ORDER : This appeal is directed against the judgment of conviction and order of sentence dated 11.6.2001 and 12.6.2001 respectively passed in Sessions Trial No. 296 of 1998 whereby and whereunder, 1st Additional Sessions Judge, Palamau while acquitting the appellant of the charges under Sections 304B and 498A of the Indian Penal Code convicted him for the offence punishable under Section 302 of the Indian Penal Code for committing murder of his wife, Seema Devi and sentenced him to undergo rigorous imprisonment for life. 2. The case of the prosecution is that the deceased-Seema Devi had been married to appellant-S. Kumar Tiwari @ Sumer Kumar Tiwari in the year 1996. After marriage when the deceased-Seema Devi started living in her in-laws place, the appellant (husband), two brothers-in-law (Devars), Uncle-in-law and Aunt-in-law started subjecting the deceased-Seema Devi to torture on account of non-fulfillment of demand of dowry of Rs. 20,000/- and also a Cow and a Bullock. On 5.6.1997 when the deceased had come to the house of her brother-Ashok Kumar Dubey (P.W.1), she disclosed all those things to him. Thereafter, Seema Devi went to her in-laws place. On 7.6.1997 at about 5:00 pm, one Jaymati Devi (not examined) informed the informant-Ashok Kumar Dubey (P.W.1) that his sister has died on account of being burnt. On knowing this, when the informant went to his sister's place, he found her sister dead. 3. On such accusation, a case was lodged, which was registered as Chainpur P.S. Case No. 64 of 1997 under Section 302 of Indian Penal Code. 4. The matter was taken up for investigation. During investigation, the dead-body was sent for postmortem examination which was conducted by Dr. Ram Nath Choudhary-P.W.6. During examination, he did find the following injuries :- (i) Extensive burn injuries from head to toe involving face scalp, trunk, chest, abdomen both upper extremity and lower extremity; (ii) Left upper limb was almost charred; (iii) Shoulders, elbows and fingers were flexed attitude; (iv) Hairs, eyebrows, pubic hairs were all burnt; (v) Protusion of the tongue and blood and froth were found coming out from nose and mouth; (vi) No external mark found over the neck since skin over neck was burnt. 5. On dissection of the neck, anterior neck muscles were found bruised and blood clots were also found present under neck-muscles. No carbon particles or shoot were found present in the trachea. 5. On dissection of the neck, anterior neck muscles were found bruised and blood clots were also found present under neck-muscles. No carbon particles or shoot were found present in the trachea. On dissection of abdomen, all internal viscera were found intact. 6. Accordingly, the Doctor issued postmortem examination report (Ext. 2) with an opinion that the death was caused due to asphyxia most probably from throttling. The burn injuries were post mortem. 7. The Investigating Officer upon completion of the investigation submitted charge-sheet upon which cognizance of the offence was taken against the appellant and others and the matter was committed to the Court of Sessions, where this appellant and his two brothers along with his uncle and aunt were put on trial for the charges under Section 304B/34 and 498A/34 of the Indian Penal Code. This appellant was further charged under Section 302 of the Indian Penal Code. The appellant and the other accused persons pleaded not guilty and claimed to be tried. 8. During trial, the prosecution examined altogether six witnesses. Of them, P.W.1-Ashok Kumar Dubey is the informant who did testify that he upon being informed by Jaymati Devi that his sister has died, went to the place of his sister and found her dead and according to him, death was natural. This witness was declared hostile. P.W.2-Paras Nath Dubey, P.W. 3-Gopal Prasad Dwivedi and P.W.5-Narendra Dubey did testify that when they came to know from P.W.1-Ashok Kumar Dubey that his sister-Seema Devi has been done to death, they went to her place and found her dead. P.W.4-SHREE CHANDRASHEKHAR Dubey has testified that when he came to the place of the deceased, he found the deceased burnt to death. Dr. Ram Nath Choudhary has been examined as P.W.6. 9. On the aforesaid materials, the court did find that the prosecution has failed to bring home the charges levelled against the accused persons either under Section 304B or 498A of the Indian Penal Code. Accordingly, all the accused persons, including this appellant, were acquitted of those charges. However, the court did find this appellant (husband of the deceased) guilty, as the deceased being wife of the appellant was found burnt to death. Accordingly, all the accused persons, including this appellant, were acquitted of those charges. However, the court did find this appellant (husband of the deceased) guilty, as the deceased being wife of the appellant was found burnt to death. The court perhaps on presumption that this appellant, being husband was there in the house, could only be responsible for causing her death and hence convicted the appellant for the offence under Section 302 of the Indian Penal Code and accordingly, recorded the judgment of conviction and order of sentence. 10. Being aggrieved with the said judgment of conviction and order of sentence, this appeal has been preferred. 11. Mr. P.C. Tripathi, learned senior counsel appearing for the appellant, submits that there has been absolutely no evidence to the effect that this appellant committed murder of his wife. However, the court found the appellant guilty on the presumption that it was the husband who could be only responsible for committing murder of his wife, but in absence of such factual fact that at the time of occurrence, none other than this appellant was present in the house, in which the deceased was found dead, the court committed illegality. 12. However, learned counsel appearing for the State submits that in the facts and circumstances, the court never seems to have committed any illegality in convicting the appellant who was none other than the husband of the deceased and the deceased was found to be done to death by strangulation and was burnt to death, which is evident from the evidence of the doctor. 13. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the appellant and the other accused persons have been acquitted of the charges proved under Sections 304B and 498A of the Indian Penal Code, as no evidence was there to the effect that the deceased was done to death on account of non-fulfillment of demand of the dowry. However, the court found this appellant (husband of the deceased) guilty for the offence under Section 302 of the Indian Penal Code, as the deceased was found to have been strangulated to death for which only the husband would be responsible. However, the court found this appellant (husband of the deceased) guilty for the offence under Section 302 of the Indian Penal Code, as the deceased was found to have been strangulated to death for which only the husband would be responsible. The court would have justified in recording such conviction, had the evidence been there that at the time of occurrence, it was only the appellant who was there in the house along with the deceased. In that event presumption could have been drawn in terms of Section 106 of the Evidence Act against the appellant for the reason that it must have been within the special knowledge of this appellant as to how the deceased died. In absence of any cogent explanation suggesting innocence of the accused, adverse inference could be drawn that it must be the accused only who could have committed the office (sic-offence?). 14. In this regard, we may refer to the said provision which reads as follows :- “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 15. But in the facts and circumstances as we have noted above that the prosecution failed to prove the basic factum that at the time of occurrence, it was only the appellant who was present in the house in which the deceased was found to have been burnt to death. 16. In that view of the matter, the presumption in terms of Section 106 of the Evidence Act cannot be drawn and thus, we do find that the trial court committed illegality in recoding the judgment of conviction and order of sentence against the appellant. 17. Accordingly, the judgment of conviction and order of sentence awarded by the trial court is hereby set aside and the appellant is acquitted of all the charges levelled against him. Consequently, the appellant is directed to be released forthwith, if not wanted in any other case. 18. In the result, this appeal stands allowed.