JUDGEMENT : Shree Chandrashekhar, J. The appellant, namely, Ghanshyam Tudu and his parents were named as accused by the informant in his fardbeyan which was recorded in the morning of 20.5.2007, at about 6:20 a.m. After the investigation, a charge-sheet was filed against them, however, since Smt. Somwari Tudu has absconded by that time, charges under section 302 of the Indian Penal Code and under section 328 of the Indian Penal Code were framed against Ramdas Tudu and Ghanshyam Tudu. 2. In Sessions Trial No. 104 of 2007, the appellants; Ghanshyam Tudu is the appellant in Cr. Appeal (DB) no. 1424 of 2016 and Ramdas Tudu has filed Cr. Appeal (DB) no. 890 of 2010, have been convicted and sentenced to R.I. for life and fine of Rs. 5000/- each under section 302 of the Indian Penal Code. No separate sentence under section 328 of the Indian Penal Code has been awarded to them. 3. Mr. Pramod Kumar, the learned counsel for the appellant, namely, Ghanshyam Tudu submits that pursuant to the liberty granted to Ghanshyam Tudu vide order dated 2nd August, 2019, a supplementary affidavit dated 4.9.2019 has been filed. Through this affidavit, Ghanshyam Tudu has brought on record a letter dated 21st August, 2019 of the Head Mistress, Government Aided + 2 High School, Chandil, Seraikella-Kharsawan and photocopy of the marks statement issued by the Jharkhand Academic Council, Ranchi. At this stage, it is pertinent to record that the aforesaid documents have been produced by the appellant through the Supplementary Affidavit dated 4.9.2019 filed in I.A. no. 6666 of 2019, which has been moved for suspension of sentence. 4. The proceedings in Cr. Appeal (DB) no. 1424 of 2016 would disclose that the application for suspension of sentence filed by the appellant was dismissed as not pressed vide order dated 14.2.2018, however, a liberty was given to him to renew his prayer for bail after custody of 10 years. Accordingly, the appellant has filed I.A. no. 6666 of 2019 seeking suspension of sentence pending disposal of the criminal appeal. The order dated 2nd August, 2019 passed in I.A. no. 6666 of 2019 reads as under: “08/ 02.08.2019 Heard learned counsel for the appellant and learned counsel for the State on the renewed prayer for suspension of sentence made through I.A. No.6666 of 2019. 6666 of 2019 seeking suspension of sentence pending disposal of the criminal appeal. The order dated 2nd August, 2019 passed in I.A. no. 6666 of 2019 reads as under: “08/ 02.08.2019 Heard learned counsel for the appellant and learned counsel for the State on the renewed prayer for suspension of sentence made through I.A. No.6666 of 2019. The sole appellant is under conviction for the charge of murder under section 302 IPC and also under section 328 IPC vide impugned judgment dated 20.09.2010 passed in Sessions Trial No. 104 of 2007 by the court of learned Additional Sessions Judge, FTC- 2nd at Seraikella and has been sentenced to undergo RI for life with a fine of Rs.5000/- under section 302 IPC and in default in payment of fine, further serve SI for six months, while no separate sentence has been awarded under section 328 IPC vide order dated 22.09.2010. Learned counsel for the appellant has primarily pressed the prayer for suspension of sentence on two grounds, inter alia, that the appellant has remained in custody for almost 10 years by now and that appellant was a minor at the time of occurrence. Learned counsel for the appellant seeks time to file supplementary affidavit in order to bring on record further supporting documents in proof of his age. Time, as prayed for, is allowed. The appellant is required to bring on record proof of admission from the first school where he got admitted till he studied up to Class-X, pursuant whereto, the admit card of the Jharkhand Academic Council has been issued as enclosed to the memo of appeal. The matter is adjourned for four weeks.” 5. Thereafter, Cr. Appeal (DB) no. 1424 of 2016 was posted for hearing along with Cr. Appeal (DB) no. 890 of 2010, however, on that day no one appeared for the appellant Ramdas Tudu and, therefore, these matters were adjourned for 13th November, 2019. 6. On 13.11.2019, on the request of the learned counsels appearing for the appellants hearing of these criminal appeals was adjourned for 10th December, 2019, to be posted under the heading Final Disposal. At no stage, the plea of juvenility was pressed on behalf of the appellant. 7. The learned counsel for the appellant submits that on the date of the occurrence Ghanshyam Tudu was below the age of 18 years and, therefore, a juvenile. At no stage, the plea of juvenility was pressed on behalf of the appellant. 7. The learned counsel for the appellant submits that on the date of the occurrence Ghanshyam Tudu was below the age of 18 years and, therefore, a juvenile. The learned counsel for the appellant has referred to the judgment in “Kulai Ibrahim @ Ibrahim Vs. State represented by the Inspector of Police” in Criminal Appeal No. 1308 of 2014, to submit that a plea of juvenility can be raised after the conviction, in appeal or even before the Hon’ble Supreme Court. The learned counsel has further submitted that in the memorandum of appeal the appellant has taken a plea of juvenility and, therefore, his case should be remanded for inquiry on his age. 8. In Kulai Ibrahim case, the Supreme Court has held that for making a claim with regard to juvenility after conviction the claimant must produce some material which may prima-facie satisfy the court that an inquiry into the claim of juvenility is necessary. It has been held that initially burden has to be discharged by the person who claims juvenility. In “Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal” (2) reported in (2012) 10 SCC 489 , the Supreme Court has observed as under: “39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court. “39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. 39.3. “39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. 39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3) (a) (i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh [Akbar Sheikh v. State of W.B. (2009)7 SCC 415 ] and Pawan [Pawan v. State of Uttaranchal (2009) 15 SCC 259 ] these documents were not found prima facie credible while in Jitendra Singh [Jitendra Singh v. State of U.P. (2010)13 SCC 523 ] the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellants age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purpose of Section 7-A and order an enquiry for determination of the age of the delinquent. 39.4. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellants age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purpose of Section 7-A and order an enquiry for determination of the age of the delinquent. 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent. 39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. 39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised” 9. In first place, we intend to record that the letter dated 21.8.2019 issued by the Head Mistress of the school has been filed in original, however, the marks statement issued by the Jharkhand Academic Council, Ranchi which is dated 9.5.2009 has not been produced in original. On the court’s query, Mr. Pramod Kumar, the learned counsel for the appellant states that original of the said marks statement was not given to him. Therefore, as required under the Juvenile Justice Act, 2000, the appellant was required to produce the admission register of the school which he has first attended. On the court’s query, Mr. Pramod Kumar, the learned counsel for the appellant states that original of the said marks statement was not given to him. Therefore, as required under the Juvenile Justice Act, 2000, the appellant was required to produce the admission register of the school which he has first attended. Above all, the marks statement of the Jharkhand Academic Council has been issued in the year 2009 whereas the offence has been committed in the year 2007. In the absence of any other corroborative evidence, such as, the admission register, attendance register etc., the date of birth of the appellant as recorded in the marks statement does not inspire confidence. 10. In the above facts, we are of the opinion that the appellant has failed to produce such material which would prima-facie indicate that on the date of the occurrence, that is, in the night of 19/20th May, 2007 he was below the age of 18 years. 11. Accordingly, the prayer made on behalf of the appellant for his age assessment is declined. 12. Since these criminal appeals have been filed against the common judgment of conviction dated 20th September, 2010 passed in S.T. No. 104 of 2007, by a common order both the appeals are being disposed of. 13. Nando Mardi is the informant of this case. He is father of Budhni Mardi, the deceased. In his fardbeyan, the informant has stated that marriage of his daughter, aged about 22 years, was solemnized with Ghanshyam Tudu. Before the marriage they had a lover affair, however, the parents of Ghanshyam Tudu declined the offer for marriage of the daughter of the informant. Later on, on the intervention of the villagers, marriage of his daughter was solemnized with Ghanshyam Tudu in the month of March in the premises of Primary School, Hathinada. After the marriage, the accused persons have started harassing his daughter and, therefore, after about 15-20 days she came back to his house. About 10 days before the occurrence, when his daughter had gone to a dam (water reservoir) to take bath his son-in-law and his mother forcibly brought his daughter to their home. After the marriage, the accused persons have started harassing his daughter and, therefore, after about 15-20 days she came back to his house. About 10 days before the occurrence, when his daughter had gone to a dam (water reservoir) to take bath his son-in-law and his mother forcibly brought his daughter to their home. On 19.5.2007, at about 12:00-01:00 p.m., he received an information that his daughter has been killed by Ghanshyam Tudu and his parents by administering poison, whereupon he has gone there and found the dead body of his daughter; froth was coming out from her mouth and nose. 14. During the trial, the prosecution has examined seven witnesses; the informant is PW-2. The mother of the deceased, namely, Lusiya Mardi PW-1, her maternal grandfather Lasai Besara PW-3 and her maternal uncle Bhim Chandra PW-4 have also been examined during the trial. 15. To prove the charge against the appellants, the prosecution has laid evidence on: (i) unnatural death of Budhni Mardi, (ii) dead-body of Budhni Mardi found in her marital home, (iii) harassment and torture of Budhni Mardi, and (iv) medical evidence. 16. Admittedly, there is no eye witness to the occurrence of death of Budhni Mardi. The case of the prosecution is based on circumstantial evidence. In a catena of judgments the Supreme Court has held that in a case based on circumstantial evidence the prosecution must prove every circumstance through cogent, consistent and reliable evidence (refer, “Navaneethakrishnan Vs. The State by Inspector of Police” reported in (2018) 16 SCC 161 ). 17. To prove harassment and torture of Budhni Mardi at the hands of the appellants, the prosecution has examined Lusiya Mardi-PW-1, Nando Mardi-PW-2, Lasai Besra-PW-3 and Bhim Chandra Besra-PW-4. 18. PW-1 has stated in her evidence that after the marriage her daughter stayed in her matrimonial home for about fifteen days and during this period her husband, father-in-law and mother-in-law have committed maar-peet with her. In her cross-examination, she has stated that the accused persons did not agree for the marriage willingly. The father of Budhni Mardi has stated that his daughter was harassed and tortured by her husband and in-laws and they intended to kill her by poisoning. PW-3 and PW-4 have also deposed regarding harassment and torture of Budhni Mardi at the hands of the accused persons. The father of Budhni Mardi has stated that his daughter was harassed and tortured by her husband and in-laws and they intended to kill her by poisoning. PW-3 and PW-4 have also deposed regarding harassment and torture of Budhni Mardi at the hands of the accused persons. During her cross-examination, PW-1 has admitted that no complain about harassment and torture of her daughter was lodged with the police and PW-2 has admitted in his cross-examination that he has not heard from the villagers about maar-peet committed by the accused persons with his daughter. However, the aforesaid statements of PW-1 and PW-2 in their cross-examination do not create a doubt on their evidence regarding harassment and torture of Budhni Mardi and, therefore, we are of the opinion that the prosecution has proved harassment and torture of Budhni Mardi at the hands of the accused persons. 19. The dead-body of Budhni Mardi has been found in her marital home and according to the prosecution, she has died in the intervening night of 19/20th May, 2007. 20. Dr. Uma Shankar Prasad-PW-6, who has conducted the post-mortem examination on 20.5.2007 at 12:45 p.m., has observed that rigor mortis was present but weakly, in the lower limbs of Budhni Mardi. He has seen froth coming out from her nostril and mouth, liver enlarged, viscera congested and stomach containing semi digestive food. Viscera was preserved and it was sent for chemical analysis. On recall, PW-6 has proved viscera report. The FSL report records that dimethoate was detected in the portions of viscera. Dimethoate, commercially known as Rogor, is an organic phosphorus pesticide, which is commonly used in agriculture for killing pests and it is poisonous. The doctor has stated that according to the chemical analysis of viscera the cause of death of Budhni Mardi was poison. 21. Through the medical evidence, the prosecution has thus proved unnatural death of Budhni Mardi in her matrimonial home. 22. All her relatives – PW-1, PW-2, PW-3 and PW-4 – have stated that just few days before her death Budhni Mardi was taken to her matrimonial home by her husband and mother-in-law. The husband of Budhni Mardi is the appellant in Cr. Appeal (DB) no. 1424 of 2016. In his examination under section 313 Cr.P.C., he has admitted that he has brought his wife to his house and she has died in her matrimonial home. The husband of Budhni Mardi is the appellant in Cr. Appeal (DB) no. 1424 of 2016. In his examination under section 313 Cr.P.C., he has admitted that he has brought his wife to his house and she has died in her matrimonial home. The statement of an accused during his examination under section 313 Cr.P.C. cannot be the basis to record his conviction for an offence like murder, but, the stand taken by him under section 313 Cr.P.C. cannot be over-looked altogether. 23. On such evidence, the prosecution has proved that in the intervening night of 19/20th May, 2007 Budhni Mardi was in her marital home and her dead-body has been found there. 24. When dead body of a woman is found in her matrimonial home, her husband must say something how his wife has died. Under section 106 of the Evidence Act, a presumption can be drawn against the husband because how his wife has died is a fact exclusively within knowledge of the husband. The Hon’ble Supreme Court in the case of “Trimuk Maroti Kirkan vs. State of Maharashtra” reported in (2007) 1 SCC (Cri) page 80 has held thus: “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case has entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 21. In a case based on circumstantial evidence where no eye witnesses account is available, there is another principle of law which must be kept in mind. 21. In a case based on circumstantial evidence where no eye witnesses account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanations or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.” 25. There cannot be a law of universal application and it may depend on the facts and circumstances of a case, but, generally the prosecution must prove by leading clinching evidence that the accused was present in the house when death has occurred; one may die accidently or commit suicide. We find that the prosecution has failed to establish that the appellants were present in the night of 19/20th May, 2007 in the house in which dead body of Budhni Mardi has been found. The presumption under section 106 of the Evidence Act is not intended to relieve the prosecution from the initial burden to prima-facie prove the charge. In case of Ramdas Tudu, we further find that the prosecution has failed to prove that he has shared common intention with his son to commit murder of Budhni Mardi. All the prosecution witnesses have stated that Ghanshyam Tudu and his mother have forcibly brought Budhni Devi back home, but they have not imputed any overt act on the part of Ramdas Tudu. In the above factual scenario – the prosecution has proved unnatural death of Budhni Mardi, her torture and harassment at the hands of the accused persons and her death in her marital home – it could have been held that the prosecution has proved the charge under section 302 of the Indian Penal Code against the appellant Ghanshyam Tudu, but, there is no whisper about presence of the appellants in the house around the time when the occurrence has taken place. The prosecution has also failed to establish that in the intervening night of 19/20th May, 2007 Ghanshyam Tudu was present in his house. None of the prosecution witnesses, particularly, father, mother, maternal uncle and maternal grandfather of Budhni Devi or any villager has stated that Ghanshyam Tudu was seen in the evening of the fateful night in his house. The prosecution has also failed to establish that in the intervening night of 19/20th May, 2007 Ghanshyam Tudu was present in his house. None of the prosecution witnesses, particularly, father, mother, maternal uncle and maternal grandfather of Budhni Devi or any villager has stated that Ghanshyam Tudu was seen in the evening of the fateful night in his house. The investigating officer has not said anything about presence or abscondance of the appellants in or out of their house on the day of occurrence. 26. In a case based on circumstantial evidence motive provides an additional link to the chain of circumstances (refer, “Surinder Pal Jain v. Delhi Administration” reported in 1993 Supp (3) SCC 681), but motive alone is not sufficient to convict an accused for the offence like murder. According to the prosecution, the motive behind murder of Budhni Mardi was that against the wishes of the accused persons she was married to Ghanshyam Tudu and that was the reason she was harassed and tortured by her husband and in-laws. Through, PW-1, PW-2, PW-3 and PW-4, the prosecution has laid evidence on love affair between Budhni Mardi and Ghanshyam Tudu. These witnesses have stated about the parents of Ghanshyam Tudu not agreeing for their marriage, Panchayati held in the village and solemnisation of marriage under pressure of the villagers, but, on such facts it cannot be held that the prosecution has proved motive behind the crime. 27. Section 328 of the Indian Penal Code provides that whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, commits the offence under section 328 of the Indian Penal Code. 28. The love affair between Budhni Mardi and Ghanshyam Tudu is proved by the prosecution. Ghanshyam Tudu and his mother have forcibly brought Budhni Mardi back home and her harassment in her matrimonial home is established. It was a hot summer day on 19.05.2007 and it has come on record that around noon Budhni Mardi was feeling uncomfortable. 28. The love affair between Budhni Mardi and Ghanshyam Tudu is proved by the prosecution. Ghanshyam Tudu and his mother have forcibly brought Budhni Mardi back home and her harassment in her matrimonial home is established. It was a hot summer day on 19.05.2007 and it has come on record that around noon Budhni Mardi was feeling uncomfortable. The stand taken by the appellants that Budhni Mardi has died due to snake bite or poisonous insect is not probablised from the medical evidence, but absence of any external injury on the person of Budhni Mardi is a significant observation of the doctor. In these facts, it can be safely inferred that Ghanshyam Tudu has caused Budhni Mardi to consume poison which has caused her death. 29. The judgment of conviction under section 302 of the Indian Penal Code dated 20th September, 2010 and the order of sentence of R.I. for life and fine of Rs. 5,000/- for the offence under section 302 of the Indian Penal Code dated 22nd September, 2010 passed against both the appellants, namely, Ramdas Tudu in Cr.Appeal (DB) no. 890 of 2010 and Ghanshyam Tudu in Cr. Appeal (DB) no. 1424 of 2016 by the Additional Sessions Judge, Fast Track Court-2nd at Seraikella in Sessions Trial no. 104 of 2007 are set-aside. 30. The conviction and sentence of the appellant, namely, Ramdas Tudu under section 328 of the Indian Penal Code is also set-aside. 31. The appellant, namely, Ramdas Tudu in Cr.Appeal (DB) no. 890 of 2010, who is in jail, shall be set free forthwith, if not wanted in connection with any other case. 32. In the result, Criminal Appeal (D.B.) No.890 of 2010 is allowed. 33. However, the charge under section 328 of the Indian Penal Code is proved by the prosecution against the appellant, namely, Ghanshyam Tudu in Cr. Appeal (DB) no. 1424 of 2016. 34. The appellant, namely, Ghanshyam Tudu is convicted and sentenced to R.I. for 10 years under Section 328 of the Indian Penal Code. 35. Mr. V.K.Tiwary, the learned APP states that Ghanshyam Tudu has remained in custody for more than 10 years. 36. Accordingly, the appellant, namely, Ghanshyam Tudu in Cr.Appeal (DB) no. 1424 of 2016 shall also be set free forthwith, if not wanted in connection with any other case. 37. Accordingly, Cr. Appeal (D.B.) No. 1424 of 2016 is partly allowed. 38. Mr. V.K.Tiwary, the learned APP states that Ghanshyam Tudu has remained in custody for more than 10 years. 36. Accordingly, the appellant, namely, Ghanshyam Tudu in Cr.Appeal (DB) no. 1424 of 2016 shall also be set free forthwith, if not wanted in connection with any other case. 37. Accordingly, Cr. Appeal (D.B.) No. 1424 of 2016 is partly allowed. 38. Let lower court records be transmitted to the court concerned, forthwith.