JUDGMENT : Shree Chandrashekhar, J. In Sessions Trial No. 265 of 2013, Ram Lakhan Ram and his wife Lila Devi are convicted and sentenced to RI of life and a fine of Rs. 5000/-each under section 302 of the Indian Penal Code for committing murder of their daughter-in-law Nitu Verma, with a default stipulation to undergo further SI for six months. They are further convicted and sentenced to RI for two years and a fine of Rs.1000/-each under section 201/34 of the Indian Penal Code for causing disappearance of the dead body of Nitu Verma. 2. On 28th August 2010, a First Information Report vide Sadar PS Case No. 607 of 2010 was registered against Pappu Verma, Raju Verma, Umesh Verma, Ram Lakhan Ram and Lila Devi for committing the offence under sections 302/201 of the Indian Penal Code. After the investigation, a charge sheet was laid against Pappu Verma on 24th November 2010 under sections 302/201/34 of the Indian Penal Code while the investigation against Ram Lakhan Ram and Lila Devi was kept pending. Raju Verma and Umesh Verma who are the brothers of Pappu Verma were not sent up for trial. Later on, a charge sheet was submitted against Ram Lakhan Ram who is the father-in-law and Lila Devi who is the mother-in-law of Nitu Verma. 3. The son of the appellants has filed Cr. Appeal (DB) No. 520 of 2013. They faced the trial separately but in both the trials except the brother and mother of Nitu Verma the other prosecution witnesses who were co-villagers of the accused did not support the prosecution case. We have heard Cr. Appeal (DB) No. 520 of 2013 and the present criminal appeal together but written separate judgments for the aforesaid reason. 4. As noticed above, the appellants faced the trial on the charge under sections 302/201/34 of the Indian Penal Code. 5. Nine witnesses have tendered evidence in Sessions Trial No. 265 of 2013 but the witnesses who are co-villagers of the appellants turned hostile and did not support the prosecution case. The informant who is the brother of Nitu Verma and his mother gave evidence against the accused and the learned trial Judge relied on their testimony to hold that there was demand of dowry and the deceased was harassed in her matrimonial home. The informant who is the brother of Nitu Verma and his mother gave evidence against the accused and the learned trial Judge relied on their testimony to hold that there was demand of dowry and the deceased was harassed in her matrimonial home. Placing reliance on the medical evidence, the learned trial Judge held that murder of Nitu Verma was committed in furtherance of common intention. 6. Mr. Jitendra S. Singh, the learned counsel for the appellants, contends that (i) the chain of circumstances is not complete (ii) demand of dowry by the appellants is not established, and (iii) the other evidences tendered by the prosecution witnesses in the Court which clearly exonerate the appellants were ignored by the learned trial Judge. 7. On 28th August 2010, Dr. Subhash Prasad conducted the postmortem examination over the dead body of Nitu Verma at Sadar Hospital, Hazaribag and found the following injuries: “External Examination Smell of kerosene oil, Hair burnt. For neck burnt up to epidermal layer of skin. Both eyes were congested. Tongue protruded. Both arms front and back burnt. Forearms of both sides spared from any burn injury. Burnt clothes attached to the body. Peeling of cuticles layer of skin. Over burnt area. Back burnt above to buttock chest burnt upto umbilicus. Front of thigh both sides burnt. Back of thigh and back at leg spared. Internal Examination On opening neck hemorrhage in muscle Trachea congested, Larynx congested. Haemotoma on both side of Trachea. Thyroid Cartilage fractured. On opening Chest-Both Lungs are intact and congested. Liver, Spleen and both Kidneys are intact and congested. Heart- right chamber blood clot. Left chamber empty. Stomach Wall normal and contained mucoid fluid 2 Ounce. Bladder empty. Uterus normal. No blebs. No hyperemia over burnt area. Line of redness absent. No soot respiratory track from nose to Trachea. Burn is postmortem in nature. A parts of Lung, Heart, Spleen, Liver and one Kidney, and Stomach with its contents are preserved in saturated saline solution for chemical examination. Time elapsed since death – 6 hours to 36 hours. In my opinion cause of death is asphyxia due to throttling. However, viscera will be sent for chemical examination if asked by I.O.” 8. As PW5, the doctor has rendered an opinion that Nitu Verma suffered postmortem burn injuries and the cause of her death was asphyxia due to throttling. Time elapsed since death – 6 hours to 36 hours. In my opinion cause of death is asphyxia due to throttling. However, viscera will be sent for chemical examination if asked by I.O.” 8. As PW5, the doctor has rendered an opinion that Nitu Verma suffered postmortem burn injuries and the cause of her death was asphyxia due to throttling. The death of Nitu Verma in her matrimonial home is not disputed. Her dead body was found in the afternoon of 28th August 2010 in the house which was occupied by the appellants and their sons. The observations of PW5 in the postmortem report prima facie show that Nitu Verma suffered a homicidal death but for that reason all the inmates of the house who were separated by metes and bounds cannot be automatically held guilty. 9. The witnesses produced by the prosecution are not those persons who could tell the Court how Nitu Verma caught fire. The prosecution has therefore rested its case against the appellants on circumstantial evidence but the circumstances relied upon by the prosecution are not conclusive nor of definite character. 10. In “Chandmal v. State of Rajasthan” (1976) 1 SCC 621 , the Hon'ble Supreme Court has held as under: “14. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, 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. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt.” 11. PW4 who is the mother of Nitu Verma testified in the Court that the father-in-law, mother-in-law and brothers-in-law of her daughter used to harass her daughter on domestic issues. She has also stated that the accused would harass her daughter in connection to demand of a gold chain and sometimes for a demand of Rs. 10,000/-or Rs. 20,000/-. PW4 who is the mother of Nitu Verma testified in the Court that the father-in-law, mother-in-law and brothers-in-law of her daughter used to harass her daughter on domestic issues. She has also stated that the accused would harass her daughter in connection to demand of a gold chain and sometimes for a demand of Rs. 10,000/-or Rs. 20,000/-. This is also evidence of PW4 that her daughter used to give her information over telephone that her husband was assaulting her and his parents were instigating him. In the cross examination, PW4 stated that whenever there was a family quarrel at the matrimonial home of her daughter she would go there and reason with her daughter. From the evidence of PW4, we gather that the imputations regarding harassment and torture of Nitu Verma in connection to demand of dowry are made against her husband. No doubt there is allegation also against the family members about harassment of Nitu Verma but this allegation is confined to domestic matters (gharelu baat). Against the appellants, PW4 has stated that they would instigate their son to beat her daughter but this allegation is not corroborated by the evidence of the informant. 12. PW7 is the informant of this case who levelled allegation of demand of Rs.10,000/-and sometimes Rs.20,000/-by all the family members including the two brothers-in-law of Nitu Verma, who were not sent up for trial. In the cross examination, PW7 admitted that Raju Verma who is one of the brothers-in-law of Nitu Verma gave information to him about death of his sister. From evidence of the informant, we gather that except making a general allegation against all the family members of Pappu Verma, in one sentence in the opening paragraph of his examination-in-chief, the informant did not say anything more about involvement of the appellants in the crime. Of course, in the circumstances of the case he is not an eyewitness and therefore could not have said in the Court that he saw the appellants committing murder of his sister, but mere suspicion is not sufficient to convict the appellants. It seems that he was overwhelmed by the death of his sister and having in mind the previous incidents of differences between his sister and her husband, he implicated the appellants on suspicion. 13. It seems that he was overwhelmed by the death of his sister and having in mind the previous incidents of differences between his sister and her husband, he implicated the appellants on suspicion. 13. In “Vijay Kumar Arora v. State (NCT of Delhi)” (2010) 2 SCC 353 , the Hon'ble Supreme Court has observed as under: “16.2. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies.” 14. In the evidence of PW4 and PW7, we do not find anything substantial which could implicate the appellants in the crime. The inmates of the house in which a married woman dies under unnatural circumstances may be held guilty, provided there is other independent evidence to support the prosecution case. But an inference on culpability of the inmates of the house cannot be drawn in every case by operation of section 106 of the Indian Evidence Act. There is no rule of evidence that mere presence of a person in the house in which a crime was committed makes him liable. 15. PW1, PW2, PW3 and PW6 did not support the prosecution, though only PW1 and PW6 were declared hostile at the instance of the prosecution. PW1 stated in the Court that his statement was not recorded by the police and in the cross examination by the prosecution he denied his own statement made before the police that the accused strangulated Nitu Verma and set her dead body on fire. PW2 admitted in the Court that he saw the dead body of Nitu Verma in the house of her husband but denied any knowledge how she died. PW2 admitted in the Court that he saw the dead body of Nitu Verma in the house of her husband but denied any knowledge how she died. PW3 and PW6 also did not make any incriminating statement against the accused. These witnesses are co-villagers of the accused. They seem to have made statements before the Investigating Officer that on the day of the occurrence there was a quarrel in the house of Pappu Verma. As PW9, the Investigating Officer tendered evidence in the Court that the place of occurrence is situated in village Sirka Khirgaon. Nitu Verma was living at the upper floor of the house which comprised of three rooms. He further stated that the other two brothers of Pappu Verma were living separately and there was partition among the brothers. He has also stated that the parents of Pappu Verma who are the appellants before us were living separately in the same house. This is also the evidence of Investigating Officer that other brothers of Pappu Verma were also living with their children separately in the same house. 16. The application of section 106 of the Indian Evidence Act is not automatic and an adverse inference against the accused is raised where the prosecution succeeds in establishing a prima facie case against the accused. In “Shambhu Nath Mehra v. State of Ajmer” AIR 1956 SC 404 , the Hon’ble Supreme Court has observed that section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. 17. We have carefully examined the materials on record and find that any evidence on complicity of the appellants which should have been of a substantive kind is almost missing. Except that a portion of the house in which Nitu Verma was found dead was also occupied by the appellants, there is no other substantive evidence against the appellants. 18. In view of the aforesaid discussions, we hold that the prosecution has failed to prove the charge against the appellants under sections 302 and 201/34 of the Indian Penal Code. Therefore, the judgment of conviction and the order of sentence passed against Ram Lakhan Ram and Lila Devi in Sessions Trial No. 265 of 2013 are set-aside. 19. Mrs. 18. In view of the aforesaid discussions, we hold that the prosecution has failed to prove the charge against the appellants under sections 302 and 201/34 of the Indian Penal Code. Therefore, the judgment of conviction and the order of sentence passed against Ram Lakhan Ram and Lila Devi in Sessions Trial No. 265 of 2013 are set-aside. 19. Mrs. Nehala Sharmin, the learned APP informs us that both the appellants are on bail. 20. Accordingly, Ram Lakhan Ram and Lila Devi shall stand discharged of liability of the bail bonds furnished by them. 21. Criminal Appeal (DB) No. 480 of 2017 is allowed. 22. Let the lower Court records be transmitted to the Court concerned, forthwith. 23. Let a copy of the Judgment be transmitted to the Court concerned through FAX.