JUDGMENT : Shree Chandrashekhar, J. The sole appellant has been convicted and sentenced to R.I for life and fine of Rs.5000/-under section 302 of the Indian Penal Code for committing murder of his wife, R.I for life and fine of Rs. 5000/-under section 304-B of the Indian Penal Code for committing dowry death of his wife, R.I for Seven years and fine of Rs. 5000/-under section 201 of the Indian Penal Code for causing disappearance of the dead body of his wife, namely, Sangita Devi and R.I for Three years and fine of Rs. 3000/- under section 498A of the Indian Penal Code. 2. The informant of this case, namely, Dipak Kumar Mishra is brother of the deceased. On the basis of his written report dated 21.10.2008, Chandrapura P.S. Case No. 98 of 2008 was lodged against the appellant under sections 498A, 302 and 201 of the Indian Penal Code. In his written report, the informant has stated that on 20.10.2008 he has received a call from father-in-law of his sister that she was not keeping well. On such information he proceeded for village-Upperbandha in the night and when he reached there father-in-law of his sister informed him that she has passed away. The marriage of his sister was solemnized with the appellant on 26.04.2007 and soon after her marriage she informed that her husband is a drunkard and he has illicit relationship with several other women. 3. During the trial, the prosecution has examined eight witnesses; the informant is P.W.2. His other family members have also been examined during the trial to prove motive, harassment and torture to Sangita Devi and her dowry death. 4. The essential ingredients to prove the offence under section 304-B of the Indian Penal Code are; (i) death has occurred within seven years of marriage, (ii) death has occurred otherwise than under normal circumstances, and (iii) soon before her death the victim was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection to any demand for dowry. 5. The learned Additional Sessions Judge has found that the prosecution has proved the charge under section 302 of the Indian Penal Code as well as under section 304-B of the Indian Penal Code. 6. 5. The learned Additional Sessions Judge has found that the prosecution has proved the charge under section 302 of the Indian Penal Code as well as under section 304-B of the Indian Penal Code. 6. At the outset, we may indicate that from the evidence led by the prosecution, we find that the prosecution has failed to establish that soon before her death Sangita Devi was subjected to cruelty or harassment by her husband in connection to demand of dowry. 7. The informant has stated in the court that at the time of marriage dowry was demanded and Rs.25000/-in cash and a motorcycle was given to the appellant. However, during his cross-examination the informant admits that in the written report he has not made any allegation of demand of dowry and he has also not stated about bad habits of the appellant. During his cross-examination, the investigating officer has stated that he does not remember whether he has recorded statement of any witness after enquiry from the informant. The informant has further admitted that he has never visited his sister. A glance at his testimony would reveal that he has made such allegations against the appellant in his supplementary statement. However, he has not offered any explanation why he could not disclose in his written report or in his statement recorded by the investigating officer about demand of dowry and illicit relationship of the appellant with other women. The exaggerations made by the informant in the court are apparently not explanation or elaboration to the facts disclosed by him in his written report. The demand of dowry, illicit relationship of the appellant and marpit with his wife are material facts which if spoken for the first time in the court would make testimony of the informant doubtful. The other prosecution witnesses – P.W.1, P.W.3 and P.W.4 – are also not the eye-witness and from their cross-examination it is apparent that they have also made significant improvements in the court. P.W.1, the cousin of the deceased has admitted that he has never visited her in her matrimonial home and after Sangita Devi had gone to Upperbandha she did not come back nor has he met her. Similarly, P.W.3 has also stated that he has never visited Sangita Devi in her matrimonial home nor has he ever visited Makauli or Upperbandha and he has gone there only after death of Sangita Devi. Similarly, P.W.3 has also stated that he has never visited Sangita Devi in her matrimonial home nor has he ever visited Makauli or Upperbandha and he has gone there only after death of Sangita Devi. In paragraph no. 10 of his cross-examination, P.W.3 has stated that his statement was not recorded by the police. He has said that 5-6 months after the marriage of Sangita Devi he came to know that she was not treated well, but then, P.W.3 has not disclosed the name and source through whom he has got this information. The testimony of father of the victim, namely, Virendra Kr. Mishra-P.W.4 is so cryptic that no reliance can be placed on his evidence. In our opinion, the prosecution has failed to prove that soon before her death Sangita Devi was subjected to torture and harassment for demand of dowry. 8. Under section 113-B of the Evidence Act once the prosecution has prima facie established that a woman has been subjected to cruelty or harassment for or in connection with any demand of dowry soon before her death the court shall presume that such person has caused the dowry death. It is well-settled that presumption under section 113-B of the Evidence Act is a rebutable presumption and an accused can discharge the onus by showing from the prosecution's evidence or by leading evidence that ingredients under section 304-B of the Indian Penal Code are not made out [refer, “Bakshish Ram and Another Vs. State of Punjab” reported in (2013) 4 SCC 131 and “Pyare Lal Vs. State of Haryana” reported in (1997) 11 SCC 552 ]. In “Bakshish Ram”, the Supreme Court has observed as under: “18. .….. As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these provisions, this Court in M. Srinivasulu v. State of A.P. has observed thus: “8. 4 ….. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. While considering these provisions, this Court in M. Srinivasulu v. State of A.P. has observed thus: “8. 4 ….. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.” 9. In the background of the aforesaid facts and position in law on the issue, we hold that conviction of the appellant under section 304-B of the Indian Penal Code is not sustainable and, accordingly, his conviction for the said offence is set-aside. 10. Admittedly, there is no eye-witness to the actual occurrence of death of Sangita Devi. The case of the prosecution is solely based on circumstantial evidence. To prove the case against the appellant the prosecution has laid evidence on: (i) motive, (ii) presence of the appellant in the house in the night, and (iii) medical evidence. 11. The law on the circumstantial evidence has been discussed by the Supreme Court in several judgments. In “Bhagat Ram Vs. State of Punjab” reported in AIR 1954 SC 621 , it has been held that if the case depends upon the conclusion drawn from the circumstances the cumulative effect of the circumstances must be such as to negate the innocence of the accused and establish conclusively his guilt. In “Navaneethakrishnan Vs. The State By Inspector of Police reported in (2018) 16 SCC 161 , the Supreme Court has held that each and every incriminating circumstance sought to be relied on by the prosecution against the accused must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of circumstances from which the only irresistible conclusion that can be drawn should be about the guilt of the accused and no other hypothesis against the guilt of the accused is possible. 12. 12. In a case based on circumstantial evidence, motive provides an important link, however, only on the basis of motive conviction of an accused for a serious offence like murder cannot be recorded [refer, “Keshav Vs. State of Maharashtra” reported in (2007) 13 SCC 284 ]. From the evidences brought on record, we find that the prosecution witnesses have tried to impute demand of dowry as the motive, however, looking at their cross-examination and other attending circumstances of the case we are of the opinion that it is difficult to hold that the prosecution has proved motive. 13. On the time of death, the medical evidence does not support the prosecution story. 14. Dr. Ramnaresh Prasad-P.W.7, who has conducted the post-mortem examination on 21.10.2008 at 11:50 a.m, has found the following injuries on Sangita Devi: “(i) Sharp cut injury on front of neck at two places about 1” apart from each other. Size of first injury was 2” x ½” muscle deep whereas the 2nd was of size 2 ½” x ½” x muscle deep. (ii) Sharp cut injury of size 6” x 4” and from said injury protrusion of intestinal loops has come out. (iii) Sharp cut injury of size 3” x 4” stomach just below 1 ½” from injury no. 2, and from this injury too protrusion of intestinal loops has come out.” 15. According to the doctor, the time elapsed since death was 3 and 1/2 days (60 to 65 hours) from post-mortem. The doctor has observed that the whole body of Sangita Devi was swollen and bad smell was coming out from her body. He has also stated that he has found foetus of 6 months in uterus of Sangita Devi. 16. The case set up by the prosecution against the appellant is that he has killed Sangita Devi with a sharp-cutting weapon and thrown her dead body in the well, but then, how and where he has committed murder of Sangita Devi have not been brought out on record. The prosecution has failed to establish the place where Sangita Devi was done to death. The seizure witnesses – P.W.5 and P.W.6 – have not supported the seizure of blood-stained soil and knife. They have stated that the police showed them the knife and soil and told them that those materials were seized and asked them to sign the seizure memo. The seizure witnesses – P.W.5 and P.W.6 – have not supported the seizure of blood-stained soil and knife. They have stated that the police showed them the knife and soil and told them that those materials were seized and asked them to sign the seizure memo. P.W.5 has stated that his village is 7-8 k.m. away from the place of occurrence. He has gone there with 5-6 other persons on hearing the news about dead body of a woman. P.W.6 has said that next day of the recovery of dead body the police has again gone to the place of occurrence. At that time he was in a nearby field grazing animals and when he has again gone there the police asked him to sign the seizure memo. P.W.5 has also said that nothing was recovered at the time when the dead body was taken out from the well. And, the prosecution story that on the disclosure of the appellant the incriminating articles were recovered cannot be believed because confessional statement of the appellant was not recorded and nobody has seen him leading the police to the place from where knife and soil were recovered. 17. None of the witnesses has spoken that around 20.10.2008 the appellant was seen in his house or at least in the village. To a court question, whether anyone has seen the appellant with the deceased, the investigating officer has stated that the house owner has stated that he has seen both going together in the morning. But then, the house owner has not been produced during the trial. This statement, if at all given by the house owner, is falsified by the medical evidence; according to the doctor death has occurred sometime in the intervening night of 18th/19th October, 2008. In law, a husband is required to explain the circumstances under which his wife has died provided it is proved that at the time when his wife has died he was the only person in his house. In a case like the present one, even though dead body of his wife with sharp cut injuries was found in the well the presumption under section 106 of the Evidence Act cannot be raised against the appellant. The presumption under section 106 of the Evidence Act is a rule of evidence and by itself it does not prove a fact. The presumption under section 106 of the Evidence Act is a rule of evidence and by itself it does not prove a fact. The prosecution has failed to prove such facts which would raise a presumption that Sangita Devi has met with a homicidal death at the hands of her husband. 18. The opinion rendered by the doctor on the time since death, failure of the investigating officer to lodge First Information Report on 20.10.2008; he has prepared inquest in the evening of 20.10.2008, explanation of the appellant that he was searching for his wife when the investigating officer has called him and absence of evidence on last-seen-together, persuade us to hold that the appellant is entitled for the benefit of doubt. Accordingly, we hold that the prosecution has failed to prove the charge under sections 498A, 304-B, 302 and 201 of the Indian Penal Code against the appellant and, therefore, his conviction for the aforesaid offences in Sessions Trial Case No. 31 of 2009 is set-aside. 19. The appellant, namely, Akhilesh Kumar Mishra who is in custody shall be released forthwith, if not wanted in connection with any other case. 20. In the result, Criminal Appeal (DB) No. 39 of 2013 is allowed. 21. We appreciate the assistance rendered by Mrs. Darshana Poddar Mishra, the learned Amicus. 22. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 23. Let a copy of the Judgment be transmitted to the court concerned through FAX. 24. Let the lower-court records be sent to the court concerned forthwith.