JUDGMENT : Tapash Mookherjee, J. The present appeal is against the judgment and order of conviction and sentence dated 06-03-2007 and 08-03-2007 passed by the learned Additional District and Sessions Judge, Fast Track Court- 1 at Tamluk, Purba Midnapore in Sessions Trial Case No. 6 (7) 2005 (Sessions Case No. 96 of 2004) convicting the appellant for the offences punishable under Sections 498A-302, I.P.C. 2. The facts leading to the present appeal in short, are as follows: 3. On 09-10-1997 one Tuku Bala Mondal of village Mundasarai submitted a written complaint to Khejuri Police Station in the district Midnapore and thereby alleged that her daughter Shephali and the Appellant Biswaranjan Midya Chowdhury were married on 10th May, 1996 and after such marriage her daughter Shephali lived with the Appellant in the Appellant’s house at village Boga. In the said complaint it is further alleged by the complainant that since after marriage the Appellant started torture on her daughter and in the night of 8th October, 1997 she received an information from a co-villager of the Appellant that her daughter was killed by the Appellant after which she along with some of her co-villagers rushed to the house of the Appellant where they found the dead body of her daughter lying on a cot in the house of the Appellant with marks of severe burn injuries and after seeing her daughter’s dead body in such condition she suspected that her daughter had been killed by the Appellant. On the basis of such written complaint Khejuri P.S. Case No. 53/1997 dated 09-10-1997 under Sections 498A/302/201, I.P.C. had been started against the Appellant and after completion of investigation charge-sheet under Sections 498A/302/201/34, I.P.C. was submitted against the Appellant and two daughters of the Appellant by his previous wife, namely, Shubhra alias Mamani Das and Sampa Bhunia. 4. Considering the materials collected during investigation charge under Section 498A read with Section 34, I.P.C. had been framed against all the aforesaid accused persons in the charge-sheet and an additional charge under Sections 302/201, I.P.C. had been framed against the present Appellant. 5. During trial prosecution examined six witnesses in total and relied on some documents, as well. Defence tendered no evidence whatsoever. 5. During trial prosecution examined six witnesses in total and relied on some documents, as well. Defence tendered no evidence whatsoever. Having considered the evidence thus brought on record learned Trial Court found the Appellant guilty of the offences punishable under Sections 498 A/ 302, I.P.C. and sentenced the Appellant to imprisonment for life and fine of Rs. 1,00,000.00 (rupees one lakh only) for the offence of murder. No separate sentence was passed for the offence under Section 498-A, I.P.C. The other two accused persons in the case were found not guilty of the charge framed against them and they were acquitted accordingly. 6. Being aggrieved by and dissatisfied with the judgment of conviction and order of sentence, the Appellant filed the present appeal. 7. Mr Chatterjee, learned Counsel for the Defence has argued that neither there is any direct evidence nor any circumstance has been proved, beyond doubts, to prove the charges against the Appellant and that the case has not been properly investigated at all as admitted by the Investigating Officer himself during his evidence before the court and as such learned Trial Court has committed gross error in law convicting and punishing the Appellant in the case. 8. On the other hand, Mr. Roy Chowdhury appearing for the State argued that the tongue of the dead body was found ' protruding with the teeth biting it, as found from the Inquest Report ' Exhibit- 2/2' and he further submitted that it can be so only where the death is by throttling and in case of death due to burning the tongue cannot be found protruded. Mr. Roy Chowdhury further argued that after the incident of the death of the Appellant’s wife the Appellant was found alone inside his house when the villagers gathered there. As stated by P.W.-2 and P.W.-3 and as such onus lied upon the Appellant under Section 106 of the Evidence Act to explain as to how the fire took place in the house of the Appellant due to which the Appellant’s wife sustained hundred per cent burn injury, as such a fact was exclusively within the knowledge of the Appellant and as the Appellant failed to discharge such onus the Appellant can be held guilty of the charge of murder on such circumstances alone. Mr. Mr. Roy Chowdhury admitted that the investigation was faulty in the case but according to him the Appellant cannot claim any benefit for it. 9. There is no doubt to the fact that the Appellant’s wife died due to burn injuries inside the Appellant’s house. But there is no direct evidence to link the Appellant with such incident of fire in the house of the Appellant causing the death of the Appellant’s wife. 10. In fact, prosecution’s case depends upon circumstantial evidence only. Appellant’s alleged confession of guilt before his co-villagers is considered by the Trial Court as a circumstance against the Appellant. 11. Five witnesses have been examined during trial excluding the I.O. Out of them P.W.-1 was the de facto complainant and P.W.-4 and P.W.-5 accompanied P.W.-1 to the spot after the incident. From their evidence it is clear that they did not find the Appellant in the Appellant’s house when they had reached there. P.W.-2 and P.W.-3 stated that having reached to the house of the Appellant they found the dead body of the Appellant’s wife and on asking the Appellant confessed his guilt before them, as well as, before Bandita Mirdhya the member of the Panchayat and her husband Badal Mirdhya and after such confession the Appellant was confined in the house of Bandita Mirdhya to be handed over to the Police later and that ultimately the Appellant managed to escape from there. Similar was the version of P.W.-3. But neither P.W.-2 nor P.W.-3 reproduced the exact statement of the Appellant, if any, confessing his guilt. The said Panchayat member Bandita Mirdhya or Badal Mirdhya are definitely the most important witnesses on the point but they have not been examined by the prosecution. Moreover, from the evidence of P.W.-2 and P.W.-3 it further appears that after the incident the Appellant was surrounded by the villagers putting pressure upon the Appellant. In the circumstances statement, if any, made by the Appellant before the villagers cannot be considered to be free and voluntary statement. So, the alleged extra-judicial confession by the Appellant cannot be relied upon. The decision reported in 2014 (5) CHN (Cal) 133 : (2014 Cri LJ (NOC) 169 (Cal)) Nantu Roy alias Kalyan Roy v. State of West Bengal with Aparajita Bose Alias Munmun v. State of West Bengal, cited by Mr. Chatterjee, is relied on the point. During hearing Mr. So, the alleged extra-judicial confession by the Appellant cannot be relied upon. The decision reported in 2014 (5) CHN (Cal) 133 : (2014 Cri LJ (NOC) 169 (Cal)) Nantu Roy alias Kalyan Roy v. State of West Bengal with Aparajita Bose Alias Munmun v. State of West Bengal, cited by Mr. Chatterjee, is relied on the point. During hearing Mr. Roy Chowdhury has not also put much emphasis on the point. 12. Admittedly at the relevant time the Appellant and his wife were only residing in the Appellant’s house where the incident of fire took place. P.W.-2 and P.W.-3 stated that getting the news of fire in the Appellant’s house they rushed to the Appellant’s house, found fire therein and they doused the fire and that they found the Appellant present in the Appellant’s house. To fasten the Appellant with the liability under Section 106 of the Indian Evidence Act the prosecution has to prove that the Appellant was present in his house at the time or immediately before the incident of fire in the house of the Appellant. But none of the witnesses for the prosecution stated that they found the Appellant in the Appellant’s house prior to or immediately before the incident of fire. It should be noted here that the Appellant during his examination under Section 313, Cr.P.C. took up a plea that he was playing card in the Puja Pandal nearby, at the time of incident of fire in his house. 13. In the case reported in AIR 1956 SC 404 , Shambu Nath Mehra v. The State of Ajmer, and cited by Mr. Chatterjee, it has been held that the prosecution can bank upon the provision in 106 of the Evidence Act in exceptional cases only where it is impossible or difficult for the prosecution to establish facts which are especially within the knowledge of the accused and when knowledge of such facts is equally available to the prosecution by exercising due diligence it cannot be said that such a fact is within the exclusive knowledge of the accused. In the present case it was not impossible or difficult for the prosecution to ascertain as to whether the Appellant was at the time or before the incident of fire in the Appellant’s house. But the I.O. during his evidence (P.W.-6) candidly admitted to a question by the Court that he had not verified the fact. In the present case it was not impossible or difficult for the prosecution to ascertain as to whether the Appellant was at the time or before the incident of fire in the Appellant’s house. But the I.O. during his evidence (P.W.-6) candidly admitted to a question by the Court that he had not verified the fact. In the circumstances the prosecution cannot shift their burden on the point upon the shoulder of the Appellant just on the strength of the provision in Section 106 of the Indian Evidence Act. 14. Admittedly the victim is the third wife of the Appellant and it is also found from the evidence on record that the first wife of the Appellant left the house of the Appellant and the second wife of the Appellant committed suicide after which the Appellant married the present victim. But these facts themselves do not show that the Appellant has killed his third wife also and we find no force in such contention of the prosecution. 15. It is very interesting to note that the I.O. himself admitted before the Court that there is no evidence of homicidal death of the victim and that he submitted charge-sheet under Section 302, I.P.C. only on the basis of the statements of some witnesses to the effect that the Appellant confessed his guilt before them. As discussed earlier, the alleged extra-judicial confession by the Appellant has no force in the present case. 16. The Doctor performing P.M. Examination has not been examined during the trial and the P.M. Report has not been proved and admitted in evidence according to law. Be that as it may, it is not noted in the P.M. Report that the tongue in the dead body was found protruded. In the circumstances the Inquest Report on the point loses importance. 17. Cause of the fire or the source of the fire in the house of the Appellant has not been investigated. In fact, from the answers of the I.O. to some questions by the Court it is found that the case has not been properly investigated at all. 18. According to Mr. Roy Chowdhury the Appellant cannot be acquitted just because there are faults in the investigation. It is true that a prosecution case should not suffer just because of some faults in the investigation, if the prosecution case is otherwise proved by the evidence collected during investigation. 18. According to Mr. Roy Chowdhury the Appellant cannot be acquitted just because there are faults in the investigation. It is true that a prosecution case should not suffer just because of some faults in the investigation, if the prosecution case is otherwise proved by the evidence collected during investigation. Otherwise to say, if a case is proved by the prosecution by dependable evidence then minor faults in the prosecution may be ignored. But in the present case the prosecution has totally failed to prove their case. So, the contention of Mr. Roy Chowdhury is not acceptable. 19. Mr. Chatterjee has drawn our attention to the manner of examination of the Appellant under Section 313, Cr.P.C. and according to him learned Trial Court examined the Appellant with a pre-notion that the Appellant committed the crime and the Appellant has been seriously prejudiced for such manner of examination under Section 313, Cr.P.C. 20. Having gone through the evidence on record and the questions formed and asked during the examination of the Appellant under Section 313, Cr.P.C. it is found that some irrelevant and unreasonable questions have been asked by the Court which is not fair and desirable. 21. P.W.-1, P.W.-4 and P.W.-5 in their evidence stated that the Appellant subjected the victim to tortures since after the marriage of the Appellant with the victim. But none of those witnesses stated about any reason behind such tortures. Their statements on the point were of general in nature. So, the charge under Section 498-A, I.P.C. against the Appellant is not also proved. 22. Having thus scrutinised the evidence on record, as well as, the submissions of the learned Counsels on both sides we are of the view that the case has not been properly investigated at all, as admitted by the I.O. himself during the evidence of I.O. it is also to be noted here that the Doctor performing the Post-Mortem Examination had not perhaps examined the dead body with due care and caution. 23. So, from what has been discussed above, it is clear that the prosecution failed totally to prove any of the charges against the Appellant. We have, therefore, no hesitation to hold that learned Trial Court has wrongly convicted the Appellant of the offences alleged. Hence, the appeal is allowed. 23. So, from what has been discussed above, it is clear that the prosecution failed totally to prove any of the charges against the Appellant. We have, therefore, no hesitation to hold that learned Trial Court has wrongly convicted the Appellant of the offences alleged. Hence, the appeal is allowed. The judgment and order of conviction passed against the Appellant in Sessions Case No. 96 of 2004 (Sessions Trial No. 6 (7) 2005) by the learned Additional District & Sessions Judge, Fast Track Court- 1, Tamluk, are hereby set aside and the Appellant is found not guilty of the charges under Section 498 A/302, I.P.C. The Appellant be released at once, if he is not liable to be detained in any other case. The L.C.R. along with a copy of this judgment be sent down to the Trial Court. 24. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities. Indira Banerjee. J. :- 25. I agree. Appeal allowed.