RAKESH KUMAR, J.:–Four accused persons who are appellants in the aforesaid three appeals were tried together and by common judgment they were convicted by the trial court, and as such, all the aforesaid three appeals were taken up together under the heading “For Hearing” and are being disposed of by this common judgment. 2. All the appellants by judgment dated - 01.05.2013 were convicted for the offence under Section 304B of the Indian Penal Code, 1860 [hereinafter referred to as the “I.P.C.”]. By order dated 06.05.2013 sole appellant -Manoj Singh [Cr. Appeal (D.B.) No. 753 of 2013] was sentenced to undergo rigorous imprisonment for life. The sole appellant- Binod Singh [Cr. Appeal (D.B.) No. 615 of 2013], brother of appellant – Manoj Singh, by order dated : 06.05.2013 under Section 304(B) of the I.P.C. was sentenced to undergo rigorous imprisonment for seven years. Both appellants namely: Dev Muni Singh and Atarwasi Devi [Cr. Appeal (D.B.) No. 631 of 2013] by order dated 06.05.2013 under Section 304(B) of the I.P.C. were sentenced to undergo imprisonment for ten years. The judgment of conviction and sentence was passed in Sessions Trial No. 178 / 40 of 2011 [arising out of Mohania P.S. Case No. 25 of 2009] by Shri Harindra Nath, learned Adhoc 5th Addl. District and Sessions Judge, Bhabua at Kaimur [hereinafter referred to as the ‘trial judge”]. 3. Short fact of the case is that on 27.01.2009 at 17.45 Hours [5.45 P.M.], A.S.I. Bindeshwari Kumar Singh of Mohania Police Station [P.W. 15] recorded fardbyan of Yashwanti Devi [deceased], wife of appellant – Manoj Singh. The fardbyan was recorded in the clinic of Dr. Avinash Kumar Singh [not examined] in Mohania. In the fardbyan it was disclosed by the informant that her marriage with appellant – Manoj Singh, S/o Dev Muni Singh [appellant no. 1 in Cr. Appeal (D.B.) No. 631 of 2013] was solemnized about 05 years back. She disclosed that she was the sole child of her parent. Her father was having 01 Acre of land. In marriage dowry was appropriately provided. After durangman when she went to her in-law’s house, her husband- Manoj Singh [appellant in Cr. (D.B.) No. 753 of 2013], mother-in-law: Atarwasi Devi [appellant no. 2 in Cr. Appeal (D.B.) No. 631 of 2013], father -in-law: Dev Muni Singh [appellant no. 1 in Cr. Her father was having 01 Acre of land. In marriage dowry was appropriately provided. After durangman when she went to her in-law’s house, her husband- Manoj Singh [appellant in Cr. (D.B.) No. 753 of 2013], mother-in-law: Atarwasi Devi [appellant no. 2 in Cr. Appeal (D.B.) No. 631 of 2013], father -in-law: Dev Muni Singh [appellant no. 1 in Cr. Appeal (D.B.) No. 631 of 2013] and Devar (younger brother of her husband): Binod Singh, all jointly started to pressurize her to ask her parent to transfer of 01 Acre of land in their name. Thereafter, the informant intimated her father. Due to non -fulfillment of the said demand they also started assaulting her and administering torture to her. She claimed that whenever she was assaulted she was regularly informing the same to her parent after going there. She further disclosed that in this context her father had called Panchayati on several occasions and told that so long both mother and father were alive it was difficult to transfer the land. They were saying that after their death automatically the land will be in their name, but accused persons were pressurizing for transferring the land immediately and threatened to kill her on number of occasions. Anyhow she was tolerating all the atrocities. On 27.01.2009 at about 4.00 A.M. in the morning it was disclosed that her husband- Manoj Singh, devar: Binod Singh, mother -in-law: Atarwasi Devi and father-in-law: Dev Muni Singh poured kerosene oil on her and she was burnt and locked. In the said occurrence she received severe burn injuries. Thereafter neighbors arrived there and carried her to Mohania Hospital for her treatment. She was under treatment and informant further stated that the said fardbyan was read over to her and after finding it correct she had put her right thumb impression. As a witness to the fardbyan Shyamlal Singh (P.W. 10) put his signature. Besides him, A.S.I. - Bindeshwari Kumar (P.W. 15) had also signed on the fardbyan. 4. On the basis of the said fardbyan on the same day i.e. on 27.01.2009 a formal F.I.R. vide Mohania P.S. Case No. 25 of 2009 was drawn up under Section 498(A) of the I.P.C. and Section 3 & 4 of the Dowry Prohibition Act, 1961. Subsequently, by order dated 04.02.2009 Section 307 of the I.P.C. was added in the F.I.R. The F.I.R. was lodged against all the aforesaid four appellants. Subsequently, by order dated 04.02.2009 Section 307 of the I.P.C. was added in the F.I.R. The F.I.R. was lodged against all the aforesaid four appellants. From record it is evident that F.I.R. was received in the Court of learned Chief Judicial Magistrate, Kaimur at Bhabhua on 29.01.2019. After registering F.I.R. Police visited the place of occurrence, recorded statement of witnesses and during investigation it was noticed that injured succumbed to her injuries, however, to the reasons best known to Police, immediately after death no intimation was given to the Court, rather at belated stage on 04.02.2009 on the prayer made by the Investigating Officer Section 307 of the I.P.C. was added in the F.I.R. 5. During investigation the Investigating Officer besides examining witnesses collected inquest report and post -mortem examination report and finally on 29.04.2011 charge -sheet was submitted against all the appellants under Section 304(B)/ 34 of the I.P.C. On 17.05.2011 learned Chief Judicial Magistrate, Kaimur took cognizance of offence and case was committed to the Court of Sessions on 26.05.2011. In the case on 13.07.2011 charge under Section 304(B)/34 of the I.P.C. was framed against all the aforesaid appellants which was denied by them and they claimed to be tried. 6. During the trial, to establish its case, on behalf of the prosecution altogether sixteen (16) witnesses were examined, however, number of prosecution witnesses did not support the case, and as such, they were declared hostile. Surprisingly, mother of deceased who was examined as P.W. 8 (Bahetra Devi) did not support the prosecution case and she too was declared hostile. The witnesses who were declared hostile are: P.W. 1 – Feru Singh alias Feku Singh [co-villager of the appellants], P.W. 2 (Satendra Singh), P.W. 3 (Kapil Muni Kushwaha), P.W. 4 (Shivpujan Gode), P.W. 5 (Virendra Singh), P.W. 6 (Ajit Singh) and P.W. 7 (Hari Singh Kushwaha), all co-villagers of the appellants, were declared hostile. P.W. 9 -Nandlal Singh (maternal uncle of the deceased) though was not declared hostile, his evidence goes against prosecution. Similar is the position in respect of evidence of P.W. 10 (Shyam Lal Singh) who was uncle of deceased and one of the witnesses to the fardbyan. His evidence also goes against prosecution case. P.W. 11 (Mutan Singh) is the co-villager of the deceased. His evidence also goes against prosecution. Similar is the position in respect of evidence of P.W. 10 (Shyam Lal Singh) who was uncle of deceased and one of the witnesses to the fardbyan. His evidence also goes against prosecution case. P.W. 11 (Mutan Singh) is the co-villager of the deceased. His evidence also goes against prosecution. P.W. 12 (Ram Ekwal Rai) on the relevant date was posted as A.S.I. in Mohania Police Station. He only obtained attachment order and conducted raid. Besides this, no effective investigation was done by him. P.W. 13 (Vishnu Dev Singh) is another A.S.I. who took up investigation on 24.03.2011, examined two witnesses and he submitted charge sheet. P.W. 14 (Tejbal Pathak) is the Investigating Officer of the case, who took up investigation immediately after lodging F.I.R. and subsequently he handed over charge of investigation on 23.06.2009 to Officer – incharge of Mohania Police Station. P.W. 15 (Bindshwari Kumar) was A.S.I. Mohania Police Station regarding whom it was stated that he was the scribe of the fardbyan however during the trial he resiled from this fact and stated that fardbyan in his presence was recorded by another Police Officer who was not examined by prosecution. P.W. 16 (Dr. H.V. Rai) on 28.01.2009 was posted in A.I.M.S. B.H.U., Varanasi and was posted on post- mortem duty and on the same day at 5.00 P.M. he conducted post mortem examination on the dead body of deceased and he identified post-mortem examination report, which was marked as Ext. 7. 7. After closure of prosecution evidence on 08.03.2013 evidences and circumstances brought during the trial against the appellants were explained to them and their statement under Section 313 of the Code Of Criminal Procedure, 1973 {hereinafter referred to as “Cr.P.C.”} was recorded in which they claimed to be innocent, however from defence side neither oral nor documentary evidence has been brought on record. On the basis of materials available on record the learned trial judge has passed the impugned judgment, which has been assailed in the present appeals. 8. On the basis of materials available on record the learned trial judge has passed the impugned judgment, which has been assailed in the present appeals. 8. Sri Ramakant Sharma, learned senior counsel, assisted by Sri Yogendra Kumar, learned counsel for the appellants after referring entire evidence on record has argued that it is a peculiar case in which though prosecution was not in a position to establish torture of deceased due to non fulfillment of demand of dowry just prior to the occurrence, the learned trial judge without any oral or documentary evidence has passed judgment of conviction and sentence under Section 304(B) of I.P.C. He submits that number of witnesses, who were not declared hostile, in their evidence have stated that deceased while preparing meal was caught with fire and this information was given to prosecution side by the father- in- law of the deceased i.e. appellant no. 1 in Cr. Appeal (D.B.) No. 631 of 2013. He further submits that those witnesses in clear terms have stated that while they reached in Mohania hospital they saw that injured was completely unconscious. One of the prosecution witnesses who visited Mohania hospital as well as Kabirchaura hospital in Varanasi, where under treatment injured died, too has stated that injured was unconscious. Sri Sharma, learned senior counsel taking aid from the aforesaid evidence has argued that prosecution has miserably failed to establish that fardbyan which has been treated as dying declaration was the actual fardbyan of the deceased or not. He submits that there was no certification on the fardbyan from either doctor of Mohania hospital or any employee of the hospital. Besides this, he submits that though P.W. 14 (Tejbal Pathak), who is the Investigating Officer of the case, in his evidence has stated that fardbyan of the deceased was recorded by Bindeshwari Kumar (P.W. 15), the said witness- Bindeshwari Kumar (P.W. 15) in his evidence has categorically stated that he was not the scribe of the fardbyan rather in his presence one another Police Officer had recorded fardbyan however, the Police Officer who had recorded fardbyan has not come forward to depose in the case on behalf of prosecution. On the basis of aforesaid evidences it has been emphasized that prosecution has miserably failed to establish that it was actual dying declaration or not, and as such, in absence of any material evidence in a case in which almost all the witnesses have turned hostile, there was no reason for the learned trial judge to pass judgment of conviction and sentence. Sri Sharma placing reliance on a Division Bench judgment of this Court reported in (2019) 1 BBCJ V- 517 [Dharmveer Rajak Vs. State of Bihar] has argued that in a case of such type of dying declaration certification by Medical Officer is necessary. In sum and substance, Sri Ramakant Sharma, learned senior counsel has further argued that it appears that the learned trial judge was persuaded to pass judgment of conviction and sentence only on the basis of evidence of P.W. 16 (Dr. H.V. Rai) who had conducted post mortem. He submits that it is true that in post mortem report doctor had noticed smell of kerosene oil which was coming from the hair of head of deceased, but no cogent material has been brought on record by prosecution that it was actually case of pouring kerosene oil and burning the deceased, whereas, there is oral evidence on record which clarifies that the deceased was caught with the fire while she was preparing meal. He submits that only on the basis of such medical evidence which has not been corroborated by any other evidence, there was no reason for the learned trial judge to pass judgment of conviction and sentence. 9. Sri Ajay Mishra, learned Additional Public Prosecutor opposing the appeal has argued that it is true that most of the witnesses have connived with the accused persons and have not supported the prosecution case, but during investigation they had categorically supported the case and this was the reason that despite the fact that P.W. 1 to P.W. 7 were declared hostile, their attention to their previous statement recorded under Section 161 of the Cr.P.C. was drawn. He submits that in such type of cases even if there is no direct evidence on record, circumstances would be enough to approve the judgment of conviction and sentence. He submits that in such type of cases even if there is no direct evidence on record, circumstances would be enough to approve the judgment of conviction and sentence. He submits that witnesses may speak lie but circumstance never speaks any lie, and as such, he has argued that in view of evidence of doctor which was specific that from the hair of head of deceased smell of kerosene oil was coming, this circumstance is enough that deceased was poured kerosene oil thereafter she was set on fire. Accordingly, it has been argued that there is no reason for interference with the judgment of conviction and sentence. 10. Besides hearing learned counsel for the parties, we have minutely examined entire evidence on record. However, before proceeding further it would be necessary to discuss evidences which have been brought on record. P.W. 15 (Bindeshwari Kumar) on 27.01.2009 was posted as A.S.I., Mohania Police Station. In his evidence he stated that on 27.01.2009 he had recorded fardbyan of Yashwanti Devi (deceased) at about 5.45 P.M. and identified his signature on the fardbyan. He further stated in paragraph 1 of his evidence that in his presence Yashwanti Devi (deceased) went on speaking and his companion Police Officer had recorded the same. However he stated that he was not in a position to say as to who was the Officer who had written the fardbyan but he identified his signature which was marked as Ext. 6. In paragraph 2 of his cross examination he stated that he had not recorded the fardbyan but he got it recorded. In paragraph 3 of his cross examination he stated that after the fardbyan was recorded, it was placed before him for his signature. However, contrary to the evidence of P.W. 15 (Bindeshwari Kumar) on the point as to whether this witness had recorded fardbyan or not, P.W. 14 (Tejbal Pathak) who was the Investigating Officer of the case categorically stated that fardbyan was recorded by P.W. 15 (Bindeshwari Kumar). In view of evidence of P.W. 15, there is no reason to come to conclusion that he was not scribe of the fardbyan and it is also evident that scribe of the fardbyan has not come forward to depose in the case. The said fardbyan was identified by P.W. 10 (Shyam Lal Singh). In view of evidence of P.W. 15, there is no reason to come to conclusion that he was not scribe of the fardbyan and it is also evident that scribe of the fardbyan has not come forward to depose in the case. The said fardbyan was identified by P.W. 10 (Shyam Lal Singh). Shyam Lal Singh (P.W. 10) in his evidence has identified his signature on the fardbyan, which was marked as Ext. 2. However, P.W. 10 in his evidence has stated that said fardbyan / so- called dying declaration was not recorded in his presence for the purposes of his signature it was placed before him and thereafter he signed. P.W. 10 (Shyam Lal Singh) in paragraph 1 of his evidence has stated that he was uncle of the deceased. He further stated that she died about 2 ½ years back while she was preparing meal. After getting said information he went to the hospital of Dr. Avinash Singh and he saw that the injured was unconscious and her whole body was burnt. In paragraph 2 of his examination -in- chief he stated that Yashwanti had given her statement to Daroga Ji and he had put his signature on the fardbyan and he identified his signature, which was marked as Ext. 2. In paragraph 3 of his evidence he further stated that the injured for better treatment was referred to Varanasi whereas she was given treatment and she was treated in Kabir Chaura hospital where she died. In his presence inquest report was prepared and he put his signature on the inquest report and his signature was marked as Ext. 2/1. In paragraph 6 of his cross examination he stated that deceased was daughter of his younger brother. He clarified that information regarding burning was given by her father- in- law then he along with mother and father of the deceased went there in Mohania hospital. He got information that in Mohania her condition was not well and she was found unconscious. He in paragraph 7 of cross examination stated that fardbyan of Yashwanti (deceased) was not recorded in his presence. On being asked by Police he put his signature. He did not read as to what was written in the fardbyan but it was read over to him. While the injured was unconscious she was carried to Varanasi and in unconscious state itself she died subsequently. On being asked by Police he put his signature. He did not read as to what was written in the fardbyan but it was read over to him. While the injured was unconscious she was carried to Varanasi and in unconscious state itself she died subsequently. He in paragraph 7 further reiterated that deceased was not in a condition to speak. In paragraph 9 of his cross examination he further stated that cremation was done by husband of the deceased in which her father- in- law and mother- in -law had also participated. He has further stated that demand of dowry was never made. Of -course evidence of P.W. 10 categorically states that it was not a case of death due to forceful burning nor it was a case of demand of dowry. This witness was not declared hostile nor any attention to his previous statement was drawn and as such, evidence of P.W. 10 certainly can be used against prosecution. 11. P.W. 8 - Bahetra Devi (mother of the deceased) too has not supported prosecution case rather she stated that deceased was caught with the fire while she was preparing meal. This witness was declared hostile. 12. P.W. 9 - Nandlal Singh (maternal uncle of deceased ) in paragraph 1 of his evidence has stated that he got information that deceased was caught by fire while she was preparing meal. This witness has not been declared hostile, whereas he was examined as prosecution witness. His evidence also goes to show that it was not a case of dowry death, rather as per his evidence it was an accidental death. 13. P.W. 6 (Ajit Singh) though has been declared hostile , he has identified his signature on the inquest report which was prepared in Government Hospital, Kabir Chaura, Varanasi and his signature was marked as Ext. 1. 14. P.W. 11 – Mutan Singh is an another witness to the inquest report and his signature was marked as Ext. 3. This witness was not declared hostile, however his evidence goes against prosecution case. P.W. 11 in his evidence has stated Yashwanti (deceased) was daughter of his village. She was married with Manoj Singh [appellant in Cr. Appeal (D.B.) No. 753 of 2013]. She died about 2 ½ years back and died due to burn injuries. After getting information he went to hospital of Dr. P.W. 11 in his evidence has stated Yashwanti (deceased) was daughter of his village. She was married with Manoj Singh [appellant in Cr. Appeal (D.B.) No. 753 of 2013]. She died about 2 ½ years back and died due to burn injuries. After getting information he went to hospital of Dr. Avinash Singh in Mohania where he saw that injured was unconscious and she was thereafter treated at Varanasi in Kabirchaura and during treatment at Varanasi she died. Thereafter, inquest report was prepared and his signature was obtained which was marked as Ext. 3. In paragraph 3 of his cross examination he stated that deceased was having good relation in her in- law’s house and information regarding her burn injury was given by her father- in- law. He further stated that while he saw the injured in burnt condition she was not in a position of making any statement and accused persons along with them had carried the deceased subsequently and cremation was done by her husband, who is appellant in Cr. Appeal (D.B.) No. 753 of 2013. Shradh was held in the village. Evidence of this witness also categorically speaks that it was an accidental death and information was given by appellants to the village of deceased. 15. P.W. 14 – Tejbal Pathak at the relevant time was posted as A.S.I. in Mohania Police Station and was the Investigating Officer of the case. In his evidence he identified the formal F.I.R. which was having writing of Officer -incharge and same was marked as Ext. 4. He also identified fardbyan and he stated that it was in the writing of Bindeshwari Kumar (P.W. 15) and it was marked as Ext. 5. He also proved signature of one of the witnesses on the fardbyan, which was marked as Ext. 5/1. In paragraph 9 of his cross examination he categorically stated that fardbyan of deceased was not recorded in his presence. He in paragraph 10 of his cross examination stated that injured died on 28.01.2009 at 9.40 A.M. however no plausible explanation has been given as to why immediately Court was not informed regarding death of deceased nor Section 304B, 302 of the I.P.C. was added in the F.I.R. 16. P.W. 16 (Dr. He in paragraph 10 of his cross examination stated that injured died on 28.01.2009 at 9.40 A.M. however no plausible explanation has been given as to why immediately Court was not informed regarding death of deceased nor Section 304B, 302 of the I.P.C. was added in the F.I.R. 16. P.W. 16 (Dr. H.V. Rai) on 28.01.2009 was posted on post mortem duty in A.I.M.S. B.H.U., Varanasi and he conducted post -mortem on the same day at 5.00 P.M. and noticed the following facts:— “She was young adult, average built average nourish. Eyes and mouth was closed. Rigor Mortis was present all over her body smell of kerosene oil was present in her head hair. Ante morem injury there was darmo epidermal extorssive burn injuries all over her body except back of her head and both soles of feet. Bones – NAD Part of Generation as NAD Additional information NAD In internal examination in head and neck skull NAD, brains and its membrane are congested. Base of skull and vertibary are NAD. Spinal cord not opened. In thorac Ribs and Cartilage – NAD. Plura are congested. In laric cratia and brank kige there was earlier particles, both lungs are congested pericardium is also congested. In hard chambers are full and its weight 240 Ons. big vessels are NAD In Abdomen Paritonium is congested cavity is NAD. Buckul cavity and pharynx are NAD. Leeths are 16x16. Eshophegas is congested carbone particles. In stomach there was 80 gms of semi digested food. Potato identified with carbon particles in small intestine. Digested food with gases present. In large intestine faecal matter with gases, liver is congested and its weight 100 x 20 gms. Gall bladder is half full as spleen and both kidney are congested. Urinary bladder is empty. Uterus is empty non gravit. Her death was in SSPG Hospital Varanasi on 28-01-2009 at 1.50 A.M. In my opinion her death was due shock as a result of extensive burn injuries.” This witness also identified his signature and writing over the post mortem report and it was marked as Ext. 7. In paragraph 7 of his cross examination he states that deceased was having about 90 % burn injury. In such situation it is difficult to perceive that in such injury the deceased would have been in a position to make such statement which has been treated as fardbyan / dying declaration. 7. In paragraph 7 of his cross examination he states that deceased was having about 90 % burn injury. In such situation it is difficult to perceive that in such injury the deceased would have been in a position to make such statement which has been treated as fardbyan / dying declaration. Moreover, prosecution witnesses have also corroborated as if deceased after getting burn injury while was in hospital in Mohania and Varanasi she was unconscious and as such prosecution story that deceased had given fardbyan which was said to be recorded by P.W. 15 may not be considered as truthful. 17. On examination of aforesaid evidences there is no difficulty in coming to conclusion that prosecution has not been able to establish the case of dowry death. It goes without saying that for holding a person guilty under Section 304B of the I.P.C. onus lies on prosecution to establish that before death deceased was tortured due to non fulfillment of demand of dowry. In the present case none of the witnesses have supported that deceased was ever tortured or assaulted due to non fulfillment of demand of dowry save and except the facts which were shown to be mentioned in the fardbyan. Since the so -called fardbyan has not been established by prosecution to be truthful and prosecution on the point of torture and demand of dowry is silent, in that view of the matter the learned trial judge has committed error in passing judgment of conviction under Section 304B I.P.C. It is true that in medical evidence i.e. post mortem report [Ext. 7] it has come that from the hair of head of deceased smell of kerosene oil was coming which may be considered as if the deceased before burning was poured kerosene oil, but in absence of any other corroborative evidence on this very point only on such point i.e. smell of kerosene oil, it would not be appropriate for this court to approve the judgment of conviction, that too, under Section 304B of the I.P.C. In any event, prosecution has not been able to bring on record all ingredients which were must for application of Section 304 B of the I.P.C. 18. In view of facts and circumstances and evidence brought on record, it is difficult to approve the judgment of conviction and sentence. In view of facts and circumstances and evidence brought on record, it is difficult to approve the judgment of conviction and sentence. Accordingly, judgment of conviction and sentence dated- 01.05.2013 and 06.05.2013 respectively passed by Sri Harindra Nath, learned Adhoc 5th Additional District & Sessions Judge, Bhabua, Kaimur in Sessions Trial No. 178/40 of 2011 [arising out of Mohania P.S. Case No. 25 of 2009, G.R No. 135 of 2009] is hereby set aside and all the aforesaid three appeals are allowed. The appellant- Manoj Singh in Cr. Appeal (D.B.) No. 753 of 2013 is in custody and since judgment of conviction and sentence has been set aside, it is hereby directed to release him forthwith, if not wanted in any other case. So far other appellants namely: Binod Singh [Cr. Appeal (D.B.) No. 615 of 2013 ], Dev Muni Singh and Atarwasi Devi [Cr. Appeal (D.B.) No. 631 of 2013] are concerned, they are on bail, and as such, they are hereby discharged from liability of their bail bonds.