JUDGMENT : 1. This appeal is filed challenging the judgment and order passed by learned 3rd Additional Sessions Judge, Fast Track Court, Junagadh dated 14.12.2004 in Sessions Case No.56 of 2003 acquitting the respondents from the offences punishable under Sections 306, 498(A) and 114 of the Indian Penal Code. 2. it is the case of the prosecution that First Information Report (FIR) came to be registered before the Keshod Police Station being II-C.R.No.3045 of 2003 for the offences punishable under Sections 498-A and 114 of the Indian Penal Code (IPC) by the complainant, namely, Deviben wife of Khimabhai Lakhmanbhai stating that cruelty was meted out at the end of her husband and in laws under the pretext that marriage of brother of complainant solemnized with sister of the husband of complainant and complainant’s brother is harassing to the sister of the husband of the complainant and therefore, on that cause, she was tortured and harassed by husband and in-laws. On 14.4.2003 at around 13.00 hours, all the accused quarreling with the deceased and started harassing for the same cause. Husband had stated that he would set ablaze by setting on a fire by pouring the kerosene. On the instigation, the complainant replied that I would set on a fire to myself instead of you set on fire to me. By saying so, she poured the kerosene on herself and set ablaze and received the burn injuries. On setting criminal law in motion, a statement of the witnesses were recorded. She succumbed to injury on 20.4.2003, therefore, Section 306 of IPC was added and the panchnama of place of offence were drawn as well as arrest panchnama were drawn. Medical Certificate as well as Dying Declaration, which was recorded by the Executive Magistrate was collected. On receiving the postmortem note, the charge-sheet came to be submitted before the learned Competent Court for the offence punishable under Sections 498- A, 306 and 114 of the IPC, which was numbered as Criminal Case No.377 of 2003. As the said case is triable by the learned Sessions Court, it was committed to the learned Sessions Court and numbered as Sessions Case No.56 of 2003. On being satisfied with regard to receiving the charge-sheet papers by the accused, the charge was framed below Exh.1 against accused for the alleged offences. As the said case is triable by the learned Sessions Court, it was committed to the learned Sessions Court and numbered as Sessions Case No.56 of 2003. On being satisfied with regard to receiving the charge-sheet papers by the accused, the charge was framed below Exh.1 against accused for the alleged offences. Plea was recorded below Exh.2, 3 and 4 wherein the accused had pleaded not guilty and claimed to be tried. To prove the case against the respondents-accused, prosecution had examined 13 witnesses and produced the 28 documentary evidences. On filing the closing pursis, further statement under Section 313 of the Code of Criminal Procedure was recorded and all incriminating material were put before the accused persons, however, the accused had denied the same and pleaded false implications. Accused No.3 had further stated in her statement that her marriage was solemnized at Bodka Village as she was conceived by, she came for the delivery at her parental house and she was falsely implicated in the present offence. She further stated that after offence was registered, baby girl was borne and she had taken the treatment at Keshod Hospital. She stated that deceased was mentally unfit and therefore, she committed suicide, she stated to be innocent and prayed to be acquitted from the charges. 3. List of prosecution evidence is reproduced herein below: Sr.No. P.W. No. Name Exh.No. Medical Witnesses. 1 1 Dr.Atulkumar Chandulal 13 2 2 Dr.Sudhaben Kantilal Shah 22 3 3 Dr.Jayant Hariprasad Pandya 26 4 5 Dr.Rameshgiri Mohangiri Government Witness 40 5 4 Bhimabhai Virabhai, Executive Magistrate Witnesses 37 6 8 Palabhai Dhakhabhai 49 7 9 Punjabhai Dhakhabhai 50 8 10 Somiben wife of Dhakhabhai 52 Panchwitnesses 9 6 Valabhai Virabhai 46 10 7 Ranabhai Kanabhai 47 Police Witnesses 11 11 Hasmukhlal Arjanbhai Ahir, PSI 54 12 12 Chanbhai Arjanbhai Chudasama-PSO 59 13 13 Jivabhai Naranbhai Ram- Police Head Constable 63 Documentary evidences 1 Refer Note of Maliya Hatina 14 2 MLC Case papers 15 3 Written Yadi of Panel Doctor 23 4 P.M. Note 24 5 General Hospital, Junagadh Transfer form 27 6 Dr.Pandya informing the police by letter 29 7 Dr.Pandya’s letter informing that Devuben died during treatment. 30 8 Medical Case papers of Dr.J.H. Pandya 31 9 Medical Certificate of Dr.J.H.Pandya 32 10 Yadi of Executive Magistrate regarding Dying declaration 38 11 Dying Declaration 39 12 Medical Certificate, Maliya Hatina. 30 8 Medical Case papers of Dr.J.H. Pandya 31 9 Medical Certificate of Dr.J.H.Pandya 32 10 Yadi of Executive Magistrate regarding Dying declaration 38 11 Dying Declaration 39 12 Medical Certificate, Maliya Hatina. 41 13 Case papers of Devuben at Maliya Hatina CHC 43 14 Inquest Panchnama 44 15 Panchanam of the accused 45 16 Possession given of Dead body 51 17 Yadi from PSO to PSI regarding incident 55 18 Copy of complaint of 00/03 56 19 Copy of Entry of Station Diary of Maliya 57 20 Complaint 58 21 True copy of complaint made in Keshod Police Station 60 22 True copy of diary of Keshod Police Station 61 23 Yadi regarding offence of Keshod Police Station 62 24 For charge-sheet sanction letter 64 25 Panchnama of place of offence 65 26 Form of dying declaration 66 27 Adding Section 306 67 28 Pursis regarding end of evidence 68 4. Learned Sessions Court considering the arguments advanced by the respective parties and material placed including the depositions of the witnesses, acquitted the respondent/s – accused from the charges, which is impugned before this Court. 5. Heard learned APP, Ms.Vrunda Shah, for the appellant- State and learned advocate, Mr.Param Buch, for the respondents. 6. Learned APP submits that though the prosecution had proved the case beyond reasonable doubt, learned trial Court acquitted the respondent/s-accused from the charges. Learned APP draws the attention of the Court with regard to the M.L.C. Papers below Exh.43, Dying Declaration below Exh.39, complaint below Exh.58 and submitted that in all these evidences, there was a consistent version of the deceased with regard to the cause of harassment, which drives deceased to commit suicide. Learned APP further relies on the evidence of Dr.Rameshgiri Mohangiri Meghnathi, Exh.40, Dr.Jayant Hariprasad Pandya, below Exh.26 and Dr.Atulkumar Chandulal below Exh.13 and submitted that all these doctors had examined the deceased and Dr.Rameshgiri Mohangiri, PW-5 recorded in his medical papers the history given by the deceased herself wherein also, version, which is mentioned by the deceased in complaint and Dying Declaration, was reiterated. Learned APP also relies on the evidence of Bhimbabhai Virabhai, Executive Magistrate, below Exh.37 and submitted that Dying Declaration recorded after obtaining certificate of mental fitness of Doctor, there was no any inconsistency in statement of deceased and though the evidence of this witness was fully corroborated and found to be a trustworthy, learned trial Court discarded this evidence on giving much weightage to the minor discrepancies. Learned APP relies on the evidence of the witnesses, namely, Sumiben wife of Dakhabhai, Exh.52 and stated that though she declared a hostile but she had supported the case of the prosecution and the deceased disclosed cause of quarrel and true narration of incident. However, learned Court had discarded the evidence on the ground that she was declared hostile. Therefore, learned APP prays that judgment and order passed by the learned trial Court is perverse and therefore, all the accused be punished accordingly. 7. On the other hand, learned advocate, Mr.Param Buch, appearing for the respondents – accused submitted judgment and order passed by the learned trial Court is just and proper that though she had stated in her dying declaration with regard to the involvement of the present applicant but she is further stating that husband and her in-laws had extinguished the fire and tried to save her and thereafter she was taken to Maliya Hatina into the rickshaw thereafter. She was taken to different Hospitals. It is further submitted that she was having the 5 months’ pregnancy, however, due to burn injuries, the same was terminated. Learned advocate further submits that during the course of investigation, further statement of the deceased was recorded whereby she states that she was taken at the hospital in the open rickshaw during the noon hours and as she was annoyed and therefore, given names of father in law and one sister in law, however, she has further stated in her statement that they are innocent and they are not involved in the offence. Mr.Param Buch, learned advocate further submits that from overall analysis from the evidence on record and the material placed before the concerned Court, it transpires that the main witnesses, i.e. Police Officer of Maliya Hatina Police Station, Executive Magistrate and Dr.Meghnathi had given the contradictory version specially with regard to presence of both witnesses i.e. police officer and Magistrate, at the same time, in hospital while recording the statement of patient – deceased. Mr.Param Buch, learned advocate further submits that thumb impression of the deceased on dying declaration is not identified, which was accepted by witnesses. Neither the Executive Magistrate had taken the pain to inquire with regard to the educational qualification of the deceased nor the police officer done the same. Learned advocate further submits that on being cross examined by the defence, Executive Magistrate and Police Officer had denied their presence with each other, which attains the importance when the time of their presence at Hospital is overlapping to each other. Mr.Param Buch, learned advocate submits that material discrepancies attain the support from the version of Dr.Meghnathi as he put his signature on dying declaration at Exh.39 at 3.25 and 4.05 p.m. and in the FIR Exh.58 he has put his signature at 3.30 p.m. Mr.Param Buch, learned advocate further submits that neither the MLC certificate Exh.43 have any signature of patient – deceased nor any note suggesting that the history was given by patient herself. In Medical Certificate at Exh.31, there is certain observation which are stricken off / written off and the ink on the said certificate also differs, which raises serious doubt with regard to authenticity of the document. Learned advocate further submits that evidence of Doctor who has given the treatment and Doctor who carried the postmortem are self contradictory. Mr.Param Buch, learned advocate further submits that relatives of the deceased have also not supported the case of the prosecution and one of the brother, namely, Palabhai, who was examined below Exh.49 was declared hostile, who clearly stated that his sister was not ill-treated and there was no any harassment by the accused persons. Her mother and brother, who were examined below Exh.52 and 50 have also stated that she was suffering from mental illness and was under treatment. Her mother and brother, who were examined below Exh.52 and 50 have also stated that she was suffering from mental illness and was under treatment. Mr.Buch, learned advocate submits that in order to prove the charge under Section 107 of IPC, there has to be some overact of the accused or in absence of overact, which prompted the deceased to commit suicide and she had no any other option except to commit suicide. Under these circumstances, it is submitted that prosecution had failed to prove the cruelty / harassment meted out at the ends of the accused persons, which instigated or provoked the deceased to commit suicide and therefore, the learned trial Court has rightly acquitted the accused person, which may not be interfered after this much period of 20 years. Learned advocate further submits that learned trial Court have tested, evaluated and discussed the entire evidence at length and in detail and that the findings of acquittal not being perverse, contrary to materials on record, palpable wrong, erroneous or unsustainable, this Hon’ble Court may kindly not entertain the appeal filed against the acquittal of accused persons. Learned advocate further submits that learned trial Court has not committed any error of fact and law in assigning reasons in acquitting the accused persons. In fact, learned trial Court had minutely examined the evidence and has properly appreciated the evidence on record and has rightly acquitted accused persons and there are no exceptional circumstances/ findings in the impugned judgment so as to make it a case of perverse acquittal. Therefore, it was prayed to reject the appeal filed by the State against the acquittal. Learned advocate further relies on the decision rendered by this Court in the case of State of Gujarat V/s. Shailesh Kalidas Patel passed in Criminal Appeal No.283 of 2008 dated 24.3.2023 and submitted that even if two view are possible, the appellate Court may not disturb the findings of the trial Court. At the end, learned advocate submits that findings and reasons which are given by the learned trial Court is in accordance to the evidence led before the lower trial Court and therefore, prays to dismiss the appeal and to confirm the order passed by the learned trial Court. 8. Heard the learned advocates for the parties. 9. At the end, learned advocate submits that findings and reasons which are given by the learned trial Court is in accordance to the evidence led before the lower trial Court and therefore, prays to dismiss the appeal and to confirm the order passed by the learned trial Court. 8. Heard the learned advocates for the parties. 9. The relevant provision, which is now required to be looked into, are reproduced herein below: 9.1 Section 32 of the Indian Evidence Act, 1872:- 32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:— 1 when it relates to cause of death. —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 that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 2 or is made in course of business. —When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. 3 or against interest of maker. 3 or against interest of maker. —When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. 4 or gives opinion as to public right or custom, or matters of general interest. —When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. 5 or relates to existence of relationship. —When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. 6 or is made in will or deed relating to family affairs. —When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. 7 or in document relating to transaction mentioned in section 13, clause (a). —When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). 8 or is made by several persons, and expresses feelings relevant to matter in question. —When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. Illustrations (a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Illustrations (a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts. (b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact. (c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact. (d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. (e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact. (f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. (g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. The fact that a letter written by him is dated on that day, is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. (i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. (j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact. (k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. (l) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. (m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact. (n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. 9.2 Section 113-A of the Evidence Actt: Presumption as to abetment of suicide by a married woman. 1[113A. Presumption as to abetment of suicide by a married woman. --When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation. Explanation. -- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).] 9.3 Section 107 of IPC Abetment of a thing. A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 9.4 Section 306 of IPC - Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 9.5 Section 498-A of IPC Husband or relative of husband of a woman subjecting her to cruelty. 1[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 9.5 Section 498-A of IPC Husband or relative of husband of a woman subjecting her to cruelty. 1[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, "cruelty means"— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] 10. Before discussing case on merits, this Court would like to produce the testimony of certain witnesses and documentary evidences. 10.1 The testimony of Dr.Rameshgiri Mohngiri Meghnath, Vide Exh. 40, which reads as under: “On 14.4.2003, when I was on duty at Maliya Hatina Community Health Center, Devuben Khimjibhai Charan, aged about 20 years, Manekdhar, was brought at around 2.30 O’Clock in afternoon. She stated to have sustained burn injuries at around 1.30 O’Clock in afternoon on 14.4.2003 and she was brought at 2.30 O’Clock. On examining her, superficial burns were observed on the right side of her face, on the neck, on the upper portion of the stomach, on the portion above the navel, on the chest and waist, on the thigh, on the outer side of the right thigh, on both legs, on the left thigh, on the entire right hand, and on the left hand. Both the dorsal sides were not burnt. Soles of feet were not burnt. The left side of the face and upper portion of the left hand were not burnt. Patient Devuben had told me that she was pregnant for five months. Devuben had told me that my husband used to beat me on being instigated and I was harassed by my mother in-law, father in-law, husband and sister in-law and therefore, I set ablaze myself on my own by pouring kerosene. After examining the said patient, I immediately started her emergency treatment, and informed the police on telephone. Devuben had told me that my husband used to beat me on being instigated and I was harassed by my mother in-law, father in-law, husband and sister in-law and therefore, I set ablaze myself on my own by pouring kerosene. After examining the said patient, I immediately started her emergency treatment, and informed the police on telephone. Thereafter, the police statement and D.D. of the patient were recorded in the Burns Ward. After completion of the said police statement and D.D., I transferred the patient to Junagadh for further treatment. In my opinion, this is a grievous innury. The said injury is recent. It has been caused due to burning. I cannot state regarding its recovery period. It is such kind of inquiry which can cause the death of the patient. In my opinion around 75% portion of the patient was burnt. I have issued this certificate in this regard. It has been produced in original with Mark – 9/12. It bears my signature. I produce it and it has been given Exh.41. I brought the O.P.D. case papers with me and also indoor case papers of the patient. The name and other details of the patient have been written in the handwriting of the person who registered the case. The details regarding the treatment provided to the patient have been written in my handwriting. The note regarding the burn injury has been written in my handwriting. The facts mentioned in the said paper that the condition of the patient is critical and her husband has been informed are not written in my handwriting. There is the signature of Khimabhai below the said writing. The endorsement to transfer the patient is in my handwriting. The said case papers are produced. As far as I remember, I was with the patient when the police came to inquire the patient. When the police came to inquire the patient, I have not mentioned in the case papers regarding the inquiry by the police. When the police came to record the statement of the patient, the condition of patient was critical and she was conscious. I have mentioned in my case papers that, at that time, the patient was conscious. I noted in the statement recorded by the police that the patient is conscious. I have been shown Mark – 9/2. When the police came to record the statement of the patient, the condition of patient was critical and she was conscious. I have mentioned in my case papers that, at that time, the patient was conscious. I noted in the statement recorded by the police that the patient is conscious. I have been shown Mark – 9/2. On its back side, after making an endorsement in my handwriting that the patient is conscious, I have put my signature. I have been shown Exh.39. The first endorsement in it was made at the time of beginning the D.D. and the other two endorsements were made after completion of the D.D. It bears my signature. In the cross examination by the defence, it is deposed by the Doctor that as stated by me, the superficial burns have been used, as the skin is involved, there ware blisters, and the skin is uprooted at some portions. The deep burns are not a different type of burn injury. It is true that I have not mentioned the degree of burns in my certificate. It is true that the second and third degree burns involve burns up to muscle and bones. It is true that the patient I have examined had burns upto skin. In the case of muscle deep burns, the patient loses consciousness. With respect to it, I state that if there are muscle deep burns, the patient will lose consciousness, If there are muscle-deep and bone-deed burns. It is true that I have not mentioned about the smell of kerosene in my case papers or the certificate. Generally, we mention about the smell of kerosene or any other substance in the case papers and the certificate. It is true that I have not observed third degree burns on the patient in this case. I have not observed muscle-deep burns in this case. The time mentioned by me below my endorsement in Exh.39 and Mark 9/2 is true. It is not true that both the police personnel and the Mamlatdar were present at the same time when the endorsements in Exh.39 and Mark 9/2 were made by me. It is true that, in many cases of pregnancy, a woman becomes sensitive during the initial three to five months’ of pregnancy. There will be frustration and it leads to the thought of suicide. It is true that, in many cases of pregnancy, a woman becomes sensitive during the initial three to five months’ of pregnancy. There will be frustration and it leads to the thought of suicide. It has been mentioned in the outdoor case papers that the patient is pregnant. I do not agree with the fact that if the history is given by the patient in the MLC case papers, it is written in the MLC case papers. It is not true that, if the patient has given a history and it has been written in the MLC case papers, such history is written in the certificate in all the cases. It is true that when a patient sustains severe burns, the patient will be in shock due to the loss of liquid from the body. It is not true that, in such cases, the patient becomes irritative condition, the patient speaks senselessly. It is true that, when the said patient was brought to me, it was the time of severe heat. It is true that the patient’s irritative condition feel comfortable in the summer season. It is true that I have mentioned in the indoor case papers regarding the patient to whom I provided the treatment. It is true that I have not mentioned in my case papers regarding the police statement and the D.D. It is true that I have not mentioned the time of beginning the treatment in the indoor case papers. It is true that I have not obtained the signature of the patient below the history. It is not true that, it is necessary to obtain the signature of the patient if the patient’s condition is serious and the patient givens any statement. It is true that as it is in the MLC case papers, it has not been mentioned in the certificate that there was harassment by mother in-law, father in-law, sister in-law and the husband and her husband was being instigated, therefore, I commit suicide. It is not true that when I issued the certificate, there was no such note I the case papers of the hospital. It is not true that the case papers of Exh.43 were not in existence till 10.3.2004. It is not true that, since the police gave me instruction to prepare the said case papers, I have prepared them later on. It is not true that the case papers of Exh.43 were not in existence till 10.3.2004. It is not true that, since the police gave me instruction to prepare the said case papers, I have prepared them later on. It is not true that as the first degree burns on Devuben were superficial, I did not examine. It is not true that it has not happened that I made the endorsements of Exh.39 and Mark 9/2 separately. The Mamlatdar had begun the D.D. at 3-25. I cannot state as to when the police personnel had come. I do not remember as to who were the police personnel. It has not happened that the police personnel gave me their introduction or I gave them my introduction. I do not remember now the name of the Mamlatdar. If the patient is conscious and the question is complicated, the patient may or may not understand it. It is true that, in all the cases, if the injured person is conscious, he may or may not give the answer to the question after understanding it. It is true that I have transferred her to Junagadh with a written refer note. I have not brought the refer note. I have not mentioned the time in the case papers as to when I referred the patient to Junagadh. I do not remember whether I have mentioned the time in the refer note. I had not written the history of the patient in the refer note. It is true that the burn injuries sustained by Devuben can also be caused by accident. It is not true that in the case of burning, it is necessary to investigate as to by which medium the patient has sustained burn injuries. It is true that the incidents of burning by kerosene also take place by accident. The relatives of the patient were present at the hospital. I do not remember whether the patient was brought to the hospital in an open rickshaw. It is true that in the case of sustaining burn injuries on face, the patient suffers from the pain and faces difficulty in speaking. It is true that if the carbon particles enter the respiratory system, the patient faces difficulty in speaking. It is true that the police has not sought my opinion till date with respect to the history written by me in my case papers”. It is true that if the carbon particles enter the respiratory system, the patient faces difficulty in speaking. It is true that the police has not sought my opinion till date with respect to the history written by me in my case papers”. 10.2 Record of Medical Test vide Exh.43, which is reproduced herein below: Annexure of Exh-43 Record of Medical case Medical record Hospital- CHC Maliya Hatina Registration No.627 Department- Burns Ward Admitted on: Date-14/04/03 Time: 02:30 pm No.8413 Discharged or died on: Date: Time: C/O: Medical Officer Dr. RMM Name: Deviben Khimji Caste: Income: Sex: Female Age: 20 years Result: 1. Recovered 2. Discharged 3. Not discharged 4. Fled. 5. Died. Address: Manka Dhar Occupation: Relative: Address: Referred by: Temporary diagnosis: Suicidal burns about 75 % Final diagnosis: Date Treatment Remarks Treatment and diet -do- I was harassed by my father in law, mother in law, sister in law and husband. My husband used to beat me following the instigation by others. I have set myself on fire by pouring kerosene on me. Inj. Diclofenac (1) ampule Inj. T.T. illegible Inj. Diazepam (1) amp Inj. Mexin illegible Inj. Dexomethazone illegible Inj. CPM (1) ampule Inj. DNS (1) 500 ml Inj. Ringer lactate illegible illegible illegible sulfadiquine I have been informed that condition of my wife is serious. Sd/- Khimabhai Lakhabhai Adv Patient transferred to Civil Hospital, Junagadh Sd/ 10.3 The another material witness, who was examined before the learned trial Court was Hasmukhlal Arjanbhai Ahir below Exh.54. The evidence is reproduced herein below: “(1) I was discharging my duty as P.S.I. at Maliya Hatina Police Station on 14/04/2003. Dr. Meghnathi from C.H.C., Maliya, informed over the telephone at the police station at 15.00 hours that Deviben, wife of Khima Lakha Charan, has been brought in the burnt condition for the treatment. Mr. R.S. Babariya, the then P.S.O., made entry vide D.O. No. 43/03 in the station diary in this regard and gave me D.O. letter. The original of the same is produced vide mark 9/1. I produce the same, and the same is given Exh.No.55. After receiving D.O., I and my writer - Constable Mr. Naranbhai went to the Government Hospital at Maliya by private motor cycle. Deviben was under the treatment in the burnt condition. I asked Dr. Meghnathi as to whether she is conscious to give her complaint or not. He replied in affirmative. After receiving D.O., I and my writer - Constable Mr. Naranbhai went to the Government Hospital at Maliya by private motor cycle. Deviben was under the treatment in the burnt condition. I asked Dr. Meghnathi as to whether she is conscious to give her complaint or not. He replied in affirmative. Therefore, I recorded her detailed complaint before me. I recorded the complaint as dictated by the lady complainant. It is in the handwriting of my writer. The thumb impression of the lady complainant was obtained after complaint was recorded. Meantime, no other procedure was conducted. Now I state that I read over the complaint to the lady complainant. I put my signature as before me, and I obtained endorsement from the Medical Officer therein to the effect that the patient is conscious. Thereafter, I returned to Maliya Police Station, and I myself made entry in the police station diary at 16.00 hours. As the offence was committed within the jurisdiction of Keshod Police Station, I registered the F.I.R. being No. 00/03 at my police station u/s 498(A) of the I.P.C. I gave instruction to P.S.O., Keshod Police Station, through wireless to collect the papers of the complaint. The true copy of F.I.R. registered at Maliya Hatina is produced vide mark 9/1(A). I produce the same and the same is given Exh. No.56. The true copy of station diary of Maliya Hatina Police Station is produced vide mark 53/1. I produce the same and the same is given Exh. No.57. The mark ‘A’ is given Exh. No.58. During the cross examination of the defence witness, this witness deposed that when information was received through telephone at police station, I was present at the police station. I had reached the hospital seven minutes after entry was made. I did not note time of completion of recording of the statement of the deceased with my handwriting. Mr. Naranbhai Jivabhai was my writer. The complaint is in his handwriting. When I reached the hospital, Dr. Meghnathi was with the patient. It is not true that when I was with the patient, Executive Magistrate had come to record the statement of the patient. I stayed in the ward till 15.40 hours. According to me, I had been in the burns ward from 15.07 hours to 15.40 hours. The Executive Magistrate did not come to the ward till I left. It is not true that when I was with the patient, Executive Magistrate had come to record the statement of the patient. I stayed in the ward till 15.40 hours. According to me, I had been in the burns ward from 15.07 hours to 15.40 hours. The Executive Magistrate did not come to the ward till I left. It has not occurred that Executive Magistrate has asked something in my presence. The writing of Dr. Meghnathi to the effect that the patient is conscious or not has not been obtained before the commencement of the complaint. The opinion of Dr. Meghnathi has not been obtained on any separate paper before recording the complaint. While I was recording the statement of the patient, I asked as to whether the patient is illiterate or literate and I recorded the reply thereof in the statement. The complaint has not been recorded in the question-answer form. The complaint was recorded in the manner that I ask a question to the patient, and the patient gives reply thereof and the writer can listen to the same. It occurred that I had to ask a question again when the patient stopped speaking. It is not true that I did not attend the patient from 15.10 hours to 15.40 hours. It is not true that I did not go to the burns ward from 15.10 hours to 15.40 hours because time has not been noted in the complaint. It is not true that the statement in question has not been recorded in my presence, but it was brought to the police station to obtain my signature therein. It is not true that I myself did not go and therefore, statement of the patient was not recorded in the question-answer form. I do not remember that P.S.O. sent a yaadi to the Executive Magistrate to record D.D. in connection with D.O. No. 43/2003. The Exh. No. 38 bears the handwriting of P.S.O. Mr. Babariya (Maliya Hatina). It is the endorsement of the respective Officer in token of having received the same at 15.10 hours. It is not true that Devuben was not in a mental or physical condition to put thumb impression in the Exh. No. 58. It is true that signature of no one has been obtained as identifier of the thumb impression of Devuben. It is the endorsement of the respective Officer in token of having received the same at 15.10 hours. It is not true that Devuben was not in a mental or physical condition to put thumb impression in the Exh. No. 58. It is true that signature of no one has been obtained as identifier of the thumb impression of Devuben. It is not true that meantime I received information through telephone and I went to the hospital, entry of the station diary was kept open. It is true that offence in the station diary has not been registered in the handwriting of the P.S.O. The witness himself states that I have registered the same. I did not receive any information as to whether Executive Magistrate went to the hospital to make inquiry of the patient or not when I registered the offence at 16.00 hours on 14/04/2003. The papers of Keshod Police Station were not forwarded in my presence. It has not happened that I forwarded papers to Keshod Police Station and made entry thereof. It is not true that no statement of Devuben was given in my presence or it has not been recorded as dictated by Devuben. It is not true that Devuben was not in a mental or physical condition to give a statement”. 10.4 The statement of the deceased, namely, Deviben wife of Khima Lakha Charan – complainant recorded vide Exh.58 is reproduced herein below for ready reference:- Date :- 14/04/03 My name is Deviben wife of Khima Lakha Charan by caste, aged about 21 years, occupation – housewife, residing at Manakadhar, on the outskirt of Kalvani village, Taluka – Keshod. On being asked personally, I state that I reside in the joint family consisting of my mother-in-law Nathiben, father-in-law Lakhabhai and sisters-in-law Sonal and Maniben at the aforesaid place. My parental home is at Rajpara village in Visavadar Taluka. My father has died. Naran Dhamabhai resides at Rajpara village. My marriage was solemnized as per rites and rituals of my caste one year back. I am conceived by about five months. My brother Palabhai was married to my sister-inlaw Rajiben, and hence, my marriage was solemnized by way of exchange marriage. After marriage, my in-laws – my husband, my parents-in-law, my sister-in-law, etc. Naran Dhamabhai resides at Rajpara village. My marriage was solemnized as per rites and rituals of my caste one year back. I am conceived by about five months. My brother Palabhai was married to my sister-inlaw Rajiben, and hence, my marriage was solemnized by way of exchange marriage. After marriage, my in-laws – my husband, my parents-in-law, my sister-in-law, etc. had been subjecting me to mental and physical harassment for one year since I came to maternal home under the pretext that my brother Palo harasses my sister-in-law Raji. My husband Khima frequently used to beat me and to threaten me to set on fire. When aforesaid all the persons of my house were present at about one o’clock in the afternoon today, a quarrel took place as per the aforesaid details. As I felt harassment unbearable, I stated that, “Instead of you set me on fire, let me set myself on fire” and therefore, I sprinkled kerosene, lit match stick and set myself on fire. Therefore, aforesaid persons of my house doused the fire. After dousing fire, my mother-in-law brought me to the Government Hospital at Maliya by Chhakdo rickshaw. I am under the treatment. I can understand questions being asked to me. Accordingly, I am conscious. I have severely sustained burns injuries on the whole body. The incident of burning has happened as per the aforesaid details. Apart from this, I further state that my husband Khimo subjects me to harassment and beats me after being instigated by other members of my family. Now, I am fully conscious. The cause of this incident is stated above. There is no other cause than it. The facts of my complaint as dictated by me are true and correct. The same is read over to me, and as it is found to be true and correct, I have put my thumb impression below. The thumb impression of right hand of Deviben wife of Khima. 10.5 The most important witness who is the Executive Magistrate, namely, Bhimabhai Virabhai, who examined below Exh.37, as PW-4. His evidence is reproduced herein below: “(1) I was performing duty as Executive Magistrate at the Office of the Mamlatdar on 14/04/2003. The thumb impression of right hand of Deviben wife of Khima. 10.5 The most important witness who is the Executive Magistrate, namely, Bhimabhai Virabhai, who examined below Exh.37, as PW-4. His evidence is reproduced herein below: “(1) I was performing duty as Executive Magistrate at the Office of the Mamlatdar on 14/04/2003. At 15:10 hours on that day, I received an information from P.S.O. of Maliya Hatina to record d.d. of Devuben Khimabhai of Gangecha village, who had sustained burn injuries and was admitted to Maliya Government Hospital and therefore, I went to the hospital at 15:20 hours on 14/04/2003. I have brought the d.o. in original with me today. I have put my signature and date and time on it for the receipt of the d.o.. I am producing the d.o. in original, which is produced vide Exhibit-38. After receiving the d.o., I reached the hospital at 15:20 hours. I went to Burns Ward and met Dr. Meghnathi there. The relatives of the patient were present there. I told the doctor about the d.o. and recording of d.d. and the doctor showed me the patient. Upon asking whether the patient was in a conscious state and able to give answers or not, the doctor examined the patient and told that she was in a fully conscious state and able to give answers. Therefore, the relatives of the patient were asked to go outside and door of the ward was closed and recording of d.d. was started at 15:25 hours in presence of the doctor. I also examined the patient and she was able to speak. She was able to speak with understanding. The doctor certified on the paper on which the d.d. was recorded that the patient was in a conscious state. Upon being asked her name, she told her name to be Deviben Khimabhai. Upon being asked as to which village she belonged to, she replied Gangecha, Mankadhar. Upon being asked as to what has happened to her, she replied that she has sustained burn injuries. Upon being asked her name, she told her name to be Deviben Khimabhai. Upon being asked as to which village she belonged to, she replied Gangecha, Mankadhar. Upon being asked as to what has happened to her, she replied that she has sustained burn injuries. Upon being asked as to how she sustained the burn injuries, she told that when she was washing dishes in the afternoon, her husband came home and her mother-in-law instigated him by saying that the husband of her daughter Raji tortures her and that, her husband beat her and told, I am going to set you on fire and therefore, she went inside the house and poured kerosene over herself and set herself on fire. Upon being asked as to who extinguished the fire, she told that all the family members extinguished the fire. Upon being asked as to who brought her to the hospital, she told that her husband and mother-in-law brought her to the hospital in a chhakdo rickshaw. Upon being asked as to which of the family members had been present when she set herself on fire, she told that her mother-in-law, husband and two sisters-in-law (nanad) had been present and that, her father-in-law had gone to attend a funeral at Kanej village. Upon being asked as to whom among the family members she had discord with, she told that her husband, parents-in-law and both the sisters-in-law were torturing her. She has stated that she was married for about a year and that she did not have child. She told that she did not want to state anything further. The doctor stated that the patient was in a fully conscious state and able to give answers during the whole time from when recording of the d.d. was started to the time when it was completed and put his signature in the d.d. for the same. It seemed to me as well that the patient was in a healthy state at the time of recording the d.d.. After the d.d. was completed, a right hand thumb impression of the patient was obtained before me. I have brought the d.d. in original with me today. I put my signature in it as before me. The d.d. was completed at 16:05. I produced the said d.d. in original. It is produced vide Exhibit-39. After the d.d. was completed, a right hand thumb impression of the patient was obtained before me. I have brought the d.d. in original with me today. I put my signature in it as before me. The d.d. was completed at 16:05. I produced the said d.d. in original. It is produced vide Exhibit-39. On corss examination by the defence, witness deposed that it is true that when I went to record the d.d., police staff had been present with the patient in the hospital. I do not know whether the PSI, Maliya Hatina was present there or not as I do not know him. I received the yadi for recording the d.d. at 03:10 PM. It was a holiday. I had gone to the office for some office work. It took about ten minutes for me to reach the ward for recording d.d. after I received the yadi. It is not true that when I went to record d.d., the police staff had been inquiring the patient. Such has not happened that, when I was inquiring the patient, the police staff was also inquiring the patient. It is not true that Dr. Meghnathi gave endorsement to police regarding mental and physical state of the patient in my presence. It is not true that, when the d.d. was recorded completely, there was no space left for the doctor to put endorsement and therefore, the doctor put endorsement in the margin space. The identity of the thumb impression of the patient has not been certified and name of the patient has also not been recorded in it. I do not know as to whether the thumb of the patient was inked or not when I obtained her thumb impression. The patient had not sustained burn injury on the thumb, of which, an impression was obtained by me. It is not true that when I recorded the d.d. of the patient, a treatment of the patient was underway. It is not true that when I recorded the d.d. of the patient, she was feeling uncomfortable and asking for water repeatedly. When I asked questions to the patient, I did not ask as to whether she was literate or not. It is true that it is necessary to ask whether the patient is literate or not when d.d. of the patient is recorded. When I asked questions to the patient, I did not ask as to whether she was literate or not. It is true that it is necessary to ask whether the patient is literate or not when d.d. of the patient is recorded. It is true that, if a patient is literate and not able to put his signature under any circumstances and his thumb impression is obtained, such is noted down in the d.d.. It is true that, if a patient is illiterate, his statement is read over to him. It is true that I have not recorded any note about the d.d. being read over to the patient. It is true that when a patient is not in a state of hearing or understanding, the above mentioned note is not recorded in the d.d.. The doctor on duty was Dr. Meghnathi. It is true that an endorsement that the patient was in a fully conscious state during recording of the d.d., was obtained after completion of the d.d.. It is true that the endorsement of the doctor obtained after completion of the d.d. states that, the patient is in a conscious state. The endorsement does not state that, the patient was in a fully conscious state during the d.d.. It took about 40 minutes for me to complete the procedure of the d.d.. It is not true that the time of starting and completing the d.d. was not recorded in the hospital. It is not true that the thumb impression is not of the patient. The patient did not state “you set me on fire”. It is not true that upon being asked as to what happened to you, the patient did not state in my presence that, when I was washing dishes, my husband came and my mother-in-law instigated him and I set myself on fire. It is not true that the patient had difficulty in breathing and was not in a state to speak properly. I do not know as to in which position the patient was lying. It is not true that the d.d. was not recorded in the hospital and was recorded at the behest of the police and the endorsements of the doctor were obtained afterwards”. I do not know as to in which position the patient was lying. It is not true that the d.d. was not recorded in the hospital and was recorded at the behest of the police and the endorsements of the doctor were obtained afterwards”. 10.6 Dying Declaration which is at Exh.39 is reproduced as under: “Following the report dated 14/04/2003 of the PSO of Maliya Police Station, I came to record d.d. of Devuben Khimabhai of Mankadhar Gangecha village. The patient has been admitted in Burns Ward of Maliya Community Health Centre. Before starting d.d., Dr. Meghnathi, the doctor on duty states that the patient is in a fully conscious state and able to give answers and therefore, the relatives of the patient are told to leave the room and recording of d.d. is started. ----------------------------------------------------------------------------------- The patient is fully conscious. 14/04/2003 03:25 PM Sd/- (illegible) The patient remained conscious during d.d. Sd/- (illegible) Date - 14/04/2003 Started at - 15:25 hours (1) What is your name? - My name is Deviben. (2) What is your husband’s name? - My husband’s name is Khimabhai Lakhabha. (3) What is the name of your village? - We live at Mankadhar Gangecha. (4) What has happened to you? - I have sustained burn injuries. (5) How did you sustain burn injuries? - When I was washing dishes, my husband came and my mother-in-law instigated him that she instigates Pala, the husband of our daughter Raji and has him beat her. Therefore, my husband came to me and beat me and told me, I am going to set you on fire. Therefore, I went running in the room and poured kerosene over my body and set myself on fire. (6) When you set yourself on fire, who were present in the house and who extinguished fire caught by you? - When I set myself on fire, all the family members except my father-in-law were present. My father-in-law had gone to Kareni village to attend a funeral. When I set myself on fire, my sisters-in-law Sonalben and Maniben, my mother-in-law Nathiben and my husband Khimabhai were present. When I caught fire, all these family members poured water on me and extinguished the fire. (7) Who were torturing you? - I was being tortured by my husband Khimabhai, my parents-in-law and both the sisters-in-law. One of my sisters-in-law Sonalben is unmarried. When I caught fire, all these family members poured water on me and extinguished the fire. (7) Who were torturing you? - I was being tortured by my husband Khimabhai, my parents-in-law and both the sisters-in-law. One of my sisters-in-law Sonalben is unmarried. The other sister-in-law Maniben has come to the house of my father-in-law to spend her pregnancy period. The name of my mother-in-law is Nathiben. The name of my father-in-law is Lakhabhai. (8) How long you have been married? - I have been married for about a year. (9) Do you have any child? - No, I do not have any child. (10) For how long you have discord with the family members? - Frequent disputes between me and the family members used to take place just after my marriage and the family members torture me frequently. (11) Who brought you to the hospital? - My husband Khimabhai and mother-in-law Nathiben brought me to the Government Hospital in a chhakdo rickshaw. (12) Do you want to state anything apart from the facts stated above? - Apart from the facts stated above, I do not want to state anything. The d.d. is recorded as stated above and a right thumb impression of Deviben Khimabhai, who dictated the d.d. is obtained below for the same”. THUMB IMPRESSION Completed at – 16:05 hours Before me, Sd/- (illegible) Executive Magistrate, Maliya – Hatina. 11. Error in assigning reason by the learned trial Court while passing the judgment and order of the acquittal. Learned trial Court has evaluated the evidence of the Executive Magistrate, namely, Bhimabhai Virabhai, who was examined below Exh.37, and also scrutinized the evidence of the PSI, Hasmukhlal Arjanbhai Ahir, who was examined below Exh.54 together and from the aforesaid evidence, the contradictions, which would be in the nature of overlapping of timing comes on the record. From the evidence of the Executive Magistrate regarding dying declaration, it comes on record that he started recording the dying declaration at 15.25 hours to 16.05 hours. However, from the evidence of Exh.54, Police Officer, it comes on the record that he recorded the statement from 15.07 hours to 15.40 hours. Learned trial Court had given more weightage to the time period and comes to the conclusion that in the cross examination of both these witnesses, they are denying the presence of each other. However, from the evidence of Exh.54, Police Officer, it comes on the record that he recorded the statement from 15.07 hours to 15.40 hours. Learned trial Court had given more weightage to the time period and comes to the conclusion that in the cross examination of both these witnesses, they are denying the presence of each other. Learned trial Court had not disputed the contents of the dying declaration as from the dying declaration, which was recorded below Exh.39 which consists an endorsement with regard to the fit state of mind, while starting the recording of the dying declaration and at the time of completion of dying declaration, is found to have been satisfactorily recorded. It comes from the evidence of the police officer that while recording the statement of the deceased, he did not mention the time and on what basis this witness has stated the time of recording statement from 15.07 hours to 15.40 hours and his presence in the ward. One more aspect for discarding this evidence is that no one had identified the thumb impression of the deceased, either in the dying declaration or in the statement recorded by the police officer. Learned trial Court has also relied on the evidence of Jivabhai Naranbhai, who was examined below Exh.63, who was the Investigating Officer and stated that further statement of the brother of the complainant was recorded wherein brother had produced the copy of the affidavit, which was notarized on Rs.20/- Judicial Stamp Paper sworn by the deceased and further statement of the deceased recorded in the burns ward wherein, she states that, as during the noon hours, the deceased was taken to the Hospital in the open rickshaw, she became annoyed and stated the name of the father in-law, Lakhabhai, one sister in-law, however, they were not involved in the offence and they are innocent. It is to be noted that this statement is not part of the evidence. It is to be noted that this statement is not part of the evidence. Learned trial Court has also not believed the MLC case papers, which were produced through the evidence of Dr.Meghnathi, who was examined below Exh.40 wherein, in the history given by the deceased, she states that due to the harassment made by in-laws and due to the instigation, husband used to beat her, therefore, she committed suicide by pouring the kerosene, on the ground that below the said endorsement, there was no any signature or the thumb impression of the complainant/deceased. Learned trial Court also disbelieved the Medical Certificate issued below Exh.31 issued by Dr.Pandya, who was examined below Exh.26, wherein, the history was recorded on the ground that it was written from the blue pen and remaining part was written with black pen. On that ground also, learned trial Court disbelieved the case of the prosecution and discarded the evidence, which is in the nature of dying declaration. Learned trial Court further observed in the judgment that from the evidence of the mother of the deceased, who was examined below Exh.52, it comes on record that the deceased was suffering from mental illness and her treatment was going on. The brother of the deceased had also deposed that there was no any harassment on the part of in-laws to the deceased On that ground, the learned trial Court passed the judgment and order of acquittal by observing that there was no any ingredients, which satisfies the offence of Section 107 and Section 498-A of the IPC established by prosecution and therefore, accused were acquitted from the charges. This Court has closely scrutinized all the evidence on record and reason assigned by the trial Court. This Court has re-appreciated the evidence as under: 12. Medical evidence (i) From the evidence of PW-5, Dr.Rameshgiri Meghnathi, who was examined below Exh.40, it comes on the record that on 14.4.2003, the deceased was brought at Maliya Hatina Samuhik Arogya Kendra (CHC) at around 2.30 in the noon. This witness further deposed that complainant / deceased received the burn injuries on 14.4.2003 at around 1.30 p.m. She received 75% burn injuries and also produced in door case papers, which were exhibited below Exh.43. This witness further deposed that complainant / deceased received the burn injuries on 14.4.2003 at around 1.30 p.m. She received 75% burn injuries and also produced in door case papers, which were exhibited below Exh.43. In the medical papers, which was produced below Exh.43, she gave her history that there was harassment from mother in-law, father in-law husband and sister in-law and due to the instigation, husband used to beat her and she herself had set on a fire and received the burn injuries. Time, which is mentioned in the aforesaid case paper, is 2.30 p.m. on 14.4.2003. Age of the deceased was mentioned as 20 years. Thereafter, it is mentioned that patient was transferred to Civil Hospital, Junagadh. He further deposed in the statement that when the police came to record the statement, he was present with the deceased. He further states that though the deceased was in serious condition but was conscious and that fact is also mentioned in the case papers. It is further deposed that in Exh.39, which is dying declaration, two endorsements were made, first at the time of starting of recording of the dying declaration and another is on completion of the dying declaration. These undisputed facts are not controverted during the cross examination of this witness. With regard to the timing, he deposed in the cross examination that the Executive Magistrate had started the recording of dying declaration at 15.25 hours, however, at what time police officer came, that he cannot say. (ii) The another witness, who was examined at PW- 1, Atulkumar Chandulal Kubavat, below Exh.13, which was the Medical Officer serving at Junagadh Civil Hospital, He deposed in his evidence that at 5 O’clock, patient came with a refer note of CHC, Maliya Hatina with history of burn injuries. On examining, it was found that she is having pregnancy of 5 months. History was recorded that on 14.4.2003 around 2 o’clcok, she received the burn injuries at Gagesha Village He produced the case papers below Exh.15 wherein, the endorsement was made that dying declaration has already recorded. Nothing much comes on the record with evidence of this witness except the fact that she received the serious injuries. This witness had further referred the patient i.e. deceased to Rajkot Civil Hospital on 16.4.2003. (iii) Next witness, which was examined, is Dr.Jayant Hariprasad Pandya, PW-3, Exh.26 serving as Medical Officer at Junagadh. Nothing much comes on the record with evidence of this witness except the fact that she received the serious injuries. This witness had further referred the patient i.e. deceased to Rajkot Civil Hospital on 16.4.2003. (iii) Next witness, which was examined, is Dr.Jayant Hariprasad Pandya, PW-3, Exh.26 serving as Medical Officer at Junagadh. From the evidence of this witness, the facts come on the record that her pregnancy was terminated with the consent of the relatives on 18.4.2003 because of 70% deep burn injuries. She was having the second and third degree burns and died on 20.4.2003 at 8.15 hours in the night. (iv) The next witness is examined is Dr.Sudhaben Kantilal Shah PW-2 Exh.22. In chief examination, in addition to the grievous burn injuries, she mentioned that from the body, there was a smell of kerosene. She had conducted the postmortem on 21st April, 2003 during 7.00 hours upto 8.30 hours. 13. Police Witness: (I)Prosecution examined Hasmukhbhai Ahir below Exh.54, PW-11, who was serving as PSI at Maliya Hatina Police Station. He deposed in his evidence that on 14.4.2003, at 15.00 hours, he received the yadi from the CHC Hospital from Dr.Meghnathi with regard to admission of the patient receiving the burn injuries. On receiving the Yadi, entry was made in the station diary by the PSO, Mr.R.S.Babariya. He along with the writerconstable, Naranbhai went to the Hospital on his private motorcycle. On making inquiry, it was informed by the Doctor that she is conscious and able to give the complaint. The complaint was recorded and thereafter, it was read to the deceased and endorsement was made by the Medical Officer with regard to the consciousness of the deceased. On coming back to the Police Station at around 16.00 hours, the entry was made in the station diary as this offence was falling under the territory of Keshod Police Station by the zero number FIR registered being No. FIR 00/2003 under Section 498-A of the IPC. The papers were transferred to the Keshod Police Station and he produced the copy of the FIR below Exh.56. From the cross-examination, it comes on the record that he had not recorded the time regarding completion of the statement. Complaint was recorded by the writer Naranbhai. From 15.07 hours to 15.40 hours, he was in the burns ward. The papers were transferred to the Keshod Police Station and he produced the copy of the FIR below Exh.56. From the cross-examination, it comes on the record that he had not recorded the time regarding completion of the statement. Complaint was recorded by the writer Naranbhai. From 15.07 hours to 15.40 hours, he was in the burns ward. Upto he left the burns ward, he did not see that Executive Magistrate had come there. Before recording the statement, he had not taken the endorsement with regard to consciousness of mind of Dr.Meghnathi. He did not record the time of recording the statement. He had not taken signature to identify the thumb impression of the deceased Devuben. FIR below Exh.56 wherein the statement of the deceased Devuben was produced by this witness wherein, she had narrated that the marriage of the sister in-law of the complainant, namely, Rajiben was solemnized with the brother of the complainant, namely, Palabhai under the guise that Rajiben is facing the harassment at the in-laws house from last one year i.e. from the marriage, they were harassing and torturing to the complainant and giving the threats to set on a fire On the day of the incident, all the in-laws were present at aground 1.00 o’clock and again the quarrel was taken place for the same reason and the husband stated that I set you on fire and therefore, in reply to that, complainant stated that it is better that I set myself on fire and she went to the room and poured the kerosene and ignited matchstick and set ablaze as this harassment went beyond the tolerance level, she committed suicide. She stated that I understand the question which was put before me and I am in conscious state of mind. (ii) The next witness, who was examined, was Chanabhai Arjanbhai Chudasama below Exh.59, PW-12, who was serving as PSO, Keshod Police Station and recorded the FIR at around 19.15 hours on 14.4.2003. (iii) The another witness, namely, Jivabhai Naranbhai Ram, was examined, who was Investigating Officer below Exh.63 as PW-13, has drawn the panchnama of place of offence, collected the material, recorded further statement of the complainant and had filed the charge-sheet. (iii) The another witness, namely, Jivabhai Naranbhai Ram, was examined, who was Investigating Officer below Exh.63 as PW-13, has drawn the panchnama of place of offence, collected the material, recorded further statement of the complainant and had filed the charge-sheet. From the cross examination of this witness, the defence had put the suggestion that in further statement, the complainant had withdrawn name of father in-law and one sister in-law, namely, Sonalben, however, said statements are not produced during the trial. 14. Dying Declaration The Executive Magistrate was examined below Exh.37, PW-4, namely, Bhimabhai, Virabhai whose whole evidence is reproduced at earlier stage of the judgment. During the cross examination, defence has tried to put much emphasize with regard to inquiry about the education qualification of the deceased, and in which circumstances, the thumb impression was taken, is not clarified from the deposition of all Medical Officers, it comes on record that she received burn injuries on whole body, therefore, even if, she is literate, she would not be in a position to sign but that aspect would not loose credibility of dying declaration. However, no any inconsistency in the version of complainant found in dying declaration could be proved by the defence during the cross examination. 15. Evidence of Relatives Witnesses. (i) Prosecution examined PW-8 Palabhai brother of the deceased and brother in–law of the accused. He was declared hostile and not supported the case of the prosecution. (ii) The next witness, who was examined i.e. another brother, namely, Punjabhai Lakhabhai, PW-9, Exh.50. From the evidence of this witness, in chief examination, he deposed that in the Hospital in the presence of the husband and mother in-law, the sister had disclosed that my mother in-law, husband and Maniben were harassing. However, she did not depose with regard to the reasons of the harassment. In the cross examination conducted by the defence, he deposed that treatment with regard to the mental illness, which was going on of the deceased. However, she did not depose with regard to the reasons of the harassment. In the cross examination conducted by the defence, he deposed that treatment with regard to the mental illness, which was going on of the deceased. (iii) The another witness, namely, mother of the deceased was examined below Exh.52, PW-10, Somiben wife of Dhakhabhai though she had not supported the case of the prosecution but in the cross examination conducted by the APP, she admitted that whenever the daughter used to visit to the house, she was complaining with regard to the harassment at the end of in-laws on the ground that sister in-law, Rajiben is facing harassment from the house of her in-laws. She further admits that deceased had disclosed in the Hospital that today at noon hours around 1 O’clcok, the husband, mother in-law and Maniben have told that your brother is harassing to the Rajiben i.e. sister in-law and therefore, they want to set on a fire. In reply to that, Devuben, i.e. the deceased told that instead of you set me on fire I set myself on a fire and she poured the kerosene on herself and set ablaze as she was declared hostile. From the evidence of relatives of deceased, prosecution tried to establish that deceased was suffering from mental illness, however, no any contemporaneous record produced by the accused to establish the same. One more aspect is to be noticed that the sister in law of the deceased is wife of brother of deceased, therefore, to save marriage of son, mother & brother did not support the case but in the cross examination, she admitting and disclosure made by deceased about incident and harassment in the hospital. 16. On analyzing the circumstances and in view of this Court, the prosecution clearly establishes that deceased had been subjected to physical and mental torture all through out. From the evidence on record, it suggests that mother in-law, sister inlaw and husband had abused to the deceased and given the cruel treatment on the ground that sister of the husband is meeting with said treatment at the house of parents of the deceased. Newly wedded wife aged about 20 years was physically assaulted by the husband on number of occasions. Husband instead of protecting against the act of mental torture and humiliation, treated the wife with cruelty and also physically assaulted her. Newly wedded wife aged about 20 years was physically assaulted by the husband on number of occasions. Husband instead of protecting against the act of mental torture and humiliation, treated the wife with cruelty and also physically assaulted her. Such acts of the husband in the view of this Court were sufficient to destroy the normal frame of the mind of the deceased and to drive her to frustration and mental agony and to end her life by committing suicide. Therefore, in the opinion of the Court, the husband is responsible for the death of the deceased wife. 17. The principle governing the dying declaration enumerated by the Hon’ble Apex Court in various cases are stated herein below: (i) There is neither Rule of Law nor the prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) The Court has to scrutinize the dying declaration carefully and must ensure that declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailant and was in fit state to make the declaration. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (v) Where deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (vi) The dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (ix) Normally, the Court in order to satisfy whether deceased was in fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye-witness has stated that deceased was in fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) Where the prosecution version defers from the version as given in the dying declaration, the said dying declaration cannot be acted upon. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. (x) Where the prosecution version defers from the version as given in the dying declaration, the said dying declaration cannot be acted upon. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable it has to be accepted. 18. What impress the Court about the dying declaration is that, firstly it has been reocrded by an independent witness like Dr.Meghnathi, Medical Officer, Maliya Hatina, Community Health Center and Executive Magistrate and secondly before dying declaration commenced by Executive Magistrate, the Magistrate had satisfied himself about capability of Deveiben to make dying declaration. There is endorsement obtained of Dr.Meghnathi. So far as the reasons stated by the learned trial Court that time is overlapping and no signature identifying the thumb impression was made, is palpably wrong and against the evidence on record. It comes on record that no any contemporaneous record produced by the police officer, which suggests that time is overlapping. The learned trial Court should not have been relied on and concluded that because of overlapping time, dying declaration lost is truthfulness. Learned trial Court otherwise has not disputed the contents of the dying declaration as it is corroborated further with the history before the medical officer, police statement, and from the evidence of the mother before whom the deceased had declared the incident. Authenticity, which would otherwise found reliable, could not have been discarded on these minor discrepancies. 19. This Court has also gone through the law laid down by Hon’ble Apex Court in the case of Atbir V/s. Government of NCT of Delhi reported in (2010) 9 SCC 1 and Surinder Kumar V/s. State of Haryana reported in AIR 1992 SC 2037 and comes to the conclusion that dying declaration is inspiring full confidence and had passed all the tests, which are narrated by Hon’ble Apex Court in the above mentioned cases and therefore, that can be base for the conviction. 20. Now for attracting provision of Section 306 ingredient of Section 107 is to be satisfied. So far as abetment is concerned, the requirement, which is mentioned under Section 107 is that (1) Instigating a person to commit an offence (2) Engaging in conspiracy to commit it or (3) intentionally adding a person to commit it. 20. Now for attracting provision of Section 306 ingredient of Section 107 is to be satisfied. So far as abetment is concerned, the requirement, which is mentioned under Section 107 is that (1) Instigating a person to commit an offence (2) Engaging in conspiracy to commit it or (3) intentionally adding a person to commit it. Whether there is an instigation under Section 107 or not is a question to be decided considering facts of instant case. It is not necessary in law for the prosecution to prove the actual operative cause in the mind of the person abated was to instigation, and nothing else, so long as there was an instigation and offence has been committed or offence would have been committed, if the person omitting the act had the same knowledge and intention as the abettor. It is impossible for any human to decide exactly how much instigation actually weighed in the mind of the person abated, when he committed the act or the offence. 21. In Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC 1446 , this Court while dealing with the term ‘instigation’ held: “Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. Thus, to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or ‘urging forward’. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action; provoke to action or reaction to keep irritating or annoying somebody until he reacts.” 22. Thus, to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or ‘urging forward’. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action; provoke to action or reaction to keep irritating or annoying somebody until he reacts.” 22. Keeping in mind above ration, if the Court examines the allegation made by the deceased is that (i) there was an inter exchange marriage of the deceased and sister in-law, (ii) under the guise that sister in-law, was harassed by the parents and brother of the deceased (iii) she was continuously harassed from the inception i.e. from the date of marriage. (iv) She was beaten on that ground on various occasion. (v) On fateful day, there was quarrel of deceased with husband and in-laws. (vi) Husband conveyed deceased that he would set on fire (vii) deceased replied Instead of you set me fire, let me set fire to myself (viii) she committed suicide. 23. Each person has his own self esteem and self respect when harassment went beyond the tolerance level, she had no option except to put an end to her life by committing the suicide. Therefore, this Court is of the view that husband is responsible for the suicide of the wife. 24. Considering these evidences of the witnesses, this Court found that there was no any inconsistency in the evidence of (i) the history before the Medical Officer, which was produced below Exh.43, (ii) statement before the Police Officer recorded below Exh.58 and (iii) dying declaration, which was produced below Exh.39, at all places, version, which is mentioned, is absolutely in consistence manner. 25. This Court is conscious of the fact that this being an acquittal appeal, unless judgment is not found perverse, it cannot be interfered with. With regard to this Court, scope of Appeal filed against the Acquittal, this Court has gone through judgment in the case of Jafarudheen and others V/s. State of Kerala reported in (2022) 8 SCC 440 . The Hon’ble Apex Court observed as under: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The Hon’ble Apex Court observed as under: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents: Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC Online SC 1233] as hereunder: - "20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark. 23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166 : 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 1 89 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 :1985 SCC (L&S) 131, Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665, Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501 ], Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of AP, (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372])" It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC Online Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: '10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: '8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: '8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under: '5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52 ; Wilayat Khan v. State of UP., 1951 SCC 898 : AIR 1953 SC 122 ) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." N. Vijayakumar v. State of T.K, [ (2021) 3 SCC 687 ] as hereunder: - "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, 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. (5) 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." 21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383 : (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction. xxx xxx xxx 23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. xxx xxx xxx 23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place." 24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m." 26. In view of above, this Court comes to the conclusion that finding recorded by the learned trial Court was patently illegal and conclusion arrived at by it were wholly untenable and the judgment of the acquittal passed by the learned trial Court suffers from infirmities. Therefore, judgment and order of the acquittal deserves to be set aside and acquittal recorded by the learned trial Court deserves to be reversed. Therefore, judgment and order of the acquittal deserves to be set aside and acquittal recorded by the learned trial Court deserves to be reversed. Therefore, this appeal is required to be partly allowed qua Respondent No.1 and this Court holds that accused No.1 is required to be convicted for the offence punishable under Sections 498-A and 306 of the IPC. 27. This Court is conscious of the fact that 20 years has been passed but when finding and reasons assigned by the learned trial Court found against evidence, lapse of time would not be aspect for consideration as same would amount to injustice to victim. 28. In view of above, this Court comes to the conclusion that there would not be any other view except to convict the accused N.1 for the charges leveled against him and therefore, this appeal requires to be partly allowed as aforesaid qua accused No.1 and remaining part of the judgment and order passed by the Court below shall remain unaltered. 29. In view of this, appeal is partly allowed and for the hearing of sentence to accused No.1, the matter is kept on 12th January, 2024. FURTHER ORDER, Dated : 12.01.2024:- 30. Heard Mr. Param Buch, learned advocate for the respondents on the point of sentence and learned APP for the appellant – State. 31. The respondent no.1 viz. Khimabhai Lakhmanbhai Charan is also present before the Court. The mitigating circumstances, which are produced by the respondent no.1 in the form of affidavit, are mentioned herein-below. (i) The incident took place before more than 20 years ago. (ii) The respondent no.1 re-married to one Sumiben. Out of the wedlock, three minor son and one minor daughter are born. The age of the kids are – Mehul – aged about 14 years; Karan – aged about 12 years; Rajshree – aged about 09 years and Madhav – aged about 03 years. (iii) The responsibilities of the minor sons and daughter, wife and ailing mother are on the accused, who is doing the agricultural work. (iv) The respondent no.1 also suffering from Tuberculosis and taking two insulin per day. (v) The respondent - accused no.1 remained in custody for 01 years and 07 months. (vi) No any antecedent against the respondent – accused. 32. (iv) The respondent no.1 also suffering from Tuberculosis and taking two insulin per day. (v) The respondent - accused no.1 remained in custody for 01 years and 07 months. (vi) No any antecedent against the respondent – accused. 32. As against the aforesaid submission, learned APP submits that as this Court has convicted the respondent – accused for the offence punishable under Section-498A of the IPC, wherein, the maximum punishment is provided for 03 years and for the offence punishable under Section-306 of the IPC, the imprisonment is provided upto 10 years, this Court may award maximum punishment considering the marriage span of the deceased i.e. below 01 years and age of the deceased i.e. 20 years, considering the same, Learned APP requested to impose maximum punishment. 33. Considering the submission made by the learned advocate for the respective parties and considering the overall circumstances, this Court deem it fit to pass the following final order:- FINAL ORDER : (1) The respondent no.1 is hereby convicted for the offence punishable under Section-498A and is ordered to undergo Rigorous imprisonment of 06 months and fine of Rs.1,000/-, in default of fine, further period of 01 month simple imprisonment. (2) The respondent no.1 is further convicted for the offence punishable under Section-306 of IPC and is ordered to undergo Rigorous imprisonment of 02 years and fine of Rs.2,000/-, in default of fine, further period of 01 month simple imprisonment. (3) All the sentences are ordered to run concurrently. The sentence already undergone by the respondent no.1 – accused is ordered to be given set off. (4) The respondent no.1 is directed to surrender to custody within period of 10 weeks to serve remaining sentence, failing which, the Sessions Judge concerned is at liberty to issue warrant to secure the custody of the respondent no.1 – accused. (5) Registry to make available a copy of this judgment to the learned advocate for the respondent no.1 – accused and the learned APP as well as to send to the learned Court below, forthwith. A copy be also sent to the Superintendent of Police, Junagadh and the District Magistrate, Junagadh. 34. In view of the above, this Criminal Appeal is partly allowed. The Record and Proceedings be sent back to the concerned Court forthwith.