D.N. PRASAD, J.

(1.) This appeal is directed against the judgment of conviction and sentence passed by the 3rd Addl. Sessions Judge, Dhanbad in Sessions Trial No. 14/97, whereby and whereunder he convicted the appellants under Sections 306/34, IPC and sentenced them to undergo rigorous imprisonment for five years and a fine of Rs. 1,000/- each and in a case of default of payment of fine the appellants would further undergo imprisonment for three months.

(2.) The case of the prosecution in brief as stated is that one Alok Kumar Jha submitted a written report before the police alleging therein that on 21.10.1996 when he had gone to his sisters Sasural to take her back home, he got the news that his sister already died on 19.10.1996. It is further alleged that just 15 days back his sister Mina Mishra (deceased) had complained to him that the appellants used to assault her and also forced her to sell her chastity to get some extra income. It is further alleged that Rajeshwar Thakur (appellant No. 3) was having some illicit relation with Urmila Devi and due to which the informant wanted to take/her sister back but the appellants/accused persons did not allow him for Bidagri of Mina Mishra (deceased) and it is alleged that his sister was done to death by the appellants by torturing her. The police registered the case under Section 304B, IPC against the appellants and investigated into the case and thereafter submitted the charge-sheet under Sections 306/34, IPC.

(3.) All the appellants appeared before the lower Court. The charge under Sections 304B and 306/34, IPC was framed against the appellants to which they pleaded not guilty.

(4.) The witnesses have been examined in the lower Court and having consid ered the evidence on record, the Trial Court convicted and sentenced the appellants in the manner as stated above by the impugned judgment. Not being satisfied with the impugned judgment the appellants preferred this appeal claiming therein that the lower Court has committed error in convicting the appellants as there is no evidence to show that the deceased Mina Mishra had ever committed suicide, rather this a case of accidental fire and the deceased died at the time of preparing tea on Chulha and her synthetic sari caught fire. The doctor also did not opine that the deceased died due to suicide as the doctor did no find any inflammable oil not substance over the dead body at the time of autopsy.

(5.) Altogether seven witnesses have been examined from the side of the prosecution to prove its case.

(6.) P.W. 1 Sachidanand Singh deposed that on Hulla he rushed to the spot and saw that the sari of the deceased caught fire when her mother-in-law (appellant No. 2) was trying to extinguish the fire. He inquired from Mina Devi (deceased) and she disclosed that her cloth caught fire when she was igniting Chulha. He has been declared hostile by the prosecution .

(7.) P.W. 2 Sahdeo Hazra also claimed to rush to the spot on Hulla at the time of occurrence and the deceased narrated that she caught fire when she was preparing food. He has also been declared hostile by the prosecution.

(8.) P.W. 3 Prem Chandra Jha came to know form his nephew Alok Kumar Jha (informant) that his sister Mina died due to burn injuries on 19.10.1996 and the mother-in-law of the deceased told him that she died due to fire when she was preparing food. He further stated that he came to know from Alok that his sister (deceased) had narrated that she was being subjected to torture and also forced to be indulged in doing prostitution. He further stated that the husband of Mina (deceased) was not residing in the house as he was doing the work of Khalasi in some of the vehicles and the appellant No. 2 Manoj Kr. Mish Dewar of the deceased also forced Mina to be indulged in illegal work. Alok, the informant narrated him that there is illegal relationship with the mother-in-law, Urmila Devi and Rajeshwar Thakur (appellant No. 3). He admitted in his cross-examination that he had not any talk with Mina Devi prior to the occurrence and he deposed only on the basis of guess as he had not seen the occurrence.

(9.) P.W. 4 Dr. Binod Kumar held post mortem on the dead body of Mina Mishra and found the following ante mortem injury on the person of the deceased :

"Partial to full thickness, skin deep burn seen all over the body except sobs line of redness seen on juction healthy and burn also. Burnt blisters seen on the doorsome. Blaites at most of the places are broken. On dissection both sides chambers of the heart contained light pink colour. Stomach contained 200 mg blood only, scull and brain-NAD neck-NAD".

The death was caused due to extensive burn injuries. He proved the injury report (Ext. 1) but he admitted in his cross-examination mat mere was no smell and kerosene oil coming out from the dead body of Mina Mishra (deceased).

(10.) P.W. 5 Raj Kumar Jha is also hearsay witness and he came to know about the occurrence from Alok (informant). He clearly deposed in his corss-examination that he was informed on 21.10.1996 about the occurrence-

(11.) P.W. 6 Alok Kumar Jha the informant stated mat he had gone to the Sasural of his sister (deceased) on 21.10.1996 when he came to know that his sister died on 19.10.1996 due to burn injuries. He further deposed that he had visited the Sasural of Mina Devi 15 days prior to the occurrence when his sister (deceased) told him that all the appellants used to assault her and also subjected to torture as well as the appellant No. 2 Manoj Mishra was trying to make illicit relationship with his sister and there is illicit relationship with Urmila Devi, mother-in-law and Rajeshwar Thakur (appellant No. 3). He further deposed mat he wanted to bring home his sister but the appellants did not allow him. He proved the written report (Ext. 2) and he got the said written report recorded by unknown person. According to him, the mother-in-law and Dewar only were residing at the Sasural of Mina Mishra. He had visited the Sasural of Mina Mishra 3 to 4 times prior to the occurrence but she (deceased) had never complained anything against the appellants earlier, rather she complained once at the time of his third visit. He further admitted that she had come to the house of her uncle after marriage and stayed for about 3 to 4 hours but at that time she had not complained anything against the appellants. He further stated mat he had not reported to anybody about the torture or assault meted out to Mina Devi. He also admitted that the mother-in-law of Mina had told him on 21.10.1996 that Mina died due to fire. Obviously, one U.D. case being No. 19/96 was registered on the basis of the report of the mother-in-law, appellant No. 1 in which there is a mention that Mina Devi died due to fire when she was preparing tea.

(12.) P.W. 7 Uma Shanker Prasad is the Investigating Officer who registered the case on the basis of the written report and also investigated into the case. He had visited the place of occurrence and he found one Chulha situated in the Angan in which Mina Devi used to prepare food. He also prepared the inquest report of the dead body which is marked as Ext. 4 and the dead body was found lying in the Angan. He recorded the evidence of witnesses and after completion of the investigation, submitted the charge sheet. According to him, Urmila Mishra (appellant No. 1) recorded her Fardbayan on 19.10.1996 and she narrated that Mina Devi was preparing tea when she caught fire and due to which she died. One U.D. Case No. 19/96 was registered on the basis of the Fardbayan dated 19.10.1996. The appellants/accused persons were examined under section 313, Cr.P.C. and they have denied the allegations.

(13.) Both P.W. 1 and P.W. 2 have not supported the prosecution case in the manner as alleged rather they claimed in their deposition that the deceased Mina Devi caught fire in her sari as a result of which, she died.

(14.) P.W. 3 and P.W. 5 are the hearsay witnesses as they have come to know about the occurrence from Alok Kumar Jha, the informant. P.W. 6 Alok Kumar Jha, the informant is also not the eye-witness of the occurrence and he came to know about the occurrence on 21.10.1996 when the occurrence admittedly took place on 19.10.1996 and Urmila Devi, the mother-in-law of the deceased narrated him (informant) that Mina Devi died due to fire. The informant himself admitted in his evidence that he had visited the Sasural of Mina Devi 3 to 4 times prior to the occurrence, but Mina Devi never complained against the appellants earlier. The informant has not put any grievance to any other police official or any officer in connection with the complaint, if made by Mina Devi prior to the occurrence. There is no evidence came from the side of the prosecution to substantiate the story that Mina Devi had ever complained against the appellants for torturing or assaulting at any point of time. It is. admitted by the informant himself that Mina Devi had visisted the house of her uncle prior to the occurrence and stayed there for 3 to 4 hours but she had not made any complaint against the appellants about the torturing or assault or to be indulged in the illicit relationship. One U.D. case was also registered on 19.10.1996 on the day of occurrence on the basis of the Fardbayan of Urmila Devi, the mother-in-law and the said Fardbayan has been market as Ext. E in the instant case. Urmila Devi narrated before the police that when she was preparing tea and she was caught fire due to flame of the fire. The doctor who held the post-mortem of Mina Devi admitted in his evidence that he did not find smell or kerosene oil or inflammable substance on the dead body of Mina Devi. The Investigating Officer who visited the place of occurrence found the dead body of Mina Devi lying in the Angan where the Chulha was also situated. It is evident from the evidence on record that there is no eye-witness to the occurrence and none of the witnesses deposed to the effect that any demand of dowry was ever made in presence of the witnesses. Even the informant, the brother of the deceased is silent on this score mat any demand of dowry or torture was made in his presence. No evidence adduced ill specific manner that actually Mina Devi committed suicide.

(15.) In the case of State of Himachal Pradesh v. Nikku Ram and Ors., reported in AIR 1996 S.C. 67=1 (1996) DMC 131 (SC), it was observed:

"that as to the offence under Section 306, IPC, Trial Court has first observed that none of respondents could really be said to have abetted suicide, as per the definition of "abetment" in Section 107, IPC. This was the accepted position. The stand of the prosecution rather was that abetment stood established because of what has been provided in Section 113-A of the Evidence Act. That section reads as below : "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 a 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 a suicide had been abetted by her husband or by such relative of her husband." "Explanation-For the purpose of this section "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code."

"This shows that if the woman had been subjected to cruelty, as defined in Section 498-A, IPC the Court may presume, having regard to all the circum stances of the case, that the suicide had been abetted by her husband or any of his relatives. So, let it be seen whether Roshni was subjected to cruelty. A reference to Explanation (b) of Section 498-A shows that if there be harassment of the woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security, the same would amount to cruelty. The case of the prosecution being that the accused party had demanded television, electric fan etc., let us see whether there is reliable evidence to establish the same. The learned Trial Court has dealt with this matter in para 25 of the judgment and it has been observed that neither P.W. 5 nor P.W. 8 has stated about any of the alleged demands and though P.W. 1 deposed that Batholi and Kamala made illegal demands of electric fan and television etc. from P.W. 4 Sant Ram, the father of Roshni, the latter did not say anything about the same. The Court, therefore, rightly disbelieved this part of the prosecution case. There is thus no reliable evidence to hold that Roshni was being harassed within the meaning of Explanation (b) of Section 498-A."

(16.) In the instant case, also there is no definite or positive evidence about the demand of dowry. As stated above, not a single demand was made in presence of the informant, the brother of the deceased and the witnesses examined from the side of the prosecution. It is only said that such matter about the demand was disclosed by Mina Devi (deceased) which has not been corroborated. The allegation about forcing illicit relationship with Devar, Manoj Mishra, has also not been substantiated by any other witness, and as such, such story does not appear to be believable at this stage. No other report whatsoever was ever made to this effect to any other, police official or any officer. I have already discussed above that, there is no eye witness to the occurrence. In the case of abetment of suicide, it is first to be established that the woman committed suicide. But in the instant case, there is no cogent evidence coming forward to establish that actually Mina Devi committed suicide.

(17.) The learned Counsel appearing on behalf of the appellants, submitted that the learned Court below committed error in convicting the appellants on the basis of mere surmises and presumption. It is also submitted that the prosecution has totally failed to establish that Mina Devi actually committed suicide as well as there is no eye-witness to the occurrence, nor any witness supported the story of suicide. It is further argued that no specific question was asked from the appellants/accused persons in respect of the charge/offence under which die Court below convicted the appellants, father the stereotype question was asked from all the accused persons/ appellants on this score only die conviction and sentence of the appellants are fit to be set aside. The learned Court also relied upon a case reported in AIR 1989 (SC) 378 . Admittedly, one U.D. Case No. 19/96 was already registered on basis of the Fardbayan of Urmila Mishra, the appellant No. 1 and she categorically stated in her Fardbayan that Mina Devi died due to fire when she was preparing tea and fire caught due to flame of the wood and this was the accidental death. The Fardbayan was recorded on the same day of the occurrence, i.e., 19.10.1996 whereas the instant case was registered on 21.10.1996. The conduct of the appellant, the mother-in-law who is also an old lady, by giving information to the police immediately after the occurrence goes to establish about her innocence.

(18.) From going through the statement recorded under Section 313, Cr.P.C, it also appears that a single question of the same nature in the stereotype was asked from the appellants and there is no specific question enquired from the appellants, either in respect of the demand of dowry or Mina Mishra actually committed suicide because of abetment made by the appellants. The appellants have not been given opportunity to explain the circumstances in proper way for Which Section 313, Cr.P.C is provided. Having regard to the whole facts and circumstances of the case, coupled with the evidence on record, it is established that the prosecution failed to bring home the offence under Sections 306/34, IPC against any of the appellants beyond all reasonable doubt. In the result, I find mat the learned Court below committed error in convicting the appellants for the offence charged. As such, the judgment of conviction and sentence/passed by the lower Court is fit to be set aside. Hence, I find merit in the appeal which is accordingly allowed. The judgment of conviction and sentence passed by the Trial Court is, hereby, set aside. All the appellants are acquitted for the offence charged. It appears that all the appellants are in custody. Thus, all the appellants are directed to be released forthwith, if not wanted in any other case.