JUDGMENT : SHREE CHANDRASHEKHAR, J. On an allegation of causing death of Seema Devi by fire arm in connection to demand of dowry, Rajan Kumar Gupta, Dinesh Prasad Sah, Anju Devi, Mukesh Kumar Sah and Puja Kumari were made accused in Dumka (Town) P.S. Case No.170/2010 which was registered on the basis of fardbeyan of Nawal Kishore Sah recorded at 03.30 a.m. on 06.11.2010. After the investigation, sufficient evidence on complicity of Puja Kumari was not found and accordingly she was not sent-up for trial. The other accused persons have faced, trial on the charge of committing murder and dowry death. 2. During the trial, to prove charge against the appellants the prosecution has examined 16 witnesses. PW-1 is a friend PW-2 is the brother and PW-3 and PW-12 are relatives of the informant. PW-4 and PW-5 are seizure list witnesses and PW-6, PW-7, PW-8, PW-9, PW-13 and PW-14 are neighbors of the appellants. 3. In Sessions Trial No. 53/2011, Rajan Kumar Gupta was convicted and sentenced to R.I. for life and a fine of Rs. 25,000/-, both under section 304-B, IPC and section 302, IPC. The learned Additional Sessions Judge-I, Dumka has awarded him the same sentence for offences under section 25(1-B), section 26 & section 27 of the Arms Act. The other appellants have been convicted under section 304-B/34, IPC and Section 302/34 IPC as also under sections 25(1-B), 26 & 27 of the Arms Act and they have also suffered punishment of R.I. for life and a fine of Rs. 25,000/-, each, on each count. 4. Nawal Kishore Sah, the informant of this case is brother of Seema Devi. He has deposed in the Court that at about 02.45 a.m. on Deepawali nigh he received an information that his sister has been killed. He alongwith Pramod Kumar Sah, Mahendra Prasad Sah, Shankar Prasad Sah, Kiran Devi and others reached Dudhani Masalia More at about 3.30 a.m. There, he has seen dead body of his sister on the bed drenched in blood and a bullet stuck in her back. He has stated that after about two months of her marriage which was performed on 16.07.2007 the accused persons started harassing his sister for dowry. To see that his sister is settled in her marital home he paid Rs. 25,000/- on two occasions to them but they continued to torture her. He has stated that after about two months of her marriage which was performed on 16.07.2007 the accused persons started harassing his sister for dowry. To see that his sister is settled in her marital home he paid Rs. 25,000/- on two occasions to them but they continued to torture her. The situation got so bad that one day they ousted her from home and Rajan Kumar Gupta gave a false information that Seema has left home and whether she has reached my home. At that time she was pregnant. He went there and found his sister weeping sitting by the side of road. She told him that the accused persons had assaulted and thrown her out from house. She was very hungry at that time as the accused persons would not give food to her. Thereafter, he brought this sister home and on 07.02.2009 a complaint was lodged in Mahila Police Station, Dumka. Both parties were called at police station and the accused persons executed a bond undertaking that they would not harass her; the bond was submitted in police station. The informant has further stated that his brother-in-law came to his house on the occasion of Durga Puja and took his wife and daughter home however he continued to torture her. His brother-in-law had illicit relationship with another woman and due to this reason he would not come home for days and whenever his sister objected to this he would beat her. 5. PW-1 is a friend of the informant. He has stated that Panchayati was held in his presence and the accused persons executed a bond. He has seen dead body of Seema Devi and blood on the bed. His house is about half kilometre from the place of occurrence and he reached there at about 5 a.m. in the morning. PW-2 is younger brother of the informant. He has deposed in the Court that about two months after marriage the accused persons started demanding Rs.2 Lacs, committed marpit with his sister and threw her out from home. Thereafter he along with Shankar Prasad Sah, Manoj Kumar Sah and his brother had gone there and a compromise was recorded. The accused persons were given Rs.25,000/- on two occasions however after sometime they started demanding Rs.2 Lacs. Thereafter he along with Shankar Prasad Sah, Manoj Kumar Sah and his brother had gone there and a compromise was recorded. The accused persons were given Rs.25,000/- on two occasions however after sometime they started demanding Rs.2 Lacs. He has further stated that Rajan Kumar Gupta had illicit relationship with a girl and for that reason he would leave home frequently and whenever his sister questioned him he would beat her. On the occasion of Durga Puja, Dinesh Prasad Sah came for bidai and took his sister home and in the early morning of 06.11.2010 he received an information from an unknown person that his sister has been killed. He has gone there and found dead body of his sister on the bed. He has seen fire-arm injury in her stomach. Several persons from the vicinity had arrived there and they were discussing among themselves that the accused persons have killed Seema Devi. He has further stated that a copy of the bond was given to his sister which he can produce. PW-3 is distantly related to the informant. He has also stated about harassment and torture of Seema Devi at the hands of her husband and his family members, complaint in Dumka Mahila Police Station and compromise between the parties. Shankar Prasad Sah, PW-12, is brother-in-law of the informant. He deposed in the Court about harassment and torture of Seema Devi in connection to demand of Rs.2 Lacs and payment of Rs. 25,000/- to the accused persons on two occasions. He has further stated that Seema Devi used to visit her parents where she told him the whole story. 6. PW-6 and PW-7 are neighbors of Rajan Kumar Gupta. PW-6 has deposed in the Court that Rajan Kumar Gupta was staying with his wife in one house and his parents and brother were living in another house which is at a distance of about one kilometre from his house. PW-7, except saying that he has seen crowd and dead body of wife of Rajan Kumar Gupta at Dumka (Town) PS, has not stated anything about the occurrence. He has rather admitted in his cross-examination that he has no knowledge how the incident had happened. PW-8, PW-9. PW-13 and PW-14 are also neighbors and they have deposed in the Court that the accused persons have two houses. He has rather admitted in his cross-examination that he has no knowledge how the incident had happened. PW-8, PW-9. PW-13 and PW-14 are also neighbors and they have deposed in the Court that the accused persons have two houses. PW-15, the investigating officer has recorded fardbeyan of the informant, inspected the place of occurrence which is the house at Dudhani. He prepared sketch map of the place of occurrence and look photographs of dead body from all corners. The photographs were produced during trial and marked as X-series for identification. He has recorded confessional statement of Rajan Kumar Gupta @ Rajan Prasad Gupta which was marked as Exhibit-6 and according to him a Pistol covered in polythene was recovered from the well. He has produced Pistol in the Court from Malkhana of Dumka Police Station; it was marked as material Exhibit-I. He has also produced one bullet which was marked as Material Exhibit-II. However, in his cross-examination he has stated that he did not collect blood-stained soil, cloths and other articles from bedroom of the deceased and the time of recovery of Pistol any officer from Civil Administration was not present. PW-16 has proved the order of sanction for prosecution under the Arms Act. 7. The essential ingredients for constituting an offence under section 304-B, IPC are : (i) death of a woman caused by burn or bodily injury or otherwise than under normal circumstances; (ii) death occurred within seven years of marriage; (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or by relative of her husband, and; (iv) such cruelty or harassment was for or in connection with demand of dowry. 8. The offence under section 304-B, IPC was inserted in the Indian Penal Code by way of Amendment Act, 1986 and a corresponding amendment was made in the Indian Evidence Act to insert section 113-B, to raise a presumption of dowry death. The language employed under section 304-B, IPC and section 113-B of the Indian Evidence Act reveals a common point of reference in both the provisions, that the woman must have been 'soon before her death' subjected to cruelty or harassment for or in connection with demand of dowry. In "Bakshish Ram Vs. The language employed under section 304-B, IPC and section 113-B of the Indian Evidence Act reveals a common point of reference in both the provisions, that the woman must have been 'soon before her death' subjected to cruelty or harassment for or in connection with demand of dowry. In "Bakshish Ram Vs. State of Punjab", (2013) 4 SCC 131 , the Hon'ble Supreme Court has observed that a perusal of section 113-B of the Evidence Act and section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment for or in connection with demand of dowry. 9. On demand of dowry, the prosecution has laid evidence through PW-1, PW-2, PW-3, PW-11 and PW-12 but except PW-1 who is a friend of the informant others are intimately related to Seema Devi. However, the mere fact that witnesses are related to the deceased cannot be a ground to discard their evidence particularly because they would not shield the real culprit and rope in an innocent person. Still, in a case of this nature what has been observed by the Hon'ble Supreme Court that to exercise a little more care has to be kept in mind. 10. In Dalip Singh & Ors. Vs. The State of Punjab, AIR 1953 SC 364 , the Hon'ble Supreme Court has observed, thus: "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person a against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 11. The informant has narrated incidents of harassment and torture to his sister at the hands of the accused persons. He has stated that Rs.25,000/- was given to the accused persons on two occasions but in cross-examination he was unable to tell the dates when money was given to them and admitted that he has no proof of payment to the accused persons – No one has specifically said that money was given to so and so in his presence. He has admitted that he did not disclose in his fardbeyan or statement before police that after his sister was ousted from home his brother-in-law had called to tell him that she has left home. He has also admitted that he did not tell police that; when he had gone to house of his sister he found her crying on the road, she asked for food and told him that accused persons used to assault her. Evidently, the informant has made improvements in his statement when he was examined in the Court. His evidence regarding harassment and torture of Seema Devi contains such material improvements which would amount to contradictions. 12. PW 1 is not a witness to harassment and torture of Seema Devi by the accused persons and he has stated that he cannot remember whether he has said before police that the accused persons used to quarrel and assault Seema Devi in connection to demand of dowry. PW 2 has admitted that his sister was never assaulted in his presence and he does not remember when he heard about marpit committed to his sister. He has said that sometimes his sister would come home on her own and sometimes her husband would bring her to them. He has denied a suggestion by the defence that Seema Devi was sending money to them which was objected to by the accused persons and that was the reason, annoyed, the parents and younger brother of Rajan Kumar Gupta were living separately. He has denied a suggestion by the defence that Seema Devi was sending money to them which was objected to by the accused persons and that was the reason, annoyed, the parents and younger brother of Rajan Kumar Gupta were living separately. In his cross-examination, PW-3, has admitted that no incident has taken place before him and he cannot say what was written on the compromise paper. PW-12 has also not spoken about demand of dowry or any incident of harassment and torture of Seema Devi in his presence. 13. We are called upon to reject evidence of these witnesses on harassment and torture of Seema Devi and I would accept submission of Mr. V.P. Singh, the learned Senior counsel, that their evidence on demand of dowry is hearsay, not admissible under section 6 or section 8 of the Evidence Act and lacks credibility. 14. To begin with it is noteworthy that PW-1, PW-2, PW-3 and PW-12 have not themselves seen any Act of harassment and torture in connection to demand of dowry or otherwise perpetrated by he appellants upon Seema Devi. The evidence of these witnesses is hearsay and does not fall under any exception to the hearsay rule. 15. Section 59 of the Indian Evidence Act provides that all facts except the contents of documents or electronic records may be proved by oral evidence and section 60 says that in all cases oral evidence must be direct. The four clauses of section 60 refer to the facts which can be seen heard or perceived, and also about opinion of a person. It says that if the evidence refer to a fact which can be seen it must come from a witness that he has seen it and if it refers to a fact which could be heard a witness must say that he has heard it. On hearsay evidence the observations of Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 elucidate the law on the subject, thus : "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made." 16. Here, we are concerned about truth of statement of Seema Devi made to the witnesses about demand of dowry and her harassment and torture by the appellants and to that extent evidence of the related witnesses would be hearsay. The second aspect that such a statement was made by Seema Devi before the witnesses even found proved is not relevant in this case. 17. However, there are exceptions to the rule of hearsay. In order to make statement of a dead person made to another person admissible in law the statement must be as to the cause of his death or as to any of the circumstance of the transactions which resulted in his death, in cases in which the cause of death comes into question. Section 32(1) of the Evidence Act, 1872 is the only provision under which statement of Seema Devi made before the prosecution witnesses could have been admitted in evidence. The alleged story of her plight narrated by Seema Devi to these prosecution witnesses was not simultaneous to or immediately before her death - it was at least nine months in the past - and it does not relate to any cause of or any circumstance of the transaction relating to the cause of her death. Therefore, whatever these witnesses have said about harassment and torture of Seema Devi is not covered under section 32(1) of the Evidence Act. 18. Section 6 of the Evidence Act is another exception to the hearsay rule and admits of certain carefully safeguarded and limited exceptions. It makes the statement admissible when such statement is proved to form a part of the res gestae. A fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. It makes the statement admissible when such statement is proved to form a part of the res gestae. A fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. A particular statement is said to be as part of the same transaction if the utterances were simultaneous with the incident or substantially contemporaneous and made either during or immediately before or after its occurrence. This rule embodied in Section 6 is known as the rule of res gestae. 19. The story of her miseries in her matrimonial home was told by Seema Devi in remote past and it was not simultaneous or substantially contemporaneous to her death. 20. About the evidence of PW-11, I would say that it would lose credibility to the extent it amounts to contradiction because he has not spoken about previous incidence of his sister thrown out from house and other related events to police nor has he stated so in his fardbeyan. To elucidate this issue, I would turn to a decision by the Hon'ble Supreme Court in "State of Rajasthan Vs. Rajendra Singh", (2009) 11 SCC 106 . The witness stated in the Court about snatching of gun but he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. The Hon'ble Supreme Court has held that this omission on such a vital point has to be regarded as contradiction. 21. In Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of Maharashtra, (2010) 13 SCC 657 , the Hon'ble Supreme Court has observed : "33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded." 22. Therefore, a portion of the evidence of PW-11 which gives exaggerated version must be excluded from consideration. 23. However, there is one portion of evidence of PW-2 and PW-11 on this issue which is admissible in evidence. 24. A photocopy of the bond executed by the appellants on 09.02.2009 has been marked "X" for identification (with objection). The informant has identified signature of the accused persons on the bond. 23. However, there is one portion of evidence of PW-2 and PW-11 on this issue which is admissible in evidence. 24. A photocopy of the bond executed by the appellants on 09.02.2009 has been marked "X" for identification (with objection). The informant has identified signature of the accused persons on the bond. This was prepared by Manju Gorai, identified by R.P. Yadav Advocate and notorised by Manoj Kumar Sah. He has also identified signature of these persons on the bond dated 09.02.2009. On the point of the accused persons executing a bond undertaking that they would keep Seema Devi properly, PW-11 has remained unshaken. He has affirmed that the bond was prepared in his presence; it was prepared in the Court; it was submitted in police station; the original was kept in police station and; a photocopy of the bond was given to him. This document was kept on record with objection however during his cross-examination PW-11 was confronted with the contents of the bond by the defence lawyer and asked to read various paragraphs of the bond which are recorded in his deposition. He has read para no. 5 of the bond in which it is recorded that a house situated at Bijaypur shall be registered in the name of Seema Devi and a kitchen, washroom, toilet etc. would be made ready within four months. In para no. 7 of the bond it is recorded that Seema Devi shall reside with her husband in the house at Bijaypur and in para no. 8 it was declared that the accused persons would not raise any claim over the said house. PW-1, PW-2, PW-3 and PW-12 have also spoken about compromise and execution of a bond on 09.02.2009 by the accused persons and PW-2 has also identified photocopy of the bond in the Court. This also has been brought in evidence that a complaint was filed in Mahila Police Station and the original bond was given in police station. On such facts execution of the bond as a fact has been established by the prosecution. This also has been brought in evidence that a complaint was filed in Mahila Police Station and the original bond was given in police station. On such facts execution of the bond as a fact has been established by the prosecution. But as it is admitted by the witnesses that original document is available but it was not produced during the trial and the signatories of the bond, the accused persons, have not testified in the Court as secondary evidence it could not have been used against them however this document was used by the defense to extensively cross-examine PW-11 and its contents have been read in evidence and not challenged rather admitted by the defense and therefore it must be held that admissibility and contents of this document which was executed by the appellants have been admitted by them. 25. Now, two things would appear from the bond dated 09.02.2009. First is that any demand of dowry by the appellants seems highly improbable because the appellants have committed in this document to transfer a house in the name of Seema Devi. From the terms and contents of the bond it would appear that the house at Bijaypur was a family property or may be acquired by Dinesh Prasad Sah over which the other family members have agreed to relinquish their right in favour of Seema Devi. Now judged by the normal human conduct and standards this does not go well with reason that on the one hand the appellants were demanding dowry and on the other hand they have agreed to part with a valuable property in favour of Seema Devi. That is so also for the reason that no one except PW-11 has deposed in the Court that a demand was made from him and the evidence that Rupees twenty five thousand was paid on two occasions, in view of the statements of witnesses in cross-examination, is not credit-worthy. The another inference that can be drawn from execution of bond and which is really relevant for the present purpose is that there was incidence of harassment of the victim lady in the past. 26. The bond was signed by all the appellants and on that basis it can be contended that they all have admitted their guilt. The another inference that can be drawn from execution of bond and which is really relevant for the present purpose is that there was incidence of harassment of the victim lady in the past. 26. The bond was signed by all the appellants and on that basis it can be contended that they all have admitted their guilt. It may also be contended that it was possible that even while residing in a different house Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi were also involved in demand of dowry and harassment and torture of Seema Devi but then there must be some evidence on this issue, direct or circumstantial. 27. Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi have take a specific defence that they were residing separately at a different place and they had nothing to do with the matrimonial discord between Rajan Kumar Gupta and his wife. 28. In support of their defence, Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi have examined Bhagwat Raut as DW-1. He has said that Dinesh Prasad Sah is known to him since childhood days. Dinesh Prasad Sah has two houses and Rajan Kumar Gupta is living separately from his family in the old house at Raghunathganj. 29. In Sucha Singh and Another Vs. State of Punjab, (2003) 7 SCC 643 , the Hon'ble Supreme Court has observed that if a plea of false implication is made the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. 30. In the evidence of prosecution witnesses no specific allegation of demand of dowry from Seema Devi or assault upon her by Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi is found. PW-1, PW-2 and PW-3 have specifically stated that these appellants have never assaulted Seema Devi in their presence and PW-11 has stated in cross-examination that after a bond was executed by the accused persons no complaint was made. 31. To further examine whether there is any other evidence against Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi which can be used against them for entering upon a finding that they have subjected Seema Devi to cruelty, I would now advert to other witnesses. 32. PW-8, PW-9, PW-13 and PW-14 are neighbors of the appellants; PW-13 and PW-14 have been declared hostile. 32. PW-8, PW-9, PW-13 and PW-14 are neighbors of the appellants; PW-13 and PW-14 have been declared hostile. PW-13 has stated that he had gone to his village and therefore he has no knowledge about the occurrence and. PW-14 has stated that his statement was not recorded by police. During cross-examination by the defense they have stated that Dinesh Prasad Sah has two houses. PW-8 has stated that the next morning to Deepawali on hearing rumor that wife of Rajan Kumar Gupta has died he had gone to his house. In his cross-examination, he has stated that Dinesh Prasad Sah has two houses at a distance of about one kilometer between them and Rajan Kumar Gupta lives with his wife in one house while the others were living in the other house. He has further stated that on hearing rumor about death of wife of Rajan Kumar Gupta he had gone to his house which is 5-7 houses next to his house. PW-9 was going to his shop when he saw a crowd near the house of Rajan Kumar Gupta. There he has found wife of Rajan Kumar Gupta lying dead. In his cross-examination, he has stated that father of Rajan Kumar Gupta has two houses and Rajan Kumar Gupta lives with his wife in one house which is at a distance of about one kilometer from Bijaypur house where parents and brother of Rajan Kumar Gupta live. PW-12 has also stated that Rajan Kumar Gupta has two houses however PW-11 has struck a discordant note. He has stated that all the accused persons were living together in the same house in which his sister was killed and in his cross-examination he has stated that the accused persons have only one house in Dumka town at Dudhani Masalia Road and Dinesh Prasad Sah does not possess any house at Bijaypur. 33. The investigating officer has stated that the accused persons have two houses, though he has not made any enquiry about who among them was residing at which place. From the evidence of the investigating officer, it can be gathered that the place of occurrence was house of Rajan Kumar Gupta and it has not come on record that in course of investigation he has found any evidence of Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi residing in the house at Dudhani. From the evidence of the investigating officer, it can be gathered that the place of occurrence was house of Rajan Kumar Gupta and it has not come on record that in course of investigation he has found any evidence of Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi residing in the house at Dudhani. This is also evidence of prosecution that a country-made Pistol was recovered from a well near the house of Mahesh Sah which is situated at Bijaypur road. The description of boundary of house of Mahesh Sah records that to west of his house is the house of Dinesh Prasad Sah, the accused. 34. The learned Sessions Judge has disbelieved the stand taken by Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi that they were living in a different house at Bijaypur on the ground that the said house was to be given to Seema Devi but no evidence was produced by the accused persons to show that they have furnished the said house for the couple and on the contrary DW-1 has deposed in the Court that Rajan Kumar Gupta was living with his wife at Dudhani. In my opinion, this is a strange reason given by the learned Judge to hold that these appellants were involved in harassment and torture of Seema Devi. The stand taken by these appellants merited serious consideration. This is not case of the prosecution that Rajan Kumar Gupta was living with his wife at Bijaypur and, as noticed above the learned Sessions Judge has not found any evidence that the said house was furnished and transferred in the name of Seema Devi for her stay. This, in fact, would go to show that Rajan Kumar Gupta was not living in the house at Bijaypur. At the same time an inference cannot be drawn that other accused persons were not living in the said house at Bijaypur and there is no rule of evidence that says that these appellants must establish that they were living at Bijaypur. The place of occurrence is the house at Dudhani and atleast five prosecution witnesses have stated in the Court that Dinesh Prasad Sah owns two houses and three of them have admitted that Rajan Kumar Gupta and Dinesh Prasad Sah were living in separate houses. The place of occurrence is the house at Dudhani and atleast five prosecution witnesses have stated in the Court that Dinesh Prasad Sah owns two houses and three of them have admitted that Rajan Kumar Gupta and Dinesh Prasad Sah were living in separate houses. According to the prosecution, Seema Devi has died in the intervening night of 5/6.11.2011 and in the morning Dinesh Prasad Sah, Anju Devi and Mukesh Kumar Sah were seen at the place of occurrence, at Dudhani. The prosecution witnesses especially brothers of the deceased have stated that when they reached there they found all the accused persons present there which, in my opinion, was quite natural. It has come in the evidence that a large crowd had gathered at the house of Rajan Kumar Gupta and on hearing about the incident if the other family members had come to the house of Rajan Kumar Gupta there is nothing unusual about it. It is common knowledge that when differences grow between husband and wife the other family members on both sides also get involved. The parents of the boy and other family members are called during talk of compromise primarily to lend assurance that in future the husband would take good care of his wife. Therefore, for the reason that these appellants were found present at the place of occurrence no inference can be drawn that they were residing there with Seema Devi. There is over-whelming evidence on record to support their stand that they were living separately and did not demand any dowry or caused harassment and torture to Seema Devi. Their undertaking in the bond dated 09.02.2009 is also not sufficient to raise an inference about their culpability in the occurrence. There are general and omnibus allegations on demand of dowry, torture and harassment of Seema Devi at the hands of these appellants but those are in the realm of hearsay and once it is found that Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi were not residing with Seema Devi any evidence on harassment and torture of Seema Devi must remain confined to Rajan Kumar Gupta, her husband. 35. There is one more aspect of the case which would exclude involvement of Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi in causing death of Seema Devi. 35. There is one more aspect of the case which would exclude involvement of Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi in causing death of Seema Devi. These appellants have been convicted under sections 302 and 304-B, IPC, and sections 25(1-B), 26 & 27 of the Arms Act with the aid of section 34 IPC. Section 34 of the Indian Penal Code envisages that when a criminal act is done by several persons in furtherance of common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone. In Mithu Singh Vs. State of Punjab, (2001) 4 SCC 193 the Hon'ble Supreme Court has held that : "to substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both". 36. There is no material on record to infer common intention on part of Dinesh Prasad Sah, Mukesh Kumar Sah and Anju Devi to cause death or dowry, death of Seema Devi. The prosecution has failed to establish their role in death of Seema Devi and, therefore, I hold that their conviction under sections 302/34 and 304-B/34 IPC, and sections 25(1-B), 26 & 27 of the Arms Act is unsustainable. 37. The prosecution has also failed to produce materials against Rajan Kumar Gupta to establish that he caused harassment and torture to his wife in connection to demand of dowry soon before her death. 38. The expression 'soon before her death' is not capable of any precise definition and no straight-jacket formula can be evolved for arriving at a conclusion whether the victim lady was subjected to harassment and torture in connection to demand of dowry soon before her death and as observed by the Hon'ble Supreme Court it would be hazardous to indicate any fixed period in this regard. In Kamesh Panjiyar Vs. State of Bihar, (2005) 2 SCC 388 the Hon'ble Supreme Court has observed that the interval between cruelty or harassment in connection to demand of dowry and the death should not be much and there must exist a proximate cause and live link between the effect of cruelty based on dowry demand and the death. 39. In Kamesh Panjiyar Vs. State of Bihar, (2005) 2 SCC 388 the Hon'ble Supreme Court has observed that the interval between cruelty or harassment in connection to demand of dowry and the death should not be much and there must exist a proximate cause and live link between the effect of cruelty based on dowry demand and the death. 39. According to the prosecution, motive behind murder of Seema Devi was non-fulfillment of demand of dowry and illicit relationship of Rajan Kumar Gupta with another woman. The informant has admitted was cross-examination that after the compromise there was no complaint regarding harassment and torture of his sister. The evidence of PW-2 would show that Rajan Kumar Gupta was on visiting terms with his in-laws and sometimes he would go there to bring his wife back home. And, no one has stated about any incident of demand of dowry at the informant's hours. If the alleged demand of dowry was made atleast nine months before the incident and that also has not been proved by the prosecution. There is documentary evidence in the form of compromise bond and on the basis of which an inference about harassment of Seema Devi by, her husband can be drawn but no evidence is brought on record to prove that Rajan Kumar Gupta has harassed and tortured his wife in connection to demand of dowry and that too 'soon before her death'. 40. Accordingly, I hold that the prosecution has failed to prove charge under section 304-B, IPC against Rajan Kumar Gupta. 41. PW-10, Dr. Anand Mohan Soren, who was a member of Medical Board which was conducted the post-mortem examination at 11:45 a.m. on 06.11.2010, has found the following ante-mortem injuries on Seema Devi : (i) wound of entry over epigastric region in mid-line, circular in shape with inverted black margin measuring 1.8 cm in diameter and wound of exit over back of right side of chest 5 cm lateral to spine over ten intercoastal space, circular in shape with inverted margin measuring 1 cm in diameter. 42. On dissection of abdomen PW-10 has found that peritoneal cavity was full of blood, liver lacerated around 3"x2"x4" over postero-inferior surface, stomach lacerated around 3"x2", but except blood no other content was found in the stomach. 42. On dissection of abdomen PW-10 has found that peritoneal cavity was full of blood, liver lacerated around 3"x2"x4" over postero-inferior surface, stomach lacerated around 3"x2", but except blood no other content was found in the stomach. In the opinion of doctor, the death was due to haemorrhage and shock as a result of injury caused by fire-arm and in his estimation the time elapsed since death was within 24 hours. 43. The observation of PW-10 on cause of death of Seema Devi and approximate time of her death support the prosecution story that she was killed in the night of 5th November, 2010. 44. To prove the charge under section 302, IPC against Rajan Kumar Gupta the prosecution has relied on recovery of country-made Sixer Pistol, report of Sergeant Major, confessional statement of Rajan Kumar Gupta, medical evidence on homicidal death of Seema Devi, and motive. 45. In a case which primarily rests on circumstantial evidence an inference of guilt can be justified only when all the circumstances are found incompatible with innocence of the accused. In one of the earliest cases, in Gambhir Vs. State of Maharashtra, (1982) 2 SCC 351 , the Hon'ble Supreme Court has observed that the nature of evidence produced by the prosecution to prove an incriminating circumstances 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 painting towards guilt of the accused; (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……." 46. The recovery of fire-arm and bullet pursuant to a disclosure by Rajan Kumar Gupta is one of the incriminating materials against him. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence……." 46. The recovery of fire-arm and bullet pursuant to a disclosure by Rajan Kumar Gupta is one of the incriminating materials against him. The recovery has been challenged on the ground that; seizure witnesses have stated that nothing was recovered in their presence; no independent witness was examined and; a bullet was collected by the investigating officer from hospital more than one month after the incident. The divers who found a country-made Sixer Pistol in the well were not searched before they went inside the well and PW-10 who was a member of Medical Board or any one of the members of Medical Board who conducted post-mortem has not deposed in the Court that he found a bullet in the dead body which was handed over to the investigating officer. 47. The recovery of Pistol from the well is a fact duly proved by the prosecution independent of disclosure made by Rajan Kumar Gupta. PW-4 has stated that search-cum-seizure list was prepared on 07.11.2010. He has identified his signature however in his cross-examination he has stated that he has put his signature on a plain paper at the instance of the police and he has not seen the seized article. PW-5 has also identified his signature on the seizure list but denied that any seizure was affected in his presence and that at the instance of police he has put his signature on a plain paper. A country-made Pistol was recovered in presence of the investigating officer and he has deposed in the Court to this effect. He has stated in the Court that a Pistol was recovered from the well of Mahesh Sah in presence of P.W.-4 and P.W.-5 who have signed search-cum-seizure Memo. P.W.-4 and P.W.-5 have identified their signature on memo but in their cross-examination they have made certain statements which are not favourable to the prosecution. However, this piece of evidence would not affect the prosecution case on recovery of Pistol from the well. In Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 , a witness who had identified the accused through a photograph shown to him by the police witness did not identify the accused in the Court. However, this piece of evidence would not affect the prosecution case on recovery of Pistol from the well. In Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 , a witness who had identified the accused through a photograph shown to him by the police witness did not identify the accused in the Court. The Hon'ble Supreme Court has observed that the act of the police witness in whose presence the witness who later turned hostile was contemporaneous to the act of the witness and therefore the evidence of the police witness was admissible in evidence on this point. Seema Devi has suffered fire-arm injury is not in dispute and it has not been demonstrated by the defence that the investigating officer had animosity or ill-motive to plant the crime articles. There was some controversy on size of Pistol and it was suggested by the defense that the Pistol which was recovered from the well was not the one which was sent for examination. The seizure-list vide Ext. 1/2 shows that total length of Pistol was 26-1/2 cm, length of barrel-12-1/2 cm, body length-7 cm and butt length-7 cm, but report of the Sergeant Major which was tendered in evidence vide Ext.7 is in respect of a weapon having barrel length 9 cm. The minor variation in length of barrel of country-made Pistol is easily explained when one looks at the total length of Pistol which has remained the same in both documents. It was just about difference in writing description of the Pistol by the investigating officer and the Sergean Major which was over-stretched by the defence to create a doubt on recovery of a country-made Sixer Pistol from the well. On recovery of a bullet from the dead body PW-2 and PW-11 have stood to their grounds. In cross-examination of PW-10 the defense has elicited a statement from him that if entry wound and exit wound are present the bullet would not be found in the body. However, in this context this has to be kept in mind that Seema Devi was found laid on the bed and moreover opinion of a doctor is not proof of a fact. The homicidal death of Seema Devi is admitted by her husband. Rajan Kumar Gupta has taken a stand that his enemy/dacoit has killed his wife. However, in this context this has to be kept in mind that Seema Devi was found laid on the bed and moreover opinion of a doctor is not proof of a fact. The homicidal death of Seema Devi is admitted by her husband. Rajan Kumar Gupta has taken a stand that his enemy/dacoit has killed his wife. The related witnesses have arrived at the place of occurrence after the incident and therefore in presence of a large number of persons they could not have planted a bullet in the body of Seema Devi. The lack of evidence on recovery of a bullet is primarily on account of the mistakes committed by the investigating officer and on this count no benefit can go to an accused. 48. The confessional statement of Rajan Kumar Gupta recorded on 07.11.2010 is another incriminating material relied upon by the prosecution to prove charge of murder and dowry death. 49. In Pulkuri Kotayya Vs. Emperor, AIR 1947 PC 67 , the Judicial Committee has observed that section 27 of the Evidence Act enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information leading to discovery of the fact may be proved. It was pointed out that the fact discovered embraces the place from where the object is recovered, and knowledge of the accused as to this and the information given by the accused must distinctly relate to this fact. The following example given by the Judicial Committee would make understand the scope of section 27 more clearly : "Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to he discovery of the knife in the house of the informant." 50. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 , the issue before the Hon’ble Supreme Court was whether statement of the accused to the effect that "he had hidden the ornaments" and "would point out the place where the ornaments were hidden by him" are admissible in evidence under Section 27 or only that part of his statement is admissible where he has stated that he would point out the place, but not that part where he has stated that he had hidden the ornaments. The Hon’ble Supreme Court has held that both parts of the statement of the accused; that he has hidden the ornaments and would point out place where the ornaments were hidden by him, are admissible under Section 27. 51. A reading of confessional statement of Rajan Kumar Gupta would disclose that the place where the crime article was concealed became known to the investigating officer when he made the disclosure and pursuant to his disclosure Pistol was recovered from a place he had the exclusive knowledge. Therefore this part of his disclosure would come under the expression 'fact discovered'. The truthfulness of this part of his confessional statement is confirmed by recovery of Pistol and therefore that part of his confessional statement can be proved against him. 52. In a criminal trial, generally motive is considered a weak piece of evidence however it cannot be said that it is not at all relevant to decide culpability of an accused and therefore its importance cannot be undermined. A crime can take place without premeditation or with planning and it may happen as spur of the moment and therefore many a times motive may remain closeted in the chest of accused however if the prosecution leads reliable evidence on motive it significantly strengthen its case. PW-2 and PW-11 have stated that Rajan Kumar Gupta would leave home for few days and whenever their sister would ask him about this he would commit marpit with her. In Surinder Pal Jain Vs. Delhi Administration, (1993) Supp. (3) SCC 681, the Hon'ble Supreme Court has observed, thus; "11. ... PW-2 and PW-11 have stated that Rajan Kumar Gupta would leave home for few days and whenever their sister would ask him about this he would commit marpit with her. In Surinder Pal Jain Vs. Delhi Administration, (1993) Supp. (3) SCC 681, the Hon'ble Supreme Court has observed, thus; "11. ... In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof." 53. Seema Devi was found dead in her matrimonial home and it is not denied by Rajan Kumar Gupta that he was living with his wife in the same house and while so he must say something how his wife has died in the fateful night and his explanation must be found acceptable by the Court. 54. Rajan Kumar Gupta has set-up a defence that in the Deepawali night he was gambling with his friends and his enemies killed his wife and gave a false information to his brother-in-law. He has taken one more defence that dacoity was committed in his house and in the incident his wife was shot by the dacoits. 55. In Attygalle Vs. King, AIR 1936 PC 169 , the Privy Council was dealing with a case against two persons who were involved in Speculum examination of Miss Maye. At the trial the learned Judge told the Jury that Miss Maye was unconscious and what took place in the room in which operation was performed was within the knowledge of two accused who were there and with reference to section 106 of Ordinance No. 14 of 1895 in the Ceylon Code (which is in identical terms as section 106 of the Indian Evidence Act) the burden of proving that no criminal operation took place but what took place was this and this Speculum examination was on the accused. Viscount Hailsham, J. speaking for the Board has held that the direction does not correctly state the law and it is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. 56. Viscount Hailsham, J. speaking for the Board has held that the direction does not correctly state the law and it is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. 56. This rule of evidence has been statutorily recognized in India in section 106 of the Evidence Act. The provisions of section 106 are very clear and do not admit any ambiguity. It lays down that when any fact is especially within the knowledge of a person the burden of proving that fact is upon him. Therefore, before an adverse inference is sought to be raised against an accused under section 106 it must first be shown that some facts were predominantly and without exception within the knowledge of the accused still he has failed to furnish an explanation which is probable and satisfactory. 57. There is one more rule of criminal law which is relevant for the present purpose. An accused has a right to remain silent but if he offers a false explanation in his examination under section 313, Cr.P.C. it would become an additional incriminating material against him and as held by the Hon'ble Supreme Court in State of Maharashtra Vs. Suresh, (2000) 1 SCC 471 , his false explanation would provide an additional incriminating material and complete the chain of circumstances. The explanation offend by Rajan Kumar Gupta on the cause of death of his wife when he was examined under section 313, Cr.P.C. has been found false. The prosecution has laid sufficient material to establish a prima-facie case against Rajan Kumar Gupta and therefore by operation of section 106 of the Evidence Act onus would be upon him to demonstrate from the prosecution evidence or by leading independent evidence that he was not involved in murder of his wife. 58. In Pudhu Raja Vs. State, (2012) 11 SCC 196 , the Hon'ble Supreme Court has held as under; "17. It is obligatory on the part of the accused while being examined under Section 313, Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. It is obligatory on the part of the accused while being examined under Section 313, Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances". 59. A husband who is facing charge of murder of his wife cannot remain silent, if it is found that at the relevant time he was living with his wife under the same roof. He must say something which can be a probable cause of death of his wife. On account of intimate relationship of a husband with his wife an inference about his special knowledge regarding what has happened to his wife in her matrimonial home an legitimately be drawn and if he fails to offer a probable and acceptable explanation to the Court a presumption that he has committed murder of his wife would arise - the presumption is rebuttable. The prosecution has examined eight witnesses who are neighbors of Rajan Kumar Gupta but except PW-4 who has stated in his cross-examination that dacoity was committed in house of Rajan Kumar Gupta - a fact not spoken by him either in his examination-in-chief or before police under section 161, Cr.P.C. - no one has stated that in Deepawali night dacoity was committed in house of Rajan Kumar Gupta. The evidences led by the prosecution and other attending circumstances of this case would indicate that due to his illicit relationship with another women Rajan Kumar Gupta had quarrels with his wife and on Deepawali night he has shot her dead. It is not silence of Rajan Kumar Gupta or a false explanation by him to this incriminating circumstance which is the basis for his conviction in this case, rather prosecution has produced cogent, consistent and convincing materials to establish that he has committed murder of his wife. It is not silence of Rajan Kumar Gupta or a false explanation by him to this incriminating circumstance which is the basis for his conviction in this case, rather prosecution has produced cogent, consistent and convincing materials to establish that he has committed murder of his wife. His conduct during his examination under section 313, Cr.P.C. is only to the affect that it also points out towards his culpability in the crime and taken together with the prosecution evidence would conclusively established the charges under section 302, IPC and sections 25(1-B), 26(b) and 27 of the Arms Act framed against him in Sessions Trial No. 53/2011. 60. In the end, after examining the materials on record I am satisfied that conviction of Rajan Kumar Gupta @ Rajan Prasad Gupta under section 302, IPC and sections 25(1-B), 26(b) and 27 of the Arms Act is well founded and does not warrant any interference. 61. In the result, Criminal Appeal (DB) No. 45 of 2015 and Criminal Appeal (DB) No. 60 of 2015 are allowed and Criminal Appeal (DB) No. 165 of 2015 is dismissed to the extent conviction of Rajan Kumar Gupta under section 302, IPC and sections 25(1-B), 26(b) and 27 of the Arms Act is concerned. 62. The appellants, namely, Dinesh Prasad Sah and Anju Devi [in Criminal Appeal (DB) No. 45 of 2015] and the appellant namely, Mukesh Kumar Sah [in Criminal Appeal (DB) No. 60 of 2015] who are on bail shall stand discharged of liability of the bail-bonds furnished by them. 63. Let the lower-court records be sent to the Court concerned forthwith. 64. Let a copy of the judgement be transmitted to the Court concerned and concerned Jail Superintendent through FAX. Ratnaker Bhengra, J.–I agree.