JUDGMENT
Jagat Singh, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 24th January, 1998 passed by learned Addl. Sessions Judge No. 1, Jodhpur in Sessions Case No. 15/97 whereby accused appellant has been convicted for offence under Section 498A and sentenced to 3 years’ rigorous imprisonment along with fine of Rs. 500/-. in default of payment whereof further undergo 3 months’ rigorous imprisonment. He has also been convicted under Section 302. IPC and sentenced to life imprisonment doing with fine of Rs. 2000/-, in default of payment whereof to further undergo one year’s rigorous imprisonment. Both the substantive sentences were ordered to run concurrently.
2. The charges against the accused appellant are that he subjected his wife Mst. Chand Kanwar to cruelty because his demand of dowry has not been fulfilled and in the midnight of May 28-29, 1997, in his own residential house at Nagori Gate, Jodhpur, by sprinkling kerosine oil. he burnt to death not only his wife Chand Kanwar alias Bebi but also his 6 years’ old son Lucky and 3 years’ old daughter Puja.
3. Upon pleading not guilty and claiming trial, prosecution examined 22 witnesses and exhibited 33 documents. In his statement given under Section 313, Cr. PC. The accused denied all incriminating evidence appearing against him and pleaded that he has falsely been implicated. No evidence in defence was produced. Thereafter, learned trial court with a detailed order, convicted and sentenced accused, as stated above.
4. It is an admitted fact that accused married Mst. Chand Kanwar in the year 1982 and this occurrence took place in May, 1997. For last 14 years, no demand for dowry is proved to have been made. This fact is further fortified by the record available on the file because family members of deceased Mst. Chand Kanwar were informed about the incident by Police immediately after the occurrence. They reached on the spot and documents Exs. P-2 to P-8 were executed by PW-20 Gurbux Singh, S.H.O. Thana Sadar, Jodhpur in their presence but they have not made any complaint to this witness that accused appellant ever made a demand of dowry and subjected his wife to cruelty in lieu thereof.
5. The FIR Ex.P-1 was lodged by PW-1 Ganpat Singh on 30.5.1997 at 4PM in which for the first time it has been alleged that accused appellant Bhawani Singh burnt to death his own wife and two children because his demand for dowry was not fulfilled but neither in Ex.P-1 it is specifically stated that during last 14 years or for that matter, immediately before the occurrence, when, of what kind and from whom, the dowry was demanded. PW-1 Ganpat Singh even in his court statements has stated that only twice or thrice accused was told to behave properly. For that also, no specific date, time or place was disclosed by this witness. This witness has stated that he is a daily wage earner and so was the accused, therefore, question of demand of dowry does not rise in the present case. It seems that learned trial court did not appreciate the matter in right perspective and convicted the accused appellant under Section 498A IPC also.
6. So far as offence under Section 302 IPC is concerned, PW-1 Ganpat Singh and PW-2 Gulab Singh as also PW-9 Manohar Singh are brothers. PW-14 Mst. Mohini and PW-15 Shankar Singh are mother and father respectively of deceased. PW-10 Baldeo Singh and PW-11 Bhoor Singh are uncles. Though they all are resident of Jodhpur but reside in different colonies, situated about 7 kms away and have reached at the place of occurrence immediately thereafter. In the present of all these witnesses. PW-20 Gurbux Singh, SHO, Sadar Thana conducted proceedings under Section 174 CrPC and prepared documents Exs.P2 to P5, P7 to P9 and P16; yet none of them had raised any objection that this was a case of murder. It seems that a day or two after the occurrence, for reasons best known to them. Ex.P1 FIR was lodged at 4PM on 30.5.1997 in which, for the first time, it was mentioned that accused appellant Bhawani Singh has himself has burnt to death his wife and two minor children. In the cross-examination also, the witnesses could not withstand the scrutiny and deposed that it has been informed to them by Police that Bhanwai Singh has burnt to death his wife and two children. However, when their attention was drawn to their Police statements wherein it has been stated by these witnesses that Police informed them that Mst. Chand Kanwar and her two children had been burnt to death and nowhere it has been stated in their Police statement that it was accused or somebody else who had poured kerosine oil and burnt them to death. Though material and significant improvements have been made by this witness in the court testimony and though they have been contradicted by their previous statements in material particulars yet the trial court lost sight of this important aspect and placed implicit reliance upon testimony of these witnesses.
7. The remaining witnesses are PW-7 Mst. Kanchan is mother: PW-3 Sawai Singh and PW-8 Devendra Singh are real brothers of accused and PW-2 Gulab Singh is neighbour while PW-5 Mahendra Singh was a ‘Panch’ witness of Ex.P.5. All these witnesses have deposed in unison that they were attracted towards the site upon seeing smoke emitting out of house of accused appellant and saw Bhawani Singh sleeping in the court-yard along with his son Kamal Singh, who was 9 years.’ They awoke him up and threw water to extinguish the fire. All these witnesses have deposed that accused appellant Bhawani Singh also tried to extinguish the fire and in the process, got superficial burns not only on his face and forehead but also on, the hands and chest. The above burns of the accused appellant have also been proved by PW-19 Dr. M.P.Joshi, who has done autopsy of not only all three dead bodies but also prepared injury report Ex.D-4 of Bhanwai Singh (accused appellant). Even PW-20 Gurbux Singh SHO has also admitted at the fag end of his cross-examination that Bhawani Singh got his hands burnt while extinguishing the fire.
8. In spite of above circumstances appearing on the file, learned trial court has ignored the same and seems to have been led away by the fact that three persons have burnt to death. The logic and reasoning adopted by the trial court were perverse and unrealistic. The trial court has not assessed and analysed the prosecution evidence in proper perspective and has adopted unrealistic standards and unsustainable approach. In criminal cases, burden is always on the prosecution to prove its case beyond reasonable doubt and no conviction can be based on surmises and conjectures or, assumptions and presumptions. The prosecution evidence available on the file suffer from serious infirmities and possibility of committing suicide by Mst. Chand Kanwar along with her two children can not be ruled out. There was not an iota of evidence linking the accused appellant with the alleged crime. There is abundant evidence that accused was habitual alcoholic and financial condition of the family was very poor. It was very difficult for them to keep the wolf out and make both ends meet and therefore, Mst. Chand Kanwar might have thought it better to commit suicide along with children.
9. The most important evidence was of Kamal Singh, aged 9 years, who was admittedly present in the house at the time of incident and was also interrogated by Police on 5.6.1997 but has not been examined by the prosecution because in his Police statement, he has not corroborated the theory of murder.
10. In view of above re-assessment and reappreciation of evidence, we do not find any merit in the impunged judgment. The benefit of doubt should have been extended to the accused appellant. We, therefore, accept this appeal, set aside the conviction and sentence and acquit the accused of the charges. He is in jail. He be set at liberty forthwith, if not required in any other case.