JUDGMENT : Aniruddha Bose, J. 1. The appellant has been convicted of offences of under Sections 498A/302 of the Indian Penal Code for subjecting his deceased wife, Tapasi to continuous mental and physical torture and ultimately committing her murder in the morning of 5th September 1998 upon setting her on fire after pouring kerosene oil on her. The appellant and the victim hail from the same village, Nawpala in the district of Howrah. They had two sons and one daughter from their marriage. The Additional District and Sessions Judge, Fast Track Court 1, Uluberia delivered the judgment on 25th July 2008, finding the appellant guilty of the aforesaid offences. The appellant has been directed by the First Court to undergo sentence of rigorous imprisonment for life with fine of Rs.1,00,000/- for committing the offence under Section 302 of the IPC. The sentence prescribes further rigorous imprisonment of one month in default in payment of fine. For committing the offence under Section 498A of the IPC, the appellant has been sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.3,000/-. In default of payment of fine, the appellant has been directed to undergo further rigorous imprisonment for a term of three months. The victim died in her matrimonial home on 5th September 1998. The postmortem report records the provisional opinion of the autopsy surgeon as regards the cause of death to be acute shock due to extensive burn which was ante-mortem in nature. It is also recorded in the opinion column of the postmortem report that final opinion would be given on receipt of repots of chemical analysis. No final report however was available at the time of trial. At the material point of time, the appellant was working as a class four staff with the Indian Railways. 2. A written complaint was made by the father of the deceased, Kartick Das (P.W. 13) on 6th September 1998, the day following the date of alleged commission of offence. The formal FIR was registered on the basis of that complaint as P.S. Bagnan FIR No. 93/98 dated 6th September 1998. This has been marked Exhibit 7 by the First Court at the time of trial. In the written complaint the P.W. 13 (father of the deceased) has in substance alleged that his son-in-law, the appellant used to torture the deceased physically and mentally. This has been marked Exhibit 7 by the First Court at the time of trial. In the written complaint the P.W. 13 (father of the deceased) has in substance alleged that his son-in-law, the appellant used to torture the deceased physically and mentally. According to the P.W. 13, the appellant was addicted to gambling which the deceased tried to prevent him from indulging in and torture was inflicted on her because of such objection or resistance. On the night of 4th September 1998, the appellant had beaten up the deceased severely, as it appears from the written complaint, and in the morning of 5th September also the victim was assaulted. At about 11.30 A.M., on the day of occurrence of the incident one Haru Das (P.W. 8) had informed the son of the complainant Bapi Das (P.W. 1) that there was fire in the residential house of the appellant. When the P.W. 1 reached the matrimonial home of the victim, he found his sister lying dead in burnt condition. It has been stated in the written complaint that the de facto complainant came to know from the local people as also from the son of the victim Gouranga (who has deposed as P.W. 6) that the appellant was inside the room when the victim was burning and he fled when smoke started billowing out of the room and the neighbouring people started shouting. 3. Though written complaint was made on the next day, police had reached the place of occurrence for inquest on that very day, on the basis of an Unnatural Death case registered as U.D. Case No. 61/98 of Bagnan police station. It appears from the deposition of P.W. 1 that their Gram Pradhan, one Naren Mukherjee, had reported to police of occurrence of the incident. The unnatural Death case, however, was registered on the basis of information given by one Sailen Bhowmik. It transpires from the deposition of P.W.15, Bhaskar Das (one of the two officers who investigated the case) that it was a written information, but the same did not disclose any cognizable offence. Assistant sub-inspector Nimai Sasmal (P.W. 10) conducted inquest as per direction of P.W. 15 between 4 PM and 4.30 PM on the date of occurrence itself. This inquest was made on the basis of the unnatural death case. Assistant sub-inspector Nimai Sasmal (P.W. 10) conducted inquest as per direction of P.W. 15 between 4 PM and 4.30 PM on the date of occurrence itself. This inquest was made on the basis of the unnatural death case. This appears from endorsement made on the Inquest Report, which have been marked Exhibit 1/1. The body of the deceased was sent to the morgue of the Uluberia Sadar hospital for ascertaining the cause of death through a constable, Krishna Mohan Mitra. The autopsy surgeon Dr. M.A. Chowdhury (P.W. 14) deposed that the dead body was brought from the house of the appellant, and was identified by said Krishna Mohan Mitra. Postmortem was conducted at Uluberia hospital morgue. It is revealed from deposition of P.W. 15, that the appellant was not initially traceable but he had surrendered before the Court later, on 15th September 1998. Thereafter he was taken into custody. Charges were framed by the Court under Sections 498A and 302 of the Indian Penal Code, 1860 (IPC), to which the appellant pleaded not guilty. 4. In the trial, the prosecution examined seventeen witnesses, whereas the defence examined three witnesses. Among the seventeen prosecution witnesses the P.W. 3 (Champa Nayek, wife of the brother of the appellant), P.W. 4 (Laxmi Nayek), P.W. 5 (Nimai Nayek), all being relatives of the appellant, P.W. 6 (Gourango Nayek son of the appellant and the victim) P.W. 9 (Pratima Nayek – daughter of the appellant and victim) as also P.W.11 – Lal Mohan Das (paternal uncle of the victim) and Kanchan Roy (P.W. 12, a co-villager) were declared hostile. P.W. 10 deposed as the officer who made inquest. PW. 15 and P.W. 16 (Biman Behari Dey) were the two Investigating Officers of the case, and they were also examined by the prosecution. P.W. 15, the first Investigating Officer was transferred before investigation was completed on or about 18th July 2001. The case was thereafter endorsed to P.W. 16 for further investigation on 10th August 2001. Major part of the investigation work, however, was undertaken by the P.W. 15. P.W. 17 (Meghnath Roy), a police witness proved the GD entry bearing No. 318 dated 6th September 1998. Other prosecution witnesses were Bapi Das (P.W. 1 – brother of the victim), Anandomohan Mukhopadhyay (P.W. 2, a co-villager of both the appellant and the de facto complainant) who was also the scribe of the written complaint. P.W. 17 (Meghnath Roy), a police witness proved the GD entry bearing No. 318 dated 6th September 1998. Other prosecution witnesses were Bapi Das (P.W. 1 – brother of the victim), Anandomohan Mukhopadhyay (P.W. 2, a co-villager of both the appellant and the de facto complainant) who was also the scribe of the written complaint. P.W. 7 (Bandana Das mother of the victim) and P.W. 8 (Haru Das, a relative of the victim). 5. Prosecution version of the case is that the appellant used to assault the victim on regular basis as he was in the habit of wasting money because of his gambling habits and on some occasions the mother of the victim used to pay up the money. On 4th and 5th September 1998, the appellant inflicted mental and physical torture on the victim and caused death of the victim by setting her on fire after pouring kerosene oil on her person. In his examination under Section 313 of the Code of Criminal Procedure 1973, the appellant denied the allegations and sought to set up defence that at the time of occurrence of the incident he was not present in his residence and he had left for work. The appellant’s case is that his wife got burnt while boiling fodder for cattle. The appellant sought to support the case of catching fire while boiling cattle feed, referring to two earlier incidents when the victim caught fire under similar circumstance, but was eventually rescued. This appears from deposition of P.W. 3, Bela Chattopadhyay (D.W. 1) and Kachiram Nayek (D.W.2). Bablu Das (D.W.3) deposed that on one occasion in the past he had carried the victim to hospital on his trolly-van. D.W.1, a co-villager is a post-occurrence witness and she stated in her examination that at about 9/9.30 A.M. on the day of occurrence she had seen the appellant giving money to his son Gouranga and thereafter the appellant went to discharge his duty. She had visited the place of occurrence at about 11/11.30 A.M. on hearing “hue and cry” and found the victim lying dead in burnt condition. The second defence witness, Kachiram Nayek (D.W. 2) is also a relative of Santi and also a co-villager. She had visited the place of occurrence at about 11/11.30 A.M. on hearing “hue and cry” and found the victim lying dead in burnt condition. The second defence witness, Kachiram Nayek (D.W. 2) is also a relative of Santi and also a co-villager. He deposed that on the day of occurrence at about 11.30 A.M., he along with the daughter (Pratima) and Sanatan, theyoungest son of the victim were watching a serial ‘Saktiman’ on television in the house of one Raju Nayek. He also stated on oath that he had rushed to the house of the appellant on hearing “hue and cry” and found the victim lying on the dalan (balcony) in burnt condition. D.W. 2 described Santi having good moral character. The D.W. 3, also a co-villager of the appellant, is a trolly van puller by occupation. All the three defence witnesses deposed that they did not know of any dispute between the appellant and the victim and D.W.1 has stated that the appellant and the victim had cordial relation. 6. The son and the daughter of the appellant had made statements which were recorded under Section 164 of the Code before a learned Magistrate on 11th September 1998 and both of them had implicated the appellant of committing murder of the deceased. Gourango Nayek (P.W. 6), son of the appellant and victim stated before the learned Magistrate that on the evening of Friday the appellant had assaulted the victim and repeated such assault in the morning of Saturday. He was chased out by his father when he tried to enter the room. Later on he heard that his father had set fire on his mother. It is further recorded in his statement that thereafter he saw his father cycling away. Reaching home, he saw his mother burning with fire. The neighbours tried to douse the fire with water. The daughter of the victim, Protima P.W. 9 in her statement recorded under the aforesaid provision of the 1973 Code claimed to be an eye-witness to the incident and stated that she saw her father pouring kerosene oil on the deceased and thereafter escaped by breaking open window after setting her on fire. The daughter of the victim, Protima P.W. 9 in her statement recorded under the aforesaid provision of the 1973 Code claimed to be an eye-witness to the incident and stated that she saw her father pouring kerosene oil on the deceased and thereafter escaped by breaking open window after setting her on fire. But both of them after deposing that they had stated before the Magistrate what they saw or knew, in course of depositions in substance retracted their statements made before the Magistrate in which they had implicated the appellant. They stated that the statements made before the Magistrate were tutored by their maternal uncle. The First Court, however, largely relied on the statements recorded under Section 164 of the 1973 Code while convicting the appellant. Case made out by the prosecution is that upon setting the victim on fire, the appellant/accused had escaped through a window on the northern side of the residential house of the appellant by breaking the window bars. The inquest officer on reaching the place of occurrence found the body of the deceased laid on its right side on the floor of a room facing south in the mud hut with tiled shed. He recorded in the Inquest Report that smell of kerosene was coming out from the body of the deceased at that point of time. The P.W. 3, Champa Nayek confirmed that the victim died of burn injury. 7. The First Court in the judgment under appeal primarily relied upon the evidence of P.W. 1, P.W. 4, P.W. 6 and P.W. 9 as also the statements of P.W. 6 and P.W. 9 recorded under the provisions of Section 164 of the1973 Code. While finding the appellant guilty under Section 302 of the 1860 Code, the First Court came to the conclusion that the incident had taken place in his house. It was further held by the First Court that the accused was found to be in the room, which was the place of occurence till 9.30 A.M. As regards cause of death of the victim, the First Court’s findingis that the victim was murdered by throttling and thereafter she was burnt on the said morning. It was further held by the First Court that the accused was found to be in the room, which was the place of occurence till 9.30 A.M. As regards cause of death of the victim, the First Court’s findingis that the victim was murdered by throttling and thereafter she was burnt on the said morning. In such context, the First Court referred to the provisions of Section 106 of the Evidence Act, 1872 and found that the appellant had failed to give proper explanation as to how the victim caught fire and died. The First Court held that the circumstances did form a chain which would lead to the conclusion that within all human probability the crime was committed by the accused, being the appellant before us. On the aspect of several witnesses from the prosecution side turning hostile, the First Court opined that majority of them being members of the family or neighbours of the accused, they were not inclined to depose against the accused. The First Court found that the accused had not given any explanation as to whether on the date of the incident he had attended his duty. The appellant and the victim were last seen together and on the basis of depositions of different prosecution witnesses, the First Court also concluded:- “From the evidence of P.Ws and the conduct of the accused person with his wife, I find that the husband i.e. accused persons Santi was highly a man of cruel nature and make house-life difficult for Tapasi by Physical torture upon her and also denying her family life and comforts, behaviour/ill-treatment with her-it would amount to cruelty.” 8. On behalf of the appellant, Mr. Subir Ganguly, learned counsel has assailed the judgment of conviction and the sentence imposed on the appellant on various grounds. He has pointed out certain shortcomings in the investigation as also delay in lodging the First Information Report of about 24-hours from occurrence of the incident. According to Mr. Ganguly, such delay in lodging the F.I.R. left scope of embellishment in the F.I.R. and in the present case, there was embellishment. Two authorities relied on this point are Mehraj Singh vs. State of U.P. (1994) SCC (Cri) 1390 and Mobarak Sk @ Mobarak Hossain and Others vs. State of West Bengal, (2011) 1 Cal Cr LR (Cal) 687. Ganguly, such delay in lodging the F.I.R. left scope of embellishment in the F.I.R. and in the present case, there was embellishment. Two authorities relied on this point are Mehraj Singh vs. State of U.P. (1994) SCC (Cri) 1390 and Mobarak Sk @ Mobarak Hossain and Others vs. State of West Bengal, (2011) 1 Cal Cr LR (Cal) 687. He further pointed out that the date of occurrence of the offence was 5th September 1988, but charge sheet was submitted on 20th August 2001, in the subject case, and there was delay in completing the investigation. Out of seventeen prosecution witnesses, seven had turned hostile. Two key prosecution witnesses being the son and daughter of the appellant and the victim had retracted their statements made under Section 164 of the 1973 Code. Both of them in their depositions gave a different version of sequence of events on the day of occurrence of the incident. Two initial informants of the incident, Naren Mukherjee and Sailen Bhowmik, were not examined. The Investigating Officer had seized on 6th September 1998 between 14.25 and 15.00 hours from the place of occurrence several articles, which included a mat burnt in patches, a polythene jar containing about two litres blue coloured kerosene oil, control earth sample, and an old polythene bag containing burnt dal and pieces of cloth materials in burnt condition. These materials were seized from inside the room in which the body of the deceased was found but these were not sent for chemical analysis. 9. It appears from the sketch map of the place of occurrence, which is Exhibit 8, the residential house of the appellant as the P.O. comprises of two rooms, a veranda and a kitchen under tiled shed having three of its sides open. The Inquest Officer found the body lying on the veranda. There are three other detached mud houses in close proximity to the place of occurrence, being the houses of Ananda Nayek, Bechu Nayek and Kachiram Nayek who are all brothers of the appellant. Champa (P.W. 3), who was declared hostile is the wife of said Ananda Nayek. In her deposition, however, she stated that the appellant had only a single room of his own. Viscera of the deceased was collected by the Investigating Officer and sent for chemical examination but the chemical examination report was not available. Mr. Champa (P.W. 3), who was declared hostile is the wife of said Ananda Nayek. In her deposition, however, she stated that the appellant had only a single room of his own. Viscera of the deceased was collected by the Investigating Officer and sent for chemical examination but the chemical examination report was not available. Mr. Ganguly emphasized that this case was dependent on circumstantial evidence and the chain of circumstances demonstrated by the prosecution cannot implicate the accused in the offence. He pointed out that the autopsy surgeon could not come to a definitive conclusion as to whether the death was homicidal, suicidal or accidental. Relying on the judgment of the Supreme Court in the case of Dinesh Borthakur vs. State of Assam, (2008) SCC (Cri) 39, he submitted that lack of evidence of any resistance on the part of the victim demolished the case of homicidal death. It is also the appellant’s case that the principle of last seen together cannot be applied against the appellant and that sufficient evidence of the appellant’s absence from the place of occurrence at the material point of time has been established through evidence to meet the requirement of Section 106 of the Evidence Act, 1872. 10. Mr. Subir Banerjee learned Additional Public Prosecutor has defended the judgment of conviction and order of sentence and sought to sustain the prosecution case. He has taken us through the inquest report (Exhibit 1/1) as well as the written complaint and submitted that there was no major contradiction in narration of events recorded in these two exhibits. The inquest was made in the afternoon of the day of occurence between 4:00 - 4:30 P.M., whereas the F.I.R was lodged in the morning of the next day. He submitted that there was no embellishment in the F.I.R. As regards indulgence of the appellant in gambling and demand for bringing money, he referred to the depositions of P.W.1 and P.W.13. On the basis of evidence of these two witnesses along with the deposition of P.W.7, he argued that torture of the victim stood established. He also relied on evidence of these three witnesses as also that of P.W.14 (Autopsy surgeon) P.W.15, P.W.16 along with certain portions of the depositions of P.W.6 and 9 sustain the judgment on the appeal. On evidence of P.W.6 and P.W.9, Mr. He also relied on evidence of these three witnesses as also that of P.W.14 (Autopsy surgeon) P.W.15, P.W.16 along with certain portions of the depositions of P.W.6 and 9 sustain the judgment on the appeal. On evidence of P.W.6 and P.W.9, Mr. Banerjee submitted that P.W.6 had admitted to his interrogation by police and following the ratio of the judgment of the Supreme Court in the case of V.K. Mishra & Another vs. State of Uttarakhand & Another, (2015) 9 SCC 588 , it was permissible to consider the statements made by him before the Investigating Officer. He also submitted that the statements of the P.W. 6 and P.W. 9 recorded under Section 164 of the 1973 Code also ought to be considered and relied upon. 11. We have gone through the written complaint as also the inquest report and do not find any major contradiction as regards the substance of complaint. The ratio of the decisions in the cases of Mehraj Singh (Supra) and Mobarak Sk. (Supra) does not aid the appellant’s case on the point these were relied upon. Non-examination of Naren Mukherjee or Sailen Bhowmik in our opinion does not cause any major dent in the prosecution case, as death of the victim has been proved and there was inquest on the day of occurrence itself, before registering the F.I.R. What we shall examine now is where and how the victim had died. So far as place of occurence is concerned, it is not in dispute that she was found dead in a room of her matrimonial home. The discrepancy in identifying the number of rooms in the residence of the accused/appellant is not of major significance. The body of the victim was found in a burnt condition and the autopsy surgeon in his deposition stated:- “During post mortem examination I found- highly decomposed body with burst abdomen. Eyes were closed. Mouth was opened with tongue profusely protruded. Rigormortis present in both extrimities. Burn injury: 98% body surface burn both superficial and deep (only both feet dorsum and dorsal and 1/3rd of lower legs of both sides are escaped). Deep burn: Chest wall below breasts down to upper abdomen both sides. Right mid and lower abdomen causing bursting of abdominal wall and thus large guard ballooned with gases coming out and hanging through the passage outside. Right inguinal region. Both axilla. Deep burn: Chest wall below breasts down to upper abdomen both sides. Right mid and lower abdomen causing bursting of abdominal wall and thus large guard ballooned with gases coming out and hanging through the passage outside. Right inguinal region. Both axilla. Superficial burn: Rest of burn is a superficial type. My provisional opinion- is cause of death is acute shock due to above noted extensive burn which was antemortem in nature. Final opinion: to be given on receipt of reports of chemical analysis of visceras. The cause of death due to burn-safely be concluded even without having chemical examination report. preserved and sent the visceras of the deceased for chemical examination only as a routine matter, as the stomach of the deceased was found empty. The bursting of abdomen wall and thus large guard ballooned with gases coming out and hanging through the passage outside. I found during post mortem is suggestive of extensive deep burn causing the damage of the layers of abdominal wall. Such type of deep burn requires considerable or sufficient time. If any other person made attempt to rescue the deceased, in the event, such type of deep burn would not have been done. After holding post mortem examination, I prepared a post mortem report in triplicate in carbon process under the same sitting under my own handwriting and signature.” 12. The P.W.14, however, referring to certain features of the dead body did not rule out the possibility of the deceased being first murdered by throttling and her body thereafter was put on fire. In his cross-examination, he stated:- “Considering the profused protruded tongue of the deceased coupled with the absence of black shoots in the nasal track, etc. absence of pugilistic attitude, quantity of superficial and deep burn appearing in this post mortem report and the probable time taken for such deep burn, the possibility, that the deceased was first murdured by throttling and thereafter she was burnt-can not altogether ruled out.” 13. It was the case of both the prosecution and the defence that the victim had died of burn injury. The autopsy surgeon in the postmortem report opined provisionally that cause of death was acute shock because of extensive burn which was ante-mortem in nature. He had reserved his final opinion which was to be given on receipt of reports of chemical analysis of viscera. The autopsy surgeon in the postmortem report opined provisionally that cause of death was acute shock because of extensive burn which was ante-mortem in nature. He had reserved his final opinion which was to be given on receipt of reports of chemical analysis of viscera. In his examination in chief, he stated that cause of death due to burn could be safely concluded even without having chemical examination report of the viscera and viscera was sent for chemical examination only as a routine matter. P.W. 1, P.W. 7 and P.W. 13, being the key prosecution witnesses deposed that the victim died of burn injury. So did P.W. 3, P.W. 6 and P.W. 9, all of whom were declared hostile. The charge framed against the appellant under Section 302 of the 1860 Code also specified intentional cause of death of the victim after pouring kerosene oil on her. The appellant in answer to his examination under Section 313 of the 1973 Code also referred to burn injury, as did D.W. 2 and D.W. 3. Thus, we do not think there is any scope of doubting the cause of the victim’s death being burn injury at this stage, solely on the basis of a possibility indicated by the autopsy surgeon in his deposition. We are unable to agree with the finding of the First Court that the victim was killed first by throttling and thereafter her body was burnt. The question which still remains to be answered is as to whether the victim was set on fire by the appellant or not. 14. Now we shall examine the materials on record to ascertain how death of the victim was caused. We do not think two past incidents of catching fire while boiling cattle feed would be a safe guide for us to conclude that in the third incident of burn also it must be a similar accident. In her statements made before the Magistrate recorded under Section 164 of the 1973 Code, P.W.9 stated that the appellant had slapped the victim after heated exchange of words, as a result of which she fell and thereafter she was set on fire by the appellant. In her statements made before the Magistrate recorded under Section 164 of the 1973 Code, P.W.9 stated that the appellant had slapped the victim after heated exchange of words, as a result of which she fell and thereafter she was set on fire by the appellant. The P.W.6, as per the statement recorded under the said provision of the 1973 Code stated that while the appellant was assaulting his wife, he tried to enter the room when he was beaten up by his father and out of fear he ran out. He later on heard that his father had set fire on the body of his mother. He also stated that he saw his father passing by on a cycle. In his examination in chief, the P.W.6 inter-alia stated, before being declared hostile:- “Subsequently, I was taken to Hakim Saheb at Uluberia court and I made my statements before him. My statements were recorded by Hakim Saheb at that time. After recording my statements by Hakim Saheb, I put my signature on that recorded statements. This is my signature on this recorded statement. (Mark Exbt.3). Hakim Saheb recorded this statement whatever I stated before him and thereafter I signed thereon. Whatever I stated before Hakim Saheb were all true. I also stated all about the incidents before police.” 15. The P.W.9 also spoke in same terms in her examination in chief:- “My mother expired due to burn injuries at our house. There was no bar (….) in the northen side window of my mother’s room. After the death of my mother, we gave our statements before the Magistrate at Uluberia Court. That Magistrate recorded my statements whatever I stated to him. What ever I knew about the incident I stated the same to the said Magistrate.” 16. After being declared hostile, however the P.W.6, in his cross examination by the defence stated that whatever he had stated to police and before the ‘Hakim Saheb’ (Magistrate) was tutored by his maternal grandparents and maternal uncle and such things were stated on apprehension of beating by his maternal uncle. P.W.9 stated that she was never interrogated by police. After being declared hostile, she deposed that she did not see the incident of burning of her mother. Being tutored by her maternal grandparents and uncle and out of their fear she made the statements before the Magistrate. P.W.9 stated that she was never interrogated by police. After being declared hostile, she deposed that she did not see the incident of burning of her mother. Being tutored by her maternal grandparents and uncle and out of their fear she made the statements before the Magistrate. So far ratio of the decision in the case of V.K. Mishra (Supra) is concerned, Mr. Banerjee wanted us to examine the statements made by the P.W.6 to the I.O. under Section 161 of the Code, on the ground that these statements were put to his notice in course of his examination. In his deposition, however, the P.W. 6 has admitted making such statements, but he also stated that whatever he stated to the police were also tutored by his maternal grandparents and maternal uncle. Thus, he sought to disprove the veracity of the statements he had made to the police, after admitting having made those statements. It is in this perspective we shall test his evidence. Thus, there are contradictions in the statements made by both P.W.6 and P.W.9 in course of their depositions which dilute creditworthiness of their evidence. If we leave aside P.W.9 as an eye witness of the incident, the one who was closest to the incident both in terms of distance and time was P.W.3, Tapasi Nayek. Her version of the incident, as it transpires from her deposition, is:- “My room is just in front of the room of Tapasi. I was at my room in the morning of the date of incident. Santi was at their room till about 9.30 A.M. and thereafter he left the house on account of his profession. After this accused left their house in that morning, Tapasi started to prepare boiled cow feed. Thereafter, I went to take my bath. After my return while I was changing my wearing apparels inside my room, suddenly I found that smoke was coming out from the window of Tapasi’s room which is just in front of my room. Thereafter I rushed to their room and peeped through the window and found that Tapasi was then burning inside. Thereafter I broke open the bars made of split bamboo of the window and by putting my hands inside, collected the pillow from the bed and threw the same towards the burning body of Tapasi so that, fire may be extinguished. Thereafter I rushed to their room and peeped through the window and found that Tapasi was then burning inside. Thereafter I broke open the bars made of split bamboo of the window and by putting my hands inside, collected the pillow from the bed and threw the same towards the burning body of Tapasi so that, fire may be extinguished. At that particular time neither this accused nor their other children were present at their house.” 17. We do not have clear evidence from any of the witnesses the exact location of the house where the victim was boiling cattle-fodder, while considering the defence case that at the time of occurrence of the incident, the deceased was boiling cattle-fodder. There is no evidence, however, that there was any oven in the room in which the victim got burnt and there is indication in evidence of P.W.3 that after her wearing apparels caught fire, the victim rushed inside her room. In her deposition the P.W.3, has stated:- “It may be that on the date of incident involved in this case, the wearing apparels of Tapasi might have caught fire while preparing boiled cow feed and thereafter she rushed inside her room and ultimately burnt.” 18. We find this conduct attributed to the victim by the P.W.3 to be unusual as a person who accidentally catches fire ought to try to have it doused and raise alarm rather than rush inside a room. Moreover, the room in which she is meant to have had rushed into appears to have had been bolted from inside, as the P.W.3 had to access the room breaking the window bars. But even if we disbelieve the P.W.3 on her narration of sequence of events, does the evidence adduced by the prosecution pinpoints appellant as the offender? 19. The statement of P.W.9 recorded under Section 164 of the 1973 Code, if accepted on its face, that does not give a reliable account of the incident encapsulated in her statement. The P.W.9 in her statement before the Magistrate stated that she saw her father setting fire on the deceased and thereafter he escaped through the window. If the P.W.9 was inside the room at that point of time, then also there is no indication as to what happened after her father had escaped through the window. The P.W.9 in her statement before the Magistrate stated that she saw her father setting fire on the deceased and thereafter he escaped through the window. If the P.W.9 was inside the room at that point of time, then also there is no indication as to what happened after her father had escaped through the window. There is no evidence that the P.W.9 had alerted any one about the said offending act. Moreover, in course of her deposition she has stated that she was in the house of Raju Nayek, which is corroborated by P.W.3 and also D.W.2 (Kachiram Nayek). We appreciate the opinion of the First Court that the P.W.6 and P.W.9 and other family members and neighbours might side with the appellant out of sympathy. There is evidence that at the time of recordal of their statements under the 1973 Code they were residing with their maternal grandparents and uncle, whereas at the time they were examined during trial, they were back with their father. But such assessment of their sympathetic mental condition is in the realm of possibilities, and in the absence of reliable evidence, we cannot conclude on guilt of the appellant taking into consideration that factor. We have already found the statement of P.W. 9 made under Section 164 of the 1973 Code to be unreliable. Her statement made in course of deposition that she was watching television at the material point of time in the house of Raju Nayek has not been contradicted. P.W. 3 has deposed that she saw the appellant leave the house at about 9.30 A.M. D.W. 1 also saw the appellant last at around the same time, between 9 and 9.30 A.M. The only person who has deposed having seen the appellant near the place of occurrence around the time of occurrence is P.W. 1. He has stated in his deposition that he had found the appellant proceed on his bicycle through the village pathway. He has stated in his deposition that he had found the appellant proceed on his bicycle through the village pathway. This story of the appellant being seen by the P.W. 1 at that point of time, however, surfaced only at the time of his deposition, and the said prosecution witness in his cross-examination also stated that he had told the I.O. that he “found this accused to proceed through the village pathway on his bicycle, immediately prior to the incident.” But this is not reflected in the inquest report, and the Investigating Officer (P.W. 15) in course of his deposition denied that such a statement was made by the P.W. 1 at the time of investigation. In our opinion, solely on this evidence, we cannot come to a finding that at or around the time of occurrence of offence, the appellant was at the place of occurrence. 20. We also find that there is no evidence in this case that the appellant and the victim were last seen together before death of the victim. Evidence was that the appellant was near the place of occurrence at about 9/9:30 A.M. on that date. The appellant’s obligation to explain the cause of death does not get diluted fully in such circumstances, as the victim died in her matrimonial home – which is the residence of the appellant. The appellant has also failed to adduce any evidence from his workplace that he was discharging his duties at the time of occurrence of the incident. At the time the appellant was seen by the witnesses near the place of occurrence, being 9 A.M. - 9.30 A.M. also appears to be beyond his normal duty hours, as the P.W. 13 has deposed that the appellant’s normal duty hours was between 7A.M. and 4 P.M. and this part of deposition of P.W. 13 remained unchallenged. But for this reason alone, without any further corroboration we are unable to come to a finding that the appellant was guilty of the charge framed under Section 302 of the 1860 Code. We do not find sufficient corroboration of the prosecution case that the appellant was present at or near the place of occurrence at the time of occurrence of the incident. We do not find sufficient corroboration of the prosecution case that the appellant was present at or near the place of occurrence at the time of occurrence of the incident. The evidence of P.W. 1 and the statements of P.W. 6 and P.W. 9 recorded under Section 164 of the 1973 Code are unreliable to establish the prosecution version, having regard to their subsequent depositions. The First Court, in our opinion erred in law in applying the provisions of Section 106 of the Evidence Act in the case of the appellant as the sole basis to find him guilty of the charge framed against him under Section 302 of the 1860 Code there being no subsequent supporting or corroborating circumstances. As we have already discussed, there are many breaks and gaps in the chain of circumstances through which the appellant could be linked with the death of the victim, for the purpose of establishing his guilt under the aforesaid provision beyond reasonable doubt. 21. In respect of the charge under Section 498 A of the 1860 Code, we find that P.W.1, P.W.7 and P.W.13 have all deposed of physical and mental torture of the deceased. They are the brother, mother and father of the deceased, most likely to be apprised of such offending acts. The appellant sought to counter them on the basis of evidence of other witnesses including P.W.6 and P.W.9. Both of them stated that they did not see any altercation between their parents. But both of them were very young when their mother died an unnatural death. P.W.6 used to study in Class V whereas P.W.9 was a student of Class III, and it is unlikely that they would have had remembered such incidents. D.W. 1 deposed that she did not hear or see the appellant perpetrate mental and physical torture on the victim, whereas D.W. 2 deposed that the appellant used to lead peaceful family life. But they were co-villagers and might not have had a micro-view of family affairs of the appellant. We do not find any reason to disbelieve the P.W. 1, P.W. 7 and P.W. 13, all of whom were close relatives of the victim. Referring to the evidence of P.W. 7, Mr. But they were co-villagers and might not have had a micro-view of family affairs of the appellant. We do not find any reason to disbelieve the P.W. 1, P.W. 7 and P.W. 13, all of whom were close relatives of the victim. Referring to the evidence of P.W. 7, Mr. Ganguly had submitted that since she was not interrogated by the police at the state investigation and no statement of her was recorded under Section 161 of 1973 Code, her evidence ought not to be given credence to. On this point, he relied on the judgment of the Supreme Court in the case of Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. and Another, 2003 SCC (Cri) 596. It is, however, not an absolute proposition of law that a witness statement on facts cannot be accepted unless statement of the same witness had been taken under Section 161 of the 1973 Code on selfsame facts. No such ratio has been laid down in this judgment. In our opinion, on the basis of the materials on record, the appellant had rightly been convicted by the First Court in respect of charge under Section 498A of the 1860 Code. 22. Conviction and the order of sentence of the appellant-accused under Section 302 of the 1860 Code is accordingly set aside. But his conviction and sentence under Section 498A of the 1860 Code is sustained. We are informed by the learned Counsel for the appellant that the appellant had undergone substantial period of detention but at present he remains enlarged on bail. In the event the appellant has already suffered sentence awarded under Section 498A of the 1860 Code, his bail bond shall stand discharged. In the event, however, he has not served out the full sentence awarded against him under Section 498A of the 1860 Code, then the appellant shall surrender before the appropriate Court within three weeks and thereafter serve out rest of the sentence. 23. The appeal stands partly allowed. 24. Let the Lower Court Records be sent back immediately with a copy of this judgment. I agree – Aniruddha Bose and Sankar Acharyya, JJ.