JUDGMENT : Suman Shyam, J. 1. Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. N.J. Choudhury, learned counsel appearing on behalf of the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent no. 1. None has appeared for the respondent no. 2 despite service of notice. 2. This appeal is directed against the judgment and order dated 07/03/2017 passed by the learned Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 207(DM)/2011, whereby, the sole appellant has been convicted under Section 302 of the IPC for committing murder of his wife Pampi Deka and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5000/- with default clause. 3. The prosecution case, as unfolded during the trial, is that the deceased Pampi Deka was married to the accused Mrigen Deka and after marriage, they were living together in a rented house. On 04/07/2011, at about 12 noon Smt. Jogeswari Deka i.e. the mother of the deceased received information from her son-in-law Mrigen Deka through phone that her daughter Pampi Deka has suffered burn injury. Pampi Deka was thereafter rushed to the Mangaldoi Civil hospital in a 108 Ambulance in a "half burnt" naked condition and there-after to the GMCH but later on she expired on 05/07/2011. On 08/07/2011 Smt. Jogeswari Deka lodged a FIR with the Office-in-charge, Mangaldoi Sadar Police Station reporting the incident. In the FIR, the informant has mentioned that her son-in-law had informed the doctor of GMCH that the incident had taken place due to "Gas Cylinder blast" but he had informed the informant that the victim had set herself on fire after pouring kerosene on her person. Due to the above discrepancy, the informant suspects that her son-in-law Mirgen Deka had set her daughter ablaze after pouring kerosene on her persons and she also suspects that some other person might be involved in the incident along with the accused no. 1. 4. Based on the ejahar, Mangaldoi Police Station case No. 516/2011 was registered by the police under Section 302 of the IPC on 26/07/2011. Inquest was conducted on the dead body and the body was also sent for post mortem. During investigation, the police had seized some materials and recorded the statement of the witnesses. 1. 4. Based on the ejahar, Mangaldoi Police Station case No. 516/2011 was registered by the police under Section 302 of the IPC on 26/07/2011. Inquest was conducted on the dead body and the body was also sent for post mortem. During investigation, the police had seized some materials and recorded the statement of the witnesses. After completion of investigation, the police submitted charge sheet against the accused/appellant Mrigen Deka under Section 302 of the IPC. Since the accused had pleaded not guilty, the matter was sent up for trial. 5. In order to bring home the charge, the prosecution side had examined as many as 8 witnesses. On closure of the prosecution witnesses, the statement of the accused was recorded under Section 313 of the Cr.P.C. The stand of the accused was that of complete denial and the accused also took the plea of "alibi" claiming that he was not at the place of occurrence when the incident took place. The accused had also adduced evidence by examining as many as 5 witnesses including himself. Taking note of the evidence available on record, the learned trial Court has arrived at a finding that the prosecution has succeeded in establishing the murder charge against the accused beyond all reasonable doubt. The learned court below had further held that this was not a case where the victim had committed suicide. Since the death had occurred when the accused and the victim were living alone in the rented house, there would be a burden upon the accused under Section 106 of the Evidence Act to explain the circumstances under which the victim had died. Since the accused has failed to discharge the said burden, hence, a presumption of guilt would arise against the accused. The appellant/accused was, therefore, convicted under Section 302 of the IPC. 6. By referring to the materials available on record, Mr. Bora, learned senior counsel appearing for the appellant submits that there is no evidence in this case to convict the appellant, inasmuch as the testimony of the prosecution witnesses are full of contradictions. Mr. Bora further submits that from the testimony of the PW-7, who is the I.O. in this case, it is clear that this is a case of suicide and therefore, the said evidence is sufficient to acquit the appellant from the murder charge. Mr. Bora further submits that from the testimony of the PW-7, who is the I.O. in this case, it is clear that this is a case of suicide and therefore, the said evidence is sufficient to acquit the appellant from the murder charge. The learned senior counsel has further argued that in this case, the prosecution has not brought on record the fact that a G.D. entry being GNR No. 1250 was made by the Police at 12-30 p.m. on the day of occurrence i.e. 04/07/2011. The incident admittedly having taken place on 04/07/2011, the ejahar was lodged only on 08/07/2011 i.e. after a delay of nearly 3 days. That apart, the FIR itself was registered on 26/07/2011 i.e. after a delay of more than 18 days after it was lodged and the prosecution has failed to explain the delay. Such unexplained delay, according to Mr. Bora, when viewed in the context of the circumstances of the case, would indicate an afterthought on the part of the informant in implicating the accused. 7. Controverting the submissions made by the learned counsel for the appellant, Ms. B. Bhuyan, learned APP, Assam, has invited the attention of this Court to the testimony of PW-6 to contend that the evidence of the said witness proves the fact that the accused was at home at the time of the incident. Therefore, under section 106 of the Evidence Act, there was a burden upon the appellant/accused to explain the circumstances under which the incident took place, which burden, he has evidently failed to discharge. As such, the learned trial Court has rightly drawn presumption of guilt against the accused and convicted him under Section 302 IPC. 8. As noticed above, there is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. PW-1 Smt. Jogeswari Deka is the mother of the deceased and the informant in this case. PW-1 has deposed that the accused Mrigen Deka is her son-in-law and he had married her daughter Pampi Deka about two years prior to the incident as per hindu rights and rituals. After her marriage, the accused started living with her daughter in a rented house of Benoy Hazarika at Ward No. 4 at Mangaldoi. PW-1 has deposed that the accused Mrigen Deka is her son-in-law and he had married her daughter Pampi Deka about two years prior to the incident as per hindu rights and rituals. After her marriage, the accused started living with her daughter in a rented house of Benoy Hazarika at Ward No. 4 at Mangaldoi. PW-1 has stated that at around 12-30 noon on the day of the incident, she came to know through a phone call made from Mrigen Deka's phone that her son-in-law has set her daughter ablaze after pouring kerosene oil on her person and she immediately left for the place. An 108 Ambulance had reached there and she found that the door of the house was open and her daughter was in nude condition. Colgate toothpaste was being rubbed on the burnt portion of her body. The witness has deposed that at that time her daughter was in a position to speak and she immediately took her to the hospital. Her daughter had told her that the accused person had set her on fire. On 05/07/2011, the victim had expired. PW-1 has also stated that she had lodged an ejahar after about 2 days of the death of her daughter and that she had filed complaint before the "Mahila Samity". 9. It would be significant to note herein that in her testimony, the PW-1 had stated that since the marriage of the accused with her daughter, he used to torture her demanding dowry. As she (PW-1) could not fulfill his demand, she had to keep her daughter in her house but the accused took her daughter back about 3 months prior to the incident. During her cross examination, PW-1 has admitted that she did not mention in the FIR that the accused used to torture her daughter demanding dowry nor did she state before the Police that her daughter was "carrying pregnancy". 10. PW-4 Sabita Deka is the younger sister of the deceased Pampi Deka and in her testimony, she had stated that the accused used to torture her elder sister demanding money and her mother paid him Rs. 60,000/- but he used to demand more money and when they failed to fulfill his demands, the accused tortured her and brought her back to their home. 60,000/- but he used to demand more money and when they failed to fulfill his demands, the accused tortured her and brought her back to their home. PW-4 has also stated that on Friday i.e. 4th day of certain month in 2011, the accused was not at home but after returning home on Saturday, he had assaulted her elder sister and did not allow her food. He assaulted her on Sunday and Monday too and around 12 noon, the accused closed the door of the house and set her ablaze after pouring kerosene oil on her person. Later on, the witness has stated that the accused had informed over phone that her elder sister has "set herself on fire". She was then taken to Mangaldoi Civil Hospital and when she met the victim, she told her that accused Mrigen had set her ablaze after pouring kerosene oil on her person. However, during her cross examination, PW-4 has admitted that she did not state before the police that the accused had tortured her sister or that her mother had given an amount of Rs. 60,000/- to the accused. The witness has further admitted that she did not tell the police that when she met her elder sister at Mangaldoi hospital, she had told her that the accused Mrigen had set her ablaze. 11. PW-6 Sri Dipjyoti Deka is the younger brother of the deceased and he had deposed that on 03/07/2011, brother-in-law's of his brother-in-law had visited the house and he had seen his elder sister Pampi weeping when he went there in the evening. On the following day i.e. Monday, Pampi had informed him over phone that she was hungry and asked him to bring "Paranthas". Accordingly, he bought two Paranthas for her sister but at that time, his brother-in-law (accused) was at home but he did not talk to him even after seeing him. When he knocked the door, his elder sister opened it and he gave the two Paranthas. At that time also, she was weeping and told that she would come after having the "Paranthas". At that moment, his brother-in-law had closed the door saying "You have come here to have Parantha". He then returned home but when he reached the gateway of his house, one woman Pakhila had informed him that his elder sister had caught fire. At that time also, she was weeping and told that she would come after having the "Paranthas". At that moment, his brother-in-law had closed the door saying "You have come here to have Parantha". He then returned home but when he reached the gateway of his house, one woman Pakhila had informed him that his elder sister had caught fire. He accompanied Sabita (PW-4) and immediately came there and saw the victim was boarding an 108 Ambulance of her own. 12. PW-7 Mohendra Nath Borah is the I.O. in this case and he had deposed that he had investigated the case and recorded the statement of the witnesses. PW-7 has also stated that he had prepared a sketch map of the place of occurrence and seized plastic can containing little kerosene. During his cross examination, PW-7 has deposed that the informant did not make any statement pertaining to the delay in lodging the ejahar and that there was no entry in the case diary as to any sign of fire inside the room where the occurrence took place. 13. During his further cross examination, the witness PW-7 had categorically stated as follows:- "Further Cross-Examination (XXX) : I have recorded the statement of Jogeswari Deka, the mother of the victim. The witness Jogeswari Deka did not state before me that while the victim was being taken to GMCH; she informed her that the accused had burnt her. The said witness Jogeswari Deka stated before me that she was informed by the victim that the later had poured kerosene oil over her body and thereafter lit the fire." 14. The prosecution story is based on the allegation that the victim has been burnt by her husband i.e. the accused by pouring kerosene oil, but the testimony of the PW-7, as noticed above, clearly does not support the prosecution case. In the case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272, the Hon'ble Supreme Court has observed that the prosecution witness, who did not support the prosecution case and has not been declared as hostile witness, his evidence would be binding on the prosecution. In the case of Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272, the Hon'ble Supreme Court has observed that the prosecution witness, who did not support the prosecution case and has not been declared as hostile witness, his evidence would be binding on the prosecution. Applying the law laid down by the Supreme Court in the aforesaid case, it is clear that the testimony of PW-7 would be binding on the prosecution, in which event, it has to be held that the deceased had committed suicide by setting her ablaze after pouring kerosene oil. In view of the testimony of PW-7, no further evidence, in the opinion of this Court, would be necessary to absolve the appellant from the murder charge. However, this Court has noticed additional links in the chain of circumstances that would punch a hole in the prosecution case. Those circumstances are also indicated herein below. 15. The mother of the victim PW-1 has alleged that the accused used to torture her daughter demanding dowry. However from the testimony of PW-1, we find that the said witness had not stated before the police the fact that the accused used to torture her daughter and that she had paid him Rs. 60,000/-. The PW-1 has also not stated before the Police about the dying declaration allegedly made by the victim before her. The aforesaid statements made by the witness PW-1 before the Court are, therefore, improvements in her testimony which cannot be relied upon by this Court. 16. Likewise, the PW-4 has also admitted during her cross examination that she had not mentioned before the police about the dying declaration of the deceased nor has she stated that Rs. 60,000/- was paid to the accused by her mother. 17. From the testimony of PWs - 1, 4 and 6, it would be significant to note that while the PW-1 has stated that she had reached the place of occurrence and found her daughter in nude condition and that toothpaste was being rubbed on the burnt portion of the body, PWs 4 and 6, who are the other witnesses who claimed to have reached the place of occurrence around the same time, did not mention about the presence of PW-1 at that place. Therefore, it appears that PW-1 was not present at the place of occurrence along with PWs 4 and 6. Therefore, it appears that PW-1 was not present at the place of occurrence along with PWs 4 and 6. The unexplained delay in registering the FIR strongly suggests the possibility of the version narrated therein, is the outcome of an afterthought. The aforesaid fact, viewed in the light of the omission on her part to inform the police about the dying declaration of the victim, raises a serious doubt in the mind of this Court as to whether the victim had at all made any dying declaration in this case. On the contrary, from the testimony of PW-7, it appears that there was a quarrel between the husband and wife on the day of the incident which had led the deceased wife to pour kerosene over her person and burn herself. 18. The other circumstances which raises a suspicion on the prosecution case is the fact that according to the Doctor DW-1, it was a case of "First Degree" burn injury. The PW-6 has also categorically deposed that the victim had boarded the 108 Ambulance on her own. It has come out from the testimony of the prosecution witnesses that the victim was alive for at-least one day and was in a position to speak. However, there is no explanation as to why no attempt was made to record her statement by the IO or the Doctor who had examined her in the hospital. 19. PW-5 Smt. Pranita Goswami is a neighbour of the deceased and her husband. In her testimony, she has stated that on the day of occurrence, she was at home and around 12 noon, Dipali and other women tenant in the nearby houses came out. She too came out of house and when she reached Mrigen's house, she saw Pampi in nude condition and that Mrigen was pouring water on her person. The witness has further deposed that Pampi was in flames but she did not know how she had caught fire. During her cross examination, PW-5 has stated that the victim Pampi and she had studied together from Class VIII and they were very close friends. She saw the accused and Pampi living happily and did not see any quarrel between them. PW-5 has further stated that the victim did not make any complaint to her against Mrigen. PW-5 has also stated that she saw Mrigen calling 108 Ambulance and taking her away. 20. She saw the accused and Pampi living happily and did not see any quarrel between them. PW-5 has further stated that the victim did not make any complaint to her against Mrigen. PW-5 has also stated that she saw Mrigen calling 108 Ambulance and taking her away. 20. From the discussion made above, it would be apparent that the prosecution has failed to prove the case beyond reasonable doubt and therefore, there would be no burden upon the accused to lead any evidence in his defence in the present case. However, in view of the stand taken by the learned APP regarding onus on the part of the accused, we deem it appropriate to mention herein that the accused had examined himself as DW-5 and in his deposition, he has stated that on the day of the occurrence, he was about to reach home during his return journey from Kharupetia. After 15 minutes of the incident when he reached home, he saw his wife in a naked condition and also saw neighbouring people putting "Colgate paste" on her body. DW-5 had stated that he found Dipali Hazarika and 6-7 other women when he had returned home after the incident. During his cross examination, the aforesaid testimony of DW-5 could not be shaken. 21. It is apparent from the evidence available on record that the accused was not at home at the time of the incident but he had reached home almost 15 minutes after the incident, by which time, some persons from the neighbourhood had reached the place and poured water on the victim. The aforesaid version of the accused (DW-5) finds due corroboration from the testimony of PW-5. We also find from the record that it is the accused who had not only poured water on the victim but he had also taken her to the hospital and thereafter, remained present in the hospital as long as the victim was alive. Therefore, the evidence on record clearly suggests that the conduct of the accused was positive towards the victim both before and after the incident and there is no cogent evidence available on record so as to suggest that there was any torture meted out by the accused to his wife. The aforementioned circumstances brought on record through the prosecution side, dispels the theory that the accused had set the victim on fire by pouring kerosene oil. The aforementioned circumstances brought on record through the prosecution side, dispels the theory that the accused had set the victim on fire by pouring kerosene oil. Rather, the circumstances brought on record through the prosecution witness strongly points towards possibility of suicide having been committed by the victim. 22. In so far as the plea raised by the learned APP as regards failure on the part of the appellant to discharge his burden under Section 106 of the Evidence Act, it is to be noted herein that Section 106 of the Evidence Act would come into play when the prosecution succeeds in establishing the charge beyond reasonable doubt but the accused fails to explain circumstances which are within his or her special knowledge. Section 106 is not meant to relieve the prosecution side from establishing the charge beyond all reasonable doubt. 23. In a recent decision rendered in the case of Smt. Bandana Nath Vs. State of Assam and others [Criminal Appeal (J) 35/2018], this Court while considering the true import of section 106 of the Evidence Act, this Court, after analyzing the decision of the Hon'ble Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 , and State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254 , has observed as follows:- "19. From a careful analysis of the ratio laid down by the Supreme Court in the aforementioned decisions, what follows is that in view of section 106 of the Evidence Act, a burden would lie on the accused to offer cogent and plausible explanation explaining the incriminating circumstances pertaining to his/her special knowledge and the failure on the part of the accused to do so would by itself be an additional link in the chain of circumstances proved against the accused permitting the court to draw adverse inference. What must, however, be borne in mind is that section 106 of the Evidence Act is not a provision to relieve the prosecution from the "burden of proof" cast upon it under sections 101 and 102 of the Evidence Act. Even in a case based on circumstantial evidence where a crime has been committed in the privacy of a house, it shall be the duty of the prosecution to establish complete chain of circumstances so as to prima facie establish the guilt of the accused. Even in a case based on circumstantial evidence where a crime has been committed in the privacy of a house, it shall be the duty of the prosecution to establish complete chain of circumstances so as to prima facie establish the guilt of the accused. It is only when the prosecution side discharges the initial burden of establishing the prima facie case that the onus under section 106 of the Evidence Act would shift upon the accused. In such a case, if the accused, having special knowledge of the facts, fails to explain the circumstances under which the crime had been committed, adverse presumption can be drawn. Therefore, section 106 of the Evidence Act merely lessen the burden on the prosecution to lead evidence and establish only those circumstances that had taken place in the privacy of a house, in secrecy and in presence of the inmates of the house having special knowledge of such facts but would not, in any manner, relieve the prosecution from proving the charge beyond all reasonable doubt. 24. In the present case, as noted above, the prosecution side has failed to establish the charge brought against the accused beyond all reasonable doubt. From the testimony of PW-7, it is apparent that the victim had committed suicide. Therefore, the question of accused explaining the circumstances would not arise in this case. Moreover, from the evidence on record, more particularly, the testimony of DW-5 it is evident that the accused was not at home when the victim had caught fire but he had reached home on the day of the occurrence, after the incident had occurred. If that be so, the appellant has succeeded in proving the plea of "alibi". Therefore, there cannot be any question of the accused having special knowledge as to the circumstances under which the victim had caught fire. As such, we are of the view that there was no duty cast upon the accused under Section 106 of the Evidence Act to explain the circumstances under which the victim had caught fire. 25. For the reasons stated herein above, we are of the view that the impugned judgment and order dated 07/03/2017 is unsustainable in law. In the result, this appeal succeeds and is hereby allowed. 26. The appellant is acquitted. It is submitted at the bar that the appellant is presently in jail. 25. For the reasons stated herein above, we are of the view that the impugned judgment and order dated 07/03/2017 is unsustainable in law. In the result, this appeal succeeds and is hereby allowed. 26. The appellant is acquitted. It is submitted at the bar that the appellant is presently in jail. We, therefore, direct that the appellant be forthwith released from jail unless his detention is required in connection with any other case. Send back the LCR.