JUDGMENT Hon’ble P.K.S. Baghel, J.—This appeal under Section 374(2) of the Criminal Procedure Code (Cr PC) has been preferred by four appellants, who have been convicted under Section 302/34 of the Indian Penal Code (IPC) to imprisonment for life and under Section 201/34 IPC to imprisonment for a term of two years by the impugned judgment dated 31st May, 1989. Both the sentences have been directed to run concurrently. The Additional District & Sessions Judge, Karvi, Banda has found them guilty in Session Trial No. 71 of 1986. 2. It was a case of prosecution that P.W.-3 Chandra Pal filed a written report on 24th May, 1986 at about 02.30 p.m. at Police Station Manikpur, District Banda, wherein he stated that his sister Ram Lali was married with Chhottey Lal, appellant No. 1, son of Ram Bahori—appellant No. 2 about eight years’ back. The appellant No. 3, Uma Shanker, is brother of appellant No. 1—Chhottey Lal and the appellant No. 4, Smt. Ram Sakhi, is wife of appellant No. 2 (mother of appellant Nos. 1 and 3). It was alleged that the appellants had harassed Ram Lali in connection with demand of dowry and on 20th May, 1986 at about 06.00 p.m. they have murdered Ram Lali by strangulating her and later they set her on fire by sprinkling kerosene oil. In the same night at about 10.00 p.m. appellant No. 2 had informed Police Station Manikpur that Ram Lali has committed suicide. It was mentioned in the written report that he came to know about the incident when he was going to Manka, Police Station Mau, someone told him at Manikpur Railway Station that on 20th May, 1986 his sister was murdered by the appellants. On the basis of his report a chik First Information Report (FIR) was prepared and an FIR was recorded on 24th May, 1986 at 09.15 a.m. as Case Crime No. 52 of 1986, under Section 302 IPC, at Police Station Manikpur, District Banda. 3. The investigation was initially entrusted to P.W.-7 N.K. Singh, Inspector. The inquest was conducted by P.W.-6 Ram Swaroop Lawaniya, Sub Inspector. In the inquest report in the opinion of the witnesses the cause of death was shown to be burning. Autopsy was conducted by P.W.-5 Dr. P.N. Dwivedi. In the opinion of the Doctor, the death was caused due to strangulation and burning. The inquest was conducted by P.W.-6 Ram Swaroop Lawaniya, Sub Inspector. In the inquest report in the opinion of the witnesses the cause of death was shown to be burning. Autopsy was conducted by P.W.-5 Dr. P.N. Dwivedi. In the opinion of the Doctor, the death was caused due to strangulation and burning. After completion of investigation, the police submitted a charge-sheet against all the appellants, who are husband, father-in-law, brother-in-law and mother-in-law of the deceased. All the four appellants stood trial. 4. The Magistrate committed the matter to the Court of Session. The case was registered as Session Trial No. 71 of 1986. The charges were framed by the Court against all the appellants under Sections 302/34 and 201/34 IPC. 5. The prosecution has produced eight witnesses. P.W.-1 Anusuiya Prasad was witness of arrest of Chhottey Lal and recovery of a stick/rod (danda) and jerrycan of kerosene oil. P.W.-1 turned hostile. P.W.-2 Santosh Kumar was also witness of arrest and recovery of the aforesaid materials. He also turned hostile. P.W.-3 Chandra Pal is brother of the deceased Ram Lali. P.W.-4 S.I. Loknath Giri was Head of the arresting police team, P.W.-5 Dr. P.N. Dwivedi is the doctor who conducted post-mortem on the body of the deceased, P.W.-6 Ram Swaroop Lawaniya is the Sub-Inspector who had prepared the inquest report, P.W.-7 N.K. Singh was the Station House Officer of Police Station Manikpur and was Investigating Officer, and P.W.-8 Kamal Singh is the Sub-Inspector who after the transfer of N.K. Singh took over the investigation. 6. The defence has produced three witnesses, namely, D.W.-1 Dr. Bharat Bhushan Tripathi, who had medically examined the injuries of appellant No. 1—Chhottey Lal, who is alleged to have sustained injuries by the police to extract the false statement, D.W.-2 Ram Kishore, who is neighbour of the appellants, and D.W.-3 Munna Lal is employer of Chhottey Lal, where he was working at Pyau. 7. After completion of the prosecution evidence, statements of all the accused persons were recorded under Section 313 Cr.P.C. and they have denied the charges and stated that the police has arrested them and kept them in the custody for one week and has tortured them. They further stated that at the time of the incident none of the appellants were in the house. 8. They further stated that at the time of the incident none of the appellants were in the house. 8. The trial Court in its impugned judgment found all the accused persons guilty of the offence under Sections 302/34 & 201/34 I.P.C. and sentenced them for life imprisonment. 9. We have heard Sri Viresh Mishra, learned Senior Advocate, assisted by Sri Ghanshyam Dwivedi and Sri Utsav Dwivedi, learned counsel for the appellants, and learned A.G.A. 10. Learned counsel for the appellants submits that there is no eye-witness in the case and the prosecution case rests on circumstantial evidence. For conviction on the basis of circumstantial evidence the prosecution must prove the circumstances from which an influence of guilt is sought to be drawn and there should not be any missing link in the chain of evidence. The judgment and order of the trial Court is based on assumption and conjectures and it has ignored the material evidence on record. He submitted that it was established from the evidence on the record that at the time of the incident none of the accused persons were present in the house and the prosecution has miserably failed to establish its charge under Section 302/34 IPC. He submitted that admittedly, according to the prosecution case, marriage was solemnized more than seven years before, and the trial Court has proceeded in the matter as if it was a case of dowry death. He further submitted that no charge of dowry was framed and the accused were charged under Section 302 read with Section 34 IPC. There was neither any eye-witness nor there was any circumstantial evidence to establish the charge under Section 302 IPC against the appellants. He further submits that from the evidence it was established that at the time of incident the appellant No. 1—husband was at the Pyau run by DW-3 Munna Lal and the appellant No. 4, mother-in-law, was also not in the house as she had gone to attend a marriage and she was called from there after the incident. The trial Court has further erred in ignoring the material evidence that appellant Nos. 2 and 3 both were in their khalihan. Thus, ignoring these evidences the trial Court only on the basis of surmises and conjectures has found that the charges under Sections 302/34 and 201/34 IPC have been established. 11. The trial Court has further erred in ignoring the material evidence that appellant Nos. 2 and 3 both were in their khalihan. Thus, ignoring these evidences the trial Court only on the basis of surmises and conjectures has found that the charges under Sections 302/34 and 201/34 IPC have been established. 11. Learned Senior Advocate further submitted that there is no iota of evidence to establish the charge under Section 302 IPC. The trial Court has erred in holding that the circumstantial evidences indicate that the murder was committed by the appellants but no effort has been made by the trial Court to complete the chain, on the basis of which it had treated the matter as a case of circumstantial evidence. Lastly, he urged that the trial Court has erred to record the conviction of appellants on the evidence of recovery which was not proved at all. 12. Learned A.G.A. has submitted that the trial Court has rightly convicted the appellants as the death has taken place within the house of the appellants, hence they ought to have explained her death. He has supported the findings of the trial Court and has referred the evidence on the record in support of the findings recorded by the trial Court. Learned A.G.A. has taken us to the statements of all the prosecution witnesses. We have heard and considered the submissions advanced by the learned counsel for the parties and perused the material on record carefully. 13. It is an admitted case that the deceased and appellant No. 1 were married eight years before the date of the incident. Two witnesses, namely, P.W.-1 and P.W.-2 have turned hostile. They were witnesses of recovery of empty jerrycan, in which kerosene oil was said to be kept, and a danda (stick), with which she was strangulated. Both the witnesses have stated that they had not seen the recovery alleged by the police. Both P.W.-1 and P.W.-2 were declared hostile by the prosecution, but from their examination-in-chief or cross-examination it is found no material fact has been deposed by them which supports the prosecution. The only fact witness of the prosecution is Chandra Pal, brother of the deceased. On 24th May, 1986 he was traveling by train to Manka and at the station Manikpur he came to know regarding the death of his sister. Then he returned to Purana (old) Manikpur and lodged the FIR. The only fact witness of the prosecution is Chandra Pal, brother of the deceased. On 24th May, 1986 he was traveling by train to Manka and at the station Manikpur he came to know regarding the death of his sister. Then he returned to Purana (old) Manikpur and lodged the FIR. In his deposition he has stated that his sister was married about eight years before the incident. After gauna, when his sister returned to her parental home, she told P.W.-3 about the harassment suffered by her at the hand of the appellants. She had explained that the appellants did not give sufficient food and clothes to her and they had harassed her. He further deposed that Ram Bahori, appellant No. 2, had demanded money from him and whenever his sister came to parental house, she used to complain about her harassment by all the appellants. It is stated that the appellants had assured him that they will not harass her in future and they will allow her to go to her parental house after Navratri. When he was going to Manka by train, at Manikpur Railway Station he came to know that the appellants have strangulated his sister and they have set her on fire. The appellants did not inform him regarding the death of his sister. While he was returning from Old Manikpur to his house, on the way he met one Awadhesh Kumar Misra, whom he requested to write his complaint and the same complaint (Exh.-1) was filed by him at the police station. He had further deposed that at the time of the incident Ram Bahori, appellant No. 2, was in some employment but he was on leave on the date of incident. Appellant No. 3—Uma Shankar was doing farming. 14. In his cross-examination P.W.-3 could not remember whether in the statement to the police he had mentioned the fact regarding the demand of dowry or not. He also could not recall his statement under Section 161 Cr.P.C. regarding the allegation of dowry. In his cross-examination he has stated that he had not made any complaint regarding demand of dowry to any officer nor he has disclosed this fact to any relative. P.W.-4 Loknath Giri in his statement has described the arrest of Rama Kant @ Chhottey Lal, appellant No. 1, made by him on 27th May, 1986. In his cross-examination he has stated that he had not made any complaint regarding demand of dowry to any officer nor he has disclosed this fact to any relative. P.W.-4 Loknath Giri in his statement has described the arrest of Rama Kant @ Chhottey Lal, appellant No. 1, made by him on 27th May, 1986. In his statement he has mentioned two witnesses, namely, Santosh Kumar and Anusuiya Prasad, but both of them have turned hostile. In his statement he has mentioned the confession made by Rama Kant before him and at his instance recovery of stick and jerrycan was made. He has also stated that he has not prepared the site plan of the recovery. P.W.-5 Dr. P.N. Dwivedi, who has conducted autopsy on the dead body of the deceased, in his statement has stated that hyoid bone was found to be fractured and the cause of death was asphyxia due to strangulation and fire. 15. P.W.-6 S.I. Ram Swaroop Lawaniya was the I.O.. He has deposed that on 20th May, 1986 at 08.45 p.m. appellant No. 2—Ram Bahori had informed the police that his daughter-in-law Ram Lali has committed suicide by setting her on fire. On his information, he (P.W.-6) alongwith a constable reached at the spot, where they found dead body of Ram Lali in a room. On the said date the inquest was not prepared due to lack of sufficient light and the inquest was prepared on the next date on 21st May, 1986. The fard of burnt clothes and match box was prepared. It is stated that when the appellant No. 2-Ram Bahori had given the first information regarding the incident, he was present in the police station. 16. P.W.-7 N.K. Singh, who was Station House Officer at Police Station Manikpur at the time of the incident, was the I.O.. He deposed that real brother of Ram Lali, the deceased, had submitted a written report on 24th May, 1986. The said report was recorded at 2.30 p.m. on the same day. He has also deposed that he had not recorded the statement of neighbour of the appellants and when he reached the spot, he had found that Ram Bahori was present in the house. He has further deposed that during investigation he came to know that some ornaments of the appellants are missing. 17. He has also deposed that he had not recorded the statement of neighbour of the appellants and when he reached the spot, he had found that Ram Bahori was present in the house. He has further deposed that during investigation he came to know that some ornaments of the appellants are missing. 17. P.W.-8 Kamal Singh was Sub-Inspector at Police Station Manikpur and the investigation was transferred to him, who had submitted the charge-sheet (Exh. 14) on the basis of statements of Santosh Kumar, P.W.-2, and Anusuiya Prasad, P.W.-1 and other evidence. As mentioned above, P.W.-1 and P.W.-2 both were declared hostile. 18. P.W.-8 in his cross-examination has stated that he had not visited the scene of occurrence. He has denied the suggestion that at the time of the incident the deceased was alone in the house and some unknown person had entered the house for the commission of the theft and he had committed murder. 19. In view of the rival submissions, it has to be first seen whether the prosecution has established its case. The appellants are charged under Section 302 read with Section 34 IPC. No charge under Section 304-B IPC or 498-A IPC has been framed. 20. Insofar as the charge under Section 302 IPC is concerned, in the present case there is no eye-witness of the incident. The trial Court has convicted the appellants on the basis of the circumstantial evidence. However, it has not pointed out the circumstances on the basis of which it has recorded the finding of guilt. It is a well-settled law that where a case rests squarely on circumstantial evidence, the inference of guilt must be cogently and firmly established. The circumstances must be shown to be closely connected with the commission of the offence by the accused. It has also to be established that any other hypothesis than the guilt of the accused is not possible. The conviction cannot be based on the basis of the evidence, which is based on suspicion as the suspicion cannot take place of the proof. Undoubtedly, in the matter of circumstantial evidence the judgments of the Courts are essentially inferential. But the inferences are drawn from the established facts and not on the basis of the facts that “may be” proved. In such cases the requirement of the proof “must be”. 21. Undoubtedly, in the matter of circumstantial evidence the judgments of the Courts are essentially inferential. But the inferences are drawn from the established facts and not on the basis of the facts that “may be” proved. In such cases the requirement of the proof “must be”. 21. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406 , the Supreme Court has elaborately considered both the words “may be” and “must be” and after considering a large number of earlier judgments has opined that there is large distance between “may be” true and “must be” true. 22. The law in respect of circumstantial evidence has been considered by the Supreme Court in its one of the earlier judgments in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 . In this leading case, the Court has laid down the law in respect of the circumstantial evidence. The relevant part of Paragraph-10 of the judgment reads as under: “10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 23. The next leading case on the subject is Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the Supreme Court has culled out the following principle: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The next leading case on the subject is Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the Supreme Court has culled out the following principle: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 24. Both the aforesaid judgments have been consistently followed by the Supreme Court and other High Courts. 25. In Vilas Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158 , the Supreme Court has held that it has been consistently laid down that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The inference as to guilt has to be proved beyond reasonable doubt and has to be shown to be closely connected with the allegation against the accused for the commission of the offence. The cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 26. In Sujit Biswas (supra) the Supreme Court, after referring the judgments of Hanumant Govind Nargundkar (supra) and Sharad Birdhichand Sarda (supra), has held as under: “18. Thus, in view of the above, the Court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. Thus, in view of the above, the Court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.” 27. Similar view has been taken in Vijay Kumar v. State of Rajasthan, (2014) 3 SCC 412 , Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509 , Mula Devi and another v. State of Uttarakhand, (2008) 14 SCC 511 , Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P., (2004) 11 SCC 282 , and Nathiya v. State represented by Inspector of Police, Bagayam Police Station, Vellore, (2016) 10 SCC 298 . 28. Applying the aforesaid principle in the facts of the present case, we find that the judgment of the trial Court is based only on suspicion. The trial Court has even not pointed out the circumstances, on the basis of which it has held the appellants guilty of the offence under Section 302 IPC. The trial Court has recorded that there is no evidence in the matter but it has recorded finding only on the basis of the fact that there was unexplained delay in filing the FIR by the appellants, and since the death has occurred within the house of the appellants, there was a strong presumption regarding their involvement in the murder. We find that the findings of the trial Court are based only on surmises and conjectures. 29. As noticed above, the appellants were charged only under Section 302 I.P.C. read with Section 34 I.P.C. and 201 I.P.C. Therefore, the trial Court has misdirected itself and has proceeded in the matter as if it was a case of dowry death. It has failed to notice that the death of the deceased occurred after seven years from the date of her marriage. It has failed to notice that the death of the deceased occurred after seven years from the date of her marriage. The trial Court has not recorded any finding that at the time of the incident any of the appellants were present in the house. It has ignored the material evidence on record of the neighbour and employer of appellant No. 1 i.e. evidence of D.W.-2 and D.W.-3. D.W.-2 has deposed that none of the appellants were found on the scene of the incident. Ram Bahori, appellant No. 2, was working in his agricultural field and when the neighbours saw the smoke emanating from the house of the appellants, they called him from his agricultural field. The husband of the deceased, appellant No. 1, was working at a Pyau and his employer has deposed that on the date of the incident he was at his Pyau till he received the information from his house regarding death of his wife, and then he rushed to his house. 30. D.W.-2 Ram Kishore is a neighbour of the appellants. He has deposed that accused Chhottey Lal, appellant No. 1, was in service of one Munna Lal Jaiswal and he used to work at his Pyau from 08.00 a.m. to 09.00 p.m. as he used to go to his duty at 08.00 a.m. in the morning and return at about 09.00 p.m. He has deposed that he was not aware of any differences between the deceased and her husband, appellant No. 1— Chhottey Lal. He has stated that on the date of the incident while he was returning to his home from his Khalihan, he saw smoke emanating from the house of the accused persons and he also saw that an unknown person was coming out from their house whom he could not recognize. It was about 5-6 p.m. in the evening when he had seen the unknown person. At that time none of the accused persons, appellants, were present in their house. Some persons of the locality had gathered there and when they went inside the house, they found that wife of appellant No. 1 was dead and she was badly burnt. He went to call Ram Bahori from khalihan and he also sent the information to Chhottey Lal. Wife of Ram Bahori, appellant No. 4, who had gone to Lohari to attend a marriage, was also informed. He went to call Ram Bahori from khalihan and he also sent the information to Chhottey Lal. Wife of Ram Bahori, appellant No. 4, who had gone to Lohari to attend a marriage, was also informed. Uma Shankar, the third appellant, was also not present in the house and the information was sent to him also. In his cross-examination he has reiterated that appellant No. 1 was in the employment at Pyau and he used to return at late night at about 08-10 p.m. 31. D.W.-3 is the employer of Chhottey Lal. He has deposed that he runs a Pyau for the last 7-8 years and appellant No. 1 sits at his Pyau. He attends his Pyau between 08.00 a.m. and 08.00 or 09.00 p.m. and on the date of the incident on 20th May, 1986 he came to attend his duties at 08.00 a.m. in the morning and remained at Pyau entire day and left the Pyau when he received information regarding the death of his wife. In his cross-examination nothing adverse could be elicited by the prosecution. In his cross-examination he has reiterated his statement made in the examination-in-chief. 32. Chhottey Lal, appellant No. 1, in his statement under Section 313 Cr.P.C. has stated that the police had kept him in custody for a week and had assaulted him. Similar statement has also been made by his father. Moreover, P.W.-1 and P.W.-2, who were witnesses of the recovery of kerosene oil container and stick, have turned hostile. Learned counsel for the appellants has urged that no recovery at all has been made. Both the witnesses of the prosecution, who were alleged to be present at the time of recovery, have turned hostile. They have flatly denied their presence. 33. In State of Punjab v. Sarup Singh, (1998) 1 JCC 57, the Supreme Court has observed that if recovery is not made in presence of independent persons, it must be disbelieved. In Bahadul v. State of Orissa, AIR 1979 SC 1262 , the Supreme Court had the occasion to deal with similar plea. The Court made following observation: “4. In these circumstances, therefore, we are not in a position to rely on the judicial confession. As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible under Section 8 of the Evidence Act. The Court made following observation: “4. In these circumstances, therefore, we are not in a position to rely on the judicial confession. As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible under Section 8 of the Evidence Act. As there is nothing to show that the appellant had made any statement under S. 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances the mere production of the tangia would not be sufficient to convict the appellant. For the reasons given above we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The appeal is accordingly allowed, the conviction and sentence imposed on the appellant are set aside and he is acquitted of the charges framed against him. The appellant is directed to be released forthwith.” 34. The prosecution has cross-examined P.W.-1 and P.W.-2 but no part of the evidence supports the prosecution. The only witness that left is the prosecution witness Chandra Pal, brother of the deceased. In his statement he has mentioned the facts, on the basis of which an offence under Section 304-B IPC can be said to be committed. But, as mentioned above, the marriage had taken place before seven years. For the said reason, the accused persons were not charged under Section 304-B IPC. In absence of charge under Section 304-B IPC no presumption regarding dowry death can be drawn under Section 113-B the Evidence Act. Presumptive Section 113-B under the Evidence Act was inserted on the 91st Report of the Law Commission dated 10th August, 1983. Keeping in view the impediment-pre existing in law, in securing the evidence to prove the dowry related deaths, the presumption under Section 113-B is a presumption of law and it means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC. Keeping in view the impediment-pre existing in law, in securing the evidence to prove the dowry related deaths, the presumption under Section 113-B is a presumption of law and it means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC. It further casts an obligation on the prosecution to prove that the women was subjected to cruelty or harassment by her husband or relative; such cruelty or harassment was for or in connection with any demand for dowry and such cruelty or harassment was soon before her death. 35. In the present case, under Section 113-B it cannot be presumed to be a dowry death for the simple reason that one of the conditions precedent to invoke Section 304-B IPC is that the death has occurred with the seven years of the marriage. 36. In P. Mani v. State of T.N., (2006) 3 SCC 161 , the Supreme Court had occasion to deal with identical question. In that case also accused was charged with Section 302 I.P.C. for bride burning. In that case husband was present in the house at the time of occurrence of incident. The Supreme Court held that though husband was present there and had not sustained any burn injury inside room but burden would not shift on the accused husband in terms of Section 106 of the Evidence Act. The Court further held that presumption as to abetment of suicide under Section 113-A of the Evidence Act would also not be attracted because the appellant was charged only under Section 302 I.P.C. The Court has acquitted all the accused persons. 37. In Krishnegowda and others v. State of Karnataka by Arkalgud Police, (2017) 13 SCC 98 , the Supreme Court has observed that it is the duty of prosecution to explain the injuries of the accused. The observation of the Court is in the following terms: “35. The other glaring defect in the investigation is when A-1 has sustained injuries and admittedly a complaint was given by his father, a duty is cast upon the prosecution to explain the injuries. The doctor has also categorically deposed about the injuries sustained by A-1. These lapses on the part of the investigating officer assume greater importance and prove to be fatal to the case of the prosecution. The doctor has also categorically deposed about the injuries sustained by A-1. These lapses on the part of the investigating officer assume greater importance and prove to be fatal to the case of the prosecution. When the investigating officer deposed before the Court that the complaint given by A-5’s father was investigated and he filed “B form” and the case was closed, not marking the document is fatal to the case of the prosecution. The investigating officer further suppressed the fact that there was a direct evidence to seize the gun used by the deceased and register a complaint against the deceased under the relevant provisions of the Arms Act which is evident from the endorsement made on Ext. P-22.” 38. Recently, the Supreme Court in the case of State of Rajasthan v. Ramanand, (2017) 5 SCC 695 , has considered the similar circumstantial evidence, wherein in somewhat similar facts the death of wife was by strangulation. In that case, the respondent was charged with murder of his wife and daughter. He was sentenced to undergo life imprisonment for the offence under Section 302 IPC and three years’ rigorous imprisonment for the offence under Section 201 IPC. The respondent-husband claimed that he was not present in the house and he was at his shop with his brother. It was also stated by the respondent that his mother and younger brother’s wife had gone to his house in Bihar and his wife was alone in the house at the time of her death. In the post-mortem report, however, it was found by the medical board that the cause of death was asphyxia due to strangulation. Burns were found to be post-mortem in nature. The prosecution rested its case on the circumstantial evidence. The marriage of the respondent with the deceased was more than seven years’ old, hence no statutory presumption could be drawn in the said case. The Supreme Court held that it is true that the death occurred in a room which was occupied by the respondent alongwith his wife and daughter, but the prosecution did not produce any witness to suggest that the respondent/husband was at or around his residence at the relevant time. The Supreme Court held as under: “10. The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The Supreme Court held as under: “10. The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be the author of the crime. The entire case of the prosecution on this count rests purely on circumstantial evidence. It is true that the deaths have occurred in a room occupied by the respondent alongwith wife, Anita and daughter Ekta. But no witness has been examined to suggest that the respondent was at or around his residence at the relevant time. The marriage was more than 10 years’ old and as such no statutory presumption on any count could be drawn, more particularly, when none of the prosecution witnesses had supported the case of the prosecution as regards demands of dowry and harassment. Apart from strangulation marks nothing was found in the post-mortem report regarding any other bodily injury. The absence of any evidence as regards dowry or related harassment also nullifies the element of presence of any motive on the part of the respondent. None of the prosecution witnesses alleged anything against the respondent nor are there any other supporting circumstances such as discovery of any relevant fact.” 39. We find that the facts of the present case are similar to the facts of the above mentioned case. In the present case also, the prosecution has failed to satisfy this Court that the appellant/husband, his brother and mother were present in the house. 40. As regards the extrajudicial confession of the appellants, we have considered the evidence of the DW-1 Dr. Bharat Bhushan Tripathi, who has examined the injuries on the person of the appellants, while the appellants were in the police custody. D.W.-1, who was surgeon in the District Government Hospital, Karvi, Banda, in his statement he has stated that in compliance with the order of the Judicial Magistrate, Karvi he had medically examined Rama Kant @ Chhottey Lal, the husband, and found several injuries on his body. There were several contusion marks on his body and the injuries were caused by some blunt object. They were about six days’ old injuries. Similar injuries were found on the body of Ram Bahori, father of appellant No. 1. There were several contusion marks on his body and the injuries were caused by some blunt object. They were about six days’ old injuries. Similar injuries were found on the body of Ram Bahori, father of appellant No. 1. Total 6-7 contusions injuries were found. Similar injuries were found on the body of Uma Shankar, appellant No. 3. The injuries of all the three accused were six days’ old. The medical examination was conducted by the D.W.-1 on 30th May, 1986. 41. In the present case, the prosecution has failed to explain the injuries on the bodies of the appellants. The evidence of DW-1, a surgeon in the District Government Hospital, clearly demonstrates that the appellants were subjected to physical torture by the police and thus their statement to the police regarding the recovery of certain articles is not safe to rely upon coupled with the fact that the prosecution witnesses PW-1 and PW-2, who were the witnesses of recovery, have been declared hostile. From their cross-examination also it is evident that they had not supported the case of the prosecution in any manner. Thus, as noted above, the mother-in-law of the deceased was also not in the home and she had gone to attend a marriage. The said evidence is unrebutted. In fact, the prosecution has not adduced any evidence except the brother of the deceased, who was not present on the scene to establish the charges of commission of the offence under Section 302 I.P.C. against the appellants. 42. Now we consider the judgments relied by the learned counsel for the appellants. 43. In Jose alias Pappachan v. Sub-Inspector of Police, Koyilandy and another, (2016) 10 SCC 519 , the Supreme Court in somewhat similar facts ruled thus: “52. The evidence of the eye-witnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to accompany DW 1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW 1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.” 44. The Supreme Court in Mulak Raj and others v. State of Haryana, (1996) 7 SCC 308 , has given the benefit of doubt to all the accused in similar facts, where the deceased died due to asphyxia resulting from suffocation and later burnt injuries were found. The accused were charged under Sections 302, 34 & 201 IPC. The Court found that conduct of the accused failed to reveal any clinching circumstance to necessarily connect accused with commission of said offence. The Court observed that the question that who killed the deceased remained unanswered due to unsatisfactory state of evidence led by the prosecution. 45. For the reasons mentioned above, we are of the view that the findings recorded by the trial Court for conviction of the appellants are not sustainable. No evidence at all is available on the record regarding presence of the appellants at the scene of occurrence. In the light of the above discussion, we are satisfied that the prosecution has miserably failed to establish the unbroken chain of circumstances. It is a trite law that if prosecution case rests on circumstantial evidence, it was required to do so. 46. It is trite that if there is some evidence which evince the innocence of the accused which may appear to be true, the accused would be entitled to acquittal, even though those facts are not proved. We may in this regard gainfully refer to the decision of the Supreme Court in Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 . The following passage is in this regard apposite: “25. We may in this regard gainfully refer to the decision of the Supreme Court in Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 . The following passage is in this regard apposite: “25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt....” 47. For the reasons recorded herein above, we find that the trial Court has chosen to sidestep the well-settled law on the circumstantial evidence and its finding is based on suspicion. Therefore, we have no hesitation in holding that the impugned judgment dated 31st May, 1989 and order of the trial Court on sentence of the same date are not sustainable in law. Accordingly, they are set aside. The appellant No. 1-Chhottey Lal @ Rama Kant is acquitted. The appeal in respect of appellant No. 1 is allowed. 48. Insofar as appellant Nos. 2, 3 and 4, namely, Ram Bahori, Uma Shankar and Smt. Ram Sakhi respectively are concerned, since they have died during pendency of the criminal appeal, their appeal stood abated vide order of this Court dated 25th April, 2017. 49. The surviving appellant No. 1 is on bail. He need not to surrender. His surety bonds stand cancelled and sureties are discharged. Let the lower Court record be sent back to the concerned Court below alongwith a copy of the judgment for information and necessary follow up action.