JUDGMENT : Shree Chandrashekhar, J. The appellant has been convicted and sentenced to RI for life and a fine of Rs. 5,000/-, both under section 302 IPC as well as section 304-B IPC and in default of payment of fine he has to undergo further sentences on both counts. He has further been convicted and sentenced to RI for one year and a fine of Rs. 100/- under section 3/4 of the Dowry Prohibition Act. 2. Mander P.S. Case No. 11 of 2009 was registered on 31.01.2009 against the appellant under section 304-B IPC and after the investigation a charge-sheet was submitted against him for causing dowry death of Roshan Khatoon. On 03rd July, 2009 charges under section 304-B IPC and section 3/4 of the Dowry Prohibition Act, 1981 were framed against him. However, after the trial reached the fag end a further charge under section 302 IPC was framed against him vide order dated 23rd August, 2013. During the trial, the prosecution has examined eleven witnesses out of whom PW-6, PW-7, PW-8, PW-9, PW-10 and PW-11 are co-villagers of the appellant. 3. The case of the prosecution is based on circumstantial evidence. In “Bhagat Ram v. State of Punjab” reported in AIR 1954 SC 621 , the Hon’ble Supreme Court has observed that when a case depends upon the conclusions drawn from the circumstances the cumulative effect of the circumstances must be such as to negate innocence of the accused and bring home the offences beyond any reasonable doubt. To prove the charge framed against the appellant, the prosecution has laid evidence on demand of dowry, harassment and torture of Roshan Khatoon, unnatural death of Roshan Khatoon in her matrimonial home and medical evidence. 4. The essential ingredients for constituting the offence under section 304-B IPC are: death has occurred within seven years of marriage, (ii) the death was caused by any burn or any bodily injury or in the circumstances otherwise than normal, and (iii) soon before her death the victim was subjected to cruelty and harassment in connection to demand of dowry by her husband or any relative of her husband. 5. PW-1 and PW-3 are brothers of Roshan Khatoon, PW-2 is the mother and PW-4 is her nephew. 5. PW-1 and PW-3 are brothers of Roshan Khatoon, PW-2 is the mother and PW-4 is her nephew. They are intimately related to her and therefore their evidence is required to be examined with greater care and caution as observed by the Hon’ble Supreme Court in a series of judgments. A relative of the victim may not necessarily be hostile to the accused and therefore close relationship of a witness is not a ground to discard his testimony. In “Waman v. State of Maharashtra” reported in (2011) 7 SCC 295 , the Hon’ble Supreme Court has observed that relationship is not a factor to affect credibility of a witness and all that is required is to scrutinize evidence of a related witness with a little care. 6. PW-1, PW-2 and PW-3 have stated that Roshan Khatoon was married to the appellant about five years before her death. PW-6 has stated that they were married about seven years before and other prosecution witnesses have also spoken about the marriage of Roshan Khatoon with the appellant about 6-7 years before the occurrence. PW-1 has deposed in the Court that after about one and half year of the marriage the appellant started harassing his sister and about three months before the occurrence he demanded Rs. 25,000/-and threatened that if his demand is not fulfilled he would kill Roshan Khatoon and marry another woman. He has further stated that about two months before the occurrence he had taken his sister to her matrimonial home and at that time also the appellant had threatened to kill his sister. On 28.1.2009 he has taken his sister to her matrimonial home and on 30.1.2009 the appellant called to inform him that Roshan Khatoon is unwell. PW-2 has also stated about harassment and torture of her daughter and claimed that the appellant demanded Rs. 25,000/-. She has also stated that at the time when her daughter was sent to her matrimonial home the appellant had demanded money and threatened to marry another woman if his demand was not fulfilled. PW-3, the informant, has stated that the appellant was harassing his sister in connection to demand of dowry and used to send her to him for bringing money. He has also stated about demand of Rs.25,000/-and threat to kill her and marry another woman. PW-4 has stated that appellant has murdered Roshan Khatoon by poisoning her. 7. PW-3, the informant, has stated that the appellant was harassing his sister in connection to demand of dowry and used to send her to him for bringing money. He has also stated about demand of Rs.25,000/-and threat to kill her and marry another woman. PW-4 has stated that appellant has murdered Roshan Khatoon by poisoning her. 7. On such evidence, it can be surely held that the prosecution has proved the demand of dowry and harassment and torture of Roshan Khatoon by the appellant but what has transpired in the cross-examination of these witnesses would create doubt on the prosecution story. To demonstrate that the story of demand of dowry by the appellant is false and fabricated, the defence has elicited in cross-examination of PW-1 that no complaint was ever made regarding demand of dowry; no panchayati was convened and; Roshan Khatoon was visiting her parents freely. In his cross-examination, PW-1 has admitted that the children of Roshan Khatoon are brought up by their grandparents. He has failed to tell name of his sister's daughter, upon a query by the defence. This would indicate the nature of his relation with his sister and therefore his evidence on demand of dowry becomes suspect. PW-2 has also admitted that no complaint was made nor any panchayati in connection to demand of dowry was convened. She has stated that Roshan Khatoon had lastly visited her place on the occasion of marriage of Tahir, her cousin, which was performed recently. She has denied that the appellant was harassing her daughter because of his illicit relationship with another woman and stated that due to non-fulfilment of demand of dowry the appellant was harassing her. PW-2 has also stated that children of Roshan Khatoon are staying with their grandparents and to a suggestion by the defence she has further admitted that she is not keeping them with her because she has no capacity to help them. In his cross-examination PW-3 has however stated a different story. He says that a panchayati was convened but paper was not prepared. He has admitted in the Court that he cannot say on how many occasions the appellant had demanded money and when money was paid to him. 8. In his cross-examination PW-3 has however stated a different story. He says that a panchayati was convened but paper was not prepared. He has admitted in the Court that he cannot say on how many occasions the appellant had demanded money and when money was paid to him. 8. From the evidence of PW-1, PW-2 and PW-3 what we gather is that on demand of dowry, harassment and torture of Roshan Khatoon at the hands of the appellant their evidence is not wholly reliable. Therefore, we would now turn to other witnesses to find out whether testimony of the related witnesses on demand of dowry, harassment and torture of Roshan Khatoon is corroborated by any other independent witness. 9. PW-6 has stated that relationship between the couple was good. PW-7 and PW-8 have been declared hostile and PW-11 has also stated that relationship between husband and wife was good. PW-7, PW-8, PW-9 and PW-11 were recalled after an additional charge under section 302 IPC was framed against the appellant and this time also they have remained firm to their earlier stand and did not say anything against the appellant. These prosecution witnesses have not stated anything in the Court which would corroborate the evidence of the related witnesses on demand of dowry and harassment and torture of Roshan Khatoon at the hands of the appellant. 10. PW-6, PW-9, PW-10 and PW-11 have not supported the prosecution but they were not declared hostile and, therefore, their evidence would bind the prosecution. In “Mukhtiar Ahmed Ansari v. State (NCT of Delhi)” reported in (2005) 5 SCC 258, the Hon’ble Supreme Court has observed as under: “30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan [(2005) 5 SCC 272]. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared “hostile”. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.” 11. The doctor was not declared “hostile”. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.” 11. On an overall assessment of the prosecution evidence, we find that the prosecution has failed to establish one of the necessary ingredients for constituting the offence under section 304-B IPC; that soon before her death Roshan Khatoon was subjected to harassment and torture in connection to demand of dowry and on this ground alone conviction of the appellant under section 304-B IPC is liable to be set-aside. 12. In “Kamesh Panjiyar v. State of Bihar” reported in (2005) 2 SCC 388 , the Hon'ble Supreme Court has observed as under: “11. ….... Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” 13. The medical evidence does not conclusively establish that Roshan Khatoon has died a homicidal death or committed suicide. 14. PW-5, Dr. Manoj Kumar Korra who has conducted post-mortem examination on 31.1.2009 has not observed any external injury on the body of Roshan Khatoon. He has not observed any pressure over mouth, nose, neck or chest of the deceased. He could not reach at any conclusion as to cause of death and, therefore, viscera has been preserved for chemical examination and part of other vital organs were preserved for Histo-pathological examination. The FSL report of Dr. A. K. Bapuly, Director of State Forensic Science Laboratory reveals that Organo-Chloro pesticide (Endosulfan) was detected in the portions of viscera sent for examination. The observations of PW-5 that no external injury or any pressure mark was found on the dead-body read with the report of Dr. A. K. Bapuly would rule out possibility of homicidal death of Roshan Khatoon. The initial case set up by the prosecution is that PW-1 and PW-2 found black marks around neck of Roshan Khatoon and PW-2 has also seen black marks near her eyes to suggest that she was killed by throttling. In their cross-examination the related witnesses have reiterated that they did tell the police about ante-mortem injury mark on Roshan Khatoon but no external injury was found by the doctor on her dead body. The story of illicit relationship and death of Roshan Khatoon by throttling are not established and, on the contrary, from pathological report it is established that she has consumed Endosulfan. This substance is freely used as pesticide in farming and it may be available in every house in the village. The story of illicit relationship and death of Roshan Khatoon by throttling are not established and, on the contrary, from pathological report it is established that she has consumed Endosulfan. This substance is freely used as pesticide in farming and it may be available in every house in the village. We would assume that it was known to Roshan Khatoon that it is a poisonous substance but there is no evidence of forceful administration of Endosulfan to her and in view of the evidence of independent witnesses that relationship between the couple was good and statement of the related witnesses in cross-examination that Roshan Khatoon was freely visiting her parents, there appears to be least possibility of her committing suicide due to harassment by her husband. Under what circumstances she has consumed Endosulfan has not been brought on record by the prosecution and therefore merely on the basis of presence of a poisonous substance in the body of the deceased an inference of suicidal death cannot be drawn. Moreover, this is not the case setup by the prosecution that Roshan Khatoon has committed suicide. 15. Mr. Vineet Kumar Vashistha, the learned APP has submitted that Roshan Khatoon has died in her matrimonial home and it was not a natural death and therefore an inference under section 106 of the Evidence Act must be drawn against the appellant and, moreover, he has offered a false explanation during his examination under section 313 CrPC and therefore his conviction under section 302 IPC as well as 304-B IPC is well founded. 16. In “Shambhu Nath Mehra Vs. State of Ajmer” reported in AIR 1956 SC 404 , the Hon’ble Supreme Court has observed that the normal rule is that the prosecution has to establish a case beyond reasonable doubt and section 106 of the Evidence Act does not relieve the prosecution of initial burden to prove its case. 17. In “Ranjit Singh v. State of Punjab” reported in (2011) 15 SCC 285 , the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. 18. 17. In “Ranjit Singh v. State of Punjab” reported in (2011) 15 SCC 285 , the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Evidence Act to hold an accused guilty for murder. 18. In the case at hand the prosecution has failed to bring materials on record to establish a prima-facie case against the appellant and, therefore, a presumption under section 106 of the Evidence Act cannot be raised against him. It has come on record that Roshan Khatoon had gone to bed and when she complained that she was not well the appellant was trying to take her hospital. PW-9 has deposed in the Court that the appellant asked him to arrange a vehicle to take Roshan Khatoon hospital. The explanation offered by the appellant in his examination under section 313 CrPC which is contrary to the viscera report, in our opinion, was not a false explanation. As rightly submitted by Mr. A.K. Kashyap, the learned senior counsel that the appellant has stated a fact which was within his knowledge and Roshan Khatoon has consumed poison was not known to him or for that matter to anybody and that is the reason PW-1 and PW-2 have falsely alleged that she was strangulated to death. Had this fact known to him that his wife has consumed poison still he gives a different cause of her death his explanation under section 313 CrPC could have gone against him, but, that is not the case here. Moreover, when the prosecution has failed to establish a prima-facie case an accused is not required to offer explanation to every incriminating material put to him when he is examined under section 313 CrPC. 19. In view of the aforesaid discussions, we hold that the prosecution has failed to establish charges against the appellant and, accordingly, his conviction under sections 302 IPC and 304-B IPC, and section 3/4 of the Dowry Prohibition Act is set-aside. 20. Accordingly, the judgment of conviction of the appellant, namely, Sajjad Ansari under section 302 IPC, section 304-B IPC and section 3/4 of the Dowry Prohibition Act dated 26.11.2014 and the order of sentence of RI for life and fine of Rs. 5,000/-under section 302 IPC, RI for life and fine of Rs. 20. Accordingly, the judgment of conviction of the appellant, namely, Sajjad Ansari under section 302 IPC, section 304-B IPC and section 3/4 of the Dowry Prohibition Act dated 26.11.2014 and the order of sentence of RI for life and fine of Rs. 5,000/-under section 302 IPC, RI for life and fine of Rs. 5,000/-under section 304-B IPC and RI for one year and fine of Rs. 100/-under section 3/4 of the Dowry Prohibition Act dated 11.12.2014 passed by the learned Additional Judicial Commissioner -III cum FTC (CAW), Ranchi in Sessions Trial No. 450 of 2009, are set-aside. 21. Mr. Vineet Kumar Vashistha, the learned APP states that the appellant, namely, Sajjad Ansari, is in custody. 22. Accordingly, the appellant, namely, Sajjad Ansari who is in custody shall be set free forthwith, if not wanted in connection to any other criminal case. 23. In the result, Criminal Appeal (DB) No. 421 of 2015 is allowed. 24. Let lower Court records be transmitted to the Court concerned, forthwith. 25. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.