying declaration which suffers from inherent infirmities. He has submitted that the manner in which the complaint as well as so-called dying declaration are recorded is highly doubtful. According to his submission, the so-called dying declaration cannot be treated as dying declaration under the provisions of Section 32(1) of the Evidence Act. 13.1 Mr. Tolia, learned counsel has submitted that as per the medical opinion, the deceased Kailashben died due to septicemia. He has submitted that therefore, it is clear that the deceased Kailashben did not die as a result of injury sustained by her. He has submitted that the so-called dying declaration cannot be relied upon. According to him, this material infirmity in the dying declaration has not been properly appreciated by the Trial Court and has failed to consider the fact that this is a case of accidental fire which declared at the earliest opportunity by the deceased herself before the medical officer, which is noted down by the medical officer in medical case papers produced at Exhibit 36. 13.2 Mr. Tolia, learned counsel for the appellants has submitted that the PSI Shri Batukbhai Thakkar, who made inquiry also wrote a yadi at Exhibit 25 to the Executive Magistrate to record the dying declaration of deceased Kailashben in which it is clearly stated that the deceased caught accidental fire. While inviting the attention of the Court to the Exhibit 49, Mr. Tolia, learned counsel has submitted that the entry made in the station diary by PSO Shri Keshubha Jadeja in the Police Station is on the strength of the telephonic message sent by PSI Shri Batukbhai which also reveals that deceased Kailashben caught accidental fire. Mr. Tolia, learned counsel has also drawn attention of the Court to the yadi at Exhibit 51 sent to PSI Shri Madhvi by PSO Shri Jadeja and has submitted that the document reveals that this is a case of accidental fire. Mr. Tolia, learned counsel has also drawn attention of the Court to the yadi at Exhibit 51 sent to PSI Shri Madhvi by PSO Shri Jadeja and has submitted that the document reveals that this is a case of accidental fire. According to him, this material evidence has been ignored by the Trial Court and straight way accepted the evidence of so-called dying declaration, which has ended in miscarriage of justice. 13.3 Mr. Tolia, learned counsel has also submitted that the prosecution did not examine the material witnesses who were available at the trial and they are independent witnesses. He has submitted that the witnesses examined by the prosecution have made material improvements at the trial. He has submitted that there is no direct nexus between the death of the deceased Kailashben and so-called cruelty alleged to have been committed by the accused. He has submitted that the prosecution has failed to establish the manner in which the incident has happened. According to him, the allegation against the accused is relating to the illicit relationship between accused Nos. 1 and 3. In this regard, he has submitted that mere allegation of illicit relation cannot be a cause for committing suicide and such allegation cannot be treated as an instigation by the accused to the deceased to commit suicide. 13.4 Mr. Tolia, learned counsel has submitted that the evidence of defence witnesses have not been properly appreciated by the Trial Court and has committed serious error of facts and law in ignoring the evidence produced by the defence witnesses. He has submitted that however, in this case there is thumb impression on the FIR which shows that the said document is got up and the defence put up by the accused that the thumb impression was not of the deceased but that was of one Lilavatiben, sister of the deceased is believable. While reading the entire evidence on record, Mr. Tolia, learned counsel has submitted that the Trial Court has committed serious error of facts and law in appreciating the evidence on record and materially erred in convicting the accused and imposing the sentence upon them as recorded hereinabove. He has prayed to allow the appeal filed by the appellants-accused and to dismiss the appeal filed by the State Government for enhancement of sentence. 13.5 Mr. He has prayed to allow the appeal filed by the appellants-accused and to dismiss the appeal filed by the State Government for enhancement of sentence. 13.5 Mr. Tolia, learned counsel for the appellants has submitted that the doctor, who has recorded the history of the deceased has not been examined in this case. While referring to the dying declaration at Exhibit 26 at Page No. 83 of the paper-book, learned counsel for the appellants has submitted that no role is attributed to the mother-in-law. He has submitted that on the date of happening of the event, the deceased has sufficient time to cool down as the alleged quarrel was occurred between the husband and wife in early morning and, thereafter, the deceased had gone to her parental home. He has also referred to the other documents and has submitted that initially narration of the incident by the deceased is to the effect that she has caught fire while she was boiling the milk. He has submitted that as per the evidence on record, the in-laws of the deceased were residing separately. He has submitted that at the time of incident, the husband and other accused were not present and they have gone to the marriage ceremony in their relatives. He has submitted that there is no evidence as to the facts that she was subjected to any torture. He has submitted that the deceased has died after 20 days. According to him, wild allegation regarding illicit relationship between accused No. 1 and accused No. 3 has been made and no ingredients of abetment is established in this case. According to him, had the accused No. 1 i.e. husband had any illicit relationship with accused No. 3 then no marriage with the deceased would have arranged. 13.6 Mr. Tolia, learned counsel has submitted that the presumption under Section 113-A of the Indian Evidence Act is not applicable. He has submitted that there is no allegation of dowry and there is no cause for committing the suicide. 13.7 In the alternatively, learned advocate for the appellants has submitted that if the Court comes to the conclusion that the offence is proved against the accused, then, the sentence may be reduced to the extent that whatever sentence has been undergone by the accused may be treated as sufficient punishment and the appeals may be allowed to that extent. 13.8 Mr. 13.8 Mr. Tolia, learned counsel has relied upon the following decisions: 1. State of Gujarat vs. Madha Bhana, 1984 GLH 567 2. Moti Singh vs. State of Uttar Pradesh, AIR 1964 SC 900 3. Maniram vs. State of Madhya Pradesh, 1994 AIR SC 840 4. Chinnamma vs. State of Kerala, (2004) 12 SCC 244 5. Lella Srinivasa Rao vs. State of A.P. (2004) 9 SCC 713 6. K.V. Prakash Babu vs. State of Karnataka, AIR 2016 SC 5430 7. Ghusabhai Raisangbhai Chorasiya vs. State of Gujarat, (2015) 11 SCC 753 8. Pinakin Mahipatray Rawal vs. State of Gujarat, (2013) 10 SCC 48 9. Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, A.P. 2007 (3) GLH 491 10. Dandu Lakshmi Reddy vs. State of A.P. (1999) 7 SCC 69 11. Sharda vs. State of Rajasthan, (2010) 2 SCC 85 12. State of Punjab vs. Gian Kaur, AIR 1998 SC 2809 14. Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent-State has, while referring to the entire evidence on record and reading the evidence extensively, submitted that there is no contradiction in the FIR as well as dying declaration of the deceased. She has submitted that whatever contradictions are found are minor in nature and there is no material contradictions in both these documents i.e. the FIR as well as dying declaration of the deceased. She has submitted that the marriage between accused No. 1 and the deceased is just of one year and, therefore, the presumption under Sections 113-A of the Evidence Act should be drawn against the accused. While referring to the evidence produced by the defence, she has submitted that the evidence produced by the defence are not reliable. While referring to the entire evidence on record, Ms. Mehta, learned Additional Public Prosecutor has submitted that the Trial Court has properly appreciated the entire evidence on record and has not committed any error of facts and law in convicting the accused. She has submitted that the Trial Court though has convicted the accused, but has committed serious error of facts and law in awarding lesser punishment to the accused and, therefore, the appeal filed by the State for enhancement of punishment may be allowed and the appeal filed by the accused may be dismissed. 14.1 Regarding various decisions relied upon by learned counsel for the appellants, Ms. 14.1 Regarding various decisions relied upon by learned counsel for the appellants, Ms. Mehta, learned Additional Public Prosecutor has submitted that those decisions are based on the peculiar facts of those cases and those are not applicable to the facts of the present case. She has submitted that the deceased has committed suicide on account of constant torture by the accused as there was illicit relationship between accused No. 1 and accused No. 3. 15. In rejoinder, Mr. Tolia, learned counsel for the appellants has submitted that if the allegation of illicit relationship between accused No. 1 and accused No. 3 is discarded, than, there is no case made out by the prosecution against the accused. He has prayed to allow the appeal filed by the accused and to dismiss the appeal filed by the State. 16. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 17. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 18. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. 18. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 19. In the case of State of Gujarat vs. Madha Bhana (supra), this Court has held and observed in Para-6 as under: “6. Under section 32(1) of the Evidence Act, statements, written or verbal, or relevant facts made by a person who is dead are relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of death comes in question.....” 20. In the case of K.V. Prakash Babu vs. State of Karnataka (supra), the Apex Court has, by referring previous decisions in the case of Ghusabhai Raisangbhai Chorasiya vs. State of Gujarat, (2015) 11 SCC 753 and Pinakin Mahipatray Rawal vs. State of Gujarat, (2013) 10 SCC 48 , held and observed in Para-16 as under: “16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from the definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extramarital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extramarital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.” 21. In the case of Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, A.P. (supra) the Apex Court has, while referring to it's earlier decisions and relying upon the observations made by the Apex Court in the case of Smt. Paniben vs. State of Gujarat, JT 1992 (4) SC 397, has held and observed in Para-21 as under: “21. In Smt. Paniben vs. State of Gujarat, this Court while stating that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several Judgments the principles governing dying declaration; which could be summed up asunder: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Munnu Raja vs. State of M.P. 1976 (2) SCR 764 . (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. Munnu Raja vs. State of M.P. 1976 (2) SCR 764 . (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of U.P. vs. Ram Sager Yadav, 1985 (2) SCR 621 and Ramavati Devi vs. State of Bihar, 1903 (1) SCC 211. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. K. Ramchandra Reddy vs. Public Prosecutor, 1976 Supp. SCR 542. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg vs. State of M.P. (1974) 4 SCC 264 . (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh vs. State of M.P. 1981 Supp. SCC 25. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath vs. State of U.P. 1981 (2) SCC 654 . (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. State of Maharashtra vs. Krishnamurti Laxmipati Naidu, 1980 Supp. SCC 455. (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza vs. State of Bihar, 1980 Supp. SCC 769. (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. Nanahau Ram and Another vs. State of M.P. JT 1988 (1) SC 464. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. vs. Madan Mohan, JT 1989 (2) SC 158.” 22. In the case of Dandu Lakshmi Reddy vs. State of A.P. (supra), the Apex Court has held and observed in Paras-19 and 20 as under: “19. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. State of U.P. vs. Madan Mohan, JT 1989 (2) SC 158.” 22. In the case of Dandu Lakshmi Reddy vs. State of A.P. (supra), the Apex Court has held and observed in Paras-19 and 20 as under: “19. Section 162 of the Code of Criminal Procedure (for short ‘the Code’) interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. Of course, this Court has said in Raghunandan vs. State of U.P. AIR 1974 SC 463 : 1974 Cri. L.J. 453, that power of the Court of put questions to the witness as envisaged in Section 165 of the Evidence Act would be untrammeled by the interdict contained in Section 162 of the Code. The following observations in the aforesaid decision, in recognition of the aforesaid power of the Court, would be useful in this context (SCC P. 171, Para-16): “16. We are inclined to accept the argument of the appellant that the language of Section 162, Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice......Therefore, we hold that Section 162, Criminal Procedure Code does not impair the special powers of the Court under Section 165, Indian Evidence Act.” 20. It must now be remembered that the said procedure can be followed only when witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the Court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the Court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner.” 23. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner.” 23. In the case of Sharda vs. State of Rajasthan (supra) the Apex Court has held and observed in Para-34 as under: “34. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.” 24. Now, on perusal of the evidence on record, it is an admitted fact that the deceased Kailashben died due to septicemia on account of extensive burn injury. This fact has been narrated by Dr. Rajendra Shantilal, who is examined at Exhibit 20. He has specifically stated that he has performed postmortem of the dead body of deceased Kailashben on 06.03.2001 and found that there were third degree infected burns injuries over face, front of back, front of chest, front of abdomen and up to waist, both upper limbs, shoulder, axilla and hand. According to this witness, there were 55% burns injuries on the dead-body. 24.1 During the cross-examination, he has deposed that the septicemia can be caused because of infection and it is not necessary that in every burns cases, there will be a septicemia. He has admitted that in the case papers, the history has been narrated to the effect that while preparing milk on the stove, the deceased Kailashben has sustained burn injury and this history was given by deceased Kailashben. He has admitted that in the case papers, the history has been narrated to the effect that while preparing milk on the stove, the deceased Kailashben has sustained burn injury and this history was given by deceased Kailashben. He has admitted that there is eraser in number at Exhibit 36 and initially, there was mentioned that the patient Kailashben was brought by Munnabhai and, thereafter, the name has been erased and name of Shardaben Virajibhai was written. He has stated that her name has been narrated by near relative of the patient. He has admitted that there is possibility that while preparing milk on the stove, if any person sustained any burns injuries then, the injuries can be caused on the upper part of the waist. According to this witness, he cannot say as to in the case of 55% burns, whether patient can survive or not. 24.2 During his cross-examination, the doctor has admitted that the hairs on the head of the deceased were not burnt and the portion from face to thigh was not in burnt condition, but, there was no injury on perineum region of the body. He has stated that the injury which he has shown can be inflicted by oneself. He has admitted that the vomiting and fever are the primary symptoms of the septicemia disease. He has admitted that it is not necessary that there will be septicemia in every case of burn. He has admitted that in the burn cases, there is likelihood of death during the first week of the incident. He has admitted that the palm is the lower portion of the wrist which includes the fingers also. He has denied that the septicemia is anti-mortem report and it is not a postmortem report. He has admitted that whether it is septicemia or not can be ascertained by blood culture report. 24.3 He has admitted that when the patient was brought in the hospital, the history was recorded. He has stated that the deceased-Kailashben has given history that while she was preparing the milk on stove, she caught burn injury and this fact has been written down by the Medical Officer Dr. Jethva. He has also stated that in view of the Exhibit 36 which is MLC case papers, on 15.02.2001, the patient has given higher antibiotic and till 19.02.2001, the general condition of the patient was bad. Jethva. He has also stated that in view of the Exhibit 36 which is MLC case papers, on 15.02.2001, the patient has given higher antibiotic and till 19.02.2001, the general condition of the patient was bad. He has admitted that there is correction made in the case number of the patient, which is produced at Exhibit 36. While referring Exhibit 36, he has admitted that till 19.02.2001, the condition of the patient is shown as serious one and on 19.02.2001, there is mention that the general condition of the patient is good. He has admitted that there is no mention in the MLC case papers at Exhibit 36 that there was smell of kerosene. While referring to Exhibit 36, he has stated that the hairs of patient were long enough and the same has been reflected in the postmortem note. He has admitted that as per the MLC case papers dated 15.02.2001, the condition of the patient is shown bad at about 9.00 pm to 10 pm. He has admitted that if there are burnt injuries sustained on front side or back side of the throat, chest, waist then the hairs will definitely be burnt. He as admitted that there is no burn injury has been shown below the waist in the postmortem report. He has admitted that if any person pours kerosene on his own head and one drop of the kerosene is fallen on the floor then there will be possibility of sustaining injury below the part of waist. He has stated that he cannot opine as to the probability of saving of the person in a case of 55% burns. 24.4 Thus, on perusal of evidence of this witness, it is clear that the deceased has sustained burn injuries of 55% and her hands have also burnt injuries and the deceased has died due to septicemia on account of burn injuries. 25. On perusal of the evidence of Nirmalsinh Batubha Gohel, Executive Magistrate, PW-2 at Exhibit 24, who has recorded the dying declaration of deceased Kailashben, it appears that on 15.02.2001, he was serving as Deputy Mamlatdar at Collector Office, Rajkot and at that time, he received yadi from Government Hospital Police Chowki for recording dying declaration and accordingly, he went to the Government Hospital, Rajkot in Burns Ward for recording the dying declaration. According to him, he reached at the Government Hospital at 9.15 hours and before recording the dying declaration of the patient, he verified through the doctor that whether the patient is conscious enough for giving dying declaration and he himself has verified that the patient is mentally and physically stable for giving the dying declaration. He has deposed that thereafter, he has recorded the dying declaration of the patient who was aged about 23 years. He has deposed that she has narrated that as there was illicit relationship between her husband and elder sister-in-law there was harassment on the part of her husband and elder sister-in-law, she herself has poured kerosene on her and put her ablaze. It is his version that he has recorded the dying declaration as per the version of the patient and, thereafter, he has obtained thumb impression on the same. He has deposed that thereafter, he has obtained necessary endorsement of the doctor that the patient was in good state of mind for recording the dying declaration. He has produced dying declaration at Exhibit 26 along with the police yadi at Exhibit 25. 25.1 During his cross-examination, he has deposed that the patient told him that the quarrel took place with her elder sister-in-law on the day of incident. However, this witness has deposed that he has not asked about the quarrel and the cause of quarrel has also not been asked by him. He has admitted that there is no specific word written in Exhibit 26 that Kailashben was fit in state of mind to give the statement. He has admitted that he is agreed with the preposition that even if the person is conscious, but might not be in fit state of mind to speak anything. He has admitted that when he received police yadi at Exhibit 25 he was having idea regarding narration therein (yadi) and as part of his duty, he went to record the dying declaration of the deceased. He has deposed that he has not asked the deceased Kailashben that whether she was boiling the milk and while taking utensil, she caught fire from the flame of stove. He has admitted that there is endorsement of the medical officer on Exhibit 25, but he cannot say who has signed it. He has deposed that he has not asked the deceased Kailashben that whether she was boiling the milk and while taking utensil, she caught fire from the flame of stove. He has admitted that there is endorsement of the medical officer on Exhibit 25, but he cannot say who has signed it. He has deposed that after receiving the yadi, he has gone to the hospital and met the medical officer, but he did not remember the name of the doctor. He has deposed that he was not knowing the doctor, but the doctor was on duty and on that basis, he was knowing him. He has deposed that when he went to record the dying declaration, at that point of time, no police personnel was present there. He has admitted that when he recorded the dying declaration, the entire body of the patient was with bandage and both palms were also in burnt condition. He has admitted that the patient was not able to sign when he recorded the dying declaration of her and he has not got identified the thumb impression. He has denied the suggestion that he has recorded the dying declaration of the patient at the instance of the police and as per the version of the relatives of the patient. 26. On perusal of the evidence of Lilavatiben Babubhai, PW-3 at Exhibit 30, who is elder sister of the deceased Kailashben, it appears that she has narrated the relationship between the parties and has deposed that the marriage of the deceased was solemnized before one year of the incident. She has deposed that whenever the deceased visited her parental home, she was telling her regarding the physical and mental torture administered to her by her in-laws. It is her version that Kailashben’s husband, mother-in-law, father-in-law and her elder sister-in-law (jethani) were harassing mentally and physically to the deceased. She has deposed that her sister (deceased) was telling her that her husband did not speak to her and taunting her. According to this witness, the husband of deceased was harassing her sister as he was having illicit relation with elder sister-in-law of the deceased. She has deposed that the deceased Kailashben committed suicide on pouring kerosene on her and ultimately, she died on 06.03.2001. It is her version that on the day of incident, all the accused were in the home. She has deposed that the deceased Kailashben committed suicide on pouring kerosene on her and ultimately, she died on 06.03.2001. It is her version that on the day of incident, all the accused were in the home. 26.1 During her cross-examination, she has deposed that on the day of incident, she was at her matrimonial home and prior to one month of the incident, the deceased was staying in her parental home. She has also deposed that she got information regarding the incident at about 7.00 pm at her home and, thereafter, they went directly to the Government Hospital and reached there at about 7.30 pm to 7.45 pm and when the police came to record the statement, she was present there. She has admitted that the Executive Magistrate came to record the statement at about 9.00 pm, at that time also, she was present there. She has admitted that she has narrated in her police statement that when the deceased came in her parental home before one month of the incident, she told her that the elder sister-in-law and mother-in-law of the deceased were taunting her and her husband had gone out of city. She has denied the fact that in her police statement, she has not narrated the fact, which has been stated by deceased Kailashben to her. She has also admitted that she has stated in her police statement that Kailashben told her that her husband Ramesh has gone out of city to attend the marriage ceremony and he has not taken her with him. She has admitted that on the day of incident, Kailashben has visited parental home at 5.00 pm. She has deposed that when the dying declaration was being recorded, she was out side the room as they were directed to leave the room. She has deposed that on the day of incident, there was marriage of cousin of the husband of the deceased. 27. On perusal of the evidence of Shantaben Virajibhai, PW-4 at Exhibit 31, who is mother of the deceased, it appears that she has deposed that the deceased was her younger daughter and her marriage was solemnized with Rameshbhai prior to one year of the incident. 27. On perusal of the evidence of Shantaben Virajibhai, PW-4 at Exhibit 31, who is mother of the deceased, it appears that she has deposed that the deceased was her younger daughter and her marriage was solemnized with Rameshbhai prior to one year of the incident. She has deposed that Kailashben used to come to her house after marriage and prior to one year of the incident came to her house and told her that her husband has illicit relationship with her elder sister-in-law and, therefore, her husband, elder sister-in-law and mother-in-law taunting her and quarreling with her and causing cruelty towards her. She has stated that on the date of incident in the noon, Kailashben came to her house and told her that her husband has gone to attend the marriage of her husband’s aunti’s son and did not take her (deceased) with him and quarreled with her. She has deposed that on the day of the incident, her daughter (Kailashben) went to her house in the evening and deceased borrowed Rs. 250/- from her. She has deposed that when her daughter was in parental home for one month, she was not ready to go to her matrimonial home. However, the elder brother-in-law of the deceased came their house and brought back the deceased at matrimonial home. According to her version, the incident has occurred after one month, thereafter. 27.1 According to her, she was told that her daughter has committed suicide by pouring kerosene on her body due to harassment by the accused. She has deposed that her son has told her regarding the incident and, therefore, she had gone to the hospital and she has seen that whole body of the deceased was in burnt condition and she was conscious. She has deposed that her daughter has told her that when she was burning, all the accused were present in the house and nobody has tried to extinguish the fire. She has deposed that after 20 days of the incident, her daughter had died in the hospital. 27.2 During her cross-examination, she has admitted that there is a house of her another daughter namely Lila between the house of the accused and her own house. She has admitted that the deceased’s elder brother-in-law brought back the deceased prior to the incident of one month telling that they have to stay in separate house. 27.2 During her cross-examination, she has admitted that there is a house of her another daughter namely Lila between the house of the accused and her own house. She has admitted that the deceased’s elder brother-in-law brought back the deceased prior to the incident of one month telling that they have to stay in separate house. She has admitted that her daughter has visited her house, on the day of the incident, in the noon at about 1.00 pm. She has admitted that on the day of the incident, deceased’s husband, elder sister-in-law and mother-in-law have gone to attend the marriage ceremony of aunti-in-law’s son. She has admitted that she has no personal knowledge regarding the incident. She has deposed that she reached to the hospital at 7.30 pm and when she reached there, no medical treatment was given to her daughter. She has deposed that after her reaching at the hospital, after 30 minutes thereof, the medical treatment was started. She has deposed that when she reached at the hospital at about 7.30 pm, her daughter’s mother-in-law was also there. She has admitted that on the day of the incident, her daughter and her husband were residing separately from mother-in-law, elder brother-in-law and elder sister-in-law. She has denied the suggestion that there was no torture to the deceased from the accused side. 28. On perusal of the evidence of Sureshbhai Ukabhai, PW-5 at Exhibit 37 and Prafulgiri Samgiri, PW-6 at Exhibit 39, it appears that they are the panch witnesses of the panchnama of the scene of offence. They have not supported the case of the prosecution as to preparation of the so-called panchnama in their presence. Thus, they have been declared hostile. 29. On perusal of the evidence of Kankuben Manjibhai Kumarkhaniya, PW-7 at Exhibit 40, it appears that she is a panch witness of the inquest panchnama at Exhibit 41. She has not supported the case of the prosecution that the panchnama at Exhibit 41 was prepared in her presence and, therefore, she has been declared hostile. 30. 29. On perusal of the evidence of Kankuben Manjibhai Kumarkhaniya, PW-7 at Exhibit 40, it appears that she is a panch witness of the inquest panchnama at Exhibit 41. She has not supported the case of the prosecution that the panchnama at Exhibit 41 was prepared in her presence and, therefore, she has been declared hostile. 30. On perusal of the evidence of Batukbhai Dayaljibhai, PW-8 at Exhibit 44, who is police witness, it appears that on 15.02.2001, he was on his duty at Police Station as PSI and as per the station diary No. 23/2001 of Rajkot Taluka Police Station, Kailashben has been admitted in the Burns Wards for burn injury and, therefore, he sent the message to the Executive Magistrate for taking dying declaration for the patient. 30.1 During his cross-examination, he has deposed that he was on duty from 8.00 pm of 15.02.2001 till 8.00 am of 16.02.2001. He has deposed that if any MCC is registered in the Government Hospital then the Government Hospital sent the message to the Hospital Chowki wherein it is entered in the register kept for that purpose. He has admitted that in the present case, the authority of the hospital has sent the message to the Hospital Chowki and accordingly, the same was registered in the register. He has stated that the information regarding the incident has received by him on 15.02.2001 at about 20.20 hours and, thereafter, he has informed the Rajkot Taluka Police Station at 20.30 hours. He has deposed that after informing Rajkot Taluka Police Station, he has not gone to see the patient in the hospital. He has deposed that he has received the information from the hospital authority that the patient was brought in the hospital. 31. On perusal of the evidence of Keshubha Pragubha Jadeja, PW-9 at Exhibit 47, who is police personnel, it appears that on 15.02.2001, he was on duty in Rajkot Taluka Police Station and he was PSO in the said Police Station, at 21.15 hours, he received an FIR lodged before the Investigating Officer ASI Shri R. K. Madhavi along with the yadi thereof and, therefore, he has made entry to that effect in the station diary and registered the offence. He has deposed that he has also received the information from the PSI Shri Thakkar from the Government Hospital Chowki on telephone regarding the incident and he has also made an entry to that effect in the station diary vide Entry No. 23/2001. He has also produced the copy of station diary entry at Exhibit 49. 31.1 During his cross-examination, he has stated that after making entry No. 23/2001 in the station diary, he has handed over the investigation to Shri R.K. Madhavi vide letter at Exhibit 51. He has admitted that except aforesaid two entries, he has not done anything. 32. On perusal of the evidence of Mukeshbhai Virajibhai, PW-10 at Exhibit 52, it appears that he has deposed in his evidence that the deceased was his real sister and he while narrating relationship between the parties, has deposed that the marriage of the deceased was solemnized with accused No. 1 before one year of the incident and all were residing in the joint family. He has deposed that there was illicit relationship between accused No. 1 and accused No. 3 and whenever accused No. 1 gone out of the city, he never carry with him his sister and that fact was not bearable to his sister. He has deposed that whenever his sister was coming to the parental home, she was telling that accused No. 1 was taunting her on the ground that she was not preparing proper food and was also beating her. Regarding the incident, he has deposed that on the date of incident, some one from his neighbour has told him that the deceased was brought to the Government Hospital and, therefore, he directly went to the Government Hospital where his sister was found in burnt conditions in the Burns Ward. He has deposed that at that time, his mother-in-law and elder sister-in-law stayed there and he leave the place. He has stated that due to the illicit relationship between accused No. 1 and accused No. 3, his sister has committed suicide. 32.1 During his cross-examination, he has stated that on the day of incident, his sister has come to their house. He has admitted that accused No. 1 had gone to attend the marriage ceremony elsewhere and was out of city. 32.1 During his cross-examination, he has stated that on the day of incident, his sister has come to their house. He has admitted that accused No. 1 had gone to attend the marriage ceremony elsewhere and was out of city. He has voluntarily stated that on the day of incident, his sister Kailashben came to their house in the noon and she left at 6.00 pm. Regarding his version which he has narrated in the chief-examination, he has stated that he did not remember as to whether all these facts have been narrated in the police statement or not. However, according to him, when he reached in the hospital at 7.00 pm, the treatment of his sister was going on and at that time no police personnel was present. He has deposed that till 9.00 pm, he was in the hospital. He has deposed that till he was in the hospital, no police personnel came there. He has admitted that when he has seen Kailashben, at that time, the mouth and palms of both the hands of the deceased Kailashben was in a burnt condition. He has admitted that on the day of incident, his sister Kailashben and her husband were staying separately from accused No. 2 and accused No. 3. He has denied the suggestion that her sister Kailashben caught fire while she was boiling milk on the stove. According to him, when he reached at the hospital his sister was in good condition to speak. 33. On perusal of the evidence of Rasiklal Kalabhai Madhavi, PW-11 at Exhibit 55, it appears that he has deposed in his deposition that on 15.02.2001, he was Investigating ASI in Rajkot Taluka Police Station and he was on duty. At that time, PSO Keshubhai has given him a police yadi wherein it was mentioned that Kailashben Rameshbhai Koli, who sustained burnt injury, has been admitted in Burn Ward. At that time, PSO Keshubhai has given him a police yadi wherein it was mentioned that Kailashben Rameshbhai Koli, who sustained burnt injury, has been admitted in Burn Ward. It is his version that on receiving the yadi at Exhibit 51, he reached to the hospital and met the patient Kailashben and, thereafter, he recorded her complaint as per her version and while narrating the complaint, she has told him that her husband has illicit relationship with her elder sister-in-law and due to that all the three accused were giving physical and mental torture to her and due to that on the day of the incident, the husband of the deceased has gone out side city to attend the marriage ceremony and her elder sister-in-law and mother-in-law have taunted her that she was prostitute and on account of that, deceased has, after pouring kerosene on her body, ablaze herself. He has deposed that on the same day, after recording the narration of patient, her thumb impression was obtained on the FIR. He has deposed that on the same day at about 23.00 hours to 23.30 hours, he has called two panchas namely Suresh Uka and Praful Giri at the place of occurrence and prepared panchnama and the muddamal articles like kerosene, matchstick, piece of sadi etc. were seized as per the panchnama at Exhibit 38. He has deposed that thereafter, he has recorded the statements of various witnesses and obtained the copy of the dying declaration of Kailashben. He has deposed that meanwhile, on 06.03.2001, deceased died and, therefore, he prepared the inquest panchnama at Exhibit 41 and vide panchnama at Exhibit 42, he has arrested the accused and having found sufficient evidence, he has filed the charge-sheet before the Chief Judicial Magistrate. 33.1 In the cross-examination, he has submitted that he got information of the incident at 20.30 hours on the basis of the yadi at Exhibit 51 which was received from PSO Keshubhai. He has deposed that the yadi was containing facts that Kailashben has caught burn injury accidentally. He has deposed that after receiving such yadi within five months, he reached the Government hospital and on inquiry from the patient, he came to know that there is cognizable offence occurred and, thereafter, he has recorded the FIR of Kailashben and sent the same to the Police Station for registering the offence. He has deposed that after receiving such yadi within five months, he reached the Government hospital and on inquiry from the patient, he came to know that there is cognizable offence occurred and, thereafter, he has recorded the FIR of Kailashben and sent the same to the Police Station for registering the offence. He has deposed that thereafter, during 21.15 hours, he was not present with the complainant. He has also deposed that he did not remember as to whether Mamlatdar has come and recorded the dying declaration upto 21.05 hours. He has admitted that the entire body of the deceased was having burnt injury. He has admitted that when he recorded the complaint of the patient, her both hands including palms were also in burnt condition and he has not identified the thumb impression of the patient Kailashben on the FIR at Exhibit 54. At the same time, he has deposed that the thumb impression of the complainant was identified by one Hasmukhbhai Goganbhai Bavaliya whose statement has not been recorded by him. He has deposed that during the investigation, he has not inquired from doctors regarding the history of injury sustained by deceased Kailashben. He has admitted that he has not recorded the statement of the doctor, who has given medical treatment to the deceased Kailashben and Kailashben died after 20 days. He has deposed that when he went to the hospital on 15.02.2001, accused No. 1 was present. He has admitted that on the day of the incident, accused No. 1 and deceased Kailashben were residing separately from accused No. 2 and accused No. 3. He has admitted that on the day of the incident, accused No. 1 was not present at the place of occurrence. He has deposed that when the complaint of the deceased Kailashben was recorded, her sister Lila was there in the Burn Words. He has denied the suggestion that the thumb impression, which was obtained on the complaint at Exhibit 54, was of Lila and deceased has died accidentally while boiling milk on stove. 33.2 During the cross-examination, various facts which are narrated by the respective eye witness Mukeshbhai Virjibhai and additional version in his evidence has been taken on record as contradiction. 34. 33.2 During the cross-examination, various facts which are narrated by the respective eye witness Mukeshbhai Virjibhai and additional version in his evidence has been taken on record as contradiction. 34. On perusal of the evidence of Ashwinbhai Chanabhai Rojasara, DW-1 at Exhibit 62, it appears that he is elder brother of accused No. 1 and husband of accused No. 3 and son of accused No. 2. He has deposed that on the date of incident, he along with all the accused were gone out for attending marriage ceremony of his aunt’s son’s daughter marriage. He has deposed that prior to one year of the incident, he, his wife and mother were residing separately from accused No. 1. He has deposed that there was no illicit relationship between accused No. 1 and accused No. 3. He has deposed that on the day of the incident, as he got information of burning of the wife of his brother, he went to the hospital where he met the brother of the deceased namely Mukeshbhai and at that time, Mumeshbhai has told him that they wanted that the treatment of his sister be carried out in private hospital and for that they should make arrangement for money. It is his version that at that point of time, he has told him that they have no such amount and he could arrange for Rs. 2000/- to Rs. 5000/-. He has deposed that at that point of time, deceased’s sister Lilavati has told him that they intended to file the complaint and, thereafter, 8.00 pm to 8.30 pm, the brother and sister of the deceased have brought the police and Mamlatdar and the entire contents of the FIR was narrated by Lilavati and the entire body of Kailashben was in burnt condition and as she was not in a position to put any thumb impression, Lilavati has put her thumb impression on the complaint. He has deposed that there were two doors in opposite direction in their house and both brothers are residing separately in each room. He has deposed that there is separate door to enter his house and they cannot go from one room to another room straightway. 34.1 During his cross-examination, he has deposed that he was holding a betel shop wherein he and accused No. 1 were doing business. He has deposed that this cabin was away from his house. He has deposed that there is separate door to enter his house and they cannot go from one room to another room straightway. 34.1 During his cross-examination, he has deposed that he was holding a betel shop wherein he and accused No. 1 were doing business. He has deposed that this cabin was away from his house. He has deposed that all of them went to the marriage ceremony except Kailashben. He has voluntarily deposed that Kailashben herself did not attend the marriage and she went to her parental home and came in the evening. He has deposed that before he and his brother were residing separately, deceased Kailashben was staying in her parental home and on condition of separate residence, she came to her matrimonial home. He has denied the suggestion that all the accused have given mental torture to the deceased and they have quarreled with her. He has specifically deposed in the cross-examination that he himself has seen that Lilavantiben herself has put her thumb impression on the complaint and the same was obtained by the police personnel. He has deposed that witness Hasmukhbhai Bavaliya is his aunt’s son and he is cousin brother and he was present in the hospital. He has denied the suggestion that the thumb impression was identified by Hasmukhbhai. However, he has voluntarily deposed that Hasmukhbhai has put his signature at the instance and instruction of the police. 35. On perusal of the evidence of Hasmukhbhai Goganbhai Bavaliya, DW-2 at Exhibit 63, it appears that in his deposition, he has deposed that the alleged incident has happened on 15.02.2001 and at that time, he was in the marriage ceremony of his nice namely Rekha which was organized at Ashupara, Street No. 7 and at that time, accused No. 2 and accused No. 3 were with him. He has deposed that after marriage ceremony, some boys came running at the marriage ceremony and told him that wife of Rameshbhai has sustained burn injury and, therefore, he ran at the place but accused No. 2 and accused No. 3 have remained in the marriage. He has deposed that when he reached to the place of occurrence, an ambulance was there and the deceased was brought in the hospital in the said ambulance and he was in the ambulance. According to him, he inquired from Kailashben as to what has happened. He has deposed that when he reached to the place of occurrence, an ambulance was there and the deceased was brought in the hospital in the said ambulance and he was in the ambulance. According to him, he inquired from Kailashben as to what has happened. He has deposed that at that time, Kailashben has told him that while she was boiling milk, she caught fire flame from the stove. He has deposed that when they were in the hospital necessary treatment was given to Kailashben and at that time, Mukeshbhai and Lilavatiben came there and one police personnel was also there. He has deposed that with the police, one person look like a peon was also there and they arrived at 6.00 pm to 6.30 pm. According to him, at that time, Mukeshbhai and Lilavatiben were talking with the police as well as peon and, thereafter, the person went to take thump impression of the deceased, but as both hands of Kailashben was completely burnt the police constable has taken the thumb impression of Lilavatiben on the written papers. He has deposed that he was instructed to identify the same and accordingly, he has identified the thumb impression. He has deposed that except this fact, he has not written anything. He has deposed that except writing his name, no other procedure was carried out there and the same paper was not read over to him. 35.1 During his cross-examination on behalf of the prosecution, he has deposed that he cannot remember exact time of hastmedap. He has deposed that he did not remember as to whether the marriage ceremony was completed within 12 hours. However, he has stated that at the relevant time, he was in the kitchen. He has deposed that he cannot give the names of all the ladies who were present in the marriage ceremony. He has deposed that while taking Kailashben in ambulance to the hospital, he alone was with her. He has deposed that he has not talked to anybody in the hospital regarding the incident. He has stated that he has never informed anybody regarding the version narrated by Kailashben to him for the cause of burnt injury and he is telling this fact first time in the Court. He has deposed that he reached at the scene of offence, at about 6.00 pm. He has stated that he has never informed anybody regarding the version narrated by Kailashben to him for the cause of burnt injury and he is telling this fact first time in the Court. He has deposed that he reached at the scene of offence, at about 6.00 pm. According to him, he was sitting near the door where the Kailashben was admitted and the bed of Kailashben was at a distance of 56 fit away from him and the police officer, Lilavatiben, Mukeshbhai were talking with patient at a distance of 56 fit away from him. He has stated that he has not heard anything. He has deposed that he has not read the papers on which his signature has been obtained. He has stated that the paper, on which his signature was obtained, was already written. He has admitted the fact that on the alleged writing, he has identified the thumb impression of Kailashben and has put his signature. He has deposed that he is not ready to examine his signature and writing by the handwriting expert. He has deposed that he was knowing that though there was no thumb impression of Kailashben and same was of Lilavatiben and yet he has signed the same. He has admitted that he has never disclosed the fact that the thumb impression was of Lilavatiben. He has denied the suggestion that he has not reached to the place of occurrence and accused No. 2 and accused No. 3 were in marriage and were not at their home. 36. On perusal of the evidence on record, it appears that the entire prosecution case is based on the allegation of illicit relationship between accused No. 1 and accused No. 3. Therefore, the moot question is to decide as to whether there was any illicit relationship between accused No. 1 and accused No. 3 and whether such illicit relationship could be termed as instigation to commit suicide. 37. Now, considering the entire evidence on record, it transpires that during the marriage life of one year, the deceased has remained certain period in parental home. It also reveals from the oral evidence that she was brought back by the elder brother-in-law after persuasion and with assurance that her husband would be separated from the joint family. This fact reflects that the deceased wanted to be separated from the joint family. It also reveals from the oral evidence that she was brought back by the elder brother-in-law after persuasion and with assurance that her husband would be separated from the joint family. This fact reflects that the deceased wanted to be separated from the joint family. It also appears from the record that on the day of incident of suicide by the deceased, accused No. 1 has gone out of city for attending marriage ceremony and he did not take the deceased with him. This has resulted in quarrel between the accused No. 1 and the deceased. It also transpires that after the quarrel, the deceased has went to her parental home and stayed there till evening and, thereafter, she returned back, after borrowing certain amount from her mother to matrimonial home at about 6.00 pm to 6.30 pm. It also reveals that thereafter, she has committed suicide. Now, the fact remains that before taking steps of commission of suicide, there was a period for cooling down as even after quarrel with the husband she has visited the parental home and stayed there. It also appears from the record that the reason for burn injury is said to the effect that while boiling milk, she caught fire from flame of the stove. Thereafter, the story of commission of suicide on account of illicit relationship between accused No. 1 and accused No. 3 have been stated in the FIR and dying declaration. 37.1 From the evidence on record suggests that on the day of committing of suicide by the deceased, there was quarrel between the husband and the wife (deceased) for not taking her with him in marriage ceremony. On perusal of the dying declaration at Exhibit 26, it is found that the main allegation by the deceased was that her husband has illicit relationship with her elder sister-in-law and due to which, her husband was not calling her and due to that, the deceased has committed suicide. Further, on perusal of the dying declaration, it appears that at the time of incident, accused No. 2 and accused No. 3 were out side the room and they ran away from the scene of offence and she was brought to the hospital by the neighbours. This fact suggests that the version of the defence witness Hasmukhbhai that he brought the deceased in the hospital is believable. This fact suggests that the version of the defence witness Hasmukhbhai that he brought the deceased in the hospital is believable. It also reveals from the FIR at Exhibit 56 that the alleged thumb impression of the deceased has been identified by the Hasmukhbhai who has been examined as defence witness No. 2. At this juncture, it is pertinent to note that even the police personnel namely Rasiklal Kalabhai Madhavi, PW-11 at Exhibit 55, in his deposition, has admitted that he has not recorded the statement of Hasmukhbhai, who has identified the thumb impression of the complainant Kailashben. This shows that the version put up by the defence witness No. 2-Hasmukhbhai at Exhibit 63 that he was accompanying the deceased is believable. 38. It also appears from the evidence of both the sides that the body of the deceased was burnt in a way that palm including thumb, fingers were also burnt. If this is a fact, then, the thumb impression of the deceased could not have been taken. It also reveals that when palm including thumb and fingers are burnt, then, there cannot be clear thumb impression. Now, on perusal of the complaint, it is found that the thumb impression is clearly legible and having ridges over it which creates doubt that whether there was really a thumb impression of the deceased or not. At this juncture, it is pertinent note that DW-2 Hasmukhbhai has clearly stated in his deposition that the thumb impression of Lilavatiben was obtained. Of course, this fact has not been narrated by him before the police. However, the fact remains as admitted by concerned police, that he has not recorded the statement of this witness, who has identified the thumb impression alleged to be that of the deceased. 39. Now, the reasons for committing the suicide by the deceased is in relation to illicit relationship between accused No. 1 and accused No. 3. Therefore, it is incumbent duty on the part of the prosecution to prove that there was illicit relationship between accused No. 1 and accused No. 3. Further, even if it is believed that there was illicit relationship between accused No. 1 and accused No. 3 than also moot question would be as to whether it would amount to mental cruelty to the deceased. Further, even if it is believed that there was illicit relationship between accused No. 1 and accused No. 3 than also moot question would be as to whether it would amount to mental cruelty to the deceased. 39.1 At this juncture, it is necessary to refer to the decision in the case of K.V. Prakash Babu (supra), wherein the Apex Court has held and observed in Para-16 as under: “16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extramarital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extramarital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.” 40. Thus, the extramarital relationship, per se, would not come within the ambit of Section 498-A of the Indian Penal Code. At this juncture, it is worthwhile to refer to the decision in the case of Pinakin Mahipatra Rawal (supra) wherein the Apex Court has held and observed in Para-18 as under: “18. Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on........” 41. Now, considering the aforesaid decisions, on perusal of the material placed on record, it transpires that there is no cogent, reliable, trustworthy evidence suggesting that there was illicit relationship between accused No. 1 and accused No. 3. Now, considering the aforesaid decisions, on perusal of the material placed on record, it transpires that there is no cogent, reliable, trustworthy evidence suggesting that there was illicit relationship between accused No. 1 and accused No. 3. It is clearly found that the prosecution has not brought on record proper evidence to suggest that there was real illicit relationship between accused No. 1 and accused No. 3. Therefore, the factum of illicit relationship is excluded, than, there is nothing on record to connect the accused with the alleged crime. 42. Further, one of the submission of the prosecution is that Section 113-A of the Indian Evidence Act is applicable and necessary presumption could be drawn against the accused. At this juncture, the relevant observation of the Apex Court in the case of Pinakin Mahipatra Rawal (supra) is applicable wherein in Paras-25 and 26, the Apex Court has held and observed, with regards to applicability of Section 113-A of the Indian Evidence Act and Section 306 of the Indian Penal Code as under: “25. Section 113-A only deals with a presumption which the Court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide. 26. On facts, we have already found that the prosecution has not discharged the burden that A1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extra marital affair was of such a degree which was likely to drive the wife to commit suicide. 26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” 43. Thus, in view of the above, the burden lines on the prosecution to prove the main ingredients regarding illicit relationship between accused No. 1 and accused No. 3. However, in the present case, there is doubt regarding the thumb impression of the deceased in the alleged FIR as well as dying declaration recorded by the concerned Executive Magistrate. Considering the evidence on record, for drawing the presumption under Section 113-A of the Indian Evidence Act is lacking. Therefore, no presumption under Section 113-A of Indian Evidence Act could be drawn against the accused. There is failure on the part of the prosecution to prove the charges against accused beyond reasonable doubt. Therefore, the accused needs to be acquitted on the principles of benefit of doubt. 44. Now, on perusal of the impugned judgment and order of the Trial Court, it clearly transpires that the Trial Court has not properly appreciated the evidence on record and has merely relied on the version of the witnesses reflected in the chief-examination of the prosecution. The Trial Court has not considered the facts revealed from the cross-examination also. 44. Now, on perusal of the impugned judgment and order of the Trial Court, it clearly transpires that the Trial Court has not properly appreciated the evidence on record and has merely relied on the version of the witnesses reflected in the chief-examination of the prosecution. The Trial Court has not considered the facts revealed from the cross-examination also. The Trial Court has discarded the facts reveals from the cross-examination of the witnesses and has passed the impugned judgment and order on the facts narrated in the chief-examination of the witnesses. It is trite law that for appreciation of the evidence of the witnesses, the entire deposition which includes chief-examination, cross-examination and reexamination, if any, are required to be considered as a whole. However, in the present case, as stated hereinabove, the Trial Court has only taken into consideration the facts narrated in the chief-examination only. Therefore, the approach adopted by the Trial Court is not in consonance with the well settled principles of law and the Trial Court has committed serious error of facts and law in convicting the accused and imposing sentence upon them. Therefore, the impugned judgment and order of the Trial Court is not sustainable in the eyes of law and, the same deserves to be quashed and set aside. 45. In view of the above, Criminal Appeal No. 286 of 2005 filed by the appellants is allowed. Criminal Appeal No. 1563 of 2005 filed by the State is dismissed. The impugned judgment and order dated 28.01.2005 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot in Sessions Case No. 102 of 2001 is hereby quashed and set aside. The appellants-original accused are acquitted from the charges leveled against them for the offence under Sections 306 and 498-A of the Indian Penal Code. Fine, if any, paid by the appellants-accused be refunded to them. Bail bond, if any, stands cancelled. Record and Proceedings to be sent back to the Trial Court forthwith.