Judgment S.K.Katriar, J. 1. The two appeals at the instance of the six accused persons arise out of a common Judgment dated, 19th April, 1988, passed by the learned Additional Sessions Judge, Motihari, in Sessions Trial No. 134 of 1979/17 of 1984 (State through Gagandeo Sahni v. Gorakh Sahni and Ors.), whereby Gorakh Sahni has been convicted under Sections 302 and 201 read with Section 34 of the IPC, for causing the murder of Chameli Devi, the daughter-in-law of Gorakh Sahni, and the wife of Dasai Sahni. He has been sentenced to undergo rigorous imprisonment for life under Section 201 IPC. In so far as the remaining Appellants are concerned, they have been convicted under Section 201 read with Section 34 IPC for disappearance of the dead body of Chameli Devi. They have each been sentenced to undergo rigorous imprisonment for five years. Both the sentences have been directed to run concurrently. 2. According to the fardbeyan of Gagandeo Sahni recorded on 18th September, 1978, at 7 p.m., at village Ekona, PS Chiraiya, district East Champaran, that at 6 a.m., he had left his village for the Motihari Court reaching there at 10 a.m. There he met a cobbler (chamar). While exchanging pleasantries, he informed Gagandeo Sahni that his daughter married in the house of Gorakh Sahni at village Lalbegia had been murdered by Gorakh Sahni (Appellant in Cr. Appeal No. 200 of 1988), Harihar Sahni (Appellant No. 1), Binda Sahni (Appellant No. 2), Dasai Sahni (Appellant No. 3), Suraj Sahni (Appellant No. 4), Ramashray Sahni (Appellant No. 5) of Gr. Appeal No. 201 of 1988, and one Jagarnath Sahni, and have caused disappearance of the dead body. He left for village Lalbagia at about 2 p.m. He met one Jaleshwar Sahni at Lalbagia who affirmed the information about the demise of his daughter. At the time of his leaving Lalbagia for his residence, he met Punyadeo Sahni (P.W. 2), the Sarpanch, Maheshwar Sahni (P.W. 3) the Mukhia, Ganja Sahi (P.W. 7), Jodhan Sahni (P.W. 8), who were discussing the death of his daughter. P.W. 2 told him that his daughter had been murdered by the aforesaid persons. On the enquiry of P.W. 2 about the next step be taken, the informant had told him that the dead body should first of all be recovered. P.W. 2 had then summoned Gorakh Sahni, the father of his son-in-law Dasai Sahni. P.W. 2 told him that his daughter had been murdered by the aforesaid persons. On the enquiry of P.W. 2 about the next step be taken, the informant had told him that the dead body should first of all be recovered. P.W. 2 had then summoned Gorakh Sahni, the father of his son-in-law Dasai Sahni. Gorakh Sahni had informed them that he had committed the murder and the dead body shall not be made over to the informant. He repeated that he will not hand over the dead body whatever be the punishment to him. 2.1 The fardbeyan further says that Chameli Devi, his daughter aged about 20-25 years, was without any issue. His son-in-law (Dasai Sahni) had illicit relationship with the daughter-in-law of Charman Sahni of village Lalbegia for quite some time. The fardbeyan goes on that his daughter used to dissuade her husband from such activities which always enraged him leading to her being beaten up. Every resident of village Lalbegia was aware of the unhappy relationship between his daughter and son-in-law. He made efforts to locate the dead body of his daughter but could not. He was, therefore, convinced that the Appellants herein had murdered Chameli Devi, his daughter, and had caused disappearance of the dead body. The fardbeyan has been marked Exh.2. Formal FIR was accordingly drawn and was registered as GR Case No. 95/78 (Exh.1). The Police conducted investigation and submitted chargesheet against the Appellants herein under Section 302, 201 read with Section 34, IPC. Cognizance was taken and the case was committed to the Court of sessions for trial. 3. The prosecution examined altogether nine witnesses. P.W. 1 (Imtiaz Ahmad) is a clerk in the office of the Public Prosecutor, is a formal witness, and has proved Exh.1 and 2. 4. P.W. 2 is Punyadeo Sahni, cultivator and village Sarpanch of village Gram Panchayat. A little more than eight years ago, at about 10 a.m., he was taking tea at Lalbegia Hat. P.W. 3, the village Mukhia, Baruti Sahni, Jodhan Sahni, Ganja Sahni, etc., were also sitting there. He joined them. Gagandeo Sahni also reached there and informed them that Gorakh Sahni had murdered the informants daughter, who is the son-in-law of Gorakh Sahni. A little more than eight years ago, at about 10 a.m., he was taking tea at Lalbegia Hat. P.W. 3, the village Mukhia, Baruti Sahni, Jodhan Sahni, Ganja Sahni, etc., were also sitting there. He joined them. Gagandeo Sahni also reached there and informed them that Gorakh Sahni had murdered the informants daughter, who is the son-in-law of Gorakh Sahni. On the request of Gagandeo Sahni, they had summoned Gorakh Sahni who arrived there and, on enquiry, had said that he confessed that he had committed the crime and was prepared for any punishment. He has stated in his cross-examination that he has not seen the alleged occurrence himself. He has further stated in his cross-examination that Gorakh Sahni had, on enquiry, said that he had committed the crime. 5. P.W.3 is Maheshwar Sahni, a cultivator and the Mukhia of village Panchayat. He deposed to the effect that Gorakh Sahni and his son Dasai Sahni are his co-villagers. Dasai Sahni and Chameli Devi were married about 13-14 years earlier. At about 9 a.m. in September 1978, he was sitting with others when Gagandeo Sahni had reached there between 1 to 1.30 p.m., had informed them that Dasai Sahni had murdered his daughter Chameli Devi, and had thrown away the dead body in the river. He has further deposed to the effect that he had advised him to go to the Police Station but he said that Dasai Sahni should first of all be summoned. P.W. 3 had then summoned Gorakh Sahni, the father of Dasai Sahni, who responded to the call, had confessed his guilt and said that he was prepared for any punishment. He stated in his cross-examination that had not seen the occurrence himself. 6. P.W. 4 is mangni Sahni and is a very important witness. He is a co-villager, and a fisherman by profession. He has deposed to the effect that about eight-nine years ago, during the night hours he along with Ekam Sahni (P.W. 6) were fishing in the river. They heard some whispers and went in that direction to find a dead body. They found at that place Gorakh Sahni, Dasai Sahni, Harihar Sahani, Suraj Sahni, Binda Sahni, Ramashray Sahni (the Appellants), and one Jagarnath Sahni. He recognized the dead body which was of Chameli Devi. On enquiry, Suraj Sahni threatened them by saying "run away otherwise you will be chopped off". They found at that place Gorakh Sahni, Dasai Sahni, Harihar Sahani, Suraj Sahni, Binda Sahni, Ramashray Sahni (the Appellants), and one Jagarnath Sahni. He recognized the dead body which was of Chameli Devi. On enquiry, Suraj Sahni threatened them by saying "run away otherwise you will be chopped off". Frightened by the threat, they went across the river in their boat. He has further deposed to the effect that he then asked Ekam (P.W. 6) to inform Gagandeo Sahni of the same. He has stated in his cross-examination that he was not aware of all that had happened before he had seen the dead body. He reiterated in his cross-examination that he had recognized the dead body as soon as he had seen the same. The same was neither wrapped up in a piece of cloth nor in a gunny bag. He was then fishing in the river. The dead body was lying about 40-50 lagis away from the bridge at Farki river. He has further stated that he was fishing for about one hour prior to the time when he had sighted the dead body. That was a moonlit night, and he was able to recognize the dead body in the moonlight. On being questioned, he reiterated that he had recognized the face of the dead body. After he had sighted the dead body, he had gone over to the accused persons standing there and talked to them. It thus appears to me that P.W. 4 had seen the dead body at the river side, but he had not seen any happening prior to that. It further appears that he is a co-villager, belongs to the same community as accused persons as well as the deceased. He belonged to the same community and because of inter-mixing, he was surely in a position to recognize the dead body by her face. The defence has not been able to elicit any contradiction in his deposition. 7. P.W. 5 is Jaleshwar Sahni and has been tendered. 8. P.W. 6 is Ekam Sahni, a co-villager and a fisherman by profession. His deposition is also of vital importance in this case and is on just the same lines as that of P.W. 4. In fact, he has deposed to the effect that he along with P.W. 4 (Mangni Sahni) were together fishing during the night hours in the river about 8-10 years ago. His deposition is also of vital importance in this case and is on just the same lines as that of P.W. 4. In fact, he has deposed to the effect that he along with P.W. 4 (Mangni Sahni) were together fishing during the night hours in the river about 8-10 years ago. He heard some whispers and reached the spot where he found the dead body of Chameli Devi lying on the ground. Dasai Sahni, Gorakh Sahni, Suraj Sahni, Ramashray Sahni, Binda Sahni, Harihar Sahni (all Appellants), as well as one Jagarnath Sahni were also present at the place of the dead body. He along with P.W. 4 told them that it was the dead body of Chameli Devi, daughter-in-law of Gagandeo Sahni upon which Suraj Sahni threatened them by saying that "run away otherwise they would be killed". Frightened by the threat, they speeded across the river in their boat. He had just after sun-rise searched Gangandeo Sahni also but he had gone to Motihari. On account of his absence, P.W. 6 had informed his wife. He has further deposed to the effect that his house is at a distance of about 11/2 k.m. from the place where he was fishing. He has stated in his cross-examination that his house was separated by about six-seven bighas of land from that of Gagandeo Sahni. He has also deposed that Gagandeo Sahni is his uncle by village connection. He had started fishing at about 1.30 A.M. on the eastern side of the river. The dead body was lying on the ground. The same was neither in a gunny bag nor was wrapped in any other cloth. The accused persons had not reached there in a (small boat). He had not seen them throwing away anything in the water. He has in his cross-examination stated that he had stated before the Investigating Officer that he had noticed Jagarnath Sahni also. His deposition is on the same lines as that of P.W. 4. In fact, he along with P.W. 4 were fishing together by plying in the same boat and had sighted the dead body and the Appellants as well as one Jagarnath Sahni. The depositions of both of them are remarkably consistent and appear to be truthful witnesses. The defence has not been able to elicit any contradiction in his cross-examination. 9. In fact, he along with P.W. 4 were fishing together by plying in the same boat and had sighted the dead body and the Appellants as well as one Jagarnath Sahni. The depositions of both of them are remarkably consistent and appear to be truthful witnesses. The defence has not been able to elicit any contradiction in his cross-examination. 9. P.W. 7 is Ganja Sahni who is a co-villager and an agriculturist. He has stated that he does not know anything, is really a hostile witness but has not been formally so declared. 10. P.W. 8 is Jodhan Sahni, is a co-villager and an agriculturist. He is a tendered witness. 11. P.W. 9 is Most. Samundari Devi and is the widow of Gagandeo Sahni, the informant. She has deposed to the effect that Chameli Devi, deceased, was her daughter and was married to Dasai Sahni. The marriage had taken place about 10 to 11 years earlier. Her husband Gagandeo died about two years ago. Chameli had no child, and Dasai Sahani did not like her. Mangni Sahni and Ekam Sahni had informed her of the death of Chameli. She has stated in her cross-examination that Chameli was a good-natured girl and was of good moral character. She used to visit her Naihar after her marriage. Her deposition is important for the reason that she has stated that Gagandeo Sahni, her husband, is dead, which explains his non-examination. It is further significant to note that Chameli Devi had no child and was not liked by her husband. Her deposition as mother of the deceased is of some significance. The defence has not been able to elicit any contradiction in her deposition. 12. I must note that the Investigating Officer was also not examined for reasons not clear from the records. The informant was not examined because he was already dead. In view of the nature of the prosecution case, there was no question of postmortem of the dead body, or deposition of Medical Officer. 13. In view of these materials, the learned Trial Court held that Gorakh Sahni is guilty of the murder of Chameli Devi and has accordingly convicted him under Section 302/34 IPC. He has also found him guilty in terms of Section 201 read with Section 34 IPC. He has found the remaining Appellants guilty of offence under Section 201 IPC read with Section 34 IPC. 14. He has also found him guilty in terms of Section 201 read with Section 34 IPC. He has found the remaining Appellants guilty of offence under Section 201 IPC read with Section 34 IPC. 14. Learned Counsel for the Appellants has submitted that no prosecution witness has stated in his deposition that he had seen the occurrence.The question of homicidal death, therefore, does not arise in the present case. He has also submitted that, in view of the position that the learned Trial Court has acquitted all the Appellants other than Gorakh Sahni of the charge under Section 302 IPC, he (Gorakh Sahni) is also entitled to acquittal in terms of Section 302 IPC in view of the common evidence against all of them. 15. Learned Public Prosecutor has submitted that, in view of the consistent evidence of the prosecution witnesses, the death of Chameli Devi is not in doubt. He next submits that P.W.s. 4 and 6 had seen the dead body on the river bank, and the Appellants were present there. Furthermore, the Appellants, particularly Gorakh Sahni and Dasai Sahni, were bound in law to explain the reason of death of Chameli Devi, and the mode and manner of disposal of her dead body. He has also submitted that the circumstances which destroy the presumption of innocence of the accused can lead to conviction. 16. I have perused the materials on record and considered the submissions of learned Counsel for the parties. There is no eye-witness to the murder of Chameli Devi, and is a case of circumstantial evidence. Gagandeo Sahni, the informant and father of the deceased, died during the course of the trial and did not depose. P.W. 9 (Most Samundari Devi), his wife, has deposed to the effect that Gagandeo had died two years earlier. P.W. 4 (Mangni Sahni), and P.W. 6 (Ekam Sahni), were the first two persons on the prosecution side who had seen the dead body of Chameli Devi. P.W. 4 (Mangni Sahni) is a fisherman by profession. He alongwith Ekam Sahni (P.W. 6) were about eight-nine years ago together plying in a boat (dengi) in the river and were fishing. P.W. 6 has stated in his deposition that he had started fishing at about 1.30 A.M. during night hours. P.W. 4 (Mangni Sahni) is a fisherman by profession. He alongwith Ekam Sahni (P.W. 6) were about eight-nine years ago together plying in a boat (dengi) in the river and were fishing. P.W. 6 has stated in his deposition that he had started fishing at about 1.30 A.M. during night hours. It is common experience and well known that fishermen engage themselves in fishing in the second half of the night and return to the shore with the sunrise. P.W. 4 has further stated in his deposition that while they were so fishing, he had heard some sound. They followed the same and on reaching there found a dead body lying on the ground. The six Appellants alongwith one Jagarnath Sahni (not an Appellant) were standing there. It was a moonlit night and when they got close to them, recognized the dead body by her face to be of Chameli Devi. On enquiry, Suraj Sahni had threatened him to run away failing which he would be chopped off. Frightened by the same, they left the place and went over to the other side of the river in their boat. It thus, appears that, in view of the grave threat given by the seven persons in that hour of the night which would frighten anybody, they did not have the opportunity of making further enquiry and were equally deprived of the opportunity of having a closer look at the face of the dead body. Issuance of the threat and reading the Riot Act to leave while in possession of the dead body itself speaks strongly against the Appellants. Under those circumstances, in the hour of grief, it would not be natural conduct to drive away sympathizers and mourners. It is obvious from the depositions of P.W.s. 4 and 6 that they and the Appellants are residents of the same area and quite well known to each other. P.W. 4 has also deposed to the effect that he had asked P.W. 6 (Ekam Sahni) to inform Gagandeo Sahni of the same. The two P.W.s. 4 and 6 have also deposed to the effect that the members of the prosecution party as well as the defence side belong to the same community, which must be a small community living there in close vicinity and were, therefore, in a position to recognize the dead body by her face. The two P.W.s. 4 and 6 have also deposed to the effect that the members of the prosecution party as well as the defence side belong to the same community, which must be a small community living there in close vicinity and were, therefore, in a position to recognize the dead body by her face. Thus, living in close vicinity, and belonging to the same community, to my mind, was an important factor for identification of the dead body at that hour of the night which was facilitated by the moonlit night. The evidence of P.W. 6 is to the same effect as P.W. 4. P.W.4 has further stated that, at the behest of P.W. 4, he had gone to Gagandeo Sahni to inform him of the situation who was away to Motihari and had instead informed his wife. They were together, their evidence is quite consistent, have deposed to the same effect, and the defence has not been able to elicit any contradiction in their evidence. 17. On a perusal of the evidence of P.W.s. 4 and 6, it appears to me that they were amongst the first of the prosecution party to have seen the dead body and recognized her. The dead body being guarded by the seven persons at that hour of the night was surely found under suspicious circumstances. The defence has not explained their presence along with the dead body at that hour of the night without any sign of cremation as per the Hindu rites. I have no manner of doubt that the defence was bound to explain and clear the doubt as to the suspicious circumstances in which the dead body along with the Appellants were noticed there. To the same has to be added the effort on the part of the two witnesses to enquire further from the persons present there and which was sternly discouraged by Suraj Sahni who issued severe threat to both of them to run away failing which they shall be done to death. 18. Learned Public Prosecutor has rightly relied on the provisions of Section 106 of the Indian Evidence Act which reads as follows: 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 18. Learned Public Prosecutor has rightly relied on the provisions of Section 106 of the Indian Evidence Act which reads as follows: 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It was within the special knowledge of the accused persons including the father-in- law and the husband of the deceased about the reason for the death of Chameli Devi which has become all the more imperative in the present case because she died in her matrimonial home. Law is well-settled that in a situation like the present one, where the deceased was in the care, custody and possession of her sasural people, in her matrimonial home, the accused persons are duty bound to explain the circumstances leading to her death. The defence did not put even one suggestion to anyone of the prosecution witnesses in this respect, let alone examining any defence witness to discharge their onus. The defence has not brought on record any material to show that the dead body was cremated according to the Hindu rites, followed by Shradh. 19. I may, in this connection, refer to the Judgment dated, 1st July, 2008, passed by a Division Bench of this Court in Cr. Appeal No. 78 of 1988 (Bokan Singh and Ors. v. State of Bihar), to which one of us (S.K. Katriar, J.), was a party. The wife had been murdered by her sasural people and had been convicted by the Trial Court in terms of Section 302 IPC. The learned Trial Court had upheld the prosecution case that Appellant No. 1 (the husband) therein had developed illicit relationship with his elder brothers wife and the deceased was coming in his way. The accused persons had set up the defence that the deceased was an acute patient of asthma and had died on account of the same. This Court upheld the defence version and held in paragraph 29 of the Judgment as follows: 20. To conclude, we are of the view that the prosecution has not been able to prove its case. It has not been able prove that Krishna Devi died on account of drowning in river Garikhai. It has also not been able to prove the identification of the dead body, being that of Krishna Devi. To conclude, we are of the view that the prosecution has not been able to prove its case. It has not been able prove that Krishna Devi died on account of drowning in river Garikhai. It has also not been able to prove the identification of the dead body, being that of Krishna Devi. On the other hand, the defence has been able to reasonably explain that she had died on account of acute asthma. This was followed by her cremation at Gauri Shankar Ghat in the village and fire was administered by Appellant No. 1. They have also been able to reasonably prove the chances of false implication. In that view of the matter, we are left with no option but to acquit the accused persons. It is relevant to state that the defence had put various suggestions to the prosecution witnesses during the course of their cross-examinations touching their defence. The defence had examined as many as nine witnesses. The treating physician of the deceased who had treated her for acute asthma had proved the prescriptions as well as x-ray report. On the basis of these materials brought on record by the defence, this Court felt convinced that the defence had been able to discharge its onus and satisfy this Court that the deceased had died a natural death on account of asthma. The onus which had passed on to the accused person because the deceased, being the wife, was in his care, custody and possession, were required to explain the reasons for her death which had taken place in her matrimonial home and, on the evidence produced by the defence, this Court felt satisfied leading to their acquittal. 20. It is alleged in the fardbeyan that his daughter had no child. His son-in-law (Dasai Sahni) was carrying on with another woman, and Chameli Devi used to dissuade her from this illicit relationship but which had enraged him as a result of which she used to be beaten up. P.W. 9 (Most. Samundari Devi), the mother of the deceased, has stated in her deposition that the deceased had no child, her husband (Dasai Sahni) did not like her. It thus appears to me that the relationship between Chameli Devi and her husband (Dasai Sahni, Appellant) was very unhappy. P.W. 9 (Most. Samundari Devi), the mother of the deceased, has stated in her deposition that the deceased had no child, her husband (Dasai Sahni) did not like her. It thus appears to me that the relationship between Chameli Devi and her husband (Dasai Sahni, Appellant) was very unhappy. It is a common experience amongst people of that level in the society is that failure on the part of the wife to provide a child to the family is a fairly common reason for murder. 21. I would now like to deal with the contention advanced by the learned P.P. that, though the acquittal of the Appellants other than Gorakh Sahni in terms of Section 302 IPC may be unjustified, but that by itself cannot lead to acquittal of Gorakh Sahni under Section 302 IPC because of the added feature of extra-judicial confession of the prosecution witnesses. P.W.2 is a co-villager and the Sarpanch of the village. He has stated in his deposition that, after he had learnt of the demise of Chameli Devi, he had sent for Gorakh Sahni who responded to the call and had confessed before him that he had murdered Chameli Devi, had committed a mistake, and was prepared for the punishment. P.W.3 is a co-villager and the Mukhia of the village. He has deposed to the same effect, and has stated that Gorakh Sahni had confessed to him that. No suggestion was made to them during the course of their cross-examination on the issue relating to extra-judicial confession. I am mindful of the legal position that an extra-judicial confession is rather weak evidence and cannot by itself lead to conviction and must be convincingly corroborated. The extra-judicial confession of Gorakh Sahni has to be read with the prosecution evidence to find out whether or not the same has been convincingly corroborated. We have already discussed the evidence of P.W.s. 4 and 6 who had seen the Appellants with the dead body in that hour of the night under suspicious circumstances. P.W.s. 4 and 6 were able to recognize the dead body, the Appellants did not allow them to stay there any further, followed by the threat to leave at once failing which they shall be done to death. Furthermore, the accused persons have set up no case of their own except making general statements under Section 313 Cr.PC that they have not committed the offence. Furthermore, the accused persons have set up no case of their own except making general statements under Section 313 Cr.PC that they have not committed the offence. They have not stated the mode and manner of disposal of the dead body. There is no evidence of cremation according to Hindu rites, nor about the shradh that usually follows. The event of death is not denied. She had died in her matrimonial home, while in the care, custody and possession of her husband and Sasural people. They were, therefore, obliged to explain the circumstances leading to her death. The accused persons have not made the least of effort to discharge their onus. The extra-judicial confession of Gorakh Sahni, as testified by P.W.s. 2 and 3, thus stands adequately corroborated by the other materials and circumstances on record. 22. Learned P.P. has rightly relied on the decision of the Supreme Court, reported in AIR 1969 SC 422 (Nishi Kant v. State of Bihar), paragraph 23 of which is relevant in the present context and is reproduced hereinbelow for the facility of quick reference: 23. In this case, the exculpatory part of the statement in Exh.6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the Appellant received was caused by the Appellants attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342, Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and washing of the blood-stains being so considerable as to attract the attention of Ram Kishore Pandey, P.W.17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these, there being enough evidence to reject the exculpatory part of the statement of the Appellant in Exh. 6, the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the Appellant was the person responsible for the crime. (emphasis supplied) 23. I must also deal with the contention advanced on behalf of the Appellants that there is no evidence on record about the homicidal death of the deceased. He has strenuously contended that the P.W.s. have only stated that Chameli Devi was dead. P.W.2 has stated in his Examination-in-Chief that P.W. 3, the Mukhia of the village, has also deposed to the effect that P.W.s. 2 and 3 have clearly deposed to the effect that Gagandeo Sahni, the informant and father of the deceased, had clearly informed them in the wee hours of the fateful day that Chameli Devi had been murdered by the Appellants and thrown in the river. P.W.s. 2 and 3 have clearly deposed to the effect that Gagandeo Sahni had informed them that his daughter had been murdered. The contention is rejected. 24. I must also consider the statement of the accused persons under Section 313 Cr.P.C.The following suggestions were put to Gorakh Sahni and he replied as follows: In my view, an appropriate question was put to him (father-in-law of the deceased) about the disappearance of the dead body and he had obviously spoken a lie by saying that. 25. I have already examined the evidence of P.W.s. 4 and 6 who had seen the other Appellants along with the dead body in the dead of the night. She was in the care, custody, protection and possession of her sasural people and, therefore, they were bound in law to explain the circumstances leading to her death which the accused persons have completely failed to do. She was in the care, custody, protection and possession of her sasural people and, therefore, they were bound in law to explain the circumstances leading to her death which the accused persons have completely failed to do. This has to be taken to be a strong circumstance against the accused persons. 26. The accused persons have thus no explanation to offer how the wife of Dasai Sahni, and the daughter-in-law of Gorakh Sahni, died. Their conduct is inconsistent with their innocence. The Supreme Court has observed as followed in Paragraph 10 of its Judgment reported in AIR 1957 SC 211 (Pershadi v. State of Uttar Pradesh): 10. We have considered the circumstantial evidence in the case, and, are of the opinion, that it is consistent only with the guilt of the accused and that it is inconsistent with any other rational explanation. The only reasonable conclusion, from the circumstances proved in this case, is that the Appellant committed the murder. He was, therefore, rightly convicted and the appeal is accordingly dismissed. These observations were followed by a Division Bench of the Himachal Pradesh High Court in its Judgment reported in 1973 Cr.L.J. 428 (Paras Ram v. State of H.P), Paragraph 12 of which is reproduced hereinbelow: 12. The last argument raised was that there was no motive on the part of the accused to have murdered his wife. In Bhagwan Swarup v. State of Maharastra ( AIR 1965 SC 682 ) = (1965 (1) Cri.LJ 608) it has been held by the Supreme Court that motive is not an ingredient of an offence. The proof of motive helps the Court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence implicating an accused in an offence the absence of proof of motive is not material. Similarly in Atley v. State of Uttar Pradesh (AIR 1965 SC 807 = 1965 Cri LJ 1653) it has been held that where there is clear proof of motive for the crime the circumstance lends additional support to the finding of the Court that the accused was guilty. The absence of clear proof of motive does not necessarily lead to the contrary conclusiqn. In the instant case there are three eye-witnesses who have seen the accused inflicting Kirpan blows on the deceased. The absence of clear proof of motive does not necessarily lead to the contrary conclusiqn. In the instant case there are three eye-witnesses who have seen the accused inflicting Kirpan blows on the deceased. Sito was crying and the accused was giving blows in the presence of these witnesses and these witnesses rescued Sito and snatched away the Kirpan from the accused. Sito was laid on a cot and the accused was not under the surveillance of Jeonu and Nanak till the arrival of the Police. The accused had nothing to say against these witnesses except that they were deposing under the pressure of the Police. There is nothing on the record to indicate why the Police should want the witnesses to depose falsely against the accused. Further, it was urged that the witnesses were deposing falsely at the instance of Nandu, the father of the deceased. This also does not carry any conviction. There is no reason why Nandu should falsely implicate the accused. The accused states that he was in the verandah of his house when the Police arrested him. He has no explanation to offer how his wife was killed or who killed her. He also denies ownership of the clothes and also betrays ignorance about the stains on the clothes. His conduct is inconsistent with his innocence. I place reliance on Pershadi v. State of Uttar Pradesh ( AIR 1957 SC 211 = (1957 Cri LJ 328). (emphasis supplied) 27. I am thus of the view that the chain of circumstances in the present case is complete. The dead body of Chameli Devi was noticed and recognized by her face by P.W.s. 4 and 6, in the night hours along with the six Appellants. The threat issued by Suraj Sahni to P.W.s. 4 and 6 to leave immediately failing which they shall be done to death is a strong circumstance in the chain of events. PW. 6, at the behest of RW. 4, had informed the mother of the deceased (P.W. 9) at the earliest possible opportunity, with the sun-rise, of the death of her daughter. PW. 6, at the behest of RW. 4, had informed the mother of the deceased (P.W. 9) at the earliest possible opportunity, with the sun-rise, of the death of her daughter. Her husband, the informant and father of the deceased, had learnt of the murder of his daughter at the hands of her Sasural people, in the Civil Court premises of Motihari, the district headquarters, at about 10 A.M. from a cobbler She died in her matrimonial home, while in the custody, care and possession of her Sasural people including her husband and father-in-law, and, therefore, they were obliged to explain the circumstances leading to her death, particularly in a situation when they were last seen in possession of the dead body, at an unearthly hour, nor have they given any evidence about her cremation and shradh. They have not examined any defence witness to discharge their onus. They have not even made any suggestion to that effect to the prosecution witnesses. On the contrary, the extra-judicial confession made by Gorakh Sahni to P.W.s. 2 and 3, and testified by them, that he had committed the murder of Chameli Devi and was ready for punishment, also goes against the Appellant. I am thus convinced, in the words of the Supreme Court, that the circumstantial evidence in the case is consistent with the guilt of the accused and that it is inconsistent with any rational explanation which in fact is completely absent. Their conduct is inconsistent with their innocence. The only reasonable conclusion, from the circumstances proved in this case, is that Gorakh Sahni committed the murder of Chameli Devi and liable to be convicted under Section 302 IPC. All the Appellants are guilty under Section 201 read with Section 34 IPC. Learned P.P. has rightly relied on the Judgment of the Supreme Court, reported in 2003 SCC (Cri) 165 [(Alamgir v. State (NCT, Delhi)]. 28. I must state to my regret that the learned Trial Court erroneously acquitted the Appellants other than Gorakh Sahni of the charge under Section 302 IPC. In the absence of a Government Appeal, or non-issuance of notice of enhancement, I felt helpless and the case of all the Appellants under Section 302 IPC could not be considered. 28. I must state to my regret that the learned Trial Court erroneously acquitted the Appellants other than Gorakh Sahni of the charge under Section 302 IPC. In the absence of a Government Appeal, or non-issuance of notice of enhancement, I felt helpless and the case of all the Appellants under Section 302 IPC could not be considered. I agree with the submission of the learned Public Prosecutor that this does not preclude me from considering the case of Gorakh Sahni in terms of Section 302 IPC. The extra-judicial confession of Gorakh Sahni made to P.W.s. 2 and 3, apart from the other factors, have weighed against Gorakh Sahni leading to his conviction under Section 302 IPC. 29. In the result, the appeal is dismissed. The conviction of Appellant Gorakh Sahni in terms of Section 302 IPC is hereby maintained. He is sentenced to undergo rigorous imprisonment for life. All the Appellants are convicted under Section 201 read with Section 34 IPC and are sentenced to undergo rigorous imprisonment for five years each. Both the sentences of Gorakh Sahni shall run concurrently. Their bail bonds stand cancelled and are directed to surrender before the learned Trial Court forthwith. S.M.M.AIam With great respect I differ with the above findings of my learned Brother Judge. Since the facts as well as the evidence have already been incorporated in the Judgment as above, as such I would not repeat the facts and the evidence in my Judgment. The reasons for differing with the view of my learned Brother Judge are as follows: (i) There is absolutely no legal evidence on record with regard to the murder of Chameli Devi. (ii) Presumption of guilt of accused as provided under Section 113B of the Evidence Act is applicable in the case of dowry death and not in the case of murder triable under Section 302 IPC. In a case of murder punishable under Section 302 IPC, the accused has not to prove innocence rather the onus lies upon the prosecution to prove the guilt of the accused beyond all reasonable doubts. (iii) The so-called confession or extra judicial confession by Appellant Gorakh Sahni in my view cannot be legally used against Gorakh Sahni as the same is vague. (iii) The so-called confession or extra judicial confession by Appellant Gorakh Sahni in my view cannot be legally used against Gorakh Sahni as the same is vague. (iv) The acquittal of other Appellants (Binda Sahni, Dasain Sahni, Ramashray Sahni, Harihar Sahni and Suraj Sahni) under Section 302/34 IPC by the Trial Court establishes that the Trial Court did not believe the prosecution case in toto and that is why the Trial Court disbelieved the story that other accused persons also participated in the murder. (v) The conviction of the Appellant Gorakh Sahni under Section 302/34 IPC is bad in law. 30. I have already stated above that there is absolutely no evidence on record as to whether Chameli Devi died of natural death or due to some ailment or whether she was murdered. However, there is evidence of P.W. 4 and P.W. 6 that they had seen the dead body of Chameli Devi under suspicious circumstances and at that time the Appellant Gorakh Sahni along with other Appellants were present there. The question is whether after seeing the dead body both the witnesses were of the view that deceased Chameli Devi was killed, and the Appellants were disposing of the dead body in a hurry. I would like to reproduce the evidence of both the witnesses at this stage. First of all, I would like to mention that the place where P.W. 4 and P.W. 6 had seen the dead body of deceased Chameli Devi is nearer to the village of the accused persons. As per the evidence of P.W. 6 the said place is situated at a distance of about 11/2 k.m. from village Ekona, the village of P.W.s. 4 and 6. So both the witnesses are not of the vicinity of the place at which they had seen the dead body of the deceased and, therefore, they are merely chance witnesses, and it is very doubtful that in the night of odd hours they had travelled about 11/2 k.m. from their village to fetch fish from the river which lies nearer to the village of the accused persons. Now I am reproducing the Examination-in-Chief of P.W. 4. He has deposed like this: The occurrence took place about eight-nine years ago. He along with Ekam Sahni had gone to Shikrahana river for fishing. Both the persons had heard some sound of whisper. Now I am reproducing the Examination-in-Chief of P.W. 4. He has deposed like this: The occurrence took place about eight-nine years ago. He along with Ekam Sahni had gone to Shikrahana river for fishing. Both the persons had heard some sound of whisper. Then they came out and saw a dead body lying there and the Appellants were also found present there including one Jagarnath Sahni. P.W. 4 further deposed that he had identified the dead body which was of Chameli Devi. When he wanted to make further enquiry from the Appellants, the Appellant Suraj Sahni threatened him and told him to run away otherwise he would be killed. Thereafter, he asked Ekam Sahni (P.W. 6) to inform Gagandeo Sahni (the father of the deceased). 31. The evidence of P.W.4 shows that he has not stated that Chameli Devi had been murdered. His evidence further shows that he simply recognized the dead body of deceased Chameli Devi and the Appellants were trying to dispose of the dead body in the night at odd hour but he has not uttered a single word that her face had any mark of violence or there was any mark of violence on her body. There is also nothing in his evidence that on seeing the dead body of Chameli Devi and other accused persons in the late night he suspected that the accused persons might have killed Chameli Devi and wanted to dispose of the dead body. Even this suspicion is not there in the evidence of P.W. 4. So mere presence of Appellants along with the dead body of Chameli Devi in the late night near a river cannot be a basis of presuming that Chameli Devi might have been killed by her father-in-law and by any other member of her father-in-laws family. In a case of murder punishable under Section 302 IPC, the onus always lies upon the prosecution to prove its case beyond all reasonable doubts. The Court shall not presume that since the conduct of the Appellants in disposing of the dead body of deceased Chameli in the late night was not natural as such the Appellants were murderers of deceased Chameli Devi. This presumption is not permissible under Section 302 of the I.P.C. and it is only attached in a case of dowry death punishable under Section 304B of I.P.C. 32. This presumption is not permissible under Section 302 of the I.P.C. and it is only attached in a case of dowry death punishable under Section 304B of I.P.C. 32. Now I would like to reproduce the evidence of P.W. 6 and will try to come to the conclusion whether he had arrived at the conclusion that Chameli Devi had been killed after seeing the dead body of Chameli Devi. His evidence is as follows. "The occurrence took place about 8-10 years ago. He was fishing along with Mangni Sahni (P.W. 4) in the night. He heard some sound of whisper. Both the persons came out of the river and saw the dead body of the daughter of Gagandeo Sahni, (the informant), and also saw all the Appellants (Gorakh Sahni, Binda Sahni, Dasai Sahni, Ramashray Sahni, Harihar Sahni and Suraj Sahni) including one Jagarnath Sahni present there. On enquiry, Suraj Sahni threatened him and asked him to run away. Due to fear, both the persons fled away and on the next day in the morning he went to his village and wanted to inform Gagandeo Sahni but he was not met as he had already left for Motihari.Then he informed the wife of Gangandeo Sahni. 33. I have incorporated above the statements of P.W. 6 made in his Examination-in- Chief which will show that even after seeing the dead body he could not form any opinion that Chameli Devi had been murdered. He has not spoken even a single word as to whether Chameli Devi was murdered, or she died of any ailment. He is also silent about the fact as to whether he had noticed any mark of violence on the dead body of Chameli Devi from which opinion could be formed that she might have been killed. Thus, from the evidence of P.W.s. 4 and 6, it is established beyond doubt that before me there is absolutely no legal evidence that Chameli Devi had been murdered. However, both the witnesses have deposed that on the next day in the morning they went to the house of Gagandeo Sahni, and as Gagandeo Sahni was not present, they informed about the incident to his wife. Let me see what is the evidence of the wife of informant Gangandeo Sahani. 34. The wife of Gagandeo Sahni, namely, Most. Samundari Devi, has been examined as P.W. 9 in this case. Let me see what is the evidence of the wife of informant Gangandeo Sahani. 34. The wife of Gagandeo Sahni, namely, Most. Samundari Devi, has been examined as P.W. 9 in this case. Her evidence is that P.W.4 and P.W.6 had come to her house and informed her about the death of her daughter Chameli Devi but she has not uttered a single word that P.Ws. 4 and 6 had told her that Chameli Devi had been murdered and they had seen the Appellants disposing of the dead body of Chameli Devi near the river in the late night. Thus, I have no hesitation to say that the evidence of P.W. 9 does not corroborate the evidence of P.W.s. 4 and 6 on all material points, i.e., on the point of seeing the dead body of the deceased Chameli Devi near the river by P.W.s. 4 and 6 and the threat given by the Appellant Suraj Sahni to them. For better appreciation, I would like to incorporate the evidence of P.W.9 which is as follows. Chameli Devi was her daughter. She was married to Dasai Sahni about 10-11 years ago. She had no issue. Her husband did not like her. Chameli Devi has died and about her death Mangni and Ekkam (P.W.s.4 and 6) had informed her. 35. From the evidence of P.W. 9 who is none else than the mother of the deceased Chameli Devi, it is clear that P.W.s. 4 and 6 had simply given information to P.W. 9 about the death of Chameli Devi and did not tell her that she was murdered by the Appellants. Her evidence shows that she was not happy with the behaviour of her son-in-law Dasai Sahni as he was ill-treating her daughter and so she could have easily said that her son-in-law (Dasai Sahni) did not like her daughter and so he had killed her daughter. But in spite of the fact that she had grievance against her own son-in-law (Dasai Sahni), she did not speak that her son-in-law or his family members had killed her daughter Chameli Devi. In such a situation I find that there is absolutely no legal evidence on record to hold that Chameli Devi had been actually murdered. But in spite of the fact that she had grievance against her own son-in-law (Dasai Sahni), she did not speak that her son-in-law or his family members had killed her daughter Chameli Devi. In such a situation I find that there is absolutely no legal evidence on record to hold that Chameli Devi had been actually murdered. I have already stated above that in a case of murder punishable under Section 302 IPC, the onus always lies upon the prosecution to prove the guilt of the accused beyond all reasonable doubts and no presumption is attached to the guilt of the accused which is available in a case of dowry death punishable under Section 304B IPC. Merely because of the fact that the deceased was in the custody of the accused persons and the accused persons were seen in the odd hours disposing of the dead body, do not make out presumption in favour of the prosecution that the deceased might have been murdered by the Appellants. There is possibility that she might have died due to illness. Therefore, in a case of murder by creating suspicious circumstances with regard to the death of the deceased the prosecution cannot be absolved from the responsibility of proving the guilt of the accused persons beyond all reasonable doubts. I would, therefore, hold that evidence of P.W. 4, P.W. 6, and P.W. 9 are not sufficient to hold that the death of Chameli Devi was homicidal and that she was murdered by the Appellants. 36. Now I come to the confession/extra-judicial confession of the Appellant Gorakh Sahni made before P.W. 2 and P.W. 3. In my view, the evidence of P.W.s. 2 and 3 do not inspire confidence and it appears that both the witnesses have contradicted each other on material points with regard to the alleged extra-judicial confession. In order to point out contradiction, I would like to incorporate the evidence of P.Ws. 2 and 3. P.W.2 has deposed that when he was returning after taking tea he saw P.W. 3 (Maheshwar Sahni, Mukhia) sitting along with some persons. He also sat there. In the meantime, the informant Gangandeo Sahni came there and told him that his daughter had been killed by Gorakh Sahni but according to the evidence of P.W.3, the informant, Gagandeo Sahni, had told him that Dasai Sahni (his son-in-law) had killed his daughter. He also sat there. In the meantime, the informant Gangandeo Sahni came there and told him that his daughter had been killed by Gorakh Sahni but according to the evidence of P.W.3, the informant, Gagandeo Sahni, had told him that Dasai Sahni (his son-in-law) had killed his daughter. However, both the witnesses are unanimous that Appellant Gorakh Sahni was called and in the presence of P.W.s. 2 and 3 the Appellant Gorakh Sahni confessed his guilt, but again I find that there is material contradiction in the evidence of both the witnesses on this point also. Let me see what the Appellant Gorakh Sahni had stated before P.W. 2 and P.W. 3 in this regard. According to P.W.2, about quarter to nine years before he was returning back after drinking tea he saw Maheshwar Sahani Mukhia (P.W.3), Basuli Sahni (not examined), Reejhan Sahni (not examined), Gaja Sahni (not examined) sitting near Mathh of the village along with some other persons. He also sat there and in the meantime Gangandeo Sahni (informant) came there who informed that Appellant Gorakh Sahni had killed his daughter who was married to his son. Then at the request of Gangandeo, Gorakh Sahni was called and then he was enquired about the murder of daughter of Gangandeo whereupon he replied that "offence had been committed, she had been murdered, He is ready to face punishment. "^JJ? Ft WJl %, e^TT ^R f^t F, ^wr c£)^hj zrr ^§ The evidence of P.W.2 shows that the Appellant had admitted that Chameli Devi had been killed but there is nothing in the so-called extra-judicial confession of Appellant to come to a definite conclusion that the Appellant was the man who had committed the murder of Chameli Devi. Moreover, it appears that the evidence of P.W.2 does not find corroboration from the evidence of P.W.3 who in clear terms has stated that Gangadeo had told him that his son-in-law Dasai Sahni had committed the murder of his daughter. It goes to show that P.W.3 has contradicted this statement of P.W.2 in which he has stated that Gangandeo had told him that Appellant Gorakh Sahni had murdered his daughter. In my view, it is vital contradiction in the evidence of P.Ws.2 and 3 and cannot be ingored. It goes to show that P.W.3 has contradicted this statement of P.W.2 in which he has stated that Gangandeo had told him that Appellant Gorakh Sahni had murdered his daughter. In my view, it is vital contradiction in the evidence of P.Ws.2 and 3 and cannot be ingored. Likewise, P.W.3 has also contradicted the statement of P.W.2 that Appellant Gorakh Sahni was called rather he has categorically stated that Dasai Sahni was called for interrogation but Gorakh came there. He has also contradicted P.W.2 that on interrogation Gorakh Sahni had admitted that the informants daughter had been murdered rather he (P.W.3) has simply said that when Gorakh Sahni was interrogated he simply said "mistake had been committed, He is ready to accept any punishment, "^rarcft Ft "T^ft F uft ?WT ^TT F 37. As regards the submission of the State Counsel that in his statement recorded under Section 313, Cr.P.C, the Appellant Gorakh Sahni did not explain the death of Chameli Devi when confronted with question regarding murder of Chameli Devi. In this regard I have to say that the learned Trial Court has not complied the requirement of law as laid down under Section 313 Cr.PC, and has asked vague question with regard to the charge and not with regard, to the evidence or circumstances which has come against the Appellants. To support my view, I would like to point out that there is absolutely no evidence of any witness that Appellant Dasai Sahni had made any confessional statement before P.W.2 and P.W. 3 but even then the Trial Court had put questions to Dasai Sahni that he had made extra- judicial confession before the Mukhia and Sarpanch in connection with the murder of deceased Chameli Devi. I do not know from where the Trial Court brought this fact on record that a panchayati was also convened. There is no such evidence on record. The law requires that the accused may be confronted with the circumstances which have appeared against him in the evidence and not about the allegation as made out in the F.I.R. and, therefore, I am of the view that the reply given by the accused persons in the statements under Section 313, CrPC cannot be used against him or against them. As regards the decision referred by learned Public Prosecutor reported in AIR 1969 SC 422 (Nishikant Jha v. State of Bihar), I am of the opinion that this decision stands on a quite different footing as there was certain other evidence to corroborate the confession of the accused before the Mukhia. It appears from the perusal of the Judgment referred above that from the possession of the accused blood-stained cloths, books, and other articles were also recovered and under such circumstances the articles recovered from his possession had corroborative value and that is why extra-judicial confession (part confession) was believed. In such circumstances, I am of the view that this decision is not applicable in the facts and circumstances of this case. 38. There is one more circumstance which gives credence to my view that the Judgment of the Trial Court is bad in law and must be set aside. This is because of the fact that the Trial Court has convicted the Appellant Gorakh Sahni under Section 302/34 IPC which is not permissible unless other co-accused is also found guilty. Moreover, the acquittal of Appellants, Binda Sahni, Dasai Sahni, Ramashray Sahni, Harihar Sahni and Suraj Sahni by the Trial Court under Section 302/34 IPC establishes beyond doubt that the Trial Court has disbelieved the part of the prosecution case and that is why the Court acquitted the rest of the Appellants under Section 302/34 I.P.C. 39. As regards the argument of the defence Counsel that since Appellant Gorakh Sahni has not offered any explanation with regard to the death of Chameli Devi who was his daughter-in-law, as such his conduct is inconsistent with his innocence. In this regard I have to say that before the Trial Court there was absolutely no material to believe that the death of Chameli Devi was homicidal. Neither any injury report nor any post-mortem report, nor any blood-stained clothes of the deceased were on record which could have suggested that the death of Chameli Devi was homicidal. In the absence of proof that the death of Chameli Devi was homicidal, the Appellant or Appellants were not bound to explain how Chameli Devi died and in a case of murder punishable under Section 302 I.P.C. presumption cannot be attached that Chameli Devi might have been killed by Appellant Gorakh Sahni. In the absence of proof that the death of Chameli Devi was homicidal, the Appellant or Appellants were not bound to explain how Chameli Devi died and in a case of murder punishable under Section 302 I.P.C. presumption cannot be attached that Chameli Devi might have been killed by Appellant Gorakh Sahni. Under the above circumstances, I am of the opinion that the case reported in AIR 1957 Supreme Court 211 (Pershadiv. State of Utter Pradesh) and the case reported in 1973 Criminal Law Journal Page 428 (Paras Ram v. State of H.P.) will not apply. Moreover, both the decisions stand on quite different facts and cannot be applicable with the facts and circumstances of this case. 40. In the result, I find merit in this appeal and as such the same is hereby allowed. The conviction of the Appellant Gorakh Sahni under Section 302/34 and 201/34 IPC is set aside. 41. Accordingly, the sentence passed against him on both the counts are also set aside and he is acquitted of the charges under Sections 302/34 and 201/34 of the IPC. The Appellants Binda Sahni, Dasai Sahni, Ramashray Sahni, Harihar Sahni and Suraj Sahni have been convicted under Section 201/34 IPC, and as such the conviction and sentence passed against the abovementioned Appellants under Section 201/34 IPC are also set aside and they are also acquitted of the charge under Section 201/34 IPC. All the Appellants are on bail and as such they are discharged from the liabilities of their bail bonds.