Judgment :- Patherya J. This appeal has been filed against the judgment and order of conviction and sentence dated 30th August, 2003 passed by the Additional Sessions Judge, 2nd Court, Hooghly in Sessions Trial No. 10 of 1991 whereby the appellants have been sentenced to suffer rigorous imprisonment for life with a fine of Rs. 5,000/- each in default to suffer further rigorous imprisonment for six months under Section 302 IPC and to suffer rigorous imprisonment for two years with a fine of Rs. 1,000/- each in default to suffer further rigorous imprisonment for one month under Section 498A IPC and to suffer rigorous imprisonment for five years with a fine of Rs. 2,000/- in default to suffer further rigorous imprisonment for two months under Section 201 IPC. All the sentences were to run concurrently. The appellants are aggrieved by the said order of conviction and sentence and therefore this appeal has been filed. The case of the prosecution is that the victim girl and the accused No.1 had a love marriage which was solemnized at the Seoraphuli Kalibari and after the marriage the victim girl and the accused No. 1 stayed in the sister’s house. After 8 to 10 days theappellant No.1 came to his ancestral house which became the matrimonial home of the victim girl. After the marriage certain articles were given as dowry but mental and physical torture was inflicted on the victim girl not only by the appellant No.1 but also the appellant Nos. 2 and 3. On 10th December, 1988 the defacto complainant was returning to his house from the market at about 8-20 A.M. when he heard the cries of the appellant No.1 and his mother saying “More Gelo, More Gelo”. Thereafter he was informed by the para people that the victim girl had been killed in the kitchen by being set on fire. An FIR was filed on 10 th December, 1988 by the defacto complainant and Serampore P.S. Case No. 15 of 1988 was initiated under Sections 498A/302 /201/34 IPC read with Section 13 of the Dowry Prohibition Act. On completion of investigation charge-sheet was submitted under Sections 498A/302 /201/34 IPC. The case was committed for trial to the Court of Sessions and subsequently transferred to the Additional Sessions Judge, 2nd Court, Hooghly for disposal. Charges were framed against the appellants under Sections 498A/302/201 IPC. On completion of investigation charge-sheet was submitted under Sections 498A/302 /201/34 IPC. The case was committed for trial to the Court of Sessions and subsequently transferred to the Additional Sessions Judge, 2nd Court, Hooghly for disposal. Charges were framed against the appellants under Sections 498A/302/201 IPC. The appellants pleaded “not guilty” and claimed to be tried. In course of trial 9 (Nine) witnesses were examined by the prosecution and 10 (ten)documents exhibited. None was examined on behalf of the defence. On consideration of the evidence the Additional Sessions Judge, 2nd Court, Hooghly on 30th August, 2003 passed the judgment and order of conviction and sentence. Hence, this appeal. Counsel for the appellants submits that the marriage took place between the appellant No.1 and the victim in 1987. The date of incident was 10th December, 1988 and on the same day PW 1 the father, defacto complainant filed the FIR with the Serampore P.S. PW 1 in his evidence has stated that the appellants demanded cash of Rs. 15,000/- for settlement of marriage and for non-payment of the said sum torture was inflicted on the victim. He therefore visited the appellant No. 1’s brother in law (sister’s husband) at Seoraphuli and tried to settle the matter but Subal Chowdhury the brother-in-law has not been examined. PW 1 was also advised by one Ajit Thakur to pay the agreed amount but Ajit babu has also not been examined. The charges were framed under Sections 498A/302/201 IPC. According to PW 1 articles were handed over in the presence of Joti Roy and Subhas Sarkar and others. Although PW 1 in his evidence has stated that he heard the shout of the appellant No. 1 and his mother saying “More Gelo, More Gelo” but PW 1 did not enter the matrimonial home of the victim although he sensed that his daughter has been killed. PW 1 has not stated in his evidence with regard to either murder under Section 302 IPC or destruction of evidence under Section 201 IPC. PW 2 is the photographer and is a formal witness. PW 3 Shishu Bala Das is the neighbour whose evidence is of no substance. PW 4 has been declared as a hostile witness. PW 5 is the neighbour whose evidence is nothing but an improvement as he has stated in his evidence that he did not tell the I.O. (PW 9). PW 3 Shishu Bala Das is the neighbour whose evidence is of no substance. PW 4 has been declared as a hostile witness. PW 5 is the neighbour whose evidence is nothing but an improvement as he has stated in his evidence that he did not tell the I.O. (PW 9). PW 6 is the autopsy surgeon who has demolished the prosecution case in his evidence by negating homicidal death. He has not been declared hostile therefore his evidence is binding on the prosecution and on a comparison of the inquest report with the evidence of PW 6 a question arises as to whose body was examined by PW 6. The constable who took the body for PM Examination has not been examined. PW 8 diarised the GD Entry made by the appellant No.1 but the GD has not been produced. PW 9 the I.O. did not seize Exhibit-2 (lagnapatra). The said was not produced during investigation. He has in his evidence stated that no effort was made to arrest the appellant No.1 in the light of the GD. The statement of Shankar Das who heard the hue and cry has been recorded under Section 161 CrPC but he has not been examined by the prosecution nor was he a charge-sheeted witness. The evidence of the prosecution falls short of proof as in the 313 statement the attention of the appellant No.1 was not drawn to the evidence of PW 3 and PW 5. The explanation given in 313 statement is probable as none except Jayanta was there. He informed the police and this will appear from the evidence of the I.O. (PW 9). PW 8 and PW 9 have said about the GD Entry but G.D has not been exhibited therefore in the light of existence of probabilities an adverse inference be drawn. As held in AIR 1924 Calcutta 323, the prosecution is bound to prove its case through the evidence in the precise manner narrated by it and in the instant case it has failed to do so. As regards Section 498A Exhibit-2 is a dubious document. PW 3 and PW 5 have not spoken about the torture on the victim. Demand was made and articles given, therefore the demand was satisfied. There is no subsequent instance of torture and any evidence in this respect is also lacking. As regards Section 498A Exhibit-2 is a dubious document. PW 3 and PW 5 have not spoken about the torture on the victim. Demand was made and articles given, therefore the demand was satisfied. There is no subsequent instance of torture and any evidence in this respect is also lacking. The evidence of PW 3 and PW 5 was not put to the appellant No.1 in 313 examination and as nothing incriminating was found in the evidence against the accused appellants in view of the (2009) 2 SCC Criminal 243 and 2002 SCC (Criminal) 1769, the order of conviction and sentence be set aside. A witness who has spoken against the prosecution and not declared hostile, his evidence must be accepted as held in AIR 1964 SC 1563 . In opposing the said appeal counsel for the State respondent submits that PW 1, PW 3 and PW 5 have all proved the case of torture under Section 498A IPC. Therefore the case under Section 498A IPC was proved by the prosecution. PW 3 and PW 5 have stated that the victim’s body was burnt and covered with rug. From the post mortem report it is evident that the whole body was extensively burnt. From the circumstantial evidence the chain of events is complete and therefore the order of conviction and sentence be upheld. The victim and the appellant No.1 were a married couple. The victim died in her matrimonial home, unnaturally and no attempt was made to save her by the appellant No.1. She was found killed and burnt and lying on the floor. Her body was charred. While returning home from the market, PW 1 (father) heard “More Gelo, More Gelo” in the voice of the appellant No.1 and his mother. GD Entry was made on 10.12.1988 at 9.05 AM and the contents therein is not necessary to form a chain. Thereafter the police came and an FIR was filed at 12.20 hrs. Post mortem was conducted and a report filed. Although the case of the defence is that the death was accidental but no sound was made by the victim. There was no attempt to flee or to leave the kitchen by the victim. No mark of fire was found in the house or kitchen and it was inside the kitchen that the body was covered with a rug. Although the case of the defence is that the death was accidental but no sound was made by the victim. There was no attempt to flee or to leave the kitchen by the victim. No mark of fire was found in the house or kitchen and it was inside the kitchen that the body was covered with a rug. There was no attempt on the part of the victim to save herself. The explanation given by the appellants is not convincing and all that has been stated is that all of them took tea and left the house but none has said when they returned. There was also no attempt on the part of the appellants to treat the victim therefore there is no scope for giving the benefit of reasonable doubt to the appellants. The order of conviction and sentence be upheld. In reply it has been submitted by counsel for the appellants that there was no submission made regarding the charge framed. Having considered the submission of the parties the charge framed against the appellants is under Sections 498A/302/201 IPC. 9 prosecution witness were examined. Although PW 1 has in his evidence stated about demand for dowry but such demand was fulfilled as PW 1 sent the articles through PW 5 (neighbour) as will appear from his evidence. That leaves us with the charge under Section 302 IPC. There is no eye witness to the incident and therefore the case is based on circumstantial evidence. To complete the chain of events the links are : 1. The victim was married to the appellant No.1. 2. The victim died in the matrimonial house. 3. The death was unnatural. 4. The body was found burnt, and covered with a rug on the ground. 5. PW 1 heard the mother-in-law and the appellant No.1 shout “More gelo More gelo” at 8.20 am. 6. GD filed at 9.05 am. 7. Police came. 8. FIR 9. PM Report. The body of the victim was found in her matrimonial house where she was in the custody and protection of her husband. Although the appellant No. 1 has stated in his 313 examination that after taking tea and bread he left the house, it is nowhere stated when he returned. A GD entry was made at 9.05 am on 10.12.1988 on the basis of a telephonic message from the appellant No.1. Although the appellant No. 1 has stated in his 313 examination that after taking tea and bread he left the house, it is nowhere stated when he returned. A GD entry was made at 9.05 am on 10.12.1988 on the basis of a telephonic message from the appellant No.1. This will appear from the evidence of PW 8 (ASI). Therefore the appellant No.1 at 9.05 am was at home. According to PW 1 at 8.20 am he heard a shout from the matrimonial home of the victim in the voice of the appellant No. 1 and his mother. This has not been shaken in cross-examination too. Therefore the presence of the appellant No. 1 at 8.20 at the P.O. cannot be ruled out and the burden to prove the unnatural death of the victim wife shifts to the appellant No.1/husband as held in (2007) 10 SCC 445 . This burden the appellant No. 1 has failed to discharge. The PM Dr. (PW 6) has stated in the report that the whole body was extensively burnt and in his opinion the death was due to asphyxia, ante mortem and homicidal in nature. He has also said that the burn was post mortem to destroy evidence. Much has been sought to be made of the Dr’s evidence in Court. while PW 6 (Dr.) has said in his evidence that his finding in respect of homicidal and post mortem burn is not correct. Even if this is accepted PW 6 (Dr.) has not deviated from his opinion that the death was due to asphyxia and anti mortem. Death may be accidental, suicidal or homicidal. Even if homicidal is ruled out, then suicidal and accidental remains. But PW 6 (Dr.) while stating that his conclusion regarding death being homicidal in nature being incorrect, has not stated whether it was suicidal or accidental. According to the 313 statement of the appellant No.1, the victim was cooking in the kitchen. In case of accidental death clothes of the victim would have caught fire and in that case the frontal part of her body would have suffered burns. This is not so. According to the PM Report the whole body of the victim was burnt extensively. The victim would also have shouted for help and would have left the kitchen to seek help but this is not emerging from the evidence on record. This is not so. According to the PM Report the whole body of the victim was burnt extensively. The victim would also have shouted for help and would have left the kitchen to seek help but this is not emerging from the evidence on record. In the opinion of PW 6 (Dr.) the cause of death was due to asphyxia and anti mortem. In the light of PW 5’s evidence that post mortem of the victim was conducted at Serampore Walsh Hospital and PW 6 (Dr.) who conducted the post mortem it cannot be said that the post mortem was conducted over a body other than that of the victim as contended by counsel for the appellants. Asphyxia means a condition in which there is an extreme decrease in concentration of oxygen resulting in extreme increase of carbon dioxide which leads to unconsciousness or death. The victim died due to asphyxia, anti mortem according to PW 6. The victim died while in the custody of the appellant No. 1 and it was for the appellant No.1 to discharge the burden when his presence in the house at 8.20 am has been proved by the prosecution. PW 6 (Dr.) has also stated that the body was extensively burnt and scalp-skull and vertebrae, walls, mouth, pharynx, oesophagus, ribs, cartilage were charred. The word ‘char’ according to the Oxford English Dictionary would mean “to make or become black by burning”, so as to remove signs of any external injury. Char is related to the degree of burn and to its extent and not with the percentage of burn. Therefore although the burn was 27% the extensively burnt body indicates destruction of evidence of cause of death and the order of conviction and sentence dated 30th August, 2003 calls for no interference as regards the appellant No. 1. The appellant No. 2 in his 313 statement has categorically stated that he stays separate. PW 3 and PW 5 who went to the P.O. and saw the victim’s dead body have nowhere in their respective evidence stated that they found the appellant No. 2 there. The appellant No. 3 stayed with the appellant No. 1 and the victim and in the 313 statement all that he has stated is that after having tea and bread he left the house. This is similar to the explanation given by the appellant No. 1. The appellant No. 3 stayed with the appellant No. 1 and the victim and in the 313 statement all that he has stated is that after having tea and bread he left the house. This is similar to the explanation given by the appellant No. 1. The time of his return is not known and his participation in the demise of the victim is to the extent of torture for demand of dowry which demand has been satisfied. Though the charge under Sections 498A and 302 IPC has been framed against the appellant No.3, the said charge has not been proved against the appellant No.3 by the prosecution. While it is true that the appellant No. 3 lived with the appellant No. 1 and the victim but the charge under Section 201 IPC against the appellant No. 3 or his involvement in destruction of evidence has not been proved. Accordingly as against the appellant Nos. 2 and 3, the order of conviction and sentence is set-aside but as against the appellant No. 1 the order of conviction and sentence is affirmed. Let the appellant No. 1 be taken into custody and bail stand cancelled. The appellant Nos. 2 and 3 be discharged from bail bond. The appeal to the extent mentioned above i.e. in respect of appellant Nos. 2 and 3 is allowed and as regards appellant No. 1 dismissed. Let the order be communicated to the Court below for appropriate action. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance with all requisite formalities. Asim Kumar Ray, J.: I agree.