ADITYA KUMAR TRIVEDI, J.:–Being aggrieved by and dissatisfied with the judgment of conviction and sentence dated 11.04.1990 passed by 4th Additional Sessions Judge, Siwan in connection with Sessions Trial No. 51/88 convicting the appellant Jogendra Sah for an offence punishable under Sections 302, 201 of the IPC and directing him to undergo R.I. for life under Section 302 IPC as well as R.I. for two year under Section 201 of the IPC and further directing the sentence to run concurrently, the appellant named above has filed the instant appeal. 2. The prosecution case in brief as per written report (Ext-6) submitted by Baldeo Pandey (PW-12), ASI of Barharia P.S. on 29.07.87 in nut shell is that on 27.07.87 at about 2:30 p.m. Janki Devi wife of Ram Lochan Sah of Pakbalia village, P.S. Barharia, Distt- Siwan had given her statement in front of her house disclosing therein that on the same day at about 7:00 a.m. she along with her son Jogendra Sah had gone to her field for uprooting paddy seedlings lying north to village and to her house at 8:45 a.m. on rumour and then seen mob having assembled at her house and her daughter-in-law Kanti Devi aged about 19 years wife of Jogendra Sah was lying dead in burnt condition in a room located at southern western corner of the house. On query her neighbour Bihari Sah had disclosed that after seeing smoke coming out from room, he tried to go inside but found out the main entrance gate closed from inside. Then thereafter, he climbed over the roof with the help of ladder and then after coming down inside the house, opened the main gate enabling the co-villagers to come inside and found the wife of Jogendra Sah dead on being burnt. He further found Tasuli (a small metal vessel) kept over stove (Chulha). So, Janki Devi had occasion to believe that her daughter-in-law had died during course of preparing food. 3. On the basis thereof Barharia U.D. vide P.S. Case 1/87 dated 27.07.87 was registered and the dead body of Kanti Devi (Deceased) was sent for postmortem. The Doctor after conducting postmortem had disclosed the cause of death as throttling and further the dead body was put on fire after death. 3. On the basis thereof Barharia U.D. vide P.S. Case 1/87 dated 27.07.87 was registered and the dead body of Kanti Devi (Deceased) was sent for postmortem. The Doctor after conducting postmortem had disclosed the cause of death as throttling and further the dead body was put on fire after death. So the informant had stated that before putting the dead body on fire, deceased was done to death by throttling and further to conceal the act of homicide, Janki Devi, Ram Lochan Sah, (father-in-law of deceased) and Jogendra Sah put the dead body on fire. On the basis of the aforesaid written statement recorded by PW-12, Baldeo Pandey, Barharia P.S. Case No.85/87 under Sections 302/201/34 IPC was registered whereupon investigation commenced and concluded by way of submission of charge-sheet under the aforesaid Sections against the above named accused persons on the basis of which cognizance was taken followed with committal of the case on account of offence being exclusively triable by the court of sessions where the trial commenced and culminated in acquitting Janki Devi as well as Ram Lochan Sah while convicting and sentencing in a manner as stated above the remaining accused, Jogendra Sah who has put the finding under challenge. 4. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that one of complete innocence as well as false implication of the appellant. It has further been asserted that he was not at all present at the relevant time at his house rather he was away to his field along with his mother for uprooting paddy seedlings and they had reached their house only after being informed regarding the accidental fire in their house leading to sever burn injuries on the deceased. Furthermore, it has been explained by the appellant that he along with his family members were falsely implicated at the instance of Mahipal Singh, his elder Sarhu with whom he had strained relation on the issue of borrowing of money which the appellant had already paid and to support this part of defence DW-1, Ash Mohammad was examined. 5. While assailing the judgment of conviction and sentence recorded by the learned trial court, it has been submitted by Mr. 5. While assailing the judgment of conviction and sentence recorded by the learned trial court, it has been submitted by Mr. Rama Kant Sharma, learned senior counsel appearing on behalf of appellant that the trial court had recorded its finding without appreciating the fact that none of the witnesses were eyewitness to the occurrence. Furthermore it has been pointed out by him that right from the First Information Report there is positive and concrete evidence with regard to absence of appellant at his house at the time of alleged occurrence on account of his being away in connection with uprooting the paddy seedlings, along with his mother, in a field far away from village and thus when it was also disclosed by independent witnesses that the door of his house was closed from inside and was broken and opened by the witnesses themselves with the help of ladder allowing the villagers gone inside the house who had found the deceased dead due to burn injuries, the obvious conclusion would be that the death of the deceased, the wife of the appellant took place on account of accidental fire. In this regard, Mr. Sharma has relied on the evidence of the witnesses who had stated in their evidence in the Court that they had found a cooking pot (Tasuli) kept on the stove (Chulha) for cooking of pulse. He has submitted that it would be also evident from the deposition of the witnesses that they had seen the deceased alive, after departure of appellant along with mother to their field for uprooting paddy seedlings, out side her house and after the deceased to have also gone inside her house after closing the main gate from inside. In this background Mr. Sharma is of the view that the appellant can not be held responsible much less convicted for murder of his wife which had taken place in his absence. In this background Mr. Sharma is of the view that the appellant can not be held responsible much less convicted for murder of his wife which had taken place in his absence. According to learned counsel for the appellant the so-called finding in the postmortem report showing the cause of death as throttling of her neck would also improve the case of the prosecution in the background of admitted absence of appellant along with his mother and once the aforesaid theme was taken into consideration favourably while acquitting the co-accused who are none else but parents of appellant, the observation and the finding of the trial court to the effect that being husband of the deceased, the liability and responsibility would shift upon the appellant is not a correct proposition of law pertaining to charge under Section 302 of the IPC . Mr. Sharma has accordingly submitted that the instant case happens to be virtually a case of no evidence and in this background the impugned judgment of conviction and sentence of the appellant is bad both on fact and in law. 6. In likewise manner, it has further been submitted on behalf of the appellant that the theory of last seen will not be attracted as the appellant was not seen in company of deceased whereafter the dead body of deceased was found. Learned counsel has also asserted that presumption of guilt cannot be fastened against the appellant because the deceased was not residing alone with the appellant but also with his parents who have been acquitted of the same charge by the trial court and thus presumption in accordance with Section 106 of the Evidence Act cannot be applied exclusively against the appellant. 7. Per contra, it has been submitted on behalf of the learned APP that the death of the deceased by throttling has been conclusively proved by medical evidence and the subsequent event, that means to say, burning of body of deceased happens to be a postmortem event with a sole purpose to destroy the evidence of the offence. So, from the aforesaid evidence the murder of deceased is found to be conclusively proved. So, from the aforesaid evidence the murder of deceased is found to be conclusively proved. In this regard she has explained that though there happens to be presence of other accused (since acquitted) also residing with the couple (deceased and present appellant) but the fact remains the appellant is the husband of the deceased and therefore he has to discharge obligation explained of the circumstances whereunder deceased was done to death by way of throttling of her neck. She has further emphasized that the occurrence took place within four walls of house and so, apart from the facts that no one can be expected to depose against the appellant. In her view the appellant alone in terms of Section 106 of the Evidence Act had to explain the death of his wife inasmuch as the facts were specially within his knowledge but on account of complete silence maintained by the appellant even in his examination under Section 313 Cr.P.C of Section 106 of the Evidence Act and adverse inference in terms has to be drawn wherein the court, in absence of any cogent and reliable explanation can convict the appellant. She has accordingly summed up her submissions that impugned judgment would not require any interference. 8. Before appreciating the rival contention in the background of the materials on record, from cursory perusal of the lower court record, it is evident that altogether 13 PWs have been examined on behalf of prosecution out of whom PW-1 is Ramesh Mishra, PW-2 is Bihar Sah, PW-3 is Ram Nath Prasad, PW-4 is Gajeshari Devi, PW-5 is Hari Shankar Prasad, PW-6 is Sheo Nath Sah, PW-7 is Shanti Kumar, PW-8 is Tulsi Sah, PW-9 is Satyanarain Singh, PW-10 is Bindeshwari Singh, PW-11 is Mahipal Sah, PW-12 is Baldeo Pandey and PW-13 is Prabhunath Tiwari. Side by side, there also happens to be exhibits as Ext.1- P.M. report, Ext.2 series- signature of witnesses on relevant documents, Ext. 3-inquest report, Ext. 4-5 series-different letters, Ext.6- Fardbeyan (written report), Ext.7- Formal FIR, Ext. 8-production list, Ext.9-Seizure list and Ext.10- paragraph 10 of the case diary. 9. The defence had also examined DW 1, Ash Mohammad on the point of borrowing money from accused by his elder Sarhu, Mahipal Sah and with regard to dispute cropping up over repayment. 10. 3-inquest report, Ext. 4-5 series-different letters, Ext.6- Fardbeyan (written report), Ext.7- Formal FIR, Ext. 8-production list, Ext.9-Seizure list and Ext.10- paragraph 10 of the case diary. 9. The defence had also examined DW 1, Ash Mohammad on the point of borrowing money from accused by his elder Sarhu, Mahipal Sah and with regard to dispute cropping up over repayment. 10. Now coming to the evidence, it is pertinent to note that two kinds of evidence have been adduced on behalf of prosecution. The first set of evidence happens to be of those witnesses who are co-villagers of appellant while the other set of the evidence happens to be comprising of the witnesses Naiharwala of the deceased. 11. Before discussing the aforesaid two categories of evidences, first of all, we would like to refer the evidence of doctor, PW-1 who had conducted postmortem over the dead body of the deceased, Kanti Devi on 28.07.87 at 1:30 p.m. and had found following injuries:– “Postmortem was done by us on 28.07.87 at 1.10 P.M. of St. Kanti Devi, w/o Jogendra Sah of village Pakwalia, P.S. Barharia. On External exam:–Lips were blue, bloody foam escaping from mouth and nostrils; tongue swollen protruded and bruised, whole body burnt, no vesicle on the body. There was no line of demarcation; on left thigh and hip burn was bone deep and burn was bone deep on left side of back. There was singing of hairs. On dissection:–(1) There was extravasations of blood into the sub coetaneous tissue of front of neck, (2) there was laceration of muscle of neck with exhaustion of blood in them, (3) Larynx and trachea were congested and contained bloody froth, no shoot was present in them (i.e. larynx and trachea), (4) Lungs congested and on cutting them blood came out. Right side of the heart was containing dark fluid and left side was empty, (5) right side of heart was containing dark fluid blood and left side of view empty (6) brain and meningis were congested (7) Uterus contained foetus of about five months child. (8) All abdominal vessels were congested. (9) stomach was empty and there was no ulcer on stomach or duodenum (10) Bladder was full. Uterus with its contents is preserved. Cause of death:–In the opinion of the doctor the death was on account of asphyxia due to pressure over neck. Burns were postmortem in nature. (8) All abdominal vessels were congested. (9) stomach was empty and there was no ulcer on stomach or duodenum (10) Bladder was full. Uterus with its contents is preserved. Cause of death:–In the opinion of the doctor the death was on account of asphyxia due to pressure over neck. Burns were postmortem in nature. Time elapsed since death was within 36 hours.” 12. During cross-examination PW-1 had disclosed that a Board was constituted on account of difference of opinion with regard to the police report (inquest report) under an order of Civil Surgeon. Then he had disclosed that postmortem report was prepared which was based upon the finding of all the members of the Board. He had further deposed that externally there was no mark over neck. He had also denied that it was a case of suicide. 13. Therefore, from the evidence of doctor it is absolutely clear that deceased was done to death on account of throttling of her neck and only thereafter she was put on fire which happens to be postmortem injury. As per finding of the doctor, the time elapsed since death also covers the exact timing as reported by one of the accused, Janki Devi (since acquitted) regarding death of deceased Kanti Devi in her report to police officer PW-12 leading to institution of a U.D. case. 14. PW-2 happens to be the co-villager of appellant/convict. He had deposed that about two years and two months ago he heard rumour that fire had broken out and smoke was coming out from a room of Ramlochan Sah. They had opened the door. The door of room was closed. Main door was also closed. Respective doors were opened. They had gone inside and then thereafter he was declared hostile and accordingly he was confronted with his previous statement. During cross-examination he had supported the defence version. 15. PW-3 is another co-villager of appellant/convict. He had deposed that the occurrence took place about two years and two months ago while he was sitting at his Dalan along with Bihari. He heard hullah that fire had broken out in the corner room of Ramlochan Sah and cloth was burning and daughter-in-law of Ram Lochan Sah was under flame and she had died. When he reached there, she was already dead. He along with others had gone inside the room. He heard hullah that fire had broken out in the corner room of Ramlochan Sah and cloth was burning and daughter-in-law of Ram Lochan Sah was under flame and she had died. When he reached there, she was already dead. He along with others had gone inside the room. Ladder was affixed just adjacent to the room wherein daughter-in-law of Ramlochan Sah was burnt. During cross-examination, he had disclosed that he happens to be the driver of Ramjeet whose house lies western southern direction of Ramlochan Sah's house. Then he had disclosed that he was sitting in a Sahan even before sunrise. He had also said that he had seen Ramlochan going away before sunrise. After some time wife of Ramlochan as well as his son had gone for uprooting the seedlings. Then thereafter, he had also said that he had seen wife of Jogendra who, after closing main door, had gone inside her house. He claimed that he had heard sound of crying coming out from inside the house after an hour while Bihari was also present there and they had gone to main entrance of the house which was closed. Then he had gone towards house of Ramjeet and from there seen smoke coming out from western southern room of Ramlochan. At that very time wife of Ramjeet was present at her Darwaja. On hue and cry, many persons had assembled there and Bihari with the help of ladder after climbing over the roof got down inside the Aangan and then opened the main door enabling the other persons to enter inside. After going inside they had seen stove was burning and one Tasuli (metal pot) was kept thereupon. Somebody informed Jogendra and his mother who had rushed but till then the deceased had already died. After sometime Ramlochan had come. He had also said that he did not hear any sort of sound of groaning before hearing the crying of deceased coming out from the house. 16. In likewise manner PW-4 who is another co-villager had deposed supporting the defence plea with certain variation whrein she had deposed that her house lies adjacent to the house of Ram Lochan Sah and the occurrence took place about 2 years six months ago. According to her Smoke was coming out from window and Kanti thedeceased was sleeping in that room and her body was burning with fire. According to her Smoke was coming out from window and Kanti thedeceased was sleeping in that room and her body was burning with fire. She died out of burnt injuries over bed itself. She had said that she had also denied of hearing sound of cry of the deceased. The window of her house facing her house was closed. She had also claimed to have given her statement before police. 17. PW-5 another co-villager happens to be the witness over inquest. During cross-examination he also supported the defence version in its usual phenomenon. 18. Thus from the evidence of these PWs although death has been admitted but according to them it was on account of fire and burn injuries. However, they have not deposed whether the fire was accidental one. They have simply deposed with regard to non-presence of appellant/convict along with other family members (since acquitted) at the place of occurrence i.e. the house of the appellant. 19. Now, the second set of evidence has to be looked into. 20. PW-6 is Shivnath Sah, the father of deceased. He had deposed that Kanti was married with Jogendra in the year 1984 and her Gauna (second marriage) was effected in the month of November 1986 and she had been murdered on 27.07.87 at her Sasural on account of throttling of her neck and only thereafter by sprinkling K-oil over her body was put on fire. The motive for aforesaid occurrence was divulged as they (accused) were demanding golden chain. His son-in-law Jogendra the appellant in fact had also disclosed that since elder son-in-law was given golden chain he too must be given. He had said to the appellant that as the mill had been closed he was not in a position to fulfil his demand for the time being. On 22-02-87 there was dacoity in his house. After coming to know about the same, he had gone to his house and on the following day, he had gone to the place of Kanti where he found his daughter the deceased very much frightened. On great persuasion, she had divulged that her Sasuralwala were insisting for golden chain and in case of non fulfillment of the same, she will not be in a position to meet her father in future. On great persuasion, she had divulged that her Sasuralwala were insisting for golden chain and in case of non fulfillment of the same, she will not be in a position to meet her father in future. He had accordingly met and spoken to them (Sasuralwala) and had told that for the present as the mill was closed, he was not in a position to fulfil their demand. Then, he had disclosed that on 27.08.87, while he was on duty but he could not place the relevant document as the mill was closed. The marriage of Kanti Devi had materialized at the behest of his elder son-in-law, Mahipal Singh. At the first count relationship of accused persons with Mahipal was cordial but later on the accused persons were not responding to his request properly. Then he had denied the suggestion that accused persons had taken money from Mahipal and for that there arose some dispute leading to Panchyati and in the aforesaid background instant false case has been registered. He further disclosed that his statement was recorded by the police. Then he had disclosed that he was well aware with the fact that accused persons were insisting for golden chain but he could not take any legal step on account of social bindings. He had requested his elder son-in-law Mahipal to approach the accused persons and explain them that on account of closure of mill he was not in a position to fulfil their demand. Then he had elaborately explained the incident of returning of a wrist watch by appellant Jogendra and further he was also informed of demand of dowry and torture through letter written by the deceased Kanti. Howoever, he was not expecting that in the aforesaid background Kanti will be murdered. After murder of Kanti he was informed through telegram which was shown to the police. After murder of his daughter Kanti he had gone to Sasural of his daughter to know about how the occurrence was committed. Then he had disclosed that while going to Calcutta before the occurrence he had requested Mahipal to intimate the accused persons regarding financial constraints. After some time, Mahipal had informed him that accused persons are now mending themselves but even then, they were insisting upon golden chain. Then he had exhibited the letter written by Kanti, the deceased. Then he had disclosed that while going to Calcutta before the occurrence he had requested Mahipal to intimate the accused persons regarding financial constraints. After some time, Mahipal had informed him that accused persons are now mending themselves but even then, they were insisting upon golden chain. Then he had exhibited the letter written by Kanti, the deceased. Then he had admitted that he was not aware with the fact that deceased was murdered by the accused persons at the time of making statement before the police. Then he had denied the suggestions given to him on behalf of the appellant. 21. PW-7 happens to be Shanti Kumari, the younger sister of deceased. She had deposed that Kanti Devi had already been murdered by her father-in-law, mother-in-law and husband at her Sasural. She had gone along with her sister to her Sasural at the time of Gauna and stayed there for eleven days. Her mother-in-law was repeatedly complaining that elder son-in-law was gifted with golden chain and so it should also be given to them also. She further disclosed that her sister used to send letters. During her cross-examination at para-7, she had disclosed that she had accompanied her sister at the time of Gauna as per prevailing custom because her brother had declined to accompany his sister and thus she was sent. In para-8, she fairly stated that during her stay her sister was never subjected to maltreatment but there was persistent demand of golden chain in the background of the fact that eldest son-in-law was given the same. She had stated that they had further directed her to disclose this fact before her father and the aforesaid event was narrated to her by mother-in-law of her sister. In para-9 she had said that they had instructed her to inform her father that when golden chain was given to her elder sister it should also be given to them inasmuch as it was not correct that one was given while later was denied. In para-11 she had disclosed that after returning to her house she had narrated the same to her parents whereupon her parents had said to her that after improvement of financial position golden chain will be given to the appellant. In para-16 she had said that at the time of marriage of her cousin sister, Kanti had come but her brother-in-law did not accompany her. In para-16 she had said that at the time of marriage of her cousin sister, Kanti had come but her brother-in-law did not accompany her. She had further disclosed that whatever she had deposed in court, she had already disclosed to her family inmates and to none else. Then she had denied the suggestion that she had been tutored to depose against the accused persons. 22. PW-8 is grand father of deceased Kanti. He had deposed that Kanti was married with Yogendra Sah and her Gauna was effected after two and a half years thereafter. She died in her Sasural 8 or 9 months after Gauna. He came to know that her Sasrualwala (father-in-law, mother-in-law and husband) had murdered her by throttling her neck in the background of the fact that they were not given golden chain in form of dowry. He had also exhibited inland letter written by deceased Kanti as well accused Jogendra which he had produced before the police. In cross-examination at para-8, he had disclosed that he had received the letter one month prior to murder of Kanti. He along with his family members became very much apprehensive after knowing about the contents of letter. In para-9 he had disclosed that he had informed his son through letter that in case the appellant is not provided with golden chain in that event they will not be able to meet with Kanti. Kanti had written that if golden chain is not provided to them, then in that event, she will be murdered. He had sent the letter without affixing stamp but he did not remember the exact date. In para-11, he had said that after coming of his son from Calcutta he had disclosed that he had not received the letter. The aforesaid letter was subsequently returned back to him. In para-12, he had said that his statement was recorded by the police 5 or 7 days after murder of Kanti. Then he had disclosed that Gauna was effected in the month of Aghan but he could not remember the exact date. During intervening period he had received only one letter from Kanti. In para-17 he had said that he was well aware with the demand of golden chain by the accused since before receipt of letter. Then he had disclosed that Gauna was effected in the month of Aghan but he could not remember the exact date. During intervening period he had received only one letter from Kanti. In para-17 he had said that he was well aware with the demand of golden chain by the accused since before receipt of letter. At the time of Gauna Yogendra had insisted for the same over which they had said that for the present they are not in a position to fulfil their demand and assured him that the same will be given to him as soon as they will be in that position. The aforesaid demand was made before him. He had not disclosed the aforesaid demand made by the accused to his son and daughter-in-law as he himself happened to be Karta of the family. However, after receiving the letter of Kanti all the family members knew it. After receiving letter neither any reply was given nor any one of the family members were sent. No legal action was taken on that very score. In para-23 he had disclosed that he came to know that firstly, Kanti was murdered by throttling of her neck and then she was put on fire. He did not remember the fact whether he had stated this fact before police or not. He is also not remembering whether the letter contains date 16 June 1987 in the pen of Kanti and 17 in the pen of Jogendra but he had shown the letter to the I.O. at the time of giving statement before the police. Then he had also denied the suggestion that the letter is not written in the pen of Kanti as well as appellant Jogendra. 23. PW-9 is the witness of production-cum-seizure list with regard to letter which was produced by PW-8 before the investigating authority. In cross-examination, he had said that he had got no concern with the aforesaid letter. 24. PW-10 was tendered. 25. PW-11 is Mahipal Sah elder son-in-law of Shiv Nath Sah. In chief he had said that Kanti Devi was younger sister of his wife and that Kanti Devi had died. He came to know that her Sasuralwala had murdered her by throttling of her neck as was disclosed to by villagers to him. 24. PW-10 was tendered. 25. PW-11 is Mahipal Sah elder son-in-law of Shiv Nath Sah. In chief he had said that Kanti Devi was younger sister of his wife and that Kanti Devi had died. He came to know that her Sasuralwala had murdered her by throttling of her neck as was disclosed to by villagers to him. His father-in-law had disclosed to him that about 7-8 days before her death Kanti had written a letter to her grand father divulging the fact that her Sasuralwala are demanding golden chain and in case of non fulfillment of the same, she will be murdered. One person came from his Sasural who had divulged the aforesaid contents of the letter and further requested him to go to Kanti and inquire from her and on which he had gone to Kanti where he met with her father-in-law, mother-in-law and on query he had found them angry and he had further threatened him of dire consequences. They have also disclosed that the deceased had got no knowledge of cooking. At the time of taking meal Kanti had requested him (PW-11) to convey the message in her Naihar to provide golden chain immediately otherwise her life will be in danger. 26. PW 11 had exhibited one letter written by his father-n-law to Sri Paras Upadhayaya, his counsel. During cross-examination, he had disclosed that during course of marriage of Kanti he had played an active part and the marriage was negotiated at his behest. At the time of finalization of negotiation no demand was made from them. He had further disclosed that he came to know with regard to throttling of neck of Kanti from Shiv Nath Singh. They became suspicious on account of injuries in postmortem report. He had also seen the dead body. He further disclosed that the person who was sent from his Sasural had not brought letter rather he had orally requested. He had not seen the letter after death of Kanti. He is not aware of the fact that anybody else was also informed. Then he had gone to his Sasural to inform them. After his arrival at his Sasural, he came to know that they had also become aware of the fact. Then he had disclosed that the aforesaid fact was disclosed by some unknown person at his shop. He is not aware of the fact that anybody else was also informed. Then he had gone to his Sasural to inform them. After his arrival at his Sasural, he came to know that they had also become aware of the fact. Then he had disclosed that the aforesaid fact was disclosed by some unknown person at his shop. When he came to his Sasural then he knew that Kanti was murdered. While he had gone to his Sasural after two days of information received by him regarding death of Kanti he had come to know regarding letter sent by Kanti containing demand of golden chain. He had also seen the letter. He stayed there only for 2 to 3 hours. At that very time none had gone to Sasural of Kanti. He had also not gone to the P.S. as well as to the doctor. Then, he had said that he is not remembering the exact date on which his statement was recorded by the police. Then there happens to be contradiction with regard to fact that he came to know with regard to murder of Kanti as well as with regard to demand of golden chain, with regard to letter sent by Kanti. Then he at para-28 he had disclosed that grand father of Kanti had not shown the letter sent by Kanti at an earlier occasion when he was at his Sasural. When he had gone to his Sasural after the occurrence, only then he was shown the letter. He had gone to the Sasural of Kanti 6-7 days before her murder. Then he had disclosed that after returning there-from he had gone to his Sasural and had narrated the event and further requested that golden chain be provided to them. The aforesaid information was conveyed through messenger. Then he had denied the suggestion that he had given loan of Rs.3500/- to the accused persons which they had returned but as he was still insisting for the payment, on account thereof accused have been falsely implicated. 27. PW-12 happens to be the investigating officer. He in his examination-in-chief had said that on 22.07.87 while he was posted at Barharia P.S. a U.D. Case No. 1/87 dated 27.08.87 was registered for the death of Kanti. During course of investigation dead body of Kanti was sent for postmortem examination after preparing of inquest report. 27. PW-12 happens to be the investigating officer. He in his examination-in-chief had said that on 22.07.87 while he was posted at Barharia P.S. a U.D. Case No. 1/87 dated 27.08.87 was registered for the death of Kanti. During course of investigation dead body of Kanti was sent for postmortem examination after preparing of inquest report. He had also seized certain materials from the place of occurrence and for that a seizure list was prepared. After getting post mortem report it transpired to him that Kanti was done to death by throttling of her neck and on account thereof, he had recorded his own fardbeyan on the basis of which instant case has been registered and accordingly, he was entrusted with the investigation. He had visited the place of occurrence which happens to be the pucca residential house of accused Ram Lochan Sah. And then, he had properly detailed the topography of the house of appellant Yogendra. He had further disclosed that at western southern corner of the house there was a room having east front wherein one Palang (cot) was there over which the dead body of deceased Kanti Devi was kept. Toshak (mattress), bed-sheet, curtain, half burnt Sari, one copy, one half burnt petticoat, one half burnt full-pant, half-pant, pillow cover were also found. One lantern without glass and k-oil was also found. Other items were also found in room as well as just above the Palang having no sign of parch. One ladder was also found in north to exit of this room. Just east to the room, a Dokachhia Chulha was found whereupon one Tasuli was kept. No fire was found inside the Chulha. He had given the names of the persons whose house lies in the boundary of the P.O. He had seized articles and prepared the seizure list in presence of witness, also took statement of witnesses and after completing investigation submitted charge-sheet. During cross-examination, he had said that he had not mentioned in the case diary as to how he had come to know regarding death of Kanti. However, it might be possible that the same would have been entered in the station diary because of the fact that on the same day he had come to place of occurrence and a U.D. Case bearing no. 1/87 was registered on the same day. However, it might be possible that the same would have been entered in the station diary because of the fact that on the same day he had come to place of occurrence and a U.D. Case bearing no. 1/87 was registered on the same day. He had seen the P.O. on 27.08.87 and for that he had already incorporated the explanation that the room was closed. Again he had said that on 27.07.87 at the time of inspection the room was open and mother-in-law of Kanti was present there on whose statement a U.D. case was registered. Dead body was present inside the room. On 27.7.87 he did not consider relevant to seize the material exhibit. He had prepared inquest report of Kanti Devi on 27.07.87 and cause for death was written therein as on account of burn. As the whole of body of deceased was burnt so he could not be able to see the injuries over her person. He did not suspect that anybody had caused murder and then put on fire. He also did not suspect it a case of murder even after examining witnesses. None of the Naiharwala of deceased had however met with him on 27.07.87. On account of finding of the postmortem report, the U.D. case was transformed into substantial criminal case. During course of investigation on 27.07.87 he came to know that at the time of having the deceased Kanti under flame none of the accused persons were present and the main entrance door was closed from inside. However, he could not get the information. He had further disclosed that during course of investigation he had come to know that by means of ladder Bihari had gone inside the house and then opened the door. He had also stated that he could not say whether at the time of postmortem the Naiharwala of Kanti had already arrived at the hospital or not. He had further disclosed that he cannot say whether the report happens to be at the dictation of Naiharwal,of the deceased. He had disclosed that he had not seen the dead body after postmortem. He had disclosed that the accused persons on their own had surrendered before trial court well before arrest. He had further disclosed that he cannot say whether the report happens to be at the dictation of Naiharwal,of the deceased. He had disclosed that he had not seen the dead body after postmortem. He had disclosed that the accused persons on their own had surrendered before trial court well before arrest. He had claimed to have recorded statement of Bihari Sah, Ramnath Pd, Mannu Singh, Gajbi Devi, Ramashish Singh, Harishankar Prasad Singh, Pradeep Kumar, Rajendra Singh, Vidya Prasad, Vishwakarma Prasad, Harendra Prasad, Phulena Prasad. He took statement of Malti Devi on 30.07.87. He further disclosed that at the time of production of letter by Tulsi Sah, grandfather of Kanti, Mahipal was not present and he had not investigated about the letter. There was a seal of post-office on the letter but he had not examined postman. The inmates of the house of Naiharwala of deceased Kanti had disclosed that the writing on the letter happens to be that of deceased Kanti and Jogendra. However, he had not got the hand-writing of the Jogendra examined by an expert. Then he had denied the suggestion that the case was being looked after by Mahipal. He had further disclosed that from the statement of Tulsi Sah theme of demand of golden chain had emerged. He had further denied the suggestion that he had not properly investigated the case. Then there happens to be contradiction with regard to witnesses Shivnath Sah as well as Mihipal. He further disclosed that after recording statement of Tulsi Sah he had demanded the letter which was produced by him. 28. So after considering the evidence in its entirety as discussed above, there is no eyewitness to the alleged occurrence. It is also evident from the evidence of the PWs that none had pointed out the chain of circumstances which could lead to an irresistible conclusion with regard to causing murder of Kanti Devi. Thus it can be safely held that prosecution has not been able to substantiate its case beyond reasonable doubt with regard to the charge framed against appellant/convict for an offence punishable under Section 302 of the IPC. 29. As disclosed in the earlier part of judgment that two kinds of evidence have been adduced on behalf of prosecution. One happens to be that of co-villagers of the appellant/convict and the other part happens to be that of Naiharwala of deceased Kanti Devi. 29. As disclosed in the earlier part of judgment that two kinds of evidence have been adduced on behalf of prosecution. One happens to be that of co-villagers of the appellant/convict and the other part happens to be that of Naiharwala of deceased Kanti Devi. There is no controversy with regard to death of deceased Kanti Devi by throttling of her neck nor the appellant/convict has been able to discredit P.M. report according to which her dead body was put on fire after her death. That means to say homicidal death of Kanti Devi took place by means of throttling of her neck as is proven by the prosecution by examining PW-1, the doctor who held postmortem over the dead body of Kanti. 30. Apart from PW-4 none of the co-villager had deposed over cordial relationship between the appellant and the deceased. However, it is evident from the evidence of Naiharwala of deceased Kanti who are PWs-6, father of deceased, PW-7 sister of deceased, PW-8, Grandfather of deceased, PW-11-Mahipal Sah brother-in-law of the deceased the following circumstances have emerged:– (a) Deceased was married to appellant Jogendra some three years earlier to the date of occurrence. (b) After two and a half years of her second marriage Gauna was effected which led to her arrival and living together with the appellant and his family member in his house. (c) Just at the time of Gauna the appellant had advanced the demand of golden chain by way of dowry which was not given to him while the same was given to the eldest sister followed by complain made by other co-accused (since acquitted) and on that score there has been consistent and persistent demand. (d) There happens to be consistent evidence right from PWs-5 to 9 that the deceased was subjected to torture at that score and for that the prosecution party had taken every recourse of appease. (e) Letters had been written by the deceased along with Jogendra which also contains the demand of golden chain followed with consequences in case having failed to materialize the demand. (f) Deceased Kanti was done to death after 8-9 months of Gauna at her Sasural (g) Even after death, information was not conveyed to the family member in the Naihar of deceased. (h) Dead body of deceased was made to disappear under mysterious circumstances (immediately) after post mortem. 31. (f) Deceased Kanti was done to death after 8-9 months of Gauna at her Sasural (g) Even after death, information was not conveyed to the family member in the Naihar of deceased. (h) Dead body of deceased was made to disappear under mysterious circumstances (immediately) after post mortem. 31. The aforesaid circumstances are found sufficient to satisfy ingredients of Section 304B as the requirement of Section happens to be (a) the death should be within seven years of marriage (b) it should be by means of fire or in abnormal circumstances (c) there should have been demand of dowry and for that deceased is tortured soon before her death. In a decision reported in (2011) 11 SCC 359 (Bansi Lal Vs.. State of Haryana), Apex Court had dealt with proposition of Section 304(B) IPC and held in para 18, 19 and 20 which are as follows:– 18. In such a fact situation, the provisions of Section 113-B of the Evidence Act, 1872 providing for presumption that the accused is responsible for dowry death, have to be pressed in service. The said provisions read as under:– “113-B. Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.” 19. It may be mentioned herein that the legislature in its wisdom has used the word “shall” thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry. 20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death. It may also be pertinent to mention herein that the expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. 32. The evidence on record as discussed above clearly satisfy the ingredients of Section 304B IPC and on that count attracts its application. 33. At this juncture, one pertinent however question arises as to whether for want of not framing of charge under Section 304B IPC by the Trial Court can the appellant be held guilty? Without adverting to or incorporating relevant provisions of Cr.P.C. this Court would like to refer to judgment of the Constitution Bench of Hon’ble Apex Court in a decision in the case of Willie (William) Slaney Vs.. State of Madhya Pradesh reported in AIR 1956 SC 116 wherein it has been held as follows:– “30. We do not agree with either view. In our opinion, the cases contemplated by section 237 are just as much a departure from section 233 as are those envisaged in sections 225, 226, 227, 228, 535 and 537. Section 236, 237 and 238 deal with joinder of charges and so does section 233. The first condition is that there shall be a separate charge for each offence and the second is that each charge must be tried separately except in the cases mentioned in sections 234, 235 and 236. Section 236, 237 and 238 deal with joinder of charges and so does section 233. The first condition is that there shall be a separate charge for each offence and the second is that each charge must be tried separately except in the cases mentioned in sections 234, 235 and 236. It is to be observed that the exceptions are confined to the rule about joinder of charges and that no exception is made to that part of the rule that requires separate charges for each offence. It will be seen that though sections 234,235 and 236 are expressly mentioned, section 237 is not referred to, nor is section 238. Therefore, so far as section 233 is concerned, there can be no doubt that it requires a separate charge for offence and does not envisage a situation in which there is either no charge at all or where, there being a charge for some other offense of which the accused is acquitted, he can be convicted instead of something else for which he was not charged. We are unable to hold that the Code regards sections 237 and 238 as part of the normal procedure.” ****** 45. In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended by counsel AIR 1930 PC 57 (2) at p.58 (G), it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused" 'AIR 1927 PC 44 at pp. 46-47 and 49 (F)'. But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were. ****** 84. A case of complete absence of at charge is covered by section 535, where as an error or omission in a charge is dealt with by section 537. The consequences seem to be slightly different. Where there is no charge, it is for the court to determine whether there is any failure of justice. But in the latter, where there is mere error or omission in the charge, the court is also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 85. The sections referred to indicate that in the generality of cases the omission to frame a charge is not per se' fatal. We are unable, therefore, to accept as sound the very broad proposition advanced for the appellants by Mr. Umrigar that where there is no charge, the conviction would be illegal, prejudice or no prejudice. On the other hand, it is suggested that the wording of section 535 of the Code of Criminal Procedure is sufficiently wide to cover every case of 'no charge'. It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset. On the other hand, it is suggested that the wording of section 535 of the Code of Criminal Procedure is sufficiently wide to cover every case of 'no charge'. It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset. We are unable to agree that section 535 of the Code of Criminal Procedure is to be construed in such an unlimited sense. It may be noticed that this group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the powers exercisable thereunder, are with reference to a trial which has already commenced or taken place. They would, therefore, normally relate to errors of omissions which occur in a trial that has validly commenced. There is no reason to think that section 535 of the Code of Criminal Procedure is not also to be understood with reference to the same context. There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. In such cases the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration the following classes of cases may be mentioned :– (a) Where there is no charge at all as required by the Code from start to finish - from the Committing Magistrate's court to the end of the Sessions trial; the Code contemplates in section 226 the possibility of a committal without any charge and it is not impossible to conceive of an extreme case where the Sessions trial also proceeds without any formal charge which has to be in writing and read out and explained to the accused (section 210(2) and section 251(A) (4) and section 227). The Code requires that there should be a charge and it should be in writing. A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors of jurors, and there was no possible or probable prejudice. (b) Where the conviction is for a totally different offence from the one charged and not covered by section 236 and 237 of the Code. A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors of jurors, and there was no possible or probable prejudice. (b) Where the conviction is for a totally different offence from the one charged and not covered by section 236 and 237 of the Code. On a charge for a minor offence, there can be no conviction for a major offence, e.g., grievous hurt or rioting and murder. The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality. 86. Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention ; 'and the charge is a rolled-up one involving the direct liability and the constructive liability' without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence; without a charge can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant. 87. After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation, etc. Dealing with the question whether a provision in a statute is mandatory or directory, Lord Penzance observed in - 'Howard Vs.. Bondington', 1877-2 PD 203 (N). "There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. "There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end." These words can be applied 'mutatis mutandis' to cases where there is no charge at all. The gravity of the defect will have to be considered to determine if it falls within one mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case. If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lessor degree, it will be an irregularity and prejudice by way of failure of justice will have to be established. 34. In view of the aforesaid authoritative pronouncement of the Hon’ble Apex Court in the case of Willie (William) Slaney (supra) it would not be necessary for us to deal with other cases as times without number the same issue has been decided by the Hon’ble Apex Court by following its aforesaid constitution bench judgment. Reference in this connection may be usefully made to the cases of K. Prema S. Rao & Anr Vs.. Yadla Srinivasa Rao & ors with State of A.P. Vs.. Yadla Ranga Rao & Anr reported in (2003) 1 SCC 217 , Dalbir Sing Vs.. State of U.P reported in (2004) 5 SCC 334 , Shamnsaheb M. Multtani Vs.. State of Karnataka reported in 2001 (2) SCC 577 = 2001 Cri. L.J. 1075, Virendra Kumar Vs. State of U.P. reported in 2007 Cri.L.J. 1435, Annareddy Sambsiva Reddy Vs.. State of A.P. reported in (2009) 12 SCC 546 . In all these cases the Hon’ble Apex Court had decided the issue in affirmative and had convicted the accused for the respective offence for which charges were not framed against them. 35. L.J. 1075, Virendra Kumar Vs. State of U.P. reported in 2007 Cri.L.J. 1435, Annareddy Sambsiva Reddy Vs.. State of A.P. reported in (2009) 12 SCC 546 . In all these cases the Hon’ble Apex Court had decided the issue in affirmative and had convicted the accused for the respective offence for which charges were not framed against them. 35. The aforesaid issue has even recently been discussed and decided by the Apex Court in the case of Rafiq Ahmad @ Rafi Vs.. State of U.P reported in (2011) 8 SCC 300 where it has been reiterated that in presence of evidence on record to satisfy the ingredients of cognate nature of offence, conviction can be recorded in respect of an offence for which no charge has been framed. 36. The facts of the case in hand as is evident therefrom earlier discussion would divulge framing of charge against appellant for an offence punishable under Sections 302/34 as well as 201 of the IPC which after analyzing the evidence available on the record were found to be attracting Section 302 of the IPC and for that they were zeroed. To arrive at that very conclusion the Hon’ble Apex Court in the case of Rafiq Ahmad (supra) had dealt with relevant Sections of the Cr.P.C. commanding the issue as well as relevant case laws explained the situation and had dismissed the appeal. 37. In all the aforesaid decisions the Apex Court has however invariably kept in view and identified the most crucial aspect relating to prejudice to the interest of accused as a pivotal issue while holding that unless and until, it is found and held conclusively that from the nature of evidence to which the accused has been confronted with the incriminating circumstances visualizing therefrom, it would not be construed that the accused has been prejudiced because of the fact that during conduction of trial accused was well aware of the fact that what kind of evidence the prosecution has produced against him. Thus in view of law laid down by Apex Court in aforesaid cases and the facts of the present case we find it appropriate to remit the case to the trial court to proceed afresh right from the stage of recording statement of accused under Section 313 Cr.P.C. so that whatever incriminating materials for constituting offence under Section 304 IPC are available on the record should be properly placed before the appellant to enable him to answer properly or to explain those circumstances and further to lead evidence in defence if he intends to do so specially when there happens to be legal fiction of presumption against the appellant in the light of Section 113 (B) of the Evidence Act, against which the appellant must have an opportunity to rebut. This infact happens to be the spirit of law while deciding the issue as was also held by Apex Court in the case of Shamnsaheb M. Multtani Vs.. State of Karnataka (supra) wherein it was held as follows:– “31. Now take the case of an accused who was called upon to defend only a charge under Section 302, I.P.C. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B, I.P.C. as he was defending a charge under Section 302, I.P.C. alone, would, it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B, I.P.C. and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. 32. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:– If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B, I.P.C. read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B, I.P.C. But if the husband is charged only under Section 302 I.P.C. he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302, I.P.C. and was alternatively convicted under Section 304-B, I.P.C. without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law. 33. In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Section 302, I.P.C. but the offence under Section 304-B, I.P.C. has been made out, the Court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B, I.P.C. would lead to real and serious miscarriage of justice. Without affording such an opportunity to the accused, a conviction under Section 304-B, I.P.C. would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the Court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the Court that he is liable to be convicted under Section 304-B, I.P.C. unless he succeeds in disproving the presumption, it is possible for the Court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption. 34. As the appellant was convicted by the High Court under Section 304-B, I.P.C. without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial Court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B, I.P.C.” 38. Thus, concluding on this score it is necessary for us to remit the matter to the trial court. We accordingly set aside the impugned judgment of conviction and sentence with a direction to proceed afresh from the stage of statement of accused. 39. The appellant is on bail. His bail bond is cancelled. He is directed to appear before learned trial court and pray for bail in accordance with law. In case of failure on the part of appellant to respond positively within reasonable period, the learned trial court will be at liberty to proceed against him in accordance with law. 40. With the aforesaid observations and directions this appeal is, accordingly, disposed of. (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) 41. I had the advantage of going through the judgment prepared by my learned brother and while I agree with his view that in the facts and circumstances of the present case a retrial after framing charge under Section 304-B against the appellant would subserve the ends of justice but in support of it I would like to make my own additions in this judgment. 42. 42. The prosecution case as noted above is based on a written report submitted by one Baldeo Pandey, Sub Inspector of Police, in the Barharia, P.S who on 27.09.1987 in his application to the C.J.M, Siwan had stated that on 27.07.1987 at about 2:30 pm in the afternoon Smt. Janki Devi in front of her house had given her statement to him (PW-12) that in the morning of the same date at about 7 a.m., she along with her son, Yogendra Shah, the appellant had gone to the north of the Village for uprooting the paddy seedlings and on hulla she came back to her house at about 8:15 am and had seen a large number of people in front of her house as also the dead body of her daughter-in-law (Kanti Devi) the deceased aged about 90 years lying in the south Western corner of the room facing East. The Police Officer in his written report has also stated that it was Janki Devi, the mother of the appellant who had in his statement given to him (PW-12) also stated that she on inquiry from her neighbour Bihari Sah came to know that Bihari Sah had seen the smoke coming out of the room and when Bihari Shah wanted to enter inside the room, he had found the main entrance door of the angan of the house to have been bolted from inside and as such he with the use of a ladder had climbed on the roof of the house from where he could come down to the angan of the house and had opened the main entrance door, whereafter other villagers had also gone inside the angan to have found the wife of the appellant dead in a burnt condition. It is said that Janki Devi the mother of the appellant and also co-accused since acquitted by trial Court had also informed the Police Officer that in the Eastern portion of the angan, a vessel for cooking of pulse was found on a stove (chulha) and on this basis Janki Devi in her fardbeyan had made the police to believe that the deceased her daughter-in-law got accidentally burnt while cooking the food. According to her, all the factors present in the house had pointedly referred to the aforementioned conclusion of her death due to accidental fire. According to her, all the factors present in the house had pointedly referred to the aforementioned conclusion of her death due to accidental fire. The police after however investigation of the ferdbayan did not find the version of the mother of the appellant of accidental fire leading to the death of the deceased to be true specially when on receipt of the postmortem report the burn injuries were found to be postmortem injuries and strangulation of her neck to be not only ante mertem injury but also the cause of her death. 43. Thus in the written report of the Police Officer submitted to the Magistrate, it has also been stated by the informant to the police that it was this statement of Janki Devi which led to institution of UD Case No. 1/87 dated 27.07.1987 and the dead body of the deceased (Kanti Devi) was sent for post mortem for Sadar Hospital, Siwan. The Doctor conducting the post mortem in his report had, however, found throttling on the neck of the deceased to be the cause of death as also the deceased being put on fire only after her death taking place on account of throttling of her neck. The informant Police Officer had accordingly in his written report had alleged that from the post mortem report, it was absolutely clear that Janki Devi (Mother-in-law of the deceased), Ram Lochan Sah (Father-in-law of the deceased) and Yogendra Sah (the appellant husband) had jointly committed the murder of Kanti Devi by throttling her neck and after her death they had put her on fire with a view to conceal the evidence and made an abortive attempt for giving shape to the ghastly murder of the deceased as an accidental death due fire. In the light of the above narration the informant police officer had alleged committing of offence under Section 302/201/34 of the Indian Penal Code by Janki Devi, the Mother-in –law of the deceased, Ram Lochan Sah (Father-in-law of the deceased) and Yogendra Sah (the appellant husband of the deceased) and had also enclosed the post mortem report. 44. In the light of the above narration the informant police officer had alleged committing of offence under Section 302/201/34 of the Indian Penal Code by Janki Devi, the Mother-in –law of the deceased, Ram Lochan Sah (Father-in-law of the deceased) and Yogendra Sah (the appellant husband of the deceased) and had also enclosed the post mortem report. 44. It is on the basis of the aforementioned written report Barharia P.S Case No. 85/87 dated 29.07.1987 was instituted for the offences punishable under Section-302/201/34 of the Indian Penal Code and after police has submitted the chargesheet, the trial Court on 27.01.1989 had framed charges against the appellant and her both parents for the offences punishable under Section 302 read with section 34 and 201 of the Indian Penal code. The trial had thereafter taken place and while the trial Court had acquitted both the parents of the appellant by giving them benefit of doubt, the appellant was convicted for the offences punishable under Sections 302 as also Section 201 of the Indian Penal Code and was sentenced to undergo imprisonment for life and also separately rigorous imprisonment for the offence under Section 201 of the Indian Penal code by making both the sentences to run concurrently. 45. It has already been discussed at length by my learned brother that on the basis of the evidence on record the charge under Section 302/34 IPC was not at all established against the appellant but then there are materials in those evidence itself to show that the offence under Section-304B of the Indian Penal Code seems to have been prima facie made out. In fact we have heard the matter from this angle at length and have invited the counsel for both the parties to address us on this issue. Mr. Ramakant Sharma, learned senior counsel appearing on behalf of the appellant is, however, of the view that first of all even charge under Section-304B of the Indian Penal code on the basis of the evidence on record is not made out and retrial of the appellant after more than two decade of the occurrence will be wholly unfair. Mr. Ramakant Sharma, learned senior counsel appearing on behalf of the appellant is, however, of the view that first of all even charge under Section-304B of the Indian Penal code on the basis of the evidence on record is not made out and retrial of the appellant after more than two decade of the occurrence will be wholly unfair. On the other hand, learned counsel appearing on behalf of the State has submitted that the present case is a peculiar case where the prosecution despite bringing its case well within the fold of Section 304B has not been allowed to proceed further because the trial Court had framed charges under Section 302/34 IPC. In her submission the retrial of the appellant would meet the ends of justice, inasmuch as, such justice has not been done in the case of the appellant but also in the case of the victim, the deceased, a young lady who had been subjected to torture for not fulfilling the demand of dowry of the appellant and his family members and ultimately also done to death. 46. The issue in hand therefore, is as to whether when the charge under Section-302/34 as also section 201 of the Indian Penal code has failed, can the appellant be allowed to get scot free even if there are sufficient materials in the evidence for framing of charge under Section 304-B of the Indian Penal Code. it has to be taken into account that the deceased wife of the appellant was 19 years old lady who was married to the appellant in 1986 and came to stay with her husband after her Gauna (second marriage) in November-1986 and her death, in the house of the appellant, took place on 27.07.1987. it has to be taken into account that the deceased wife of the appellant was 19 years old lady who was married to the appellant in 1986 and came to stay with her husband after her Gauna (second marriage) in November-1986 and her death, in the house of the appellant, took place on 27.07.1987. There is also no dearth of evidence to constitute the offence under Section 304-B of the Indian Penal code against the appellant, inasmuch as, from its perusal and scanning it is well established that the death of the deceased within two years of her marriage was caused by bodily injury namely, by strangulation of her neck as conclusively found in the post mortem report already discussed by my learned brother in the earlier part of this judgment such evidence also discloses that soon before her death she was subjected to cruelty at the time of her Gauna (second marriage) both by her husband and her husband’s family members in relation to demand of dowry. In such a situation if the trial Court had altogether proceeded on an erroneous charge under Section 302 of the Indian Penal Code which could not be obviously brought home, the case would be still one of dowry death and the appellant being the husband shall be presumed to cause her death and eventually becoming liable for being prosecuted for the offence of dowry death and unless such presumption is successfully rebutted and explained by him. It has to be always kept in mind there is not only a presumption of law in relation to such death but also a deemed liability fastened upon husband by operation of law in terms Section 113-B of the Evidence Act. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Rajesh Bhatt Vs. The State of Uttaranchal reported in 2012(7) SCC 91 wherein it has been held as follows:– "15. Before we examine the merit or otherwise of this contention, it will be useful to state the basic ingredients of Section 304-B IPC. The requirement of Section 304-B is that the death of a Woman be caused by burns, bodily injury of otherwise than in normal circumstances, within seven years of her marriage. Before we examine the merit or otherwise of this contention, it will be useful to state the basic ingredients of Section 304-B IPC. The requirement of Section 304-B is that the death of a Woman be caused by burns, bodily injury of otherwise than in normal circumstances, within seven years of her marriage. Further, it should be shown that soono before her death she was subjected to cruelty or harassment by her husband or her husband's family or relatives and thirdly, that such harassment should be in relation to a demand for dowry. Once these three ingredients are satisfied, her death shall be treated as a "dowry death" and once a "dowry death" occurs, such husband or relative shall be presumed to have caused her death. Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is not only a presumption of law in relation to a death but also a demand liability fastened upon the husband/relative by operation of law. 16. This Court, in Bansi Lal Vs. State of Haryana reported in 1998 SCC (Cri) 604 while analysing the provisions of Section 304-B of the Act, held as under:(SCC pp.366-67, paras 18-20) "18. In such a fact situation, the provisions of Section 113-B of the Evidence Act, 1872 providing for presumption that the accused in responsible for dowry death, have to be pressed in service. The said provisions read as under:– '113-B, Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty of harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.' (emphasis supplied) 19. It may be mentioned herein that the legislature in its wisdom has used the word 'shall' thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to crutlty or harassment in connection with any demand of dowry. It may be mentioned herein that the legislature in its wisdom has used the word 'shall' thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to crutlty or harassment in connection with any demand of dowry. It is unlke the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a Woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 yeas of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry. 20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raised a presumption that he accused has caused the dowry death. It may also be pertinent to mention herein that the expression 'soon befoer her death' has not been defined in either of the statutes. Therefore, in each case, the court hs to analyse the facts and circumstances leading to the death of demand of dowry and act of cruently or harassment and the death, (Vide T. Aruntperunjothi Vs.. State reported in (2006)9SCC 467, Devi Lal Vs.. State of Rajasthan, reported in (2007)14 SCC 176 , State of Rajasthan Vs.. Jaggu Ram, reported in (2008) 12 SCC 51 , SCC p. 56 para: 13 Anand Kumar Vs.. State of M.P. reported in (2009) 3 SCC 799 and Undavalli Narayana Rao Vs.. State of A.P. reported in (2009) 14 SCC 588) Similar view was also taken by this Court in Biswajit Halder Vs.. State of W.B. reported in (2008) 1 SCC 202 ." 47. The submission of Mr. State of M.P. reported in (2009) 3 SCC 799 and Undavalli Narayana Rao Vs.. State of A.P. reported in (2009) 14 SCC 588) Similar view was also taken by this Court in Biswajit Halder Vs.. State of W.B. reported in (2008) 1 SCC 202 ." 47. The submission of Mr. Ramakant Sharma, learned senior counsel that such retrial should not be ordered in view of the long lapse of time of 25 years from the date of occurrence as of now is around 50 years of age because on the date of his examination under Section 313 Cr.P.C i.e. on 10.09.1989 he was aged about 25 years does not impress us. In fact, the circumstances put to him by the trial Court while recording his statement under Section 313 Cr.P.C would itself go to show that some of the ingredients under Section 304-B of the IPC were also confronted to him as would be evident from the following questionnaire:– Q. No. 1. Is it correct to say that you were married to Kanti Devi, the daughter of Shiv Nath? Ans. Yes. Q. No.2. It has come in evidence that at the time of your marriage you were demanding a Gold Chain and when it was not given to you, you used to consistently torture Kanti Devi, your wife? Ans. Not at all. Q. No.3. Is it correct to say that it has come into evidence that on 27.07.1987 you had strangulated the neck of your wife Kanti Devi and thereafter had also burnt her and had walked away by closing the door of the house? Ans. Not at all. Q. No.4. Is it correct to say that it has come into evidence that when the villagers had opened the door, your wife was found to be lying dead? Ans. Not at all. Q. No.5. Is it correct to say that it has come into evidence that the Doctor in post mortem report had found the cause of death of your wife being strangulation of her neck. Ans. I was not there. Q. No.6. It is correct to say that it has come into evidence that you got this letter written demanding Gold Chain from the family members of your Sasural? Ans. No, this letter has not been written by me. 48. Ans. I was not there. Q. No.6. It is correct to say that it has come into evidence that you got this letter written demanding Gold Chain from the family members of your Sasural? Ans. No, this letter has not been written by me. 48. In view of the above, it was quite possible for us to take a view as has been consistently held by the Apex Court that conviction can be also recorded by the appellate Court on a charge on which the trial was not held if there was evidence on record and the circumstances were put to the accused as was held in the case of so and so reported in Rafiq Ahmad alias Rafi Vs. State of Uttar Pradesh 2011(8) SCC 300 as also in the case of Mr. Nageshwar Rao Vs. State of Andhra Pradesh 2011(2) SCC 188 and Shamnsaheb M. Multtani Vs. State of Karnataka reported in 2001(2) SCC 577 . 49. We, however, having regard to the fact that the specific case of prosecution on the basis of which trial was held against the appellant was one under Section 302/34 IPC and 201 IPC would like to adopt the course as suggested in the case of Shamnsaheb M. Multtani (supra) as has been quoted in the judgment of my learned brother. 50. The submission that such retrial has to be ordered in rare of the rarest cases has already been answered by the Apex court in the case of Zahira H. Sheikh and Anr Vs. The State of Gujarat and others, reported in 2004(4) SCC 158 wherein, it was held as follows:– "54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not go ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot abdicated or diluted and diverted by manipulative red herrings. 55. The courts, at the expense of repetition we may state, exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and notice. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself." 56. As pithily stated in Jennison Vs. Baker (All ER p. 1006d) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope." Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice." 51. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice." 51. Even recently the Principle for holding retrial has been reitereated in the case of Mohd. Husain alias Julfikar Ali Vs. State (Government of NCT of Delhi) reported in 2012(9) SCC 408 :– "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the rights of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his facour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered." 52. In the aforesaid case of Md. Hussain (supra) it was held that guiding factor for retrial must always be the demand of justice. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered." 52. In the aforesaid case of Md. Hussain (supra) it was held that guiding factor for retrial must always be the demand of justice. Here also, this Court would find that the punishment in crimes against married woman has been reinforced by amendment made in the Penal Code and the Evidence Act and the legislature had made Penal Law more stringent for dealing with the punishment for offences against married woman. Such stringent law would have deterrent effect on the offenders only if they are also strongly implemented by the law Courts to achieve the legislative intent. 53. In view of the above, I am of the firm view that the trial Court must proceed afresh against the appellant from the stage of recording of statement of the appellant under Section 313 Cr.P.C. The trial Court however should proceed only against the appellant alone and not against the other two co-accused persons whose acquittal remains unchallenged. Thus the appellant should be put to of all incriminating material circumstances constituting the ingridients under Section 304-B I.P.C. from evidence adduced by the prosecution giving him an opportunity to disprove the presumption as to why he should not be held liable for being convicted and sentenced for the offence punishable under Section-304B of the Indian Penal Code. It is also clarified that the appellant will also have an opportunity to lead his evidence in defence. 54. With the aforementioned additional reasons I concur with the views taken by my learned brother both in respect of setting aside the impugned judgment of conviction and sentence of the appellant as also directing the trial Court to conduct retrial against the appellant from the stage of recording of his statement of under Section-313 Cr.P.C and also permitting him to enter into defence evidence, if any, the trial Court, however, must complete such exercise of retrial of the appellant within a period of one year from the date of receipt of this judgment. 55. Thus I fully endorse the view taken by my learned brother that retrial of the present case will meet the ends of Justice.