JUDGMENT : M G Uma, J. The appellant being the accused in S.C.No. 110 of 2009 on the file of the learned I Additional Sessions Judge, Chikmagalur, is impugning the judgment of conviction and order of sentence dated 16.08.2013, convicting the accused for the offence punishable under Section 498-A and 306 of Indian Penal Code (for short, 'IPC'), and sentencing him to undergo simple imprisonment for 2 years and to pay fine of Rs.5,000/, and sentenced him to undergo simple imprisonment for a period of 3 years and to pay fine of Rs.10,000/- for the offences punishable under Sections 498-A and 306 of IPC, with default sentences. 2. Brief facts of the case are that, the accused had married the deceased Gayathri about 2 years earlier to the incident i.e. during 2007. It is the contention of the prosecution that the accused being the husband, used to suspect the fidelity of his wife-the deceased-Gayathri, pick up quarrel with her and treated her with cruelty. Not being able to face the cruelty, the deceased poured kerosene and set fire, as a result of which she sustained burn injuries. Initially she was taken to District Hospital, Chikmagalur, later she was shifted to Father Muller's Hospital, Kankanadi and again she was shifted to Wenlock Hospital, Mangalore where she breathed her lost. It is the contention of the prosecution that when the injured was in Father Muller's Hospital, Kankanadi, her statement as per Exhibit P10 was recorded. On the basis of the same, the FIR came to be registered for the offence punishable under Section 498-A of IPC. The investigation was undertaken. But however, on 04.04.2009, the victim died due to complications of burn injuries sustained. The inquest panchanama and other formalities were completed and after investigation, the charge sheet came to be filed for the offences punishable under Sections 498-A and 306 of IPC. 3. The Magistrate took cognizance of the offence. The accused had appeared before the Trial Court, pleaded not guilty and he claims to be tried. The prosecution has examined PWs.1 to 20, got marked Exhibits P1 to 14 and identified MO's.1 to 3 in support of its contention. The accused had denied all the incriminating materials available on record in his statement recorded under section 313 of Cr.PC, but he has not chosen to lead any evidence in support of his defence. The prosecution has examined PWs.1 to 20, got marked Exhibits P1 to 14 and identified MO's.1 to 3 in support of its contention. The accused had denied all the incriminating materials available on record in his statement recorded under section 313 of Cr.PC, but he has not chosen to lead any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, accordingly convicted the accused for the offences as stated above. Being aggrieved by the same, the accused is before this court. 4. Heard Sri.Leeladhar H.P., learned counsel for the appellant and Sri. Harish Ganapathy, learned HCGP for the respondent-State. Perused the materials on record including the Trial Court records. 5. In view of the rival contentions urged by learned counsel for the both the parties, the point that would arise for my consideration is as under: "Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is in the 'affirmative' for the following: REASONS 6. It is the contention of the prosecution that the accused being the husband, used to suspect the fidelity of his wife-the deceased and used to ill-treat her. As a result, on 27.03.2009, the deceased not being able to tolerate the said cruelty, poured kerosene on her and set ablaze. She was shifted to various hospitals as stated above and finally she breathed her lost on 04.04.2009 while being treated in the Wenlock hospital, Mangalore. 7. The material document relied on by the prosecution is Exhibit P10. The first information that was recorded on 30.03.2009 and the FIR came to be registered on 31.03.2009. It is pertinent to note that the incident had occurred on 27.03.2009. PW6 and 9 are the brothers of the deceased. PW7 is the brother-in-law. None of them have filed the first information till 31.03.2009. There is no explanation for the same. Strangely, even when the injured was admitted in the Government Hospital at Balehonnuru for the first time, thereafter to the District Hospital at Chikmagalur, no intimation was issued to the police. 8. PW7 is the brother-in-law. None of them have filed the first information till 31.03.2009. There is no explanation for the same. Strangely, even when the injured was admitted in the Government Hospital at Balehonnuru for the first time, thereafter to the District Hospital at Chikmagalur, no intimation was issued to the police. 8. PW.15 is the doctor, who conducted post mortem examination and has deposed before the Court regarding Exhibits P8 and 9 issued by him. Exhibit P8 is the Post Mortem report. According to this document, the body of a young adult female was completely covered with hospital bandages all over the body, except over the face, external genitalia and both foot. The death was due to delayed complications of burn injuries sustained. Exhibit P9 is the diagrammatic representation of injuries in autopsy. As per this document, the entire portion of the body except the face in the front portion, and the head and left shoulder portion on the back, the entire remaining portion is burnt and covered with bondage, that means to say both the palms and all the fingers were burnt. In this background, we have to consider Exhibit P10 - the first information which was later treated as the Dying Declaration. 9. As per the case as made out by the prosecution, the deceased was in a position to give her statement on 30.03.2009 even though she sustained such burn injuries all over the body on 27.03.2009 and was being shifted from one hospital to another. As per Exhibit P10, the victim has stated that, her husband was ill-treating her both physically and mentally as he was suspecting her fidelity. Therefore, she poured kerosene and set ablaze. Even though the accused was very much present in the house, he had not tried to save her until the fire caught all over the body. It was only thereafter he poured water and shifted her to the hospital. It is on the basis of this statement of the deceased, the FIR came to be registered. If the prosecution is successful in proving Exhibit P10, the accused is liable for punishment. But on the other hand, if the prosecution is not successful in proving Exhibit P10, it has to be concluded that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 10. If the prosecution is successful in proving Exhibit P10, the accused is liable for punishment. But on the other hand, if the prosecution is not successful in proving Exhibit P10, it has to be concluded that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 10. PW16 is the Head Constable who is said to have recorded Ex.P10 on 30.03.2009. According to him, he has not obtained the written permission from RMO to record the statement of the injured, nor he had taken the fitness certificate from the duty doctor. He states that orally he has taken such permission. It is his further contention that PW18 is the Casualty Medical Officer on duty and in his presence, the statement as per Exhibit P10 was recorded. Even PW18 do not endorse on Exhibit P10 regarding the health condition or the fitness of the deceased to give this statement. During the cross examination of PW18, he states that he had not recorded anything in the case sheet regarding recording of the statement of the injured. He states that the doctor who was on duty had recorded the said fact in the case sheet. The case sheet is not produced before the Court by the prosecution. When PW18 states that the doctor who was on duty recorded the fact of recording the statement of the injured in the case sheet presupposes that PW18 was not the duty doctor as on that date. 11. It is pertinent to note that PW18 states in his evidence that he was not the casualty officer, but he was only a P.G. student working under the doctor. It is also pertinent to note that PW18 has signed on the first page of Exhibit P10 in the margin endorsing that it was recorded before him. There was sufficient space on the second page on conclusion of the statement and PW18 could have signed at the end of the statement endorsing the condition and fitness of the injured and that the statement was recorded in his presence. But there is absolutely no explanation as to why he had endorsed in the margin on the first page. 12. There are many over-writings, interpolations in Exhibit P10. PW.16 who is said to have recorded the statement has stated that generally he used to counter sign such insertions, interpolations, over writings etc. But there is absolutely no explanation as to why he had endorsed in the margin on the first page. 12. There are many over-writings, interpolations in Exhibit P10. PW.16 who is said to have recorded the statement has stated that generally he used to counter sign such insertions, interpolations, over writings etc. But why no such counter signatures at relevant portions of Exhibit P10 is not explained. 13. According to PW16 and PW18, they have obtained the left thumb impression of the injured over the statement Exhibit P10. As per the left thumb impression found on Exhibit P10, even the ridgelines in the thumb impression could be seen to the naked eye. When I again referred to Exhibits P8 and 9, the post mortem examination and the diagrammatic representation of injuries in autopsy, they suggest that the entire portion of the body except a portion of the face and head and a little portion on the left shoulder, on the back, were burnt and there was bandage all over the body, even when the dead body was brought for post mortem examination. Nobody had explained as to how such an injured could affix her left thumb impression on Exhibit P10. 14. Interestingly, PW.18, in his evidence has stated that Ceftriaxone and Metrogyl injections were administered to the injured while treating her. According to the learned counsel for the appellant, these injections were administered to prevent infections and to subside the pain which will have the effect of dizziness, confusion, abnormality in the brain and loss of consciousness. He has produced some literature in that regard. When the incident had occurred on 27.03.2009, initially she was shifted to Balehonnuru Government Hospital and thereafter to the Government Hospital at Chikmagaluru, and again admitted her to Father Muller's Hospital Mangalore. When the injured had sustained injuries all over her body, including the palm and fingers, it is hard to believe that she was in a sound state of mind or fit to give statement as per Exhibit P10. Affixture of the left thumb impression on Exhibit P10 further creates a doubt in the mind of the Court. When such serious doubt arose regarding the genuineness of Exhibit P10, it is the duty of the prosecution to eliminate the same with reasonable explanation. No such efforts seems to have been made by the prosecution. Affixture of the left thumb impression on Exhibit P10 further creates a doubt in the mind of the Court. When such serious doubt arose regarding the genuineness of Exhibit P10, it is the duty of the prosecution to eliminate the same with reasonable explanation. No such efforts seems to have been made by the prosecution. When Exhibit P10 is not acceptable as there are serious doubts, the foundation for registering the FIR falls to the ground. 15. PW1 is the daughter of the deceased aged 6 years.She states that while cooking, the kerosene lamp fell on her mother, as a result of which, she sustained burn injuries. This witness was treated hostile. PWs.2 to 5 being the neighbours have also turned hostile and not supported the case of the prosecution. PW6 is the brother of the deceased, who deposed that he was present in the hospital when the Dying Declaration was recorded. But it is pertinent to note that he is the inquest mahazar witness to exhibit P7. His statement was recorded by the police during the inquest. In such statement, he never states that the statement of the injured was recorded by the police on the previous day. Even in his statement under Section 161 of Cr.PC, the witness had never stated that the statement of the injured was recorded by the police. Under such circumstances, his contention that he was present in the hospital when the statement as per Exhibit P10 was recorded cannot be believed. 16. PW7 is the brother-in-law of the deceased and PW9 is the other brother of the deceased. Their evidence are not helpful to the prosecution to bring home the guilt of the accused for the above said offences. PWs.8, 13 and 14 are the other inquest mahazar witnesses to Exhibit P7. PWs.10 to 12 are the spot mahazar witnesses to Exhibit P6. None of these witnesses have supported the case of the prosecution. PW17 is the Investigating Officer who filed the charge sheet. PW19 is the head constable who registered the FIR and PW.20 is the ASI who conducted the inquest mahazar. 17. From the materials on record, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. PW17 is the Investigating Officer who filed the charge sheet. PW19 is the head constable who registered the FIR and PW.20 is the ASI who conducted the inquest mahazar. 17. From the materials on record, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Even though the learned HCGP has contended that the accused had taken a defence that the kerosene lamp had fallen on the deceased, which resulted in burn injuries, but he has not proved the same, cannot be accepted as it is the first principles of criminal jurisprudence that the burden always lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. It is only when the prosecution is successful in proving the guilt, the onus shifts on the accused to prove his defence, if any. Moreover PW.1-the daughter of the deceased has spoke supporting the defence taken by the accused. Here in this case, the prosecution has miserably failed to prove the case, and even probabilising its contention and hence I am of the opinion that the accused is entitled for acquittal. 18. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It proceeded to convict the accused solely on the basis of Exhibit P10 and accepted the oral evidence of PW6, 16 and 18. In view of the discussions held above, I am of the opinion that Exhibit P10, and the evidence of PWs.6, 16 and 18 cannot be the basis to convict the accused. Under such circumstances, I am of the opinion that the impugned judgment of conviction and the order of sentence passed by the Trial Court is liable to be set aside and the accused is entitled for acquittal. Accordingly, I answer the above point is in the affirmative and I proceed to pass the following: ORDER i. The appeal is allowed. ii. The impugned judgment of conviction and order of sentence dated 16.08.2013 passed in Sessions Case No.110/2009 by the learned I Additional Sessions Judge at Chikmagalur, is hereby set aside. iii. Consequently, the accused is acquitted for the offences punishable under Sections 498-A and306 of IPC. iv. His bail bond and that of his sureties shall stands cancelled. v. Fine amount deposited, if any, is ordered to be refunded to the accused. iii. Consequently, the accused is acquitted for the offences punishable under Sections 498-A and306 of IPC. iv. His bail bond and that of his sureties shall stands cancelled. v. Fine amount deposited, if any, is ordered to be refunded to the accused. Registry to send back the original records along with copy of this judgment to the Trial Court, for information and necessary action.