Dhavalkumar Arun Dombe v. The State of Maharashtra

Since the defence put forth is that the death of deceased was an accident, three witnesses came to be examined by the appellant being DW 1-Dr.Shantanu Kulkarni, who examined the deceased when she was brought in the hospital at Karad and who administered treatment to her, DW 2-Tukaram Patil, the Executive Magistrate, who recorded the dying declaration of the deceased and DW 3-Babanrao Jadhav, an Advocate. Statement of the accused persons under Section 313 of the Criminal Procedure Code (for short, “Cr.P.C”) were also recorded and accused no.1 (appellant) during the said statement, depose that allegations levelled against him are false and he had not demanded any amount from the deceased. He specifcally gave the following statement: “On 13.8.1993, deceased Aruna was preparing vegetable of Potato in kitchen on the stove. Suddenly and negligently, string of her gown fell on the burning stove and therefore, gown caught fre. I tried my level best to extinguish fre fames and in that incident, even I sustained burning injuries to my hands. Therefore, we both of us were admitted in the hospital. The loan amount of Rs.50,000/- was taken by her, before my marriage with her. The brother of deceased Aruna namely Deepak lodged a false complaint against me in order to harass me”.

7. On the basis of the material placed before the learned trial Court, the appellant stood convicted and sentenced as mentioned in the primordial part of the judgment, whereas accused no.2 was acquitted of the charges framed under Section 306 as well as under Section 498-A of IPC.

8. The case set up by the appellant, being charged for abetting suicide of the deceased, is of accidental death as the gown of the deceased caught fre and in an attempt by the appellant to extinguish the fre, he also sustained injuries and was admitted in the same hospital, where the deceased was taken. Immediately, after the incident took place, the appellant informed PW-2 about the said incident and the deceased gave a dying declaration, which was recorded by DW-

2. While appreciating the evidence, the trial Court disregarded the said dying declaration and relied on the prosecution witnesses, the close relatives of the deceased who deposed about the demand of money at the instance of the appellant and about ill-treatment, which compelled her to commit suicide.

9. The learned counsel for the appellant would submit that the prosecution case of the deceased committing suicide on abetment at the hands of the appellant has not been proved by the prosecution nor the allegation of harassment has been proved. The learned counsel would submit that in the statement under Section 313 of Cr.P.C, the appellant had specifcally denied the case of the prosecution and put forth the case of accidental death of the deceased and he would submit that the trial Court has erroneously disregarded the dying declaration on two counts; the prosecution did not rely upon the said statement as the dying declaration recorded by the Executive Magistrate by itself is not admissible and the contents thereof, cannot be taken as a gospel truth; the second ground being, the dying declaration is recorded when Aruna had sustained 100% burn injuries and the trial Court has held that in such a critical condition, any prudent man will not think that she was in a position to give her statement. The learned counsel for the appellant, on the other hand, would lean on the dying declaration and submit that the appellant had chosen to examine the doctor, who treated Aruna on being taken to hospital on sustaining 100% burn injuries and the Executive Magistrate, who has recorded the dying declaration. Relying on the evidence of two defence witnesses, submission of the learned counsel is to the effect that, when the dying declaration was being recorded, the deceased was in a conscious and oriented state to give her statement and since the statement came from a patient, who was in a ft condition to give her statement and the doctor made an endorsement to that effect and permitted DW-2 to record her statement, statement could not have been ignored by the trial Court. On the other hand, the learned counsel by drawing my attention to the evidence of the prosecution witnesses, specially her relatives being PW-1, PW-2, PW-3, PW- 4 and PW-6, submitted that the evidence of these witnesses is full of contradiction and exaggeration. By inviting my attention to the letters addressed by the deceased after her marriage and before her death to the brother and the mother, which have been produced on record by PW-1, it is argued that it has not been conclusively proved that they were written by her, but for assuming for the sake of argument that they are addressed to them by the deceased, they do not satisfy the allegation of demand of any dowry. Apart from this, the learned counsel would submit that the ingredients of Section 306 of IPC are not at all made out against the present appellant and merely because the alleged commission of suicide is within 7 years of marriage, it would not lead to a presumption under Section 113-A of the Indian Evidence Act and his submission is, merely because the presumption arises, the prosecution is not denuded of its duty to prove the prosecution case beyond reasonable doubt, particularly when it is alleged that the appellant had subjected the deceased to cruelty and on account of the ill-treatment given to her, she committed suicide. Mr.Pethe, learned APP on the other hand, would submit that some minor discrepancies in the case of the prosecution would not be suffcient to acquit the appellant of the serious charges levelled against him. He would rely upon the prosecution evidence in form of the close relatives of the deceased, who have deposed about the ill-treatment administered to the deceased on account of the demands made by her with her close relations at the instance of the appellant. The learned APP would further submit that the witnesses, consistent with each other, have spoken about the demand of amount from them, by the deceased on the say of the appellant and that they could not meet the demand, which ultimately, culminated into the deceased taking an extreme step of committing suicide. The dying declaration, according to the learned APP, has rightly been rejected by the trial Court as it did not inspire confdence and since it was not recorded in the presence of the doctor, and secondly, that it is not accompanied by a certifcate from the doctor, that the maker was in a conscious state of mind to get her dying declaration recorded. Reiterating that the prosecution has established its case by adducing cogent and reliable evidence before the trial Court and on being convinced that the evidence of the prosecution witnesses inspire confdence and was suffcient to establish the guilt of the accused, according to Mr.Pethe, the trial Court has rightly convicted and sentenced the appellant whereas it has acquitted accused no.2 – the mother-in-law.

10. With this Mise en scene, I will frst allude to the bone of contention between the adversaries, being the cause of death of deceased Aruna. Krishna Hospital and Medical Research Centre, Karad certifed vide Exhibit-19 that deceased Aruna was admitted in hospital on 13th August, 1993 and she died on 14th August, 1993 at 1.30 a.m. The cause of death as per the certifcate, issued vide Exhibit-20 is ‘Shock due to extensive burn injuries’. The postmortem report (Exhibit-21) refer to total burn of 95%. Column no.17 enlist the percentage of burns on various parts of the body and record as under:- “Blisters present and contain water. Foscia is red in colour”. The inquest panchnama (Exhibit-18/1) recorded on 14th August, 1993 speak of burn injuries on face, neck, chest, stomach and back with partial burnt private parts. The deceased was brought in the Burns Ward at 11.10 p.m on 13th August, 1993. Dr.Shantanu Kulkarni (DW-1) examined her and found that she had suffered 100% deep fames burn. In his deposition before the Court, he state that when she was admitted in the hospital, she was conscious and oriented though her general condition was poor. On being probed by DW-1 about the injuries, the deceased gave him history of accidental stove fame burns at 9.00 p.m, which was accordingly recorded in the case papers of the patient, placed before the Court. She was given treatment by DW-1. DW-1 has stated that at about 12.25 a.m, the Executive Magistrate, Karad (DW-2) came to the hospital for recording her dying declaration and the Executive Magistrate inquired from DW-1 whether the deceased was in a ft condition to give statement and since she was found to be in a ft condition, DW-1 put endorsement on ‘Yadi’ and allowed the statement to be recorded. He put endorsement on the letter in his handwriting. The Yadi is exhibited by the said witness as Exhibit 43. The witness deposed that the patient died at about

1.30 a.m. In the cross-examination, he reiterated his stand that at

11.30 p.m, Aruna was conscious and well-oriented and denied the suggestion that he was not present at the time of when the dying declaration of the deceased was being recorded.

11. DW-2, the offcer authorised to record the dying declaration by the Tahsildar, Karad, visited Krishna Hospital and found Dr.Shantanu Kulkarni (DW-1) present in the Burns Ward. DW 2 specifcally depose that he obtained opinion of DW- 1 as to whether the patient was in a conscious condition or not and he received positive opinion from the doctor. He himself found the patient conscious and well-oriented to give her statement and on inquiring as to how the accident had happened, the deceased narrated the accident which occurred when she was cooking food at about 9.00 p.m and when the string of her own gown (apparel worn by her) caught fre. She also revealed to him that her husband was present in the house when the incident happened and he tried to extinguish the fre fame and that she has no complaint against anyone. The dying declaration of the deceased is exhibited as Exhibit 48 and it is signed by DW-2. One contradiction which can be noted is, in the crossexamination, the witness has deposed that the doctor was not present near the patient at the time of recording of the statement. The suggestion given that the patient was not in a conscious condition, is specifcally denied by the witness, so also the suggestion that no inquiry was made from the doctor whether Aruna can sign on her statement or not.

12. It is this dying declaration, which according to the learned counsel for the appellant, has been completely disregarded by the trial Court for the reasons recorded in the judgment. It is one thing for an accused to attack a dying declaration in a case where the prosecution seek to rely on it and want to use it against the accused to implicate him, but it is altogether different where an accused rely upon the dying declaration in support of the defence in an accidental death. In such a situation, the burden of the accused is much lighter and he has to only prove a reasonable probability. The fact whether the dying declaration is false and concocted, has to be established by the prosecution and it is not for the accused to prove conclusively that the dying declaration was correct and story therein was not concocted. The probability of the accidental death, which is the case of the appellant, will have to be ascertained from the surrounding circumstances brought on record. The spot panchnama (Exhibit 17) is one such circumstance, which refer to the scene of occurrence, which is a kitchen room admeasuring 15 x 10 with a bathroom at its southern end. Near the door, presence of an empty can of kerosene is reported whereas another can of kerosene, without lid with little kerosene in it, fnd mention in the spot panchnama. The spot panchnama record about a stove on the scene with wick and it mention about a small utensil with potato stew (bhaji) in it. Nearby freshly kneaded atta is found and surrounding to the stove are utensils lying in a scattered condition. The spot panchnama also mention about a bedsheet, burnt at places and a plastic bag dangling on a nail affxed in the wall in a partial burnt condition.

13. The scene of offence does not refect any mention of smell of kerosene or traces of kerosene either on the bed-sheet or in the room. The presence of partly cooked vegetable and the freshly kneaded atta corroborate the version of the deceased that she was cooking potato vegetable and accidentally while cooking, the string of her clothing caught fre from the stove and her husband attempted to extinguish the fre. The presence of bed-sheet which is in a partial burnt condition lying on the spot is also corroborating her version. The appellant in his statement, under Section 313 of Cr.P.C, has also reiterated the occurrence of the accident when at 9.00 p.m, the deceased was cooking food in presence of the appellant, who was sitting in kitchen. The version contained in the dying declaration is fortifed by the Spot Panchnama where the scene of occurrence of the accident is limned, coupled with a mention of the utensils lying scattered near the cooking place and the bed-sheet in a partial burnt state, found on the spot.

14. The prosecution had completely rejected the dying declaration and therefore, did not bring it on record nor did it examine the Magistrate, who recorded the said dying declaration. The trial Court had disbelieved the dying declaration on the count that the deceased was 100% burnt and being in such state, the statement could not have been recorded. The said fnding of the trial Court is grossly erroneous as the percentage and degree of the burn is not a decisive factor determinative of the credibility of the dying declaration, but the decisive factor would be the quality, about a ft and conscious state of mind of the patient to make a statement. In Purshottam Chopra & Anr. V. State (Government of NCT of Delhi)1, the Apex Court has reiterated the law laid down on this point in case of Vijay Pal Vs. State (NCT of Delhi) to the following effect: “In Bhagwan [(2019) 8 SCC 95], this Court accepted the dying declaration made by a person having suffered 92% burn injury and whose continued consciousness was certifed by the doctor. This Court referred to the decision in Vijay Pal v. State (NCT of Delhi) [(2015) 4 SCC 749], where the statement made by the victim having suffered 100% burn injury was also accepted. This Court said: (Bhagwan Case, SCC pp 106-107,paras 24-25) “ (B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?

24. This question is also no longer res integra. In Vijay Pal v. State (NCT of Delhi)[2015 (4) SCC 749], we notice the following discussion: (SCC p. 759, paras 23-24) “‘23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may proftably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat [(1992) 4 SCC 69] wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of M.P. v. Dal Singh [(2013) 14 SCC 159], a two- Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.’

25. Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confdence of the Court and is free from tutoring, and can be found reliable.”

15. The law as regards recording of dying declaration and its admissibility and reliability is by now well settled. A dying declaration could be the sole basis of the conviction even without corroboration if it inspires confdence of the Court. The Court should be satisfed that the person making such a declaration was in a ft state of mind at the time of making the statement and the statement was voluntary and was not an outcome of some tutoring, prompting or imagination. When the dying declaration is suspicious or suffer from any infrmity such as ftness of state of mind of the declarant or of like nature, it will not be acted upon in absence of any corroborative evidence. Similarly, the law does not provide as to who can record the dying declaration nor there is any prescribed format or procedure for the same, but the person who is recording the dying declaration must be satisfed that the maker is in a ft state of mind and capable of making the statement. Although the presence of the Magistrate is not absolutely necessary while the dying declaration is being recorded but to ensure the authenticity and credibility, it is expected that the dying declaration is recorded by a Magistrate and the certifcate is obtained from some person, present at the time of recording a dying declaration. In the case of State of M.P. V. Dal Singh 2, the Apex Court has held that law does not provide who should record the dying declaration nor there is any prescribed format or procedure for the same. The following observations are necessarily applicable to the present case: “20. The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfed that the maker is in a ft state of mind and is capable of making such a statement. Moreover, the requirement of a certifcate provided by a doctor in respect of such state of the deceased, is not essential in every case.

21. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infrmity.

22. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.”

16. From the aforesaid paragraph, it can very well be discerned that whether in a burn case, the skin or thumb has been completely burnt or some part of it is intact, will be a question of fact. Ultimately, if the Court is satisfed that the dying declaration was true, voluntary and not infuenced by any extraneous consideration, it can form the basis of conviction without any independent corroboration, as a rule of corroboration is rule of prudence and not a rule of law. Since there is no fxed format for recording of dying declaration, a dying declaration recorded by an Executive Magistrate cannot be said to be faulty or inadmissible, when it is recorded in absence of a doctor.

17. The law as regards the said point is crystallized in the decision of the Apex Court in case of Sohan Lal alias Sohan Singh & Ors. V. State of Punjab[3] “14………..The Constitution Bench in Laxman [(2002) 6 SCC 710], while resolving the confict of opinion as to the manner of testing the credibility of a 'dying declaration', overruled the view taken in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695] and approved the correctness of the view taken in Koli Chunilal Savji and Anr. v. State of Gujarat [(1999) 9 SCC 562]. According to the Constitution Bench: (SCC PP.713-14, para 3) "The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confdence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a ft mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certifcation of the doctor as to the ftness of the mind of the declarant, the dying declaration is not acceptable…… The view taken in Paparambaka Rosamma (supra) that in the absence of a medical certifcation as to the ftness of state of mind, it would be risky to accept a dying declaration on the subjective satisfaction of the Magistrate was overruled as having been too broadly stated and not being the correct enunciation of law. The Constitution Bench said: (SCC p.715, para 5) “It is indeed a hypertechnical view that the certifcation of the doctor was to the effect that the patient is conscious and there was no certifcation that the patient was in a ft state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfed that the patient was in a ft state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affrm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562]" In Koli Chunilal Savji (supra) a Bench of three learned Judges rejected the contention that in the absence of a doctor while recording the dying declaration, the declaration loses its value and cannot be accepted. The Court observed (at SCC p.566, para 7) that, "the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given." Ravi Chander and Ors. v. State of Punjab [ (1998) 9 SCC 303], was approved, in which this Court held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court observed that the Executive Magistrate is a disinterested witness and is a responsible offcer as long as there was no material on record to suspect that he had any animus against the accused or was in any way interested in fabricating the dying declaration, no question arises to checking the genuineness of the dying declaration recorded by the Executive Magistrate.”

18. Applying the aforesaid well settled principles of law to the fact of the case, the dying declaration of the deceased cannot be faulted on account of the admitted fact that the deceased was 100% burnt or that the dying declaration does not bear the certifcation of the doctor, particularly when he has stepped into the witness box and deposed that the Executive Magistrate sought his opinion on the ftness of the deceased before the dying declaration was recorded. In absence of certifcation from the doctor, when the Executive Magistrate himself deposed that the patient was conscious and oriented when he recorded the dying declaration, there is no reason to doubt his testimony, being not an interested witness. The trial Court has thus completely overlooked the dying declaration coupled with the surrounding circumstances, being the execution of the spot panchnama, absence of any smell of kerosene from the spot or the presence of blisters, which clearly reveal that there was no explosion of the stove or there was no pouring of kerosene, but since the apparel of the deceased caught fre, that the clothes were stuck to her body on several parts, as per the inquest panchanama. As per Modi, Medical Jurisprudence and Toxicology, 26th Edition, the postmortem appearance of the burn injuries are characterised as under:- “Burns produced by fame may or may not produce blisters, but singeing of the hair, eyebrows and blackening of the skin is always present. A highly heated solid body or a molten metal, when momentarily applied to the body, may produce only a blister and reddening corresponding in size and shape to the material used, but will cause roasting and charring of the parts, when kept in contact for a long time. Burns caused by explosions in coal mines or of gun powder are usually very extensive, and are accompanied by blackening and tattooing due to the driving of particles of unexploded powder into the skin. Burns caused by kerosene oil are usually very severe, and are known from its characteristic odour and the sooty blackening of the parts.” In determining whether the death on account of burn injuries is suicidal, homicidal or accidental, Modi express as under:- “When petrol or kerosene is used on the dead body, it usually produced diffused superfcial bullae with a characteristic smell. In such cases, fatal injuries, such as fractures of skull bones, because of mechanical violence or signs of strangulation, suffocation or poisoning, may be found on the bodies, if they are not completely destroyed by fre. It must,however, be remembered that injuries on the body, such as lacerated wounds or fractures of bones, may be produced by beams, walls of a burning house falling on a living or dead person. At a temperature of 10930 C, a body can be completely burnt, but may be noticed by the presence of foul gases and intense heat. The heat of ordinary house-fre reached about C hence the disposal of a murdered person is not likely to be complete. It is sometimes suggested that accidental cases are very common, especially among women and children on account of their loose garments catching fre, while sitting near an angethi, chula, Primus stove or an open lamp---------- Cases of accidental death by burns sustained from Primus stoves became so frequent among the Gujarati women of Bombay that the Coroner had often passed strong strictures against their husbands or parents for allowing the use of these stoves in their houses. Cooking gas is another dangerous source of burns and clothes made from synthetic fbers are a contributory factor.” If the postmortem report is perused, it will reveal that the skin was “burnt” and the total burn, in column No.17 was approximated to 95%. Presence of blisters containing water and foscia was noted to be red in colour. On internal examination, there is no injuries in column No.19(i), no fracture to skull in column No.19(ii). The postmortem opine the cause of death due to extensive burn injuries and there is no indication of any traces of kerosene or smell of kerosene from the body, thereby discarding the theory of suicide. The inquest panchanama refer to the burn injuries on face, neck, chest and stomach and the bandage being put on the said injuries. The hair of the deceased were also partially burnt and the inquest panchanama also does not refer to any traces of kerosene or any sooty blackening of the body part, which is common in burns causes by kerosene. With the clothes being stuck up to the part of the body, it is indicative of the burns produced by fame and with the blisters full of water, is indicative of second degree burn, which again according to Modi, comprise acute infammation and blisters produced by prolong application of fame and if the burns are caused by fame, the skin is blacked and hairs singed. No scar result has only the superfcial layers of the epithelium are not destroyed.

19. The trial court in ignorance of the above relevant facts, in determining whether the death of Aruna was accidental or suicidal, got swayed away and inferred that it was suicidal, based on the testimony of the family members of the deceased. The issue is as to whether the prosecution has proved that the appellant abetted the suicide of the deceased if the dying declaration is to be believed and the death of the deceased is held to be accidental death, I need not go into the detail about the case of the prosecution whether the appellant has abetted the suicide. However, the appellant has also been convicted under Section 498-A of IPC alleging harassment for the purpose of dowry, and, therefore, I would briefy refer to the prosecution case on the said point and whether the prosecution has proved its case to indict the accused for offence punishable under section 498-A of IPC. PW 1 – Deepak brother of the deceased along with another brother i.e. PW-3, sister,PW-4 and PW-6 are the witnesses examined by the prosecution to establish the alleged ill-treatment administered to deceased after marriage. The witnesses in a serious attempt to corroborate each other, in fact bring on record lot of inconsistencies. The deceased was a Medical Practitioner in Karad since 1991 and PW-1 has deposed that when she was attending her dispensary located in Mangalwar Peth, Karad, she was already residing in separate rented premises near her dispensary. The appellant was related to him and was visiting her dispensary. A love relationship blossomed between the duo and it is the version of her brother that when she performed registered marriage with the appellant, they did not participate. The story which has been sought to be put forth through PW 1 and PW 2, that the marriage talks were held and amount of Rs.75,000/- was demanded as hunda (dowry) along with 51 tolas of gold, does not inspire confdence as though the demand were never fulflled, the appellant still solemnized the marriage with the deceased. It has come on record that the deceased was suffering from leucoderma and PW-1 has deposed that spots were appearing on the body of her sister from the age of ten years till her death. In-spite of this medical condition, the appellant had performed marriage with her and PW-1 has deposed that he and his family members were not happy with the marriage. The version of the prosecution about the demand being raised prior to the festival of Diwali of 1992, and for meeting the said demand, a loan was raised is also falsifed since in cross-examination, he was unable to recollect as to when he obtained a loan and when he cleared the loan. There is inconsistency about the time of demand and as to whether the amount was really paid.

20. Reliance is also placed on three letters which are alleged to have been relied upon by the prosecution and they are exhibited as Exhibit-24, Exhibit-25 and Exhibit 26. A careful reading of the letters dated 4th November, 1992 and 13th November, 1992 addressed to PW-1 would only reveal that the deceased was in need of money and she had applied for loan from the Bank for the purpose of expanding the business of her husband, but since the Bank was taking some time to process the loan and there was an activity of spot inspection scheduled, she demanded money from PW-1 only for the period of 1–2 months and specifcally state that the amount of Rs.20,000/- is being demanded for temporary purpose since she was facing the diffculty on account of bank consuming some time to process the loan. As far as the demand of hunda to the tune of Rs.75,000/- and 51 tolas of gold and about the complaint made by deceased of the accused persons, in the cross-examination, it is admitted that it was not so stated in the statement under Section 161 and, therefore, the said statement was an improvement. The witness admit that in the letter,demand of Rs.25000/- was made to meet interest amount and that she would send the amount within few days.

21. As far as the evidence of PW-2 and his wife PW-4 is concerned, the appellant had made telephone call to PW-2 and though in the chief, it is reported to have stated that Aruna had set herself on fre, but in the cross-examination, the message received on phone is clarifed as “Aruna bhajli aahe, tabadtob nighun ya”. PW-2 himself is a doctor, who accompanied the deceased in the hospital, waited there nearly for half an hour and has admitted that thereafter he returned to the house. This speaks of his proximity with Aruna particularly when she was fghting for her life. The amount demanded by Aruna has been admitted by the witness to be a hand loan.

22. The deceased appear to be an independent lady and she married the appellant on account of a love relationship, which she shared with him and her family members, who have been examined as prosecution witnesses, disapproved of the said marriage. In fact, the appellant is in relation with PW-2 and he also disapproved the marriage, as a result the marriage performed by the duo was a registered marriage, which was not attended by any of the prosecution witnesses. The third letter is addressed by the deceased to her mother on 30th May, 1993 where there is a mention of some quibble with accused no.2(mother-in-law), but nothing objectionable, hinting harassment at the instance of accused person is spelt out in the said letter. The deceased has taken her own decision to marry the appellant and was making serious efforts to set his business and she also had taken a loan, before her marriage. After marriage, it appear that she was residing with the appellant and the story of harassment by the appellant is not established through the witnesses, as their testimony, while put to cross-examination loses credibility. In light of the said evidence brought on record by the prosecution, which is full of contradiction and discrepancies, between the deposition before the Court and the statements recorded under Section 161 of Cr.P.C, make the case of the prosecution doubtful. The failure on part of the prosecution to establish that the deceased was subjected to ill-treatment and cruelty by the appellant on account of demand of money/dowry, the beneft of doubt must go to the appellant since the prosecution has failed to establish its case under Section 498A of IPC. The trial court has, however, erred in relying on the aforesaid witnesses in establishing the cruelty to the deceased as gospel truth, ignoring the lapses. The trial court has also committed a gross error in rejecting the dying declaration and to the contrary relying on the testimony of the prosecution witnesses to establish the case of prosecution and holding the appellant guilty of abetment of suicide and subjecting her to cruelty, despite the contradictions and embellishment in the version of the witnesses. The prosecution has failed to establish its case and prove the charges against the appellant. The judgment dated 29th June, 1998 passed by the Additional Sessions Judge, Satara in Sessions Case No.249 of 1993 is, therefore, deserve to be set aside and the appellant is entitled for his acquittal. A Judge do not sit in trial to see that no guilty escape from the clutches of law, but he must also see no innocent is punished. Thus, in view of the inherent improbabilities, serious omissions and infrmities, the interested or inimical nature of evidence and other circumstances noted above, I am of the frm opinion that the prosecution has failed to prove its case.

23. Before I pronounce my fnal decision, I appreciate the sincere efforts taken by Advocate Aliabbas Delhiwala in assisting this Court by meticulously equipping himself with the brief handed over to him by the Legal Aid and espousing the cause of the appellant in an erudite manner of his submissions, which entitled the appellant for the following decision. For the able assistance, the High Court Legal Services Authority, Mumbai is directed to pay the amount due to the Appointed Advocate, as per rules, within four weeks from the date of this judgment. Hence, the following order:- ORDER

1. The appeal is allowed. The conviction and sentence passed on the appellant by the impugned judgment and order dated 29th June, 1998 passed by the Additional Sessions Judge, Satara in Sessions Case No.249 of 1993 is set aside.

2. The bail bond stands discharged. SMT.

BHARATI DANGRE, J