ORDER : 1. Criminal Appeal (DB) No. 716 of 2016 has been filed by Aruna Devi @ Bishni Devi and Savita Devi @ Sabita Devi and Criminal Appeal (DB) No. 753 of 2016 has been filed by Binod Kumar Yadav. The appellants have challenged the judgment of conviction dated 24.05.2016 under section 302/34 and section 201/34 of the Indian Penal Code and under Section 3/4 of the Dowry Prohibition Act, 1961 and the order of sentence dated 27.5.2016 inflicted upon them for the aforesaid offences in S.T. Case No. 17 of 2006. 2. The informant of this case is father of Manju Devi, the victim lady. On the basis of his fardbeyan which was recorded on 19.5.2005 at about 10:00 a.m. in village Sakhiya (Oriya), Sadar (Muffasil) P.S. Case No. 211 of 2005 was registered against: (i) Gaja Nand Gope, who is father-in-law of the victim lady, (ii) Vinod Kumar Yadav, who is husband of the victim lady, (iii) Aruna Devi, who is the mother-in-law, (iv) Jaipal Kumar Yadav, who is the brother-in-law and (v) Sabita Devi and Sarita Devi both sister-in-law of the victim lady. 3. The case of the prosecution is based on circumstantial evidence. In a case which is based on circumstantial evidence the chain of circumstances must be so complete that the only inference which can be drawn from the proved circumstances is that it was the accused and nobody else who was involved in the crime. The prosecution is required to prove the incriminating circumstances and also to prove that the proved circumstances are so complete that these point out an accusing finger only towards the accused excluding every reasonable hypothesis of innocence of the accused. In Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 , the Supreme Court has explained the law on circumstantial evidence, thus: “9............When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused and (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence...............” 4. To prove the charge under section 302/34 of the Indian Penal Code against the appellants the prosecution has laid evidence on: (i) harassment and torture of Manju Devi in connection to demand of dowry, (ii) homicidal death of Manju Devi and (iii) motive. The prosecution witnesses PW-1, PW-2 and PW-4 who are social workers, PW-3 who is a co-villager, PW-5 and PW-6 who are the independent witnesses - are hearsay witnesses. They have heard the news of death of Manju Devi. On harassment and torture of Manju Devi in connection to demand of dowry their testimony is not relevant. There is controversy on presence of PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6 at the place of occurrence after the police has arrived there on the ground that they are the chance witnesses, however, homicidal death of Manju Devi stands proved from the medical evidence. 5. PW-8 and PW-9 are brothers of the victim lady, PW-10 is her father and PW-11 is her mother. They have deposed in the court that the accused persons were continuously inflicting torture and sometimes assaulting Manju Devi in connection to demand of Rs. 50,000/- and a Tractor. It is also a case set up by the prosecution that a panchayati was convened in which the accused persons agreed to keep Manju Devi with love and affection but they did not change their attitude and, thereafter, a Complaint Case vide C.P. case No. 293 of 2004 was filed regarding harassment and torture of Manju Devi and a compromise has taken place. PW-9 and PW-10 have also stated that when they had gone to bring Manju Devi back home they were assaulted by the accused persons with dangerous weapon and in the occurrence PW-8 and PW-9 had suffered injuries and they were treated in a hospital at Hazaribagh. The letters written by Manju Devi were tendered in evidence and marked as Ext.6 and 6/1 respectively and a letter written by Binod Kumar Yadav has been marked as Ext.6/2 with objection. The letters written by Manju Devi were tendered in evidence and marked as Ext.6 and 6/1 respectively and a letter written by Binod Kumar Yadav has been marked as Ext.6/2 with objection. On such evidence the prosecution has sought to prove that Manju Devi was subjected to harassment and torture at the hands of the accused persons in connection to demand of dowry. But what transpires from cross-examination of these witnesses persuades us to hold that the prosecution has not been able to prove harassment and torture of Manju Devi by her mother-in-law and sister-in-law in connection to demand of dowry. However, the prosecution’s evidence on harassment and torture of his wife by Binod Kumar Yadav in connection to demand of dowry is consistent. 6. In his fardbeyan, the informant has stated about harassment and torture of his daughter, assault by the accused persons on his sons and a telephonic information by Manju Devi two days prior to the occurrence about demand of a Tractor by the accused persons. The brother of the victim lady who has been examined as PW-8 has stated in his cross-examination that he has not seen any paper of panchayati and he has admitted that he has not stated before the police that after assaulting his sister her in-laws (sasural wale) sent her to Bokaro with her husband. He has also admitted that he has not stated before the police that the husband of his sister had threatened him with regard to demand of motorcycle. He further says that statement of any villager was not recorded by the police. PW-9 who is another brother of the victim lady has stated that he did not participate in the panchayati and he cannot say the dates on which the panchayati were convened. He has further stated that at the time when his statement was recorded by the police he was not possessing a copy of the agreement. The informant who has been examined as PW-10 has admitted that in his fardbeyan he has not stated about the letter written to him by his son-in-law. Contrary to what has been stated by his both sons, in paragraph no. 11 of his cross-examination the informant says that no case was registered on complaint of his daughter, panchayati was not convened and any bond on their future good behaviour was not written by the accused persons. Contrary to what has been stated by his both sons, in paragraph no. 11 of his cross-examination the informant says that no case was registered on complaint of his daughter, panchayati was not convened and any bond on their future good behaviour was not written by the accused persons. The wife of the informant has stated in her cross-examination that the accused persons have made demand of dowry from her daughter only in her matrimonial home and she cannot say day and dates regarding demand of dowry. She has further admitted that no one from Oriya village has informed her about demand of Motorcycle, Tractor etc. by the accused persons. On assault upon PW-9 and PW-10, the prosecution witnesses have admitted that a copy of the fardbeyan which was produced by PW-9 during his examination in the court was not sent to the court. The accused persons have suggested that it was a fake and fabricated document. The letter written by the accused which has been marked as Ext.6/2 with objection was handed over to the police during the investigation, but there is no reference of any letter in the fardbeyan. The prosecution has tendered in evidence two letters written by Manju Devi which were marked as Ext.6 and 6/1. PW-8 has stated that he has not handed over the letter written by his sister to the police and the informant has also admitted that he has not handed over the letter written by his son-in-law to the police at the time when his statement was recorded by the police. The contents of Ext.6 and 6/1 would reflect apprehension of Manju Devi and it does not relate to any of the circumstances of her death. In Inderpal vs. State of M.P. (2001) 10 SCC 736 , the Supreme Court has held thus: “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question......” 7. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question......” 7. In Pakala Narayana Swami vs. King Emperor, AIR 1939 PC 47 , the Privy Council has held thus: “........The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible.” 8. In view of the aforesaid discussions, we find that the letters written by the victim lady cannot be read in evidence. The other evidences are not sufficient to hold that the prosecution has proved demand of dowry by Aruna Devi @ Bishni Devi and Savita Devi @ Sabita Devi. 9. The dead body of Manju Devi has been found at village Oriya and the medical evidence would disclose that she has been brutally killed. In such a situation under section 106 of the Evidence Act a presumption may be drawn against the inmates of the house, but then, what has been observed by the Hon’ble Supreme Court in Shambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404 , that the presumption under section 106 of the Evidence Act does not relieve the prosecution of establishing the foundational facts for constituting an offence, has to be kept in mind before a person is convicted by raising a presumption under section 106 of the Evidence Act. Except the allegation of harassment and torture of Manju Devi in connection to demand of dowry, which has not been found proved, the prosecution has not led any other evidence on complicity of Aruna Devi and Savita Devi in the crime. Therefore, their case is different on facts from the case of husband of the victim lady. In this context this has also to be kept in mind that the case of the prosecution against them is solely based on circumstantial evidence and no other circumstance except ascendance of these accused has been shown by the prosecution. Therefore, their case is different on facts from the case of husband of the victim lady. In this context this has also to be kept in mind that the case of the prosecution against them is solely based on circumstantial evidence and no other circumstance except ascendance of these accused has been shown by the prosecution. The father, mother and brothers of the victim lady have said that when they had gone to the matrimonial home of Manju Devi they have found her house locked. In her statement under 313 Cr.P.C. Aruna Devi has stated that at the time of occurrence she was not at home. She had gone to the house of her brother-in-law Pintu Gope in the village Oriya to attend a ceremony. At that time her grand-daughter was with her and on getting news of death of Manju Devi she had gone to the police station, where she was arrested by the police. Savita Devi who is sister-in-law of Manju Devi is married in the village Karso and at the time of the occurrence she was in her matrimonial home. She has stated that she was arrested by the police from her marital home and at the time of arrest she had a minor daughter aged about eight months. In such facts, abscondance of these appellants as an incriminating circumstance is not proved. Moreover, abscondance alone is not a ground to convict a person. [Sk. Yusuf vs. State of West Bengal, (2011) 11 SCC 754 ]. This has also to be remembered that Aruna Devi and Savita Devi have been implicated in the case with the aid of section 34 of the Indian Penal Code. However, the prosecution has failed to establish that they have shared common intention with Binod Kumar Yadav to commit murder of Manju Devi. 10. In the above state of affairs, we hold that the prosecution has failed to establish the charge under section 302/34 of the Indian Penal Code against Aruna Devi and Savita Devi. 11. Accordingly, the judgment of conviction of the appellants, namely, Aruna Devi @ Bishni Devi and Savita Devi @ Sabita Devi in Cr. Appeal (DB) No. 716 of 2016 under section 302/34 and section 201/34 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act, 1961 dated 24.05.2016 and the order of sentence of imprisonment for life with fine of Rs. Appeal (DB) No. 716 of 2016 under section 302/34 and section 201/34 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act, 1961 dated 24.05.2016 and the order of sentence of imprisonment for life with fine of Rs. 8,000/- under section 302/34 of the Indian Penal Code, R.I. for three years with fine of Rs. 1,000/- under section 201/34 of the Indian Penal Code, R.I. for five years with fine of Rs. 15,000/- under section 3 of the Dowry Prohibition Act and S.I. for one year with fine of Rs. 1,000/- under section 4 of the Dowry Prohibition Act dated 27.05.2016 passed by the learned Additional Sessions Judge-II, Hazaribagh in Sessions Trial Case No. 17 of 2006 are set-aside. 12. Cr. Appeal (DB) No. 716 of 2016 is allowed. 13. Binod Kumar Yadav is husband of the victim lady. During his examination under section 313 of the Code of Criminal Procedure he has not offered any explanation as to how his wife has died rather he has admitted the letter written by him vide Ext-6/2 and the agreement executed by him. He has said that along with his family members he had gone to a function but he has not led any evidence on that. It is true that evasive reply of an accused or his failure to explain an incriminating circumstance during his examination under section 313 Cr.P.C. alone would not form the basis for his conviction but it would provide an additional link in the chain of circumstance [State of Maharashtra vs. Suresh, (2000) 1 SCC 471 ]. 14. If a woman is found dead when she was residing in her matrimonial home, her husband must say something how she 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, (2007) 1 SCC (Cri) 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. 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. 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.” 15. In a case based on circumstantial evidence motive provides an important link to the chain of the circumstances [Surinder Pal Jain vs. Delhi Administration, 1993 Supp (3) SCC 681]. He had a motive to kill his wife. He had been demanding Motorcycle and Tractor as dowry and it is proved from the materials on record that he was inflicting torture upon his wife in connection to demand of dowry. 16. Against Vinod Kumar Yadav, the prosecution led evidence on harassment and torture of Manju Devi by him, motive for the crime and homicidal death of Manju Devi. In these facts, a presumption under section 106 of the Evidence Act has to be raised against him that he has killed his wife. 17. In view of the aforesaid discussions, we find that the charge under section 302 of the Indian Penal Code against the appellant, namely, Binod Kumar Yadav for committing murder of his wife has been proved by the prosecution. 18. Mr. Ram Prakash Singh, the learned APP states that the appellant, namely, Aruna Devi @ Bishni Devi is in custody. 19. In view of the aforesaid discussions, we find that the charge under section 302 of the Indian Penal Code against the appellant, namely, Binod Kumar Yadav for committing murder of his wife has been proved by the prosecution. 18. Mr. Ram Prakash Singh, the learned APP states that the appellant, namely, Aruna Devi @ Bishni Devi is in custody. 19. Accordingly, the appellant, namely, Aruna Devi @ Bishni Devi shall be set free forthwith, if not wanted in connection to any other criminal case. 20. The appellant, namely, Savita Devi @ Sabita Devi is on bail and, therefore, she shall stand discharged of liability of the bail bonds furnished by her. 21. The judgment of conviction against Binod Kumar Yadav who is the appellant in Cr. Appeal (DB) No. 753 of 2016 under section 302/34 and section 201/34 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act, 1961 dated 24.05.2016 and the order of sentence dated 27.05.2016 passed against him by the learned Additional Sessions Judge-II, Hazaribagh in Sessions Trial Case No. 17 of 2006 are affirmed. 22. Accordingly, Cr. Appeal (DB) No. 753 of 2016 is dismissed. 23. Let lower court records be transmitted to the court concerned, forthwith.