ORDER : 1. This acquittal appeal has been filed by Bhupendra Sah who is the informant of Sidhgorah PS Case No. 52 of 2017 to challenge the judgment of acquittal dated 28th August 2020 passed in Sessions Trial Case No. 384 of 2017 by which Sunil Kumar Gupta has been acquitted of the charge under sections 498-A and 306 of the Indian Penal Code alternatively section 302 of the Indian Penal Code. 2. On the basis of the written report of Bhupendra Sah who is the father of Seema Gupta, Sidhgorah PS Case No. 52 of 2017 has been lodged on 7th April 2017 under sections 498-A, 302 and 34 of the Indian Penal Code against Sunil Kumar Gupta, Prasadi Gupta, Sunita Gupta, Sudhir Gupta and Sanjeev Gupta for causing dowry death of his daughter – Sunil Kumar Gupta is the husband of Seema Gupta. 3. To prove the charge against the husband, the prosecution has produced 7 witnesses out of whom Bhupendra Sah is PW-3. 4. The following documents have been laid in evidence by the prosecution: (i) Exhibit-1 Written report (ii) Exhibit-1/1 Signature of Fulan Nath on written report (iii) Exhibit-2 Postmortem report (iv) Exhibit-3 Formal F.I.R. (v) Exhibit-4 Memo of arrest of the accused 5. On behalf of the defence, the following documents have been laid in evidence: (i) Exhibit-A Certified copy of order dated 25.05.2018 of G.R Case No. 968 of 2017(S) (ii) Exhibit-B Certified copy of Final Report of G.R Case No. 968 of 2017(S) (iii) Exhibit-C Certified copy of order dated 2.8.2017 of G.R. Case No. 1342 of 2017 (iv) Exhibit-D Certified copy of Formal F.I.R. of G.R. Case No. 1342 of 2017 6. On appreciation of the materials on record, the learned trial Judge has held as under: “15........Thus considering the facts and evidences discussed above it appears to me that the statement of the mother of the deceased regarding giving or demand of dowry has not been supported or corroborated by the informant or own brother of the deceased. Even manner of torture has also not specifically been stated by any Witness. Allegation of the mother and brother of the deceased is omnibus in nature. Even manner of torture has also not specifically been stated by any Witness. Allegation of the mother and brother of the deceased is omnibus in nature. At the same time statement of the informant that as on 06.04.2017 his son-in-law and his family members were taking away the dead body of his daughter for cremation as he intended to keep the dead body in the cold storage and for which present case was initiated by him as confirmation of the said statement by the mother and brother of the deceased clearly creates doubt about the prosecution story. specially where incident of burn took place on 03.04.2017 and on the same day deceased was taken to hospital by the present accused and his family members for her treatment but police personnel deputed in the TMH have not taken any cognizance of the said fact and on 04.04.2017 the informant, his wife and others allegedly came to know that the deceased was set on fire by the present accused and others, even though they have not lodged any complain and in my view all the said fact and conduct on the part of the informant and his family members clearly creates doubt about the entire prosecution case, specially where the informant have not raised any allegation against the present accused. Moreover according to informant on 06.04.2017 evening at about 8 pm written-report was submitted by him to the Sidhgorah P.S. and only on submission of the copy of the same Umesh Singh, Police Personnel deputed in the TMH kept the dead body in the Cold storage of the hospital and on next day dead body was sent to the MGM hospital for Post-mortem examination. Informant in his deposition further stated that on 07.04.2017 after cremation of the dead body he and his son Shashikant gone to the Sidhgorah P.S. and submitted the present written-report. That means two written-report for the same incident was submitted by the informant before the Sidhgorah P.S. First written-report was submitted on 06.04.2017 at about 8:00 pm and second written-report was submitted after the cremation of the dead body of the deceased. Now one question certainly arises that where is the first written-report and why case was not registered on the basis of said first written-report. Now one question certainly arises that where is the first written-report and why case was not registered on the basis of said first written-report. And non production of first written-report or non registration of FIR on the basis of first written-report also creates doubt on the prosecution case and the same can not be ignored. Moreover according to informant second written-report on the basis of which present case has been registered was submitted by him after the cremation of the dead body of the deceased. Postmortem report and testimony of the Medical Officer speaks that Post-mortem was conducted on 07.04.2017 at 1:00 pm. That means at least one hour was taken by the Medical Officer to complete the Post-mortem and also to fulfill the other formalities. That teams alter 2 pm dead body was handed over to the informant and others. Now according to Para-14 of the testimony of the informant after, receiving the dead body from the authority concerned they went to the house of the accused with the dead body where necessary customary formalities were performed and thereafter they gone to the Swarnrekha Burning Ghat for cremation of the dead body. And in my view said testimony of the informant speaks that after receiving the dead body at least another one hour time was taken by the informant to reach to the Swarnrekha Burning Ghat with the dead body. That means after 3:00 pm they reached to the Swarnrekha Burning Ghat. The informant further stated that after cremation of the dead body they went to the Sidhgorah PS and submitted the written-report. And in my view another one hour must have taken for completion of the cremation of the deceased. That means 4-5 pm the informant reached at Sidhgorah PS. But Formal FIR speaks that on 07.04.2017 information of the alleged offence was received by the police station and at the same time FIR was registered. And in my view said facts and circumstances also indicates that the FIR was registered on the basis of written-report submitted earlier by the informant not on the basis of the present written. report. And said fact also creates doubt about the prosecution case, which can not be ignored. And in my view said facts and circumstances also indicates that the FIR was registered on the basis of written-report submitted earlier by the informant not on the basis of the present written. report. And said fact also creates doubt about the prosecution case, which can not be ignored. At the same time it has clearly been admitted by the informant that the accused bear the expenses for treatment of deceased and he (accused) was present at the time of cremation of the dead body of the deceased. Post-mortem report further speaks that the dead body of the deceased was brought by the accused for Post-mortem. Arrest Memo speaks that on 07.04.2017 at 7:00 pm accused was arrested by the police. And in my view conduct of the accused as discussed above clearly speaks that the accused had not any guilty mind and for which he was present all the time till the cremation of the dead body of the deceased. In my view non-examination of the Medical Officer who treated the deceased and Rahul Kumar, son of the informant who was present with the informant and non prove of the Inquest-report also create doubt about the prosecution case and the same can not be ignored. Thus, considering the facts and circumstances discussed above, considering the findings arrived at in the foregoing paragraphs and also testing all the evidences for their inherent consistency and intrinsic probability it is conclusively found that the prosecution of this case hopelessly fails to prove that the present accused abeted the deceased in such a manner, which forced her to commit suicide. 16. Evaluating the evidence of PW-S meticulously and documents have adduced by prosecution, I find that the evidence of prosecution is not satisfactory, trustworthy and convincing. Thus, on the basis of the pre-going discussions and the circumstances of the instant case and testing all the evidences for their inherent consistency and intrinsic probability, this court is led to conclude that prosecution has miserably failed to bring home the charges against the above named accused Sunil Kuamr Gupta. 17. Let the accused Sunil Kuamr Gupta be ACQUITTED of the charge leveled against him u/s 498(A) and 306 of I.P.C. alternatively section 302 of the I.P.C in this case forthwith and resultantly the accused and his sureties are being discharged of their liabilities as to their respective bail bonds henceforth.” 7. Mr. 17. Let the accused Sunil Kuamr Gupta be ACQUITTED of the charge leveled against him u/s 498(A) and 306 of I.P.C. alternatively section 302 of the I.P.C in this case forthwith and resultantly the accused and his sureties are being discharged of their liabilities as to their respective bail bonds henceforth.” 7. Mr. Sheo Kumar Singh, the learned counsel for the appellant submits that the dying declaration of Seema Gupta before Bhupendra Sah (PW-3) and Meena Devi (PW-4) has been overlooked by the learned trial Judge and the accused has failed to offer any explanation to the incriminating circumstances against him when he was examined in the Court under section 313 of the Code of Criminal Procedure. 8. The statement of a dead person cannot be tested through cross-examination and therefore it shall be in the realm of hearsay. The rule against hearsay is absolute except to the extent statutory exceptions under sections 6, 8 and 32 have been carved out under the Indian Evidence Act. Section 32 of the Indian Evidence Act provides that statement of a person who is dead or cannot be found is a relevant fact. Sub-section 1 to section 32 provides that when the statement, written or verbal 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 it shall be a relevant statement in cases in which the cause of that person's death comes into question. 9. “A man will not meet his Maker with a lie in his mouth” is the underlying principle why dying declaration of a victim of the crime has been found sufficient to record conviction of the accused. A dying declaration is scrutinized from two angles (i) the making of the dying declaration and (ii) the circumstances surrounding the dying declaration. 10. The case of the prosecution that Seema Gupta informed her parents that her in-laws have set her on fire does not inspire confidence of the Court inasmuch as PW-3 and PW-4 have visited the hospital three days after the occurrence and, moreover, the statement of Seema Gupta was not recorded by the Investigating Officer. The evidence of Dr. Lalan Choudhary who has been examined in the trial as PW-6 indicates that Seema Gupta had suffered burn injuries to the extent of 87 percent. The evidence of Dr. Lalan Choudhary who has been examined in the trial as PW-6 indicates that Seema Gupta had suffered burn injuries to the extent of 87 percent. The prosecution has failed to produce a witness who could have lend support to the story of oral dying declaration of Seema Gupta before PW-3 and PW-4. The doctor who has administered First-aid and treated Seema Gupta in TMH has not been produced in the Court. The Investigating Officer has also not tendered evidence in the Court that Seema Gupta was in a fit state of mind and in a condition to speak. The prosecution has miserably failed to offer any explanation why statement of Seema Gupta was not recorded between 3rd April 2017 and 7th April 2017 if at all she was in a fit condition to speak. 11. PW-1 and PW-2 who are the neighbours of the accused persons did not support the prosecution when they were tendering evidence in the Court and they were declared hostile. PW-3 who is the father and PW-5 who is the brother of Seema Gupta have made specific allegation of demand of dowry and harassment and torture of Seema Gupta at the hands of her husband Sunil Kumar Gupta. As PW-6, Dr. Lalan Choudhary has stated in the Court that the deceased has sustained 87 percent burn injury and her death was not accidental in nature. However, in his cross-examination he has explained that in some circumstances 87 percent burn injury may be found in accidental cases also. PW-6 has further stated that he did not find any other injury on the dead body of Seema Gupta. This is also the evidence of prosecution that Seema Gupta had survived three days in the TMH. This observation of the PW-6 has to be seen in the context of his other observation that few carbon particles were found in the vocal cord of the deceased. These observations of the doctor clearly indicate that Seema Gupta was alive when she caught fire. The case of the prosecution rests on the oral dying declaration of Seema Gupta made to her mother at the Burn Unit of TMH. However, the factum of oral dying declaration of Seema Gupta that she was set on fire goes contrary to the charge under section 306 of the Indian Penal Code. 12. The case of the prosecution rests on the oral dying declaration of Seema Gupta made to her mother at the Burn Unit of TMH. However, the factum of oral dying declaration of Seema Gupta that she was set on fire goes contrary to the charge under section 306 of the Indian Penal Code. 12. An accused has a right to silence and merely because he has exercised his rights under Article 21 of the Constitution of India an inference cannot be drawn that he was involved in the crime. In a case where the prosecution has failed to produce the circumstances incriminating the accused in the crime it is not a requirement in law that the accused must say something. 13. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 the Hon'ble Supreme Court has observed as under: “25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself.” 14. Moreover, this is also a well-settled law that failure of the accused to offer explanation against the incriminating circumstances is just a link in the chain of circumstances and on its own it cannot be sufficient to record conviction of the accused and that too for a serious offence like murder [Refer: State of Maharashtra vs. Suresh, (2000) 1 SCC 471 ]. 15. The powers of the Appellate Court while dealing with an appeal against acquittal are same as that of an appeal against conviction and the Appellate Court can very well re-appreciate the evidence and record disagree with the judgment of acquittal. However, there are certain judicially evolved parameters one of which is that there must be compelling circumstances to interfere with the judgment of acquittal and, that, the Appellate Court shall not interfere with the acquittal order merely on minor mistakes in the judgment of acquittal. 16. In Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484 the Hon’ble Supreme Court has observed as under: “21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are “compelling and substantial reasons” for doing so. 16. In Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484 the Hon’ble Supreme Court has observed as under: “21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference [See Shivaji Sahabrao Bobade vs. State of Maharashtra]. The principle was elucidated in Ramesh Babulal Doshi vs. State of Gujarat: (SCC p. 229, Para 7) “While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions.” [See also George vs. State of Kerala] 17. Having regard to the aforesaid facts and circumstances in the case, we do not find any infirmity in the judgment of acquittal dated 28th August 2020 passed in Sessions Trial Case No. 384 of 2017 and accordingly, Acquittal Appeal No. 74 of 2020 is dismissed. 18. Let a copy of the order be transmitted to the Court concerned.