JUDGMENT : Shree Chandrashekhar, J. On an allegation that Simati Devi was set on fire by her husband in her matrimonial home, Chandankiyari PS Case No. 82 of 2010 was lodged on 08.05.2010 against Gangadhar Bawri. In course of investigation the witnesses stated before the Investigating Officer about ill treatment of Simati Devi by her husband. On 08.05.2010, Gangadhar Bawri was not found in his house and the witnesses said that he had absconded. Simati Devi suffered burn injuries to the extent of 90% and the doctor who conducted the postmor1em examination has rendered an opinion that Simati Devi was strangulated to death. Accordingly, a charge-sheet was submitted and Gangadhar Bawri, the appellant, has faced the trial on the charge under section 302 of the Indian Penal Code for committing murder of his wife. During the trial, the prosecution has examined ten witnesses out of whom PW5-Ankur Bouri is the brother, PW6- Teju Bouri is the father and PW7-Shanti Devi is the mother of Simati Devi. Except PW10-Kalu Bouri, the other witnesses who have deposed in the Court were the residents of village Jhabra, the paternal home of Simati Devi. 2. The learned Additional Sessions Judge-III, Bokaro has held that Simati Devi Was found dead in her maternal home under suspicious circumstances; her dead body was found in burnt condition, and; her husband and other family members were not in the house when her dead body was recovered. The learned trial Judge has referred to several judgments of the Hon'ble Apex Court and held that from the circumstances proved by the prosecution the only conclusion which can be drawn is guilt of the accused. 3. The learned trial judge has appreciated the materials laid during the trial in the following manner: "17. So in this case from the evidence of all Pws including the IO and doctor it has been provides that victim died in her sasural. When the informant reached at sasural of the deceased the inmates of the house were not there. The victim dead body was found in the house of the accused on a chouki and the dead body had externally burnt amounting to 90% and the injuries were found post mortem in nature as opined by the doctor in post mortem report Ext.4 and the doctor has found cause of death due to asphyxia as a result of strangulation. The victim dead body was found in the house of the accused on a chouki and the dead body had externally burnt amounting to 90% and the injuries were found post mortem in nature as opined by the doctor in post mortem report Ext.4 and the doctor has found cause of death due to asphyxia as a result of strangulation. So it is evident that the victim was already dead before she was set on fire. Firstly the victim lady was killed by strangulation and then her dead body was set on fire with intention to give the colour of cause of death due to burning. So it is an incident which was plotted in a planned way. From the evidence it proves that victim was residing with the accused while she was alive and it was lastly lived with the accused In the circumstance when all these things have been proved then it was the onus of the accused to explain under what circumstance the deceased was found dead but the defence version is only of false implication and innocence. In the statement u/s 313 Cr. PC the accused have said that he would give defence witness but none was examined on his behalf. It is true that it is the duty of the prosecution to prove the charge against the accused beyond shadow of doubt by evidence which may be ocular or circumstantial. In the present case the prosecution has discharged his duty from evidence by proving that the victim lady was with her husband before her end and she found dead there under suspicious circumstance. She was strangulated to death and thereafter her dead body was burnt and when the informant reached to her sasural, the husband of the victim and other family members were all absent. So these circumstances so proved lead to one and only conclusion toward the guilt of the accused and chain of circumstances is so complete that there is no escape from the conclusion that the crime was committed by the accused and by none else. So these circumstances so proved lead to one and only conclusion toward the guilt of the accused and chain of circumstances is so complete that there is no escape from the conclusion that the crime was committed by the accused and by none else. In this case motive has also been proved by the prosecution and motive of accused behind the alleged crime is that the deceased wife was not as per his liking and therefore, she was being tortured and assaulted by the accused and threatening was consistently given to kill her, so that accused might be abled to solemnise another marriage with another girl. 18. The defense has contended that there are contradictions in evidence of witnesses and submitted that in this case the circumstantial evidence is much shaky and there is also delay in lodging in FIR. So charge has not been proved by the prosecution and accused deserves acquittal. The certain rullings have also been referred such as:- AIR 1984 SC 1622 and 1974 CR.LJ 1249. These rullings are on circumstantial evidence and ruling reported in 2003 Cr.L.J. 1095 on delay in lodging FIR. 19. But when I go through a recent judgment reported in (2011) l SCC 318 Thathan Setty Suresh Vs. State of Andhra Pradesh, the Hon'ble Apex Court has taken serious view and observed in paragraph 8 as under:- "8 - In such cases ordinarily there is only circumstantial evidence that does not mean that a person can not be convicted on the basis of circumstantial evidence. We have recently held in Satya Narayan Tiwary vs. State of U.P, that this Court is going to take a serious view in the matter of crimes against Woman and given harsh punishment. This view was reiterated by us in another Special leave petition in Sukhdeo Singh vs. State of Punjab and we issued notice to the petitioner as to why his life sentence be not enhanced to death sentence" 20. As such no hard and fast rule can be laid down that what particular circumstance are conclusive to establish guilt rather evidence and circumstances of each and every case is to be looked into before coming to the conclusion of guilt of accused. As such no hard and fast rule can be laid down that what particular circumstance are conclusive to establish guilt rather evidence and circumstances of each and every case is to be looked into before coming to the conclusion of guilt of accused. So far as contradictions in evidence of prosecution witnesses is concerned when I go through it I find the contradictions referred by defence is not so worthy which can change the directions of the case, so that accused can get benefit of it. Rather I find these contradictions are trivial in nature and during course of examination it is bound to be happened due to lapse of time and human nature. Delay in lodging FIR in this case is also not vital. The FIR was lodged on the day of occurrence. So the argument advanced by the defence counsel is not tenable. 21. On the other hand the learned Addl. PP has submitted that prosecution has discharged his onus in proving the guilt of the accused by evidence beyond all reasonable doubts and the accused is liable to be punished for offence alleged. 22. Considering the submissions of both sides and on careful scrutiny of evidence available on record I find and hold that the prosecution has proved the charge u/s 302 IPC against the accused beyond shadow of all reasonable doubts. Accordingly, I find and hold the accused guilty for the offence u/s 302 of the IPC and he is being convicted/or the same………." 4. In Sessions Trial Case No. 357 of 2010, the appellant was convicted and sentenced to RI for life and a fine of Rs. 10,000/- with benefit of set off under section 428 of the Code of Criminal Procedure - the default stipulation stipulates further RI for three months. 5. Mr. Sanjay Kumar Pandey, the learned counsel for the appellant would contend that the prosecution story is surrounded by suspicious circumstances, it is not known how and when an information about death of Simati Devi was given to her mother, brother and father. It is contended that the prosecution has failed to establish that Simati Devi suffered a homicidal death in her matrimonial home, and no witness has come forward to say that on or around 08.05.2010 the appellant was seen in his house. 6. It is contended that the prosecution has failed to establish that Simati Devi suffered a homicidal death in her matrimonial home, and no witness has come forward to say that on or around 08.05.2010 the appellant was seen in his house. 6. To fortify his submissions, the learned counsel for the appellant has referred to the following judgments: (i) Padala Veera Reddy v. State of Andhra Pradesh AIR 1990 SC 79 (ii) Joharlal Das v. State of Orissa (1991)3 SCC 27 ; (iii) Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415 (iv) Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 (v) Reena Hazarika v. State of Assam (2019) 13 SCC 289 : (vi) Gargi v. State of Hmyana (2019) 9 SCC 738 , (vii) Asraf Ali v. State of Assam (2008) 16 SCC 328 ; (viii) Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108 7. The prosecution case is that the appellant had dislike for his wife - he did not find her beautiful. On previous occasions he had opened his mind and held out threats to his wife that he would kill her and solemnize second marriage. There is no eyewitness to the occurrence and no one has come forward to say how Simati Devi had died. 8. In a case based on circumstantial evidence the prosecution must lead sufficient evidence to satisfy the following three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii) 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, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 9. Shanti Devi, the informant of this case is mother of the deceased. She has stated that on 08.05.2010 PW 1 informed her that her daughter has been burnt to death by her husband. PW 1 who stated in the court that Simati Devi was related to him like a sister has affirmed that the written report given to the police by the informant was written by him. She has stated that on 08.05.2010 PW 1 informed her that her daughter has been burnt to death by her husband. PW 1 who stated in the court that Simati Devi was related to him like a sister has affirmed that the written report given to the police by the informant was written by him. In his cross-examination he has stated that during the lunch time at around 01:30 PM while he was on duty at Electro Steel Plant he got a telephonic information about death of Simati Devi from Satish Mahtha. PW2 has also stated in the Court that Sattu Mahtha (Satish Mahtha) gave information about the occurrence to the father of the deceased girl at about 01:00 PM at his house. He admits that village of Satish Mahtha was about 14-18 kilometers away from Udalbani but in the same breath he has also stated that he had gone for work towards Udalbani. PW3 and PW4 who are also the co-villagers have deposed in the Court that information about the murder of Simati Devi was given by PWI. The brother of Simati Devi who was examined as PW5 has not stated how he received an information about death of his sister, and PW6 who is the father of Simati Devi has admitted in his cross-examination that on the day of occurrence he was not at home. 10. On the basis of the above evidences, Mr. Sanjay Kumar Pandey, the learned counsel for the appellant has contended that the evidence of PW1 about how he could know about death of Simati Devi is not reliable because Satish Mahtha was not examined during the trial. We find substance in this submission. The testimony of PW1 is quite cryptic and it does not inspire confidence. For a similar reason, testimony of PW3 and PW4 who have stated that PW1 received information about murder of Simati Devi becomes doubtful. The evidence of PW2 who has stated that Sattu Mahtha gave information about murder of Simati Devi to the father of Simati Devi does not inspire confidence for the reason that PW6 himself has admitted in the Court that on the day of occurrence he was not at home. The evidence of PW2 who has stated that Sattu Mahtha gave information about murder of Simati Devi to the father of Simati Devi does not inspire confidence for the reason that PW6 himself has admitted in the Court that on the day of occurrence he was not at home. The missing link in the evidence of PW1, PW2, PW3 and PW4 and statement of the brother and father of Simati Devi may appear minor aberrations nonetheless may become significant if the other evidences are also shaky. 11. The informant has deposed in the Court that when she received an information through PW1 about murder of her daughter she had gone to the matrimonial house of her daughter at Udalbani and at that time she was accompanied by several co-villagers. PW2, PW3 and PW4 who are the residents of village Jhabra have deposed in the Court that they had gone to the matrimonial house (sasural) of Simati Devi at Udalbani where they saw her dead body in burnt condition. PW I, PW5, PW6 and PW7 who are intimately related to Simati Devi have also stated that Simati was found dead in her matrimonial house at dalbani. According to the Investigating Officer the place of occurrence was house of the appellant at Udalbani, where he has observed one burnt plastic bottle of kerosene and half burnt synthetic saree in the kitchen. He has seized the articles in presence of Fatik Sharma and Gour Bouri. 12. In sharp contradiction to the above evidences is the evidence of PW10 who has deposed in the Court that he found the dead body of Simati Devi on a ‘407' vehicle tied with a chauki (bed) in front of house of the appellant. 13. The learned trial Judge has disbelieved the testimony of PW10 on the ground that the other prosecution witnesses have stated in the Court that Simati Devi died a homicidal death in her matrimonial house and the Investigating Officer has found her dead body in a room in the house of the appellant. 14. We are not in agreement with the conclusion of the learned trial Judge for the following reasons. 15. As we have stated earlier, the case of the prosecution rests purely on circumstantial evidence and except PW10 no one from the village Udalbani has tendered evidence in favour of the prosecution. 14. We are not in agreement with the conclusion of the learned trial Judge for the following reasons. 15. As we have stated earlier, the case of the prosecution rests purely on circumstantial evidence and except PW10 no one from the village Udalbani has tendered evidence in favour of the prosecution. Rakhohari Sharma and Sunil Sharma whose houses were adjoining to the house of the appellant did not come forward to say anything about the occurrence. Fatik Sharma and Gour Bouri who are the seizure witnesses were not examined during the trial and the Investigating Officer has admitted in the court that he recorded statement of four persons of village Udalbani but, as noticed above, except PW10 no witness from Udalbani has deposed in the Court. 16. According to the prosecution, Simati Devi was done to death on 08.05.2010 but no one from village Udalbani has heard any cries or marpit nor has someone seen fire in the house of the appellant. Now in the light of the aforesaid evidence, the evidence of PW 10 that the dead body of Simati Devi was brought from village Jhabra on a vehicle which was parked in front of the house of the appellant and at that time people from Jhabra had gathered around the dead body cannot be overlooked. The prosecution evidence is quite inconsistent how an information came about death of Simati Devi and who has informed the witnesses about the occurrence. With reference to the discrepant evidence of the prosecution, Mr. Sanjay Kumar Pandey, the learned counsel for the appellant has contended that even delay of few hours in lodging of the First Information Report was sufficient to concoct a false story to implicate the appellant. The Investigating Officer has stated that written report was received at Chandankiyari police station at 11:00 PM on the basis of which a First Information Report was lodged against the appellant. He was posted at Bangaria OP where the informant gave her written report which was forwarded to Chandankiyari police station for registration of a case. He has admitted in his cross-examination that he started writing the case diary at 09:30 PM and visited the place of occurrence the same night. He was posted at Bangaria OP where the informant gave her written report which was forwarded to Chandankiyari police station for registration of a case. He has admitted in his cross-examination that he started writing the case diary at 09:30 PM and visited the place of occurrence the same night. He further admits that he departed from Udalbani at about 02:00 AM in the night and an entry in this regard is recorded in paragraph No. 12 of the diary, however, he further admits that he had closed writing the case diary at 12:00 O'clock in the night. Apparently, his statement how and when he started the investigation are least to say confusing. He has stated that at the time of inquest Krishna Shanna, Kalu Souri, Gour Souri and Fatik Sharma of village Udalbani were present and he has recorded their statements in paragraph Nos. 20 21, 22 and 23 of the case diary, but except PW 10 no witness from village Udalbani was produced during the trial. 17. PW9-Dr. Mithilesh Kumar who conducted the postmortem examination has found extensive burn injuries all over the upper and lower part of the body including neck, chest, abdomen, thigh, legs and back of Simati Devi. He has found hyoid bone fracture, lungs, liver and kidney congested and the stomach contained undigested rice. In the opinion of the doctor the cause of death was asphyxia as a result of strangulation and the time elapsed since death was 48 hours. The dead body of Simati Devi was naked is the prosecution evidence and the Investigating Officer has admitted in the Court that a synthetic saree if put on fire some part of it would stick on the body. If the prosecution case that Simati Devi was first strangulated to death and thereafter her dead body was set on fire is to be accepted, how a half burnt synthetic saree was found in the room and why the doctor did not find remains of synthetic saree on the dead body are not explained from the prosecution evidence. If the argument is that naked body of Simati Devi was set on fire then again this part of the evidence remains unexplained and if Simati Devi was set on fire with clothes on her body - how, why and who has removed her clothes are not known. 18. If the argument is that naked body of Simati Devi was set on fire then again this part of the evidence remains unexplained and if Simati Devi was set on fire with clothes on her body - how, why and who has removed her clothes are not known. 18. In "Subramaniam v. State of Tamil Nadu" (2009) 14 SCC 415 the Hon'ble Supreme Court has observed that as to the circumstance that the accused was living together with the deceased the entirety of the situation should be taken into account and ordinarily when the husband and wife remained within the four walls of a house and death by homicide takes place it will be for the husband to explain the circumstances in which the wife might have died, however, the Court should not loose sight of the fact that although the same may be considered to be a strong circumstance but that alone in absence of any evidence of violence on the deceased cannot be held to be conclusive and it would be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefore - this was a case where no evidence of violence on the victim was found. In the case at hand the doctor has observed that hyoid bone of Simati Devi was broken and she was strangulated to death, but then, the prosecution evidence is lacking on a material aspect that Simati Devi died homicidal death in her matrimonial house. The objective findings of the Investigating Officer that a bottle of kerosene was found in the house in absence of any mark of burning in the house is not sufficient to hold that the dead body was burnt in the house of the appellant. No doubt the appellant has chosen to remain silent during his examination under section 313 of the Code of Criminal Procedure, his silence at best can be another incriminating material which has remained unexplained by him but that alone is not sufficient to hold that he is guilty of committing murder of his wife. No doubt the appellant has chosen to remain silent during his examination under section 313 of the Code of Criminal Procedure, his silence at best can be another incriminating material which has remained unexplained by him but that alone is not sufficient to hold that he is guilty of committing murder of his wife. In "Ranjit Singh v. State of Punjab" (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 Indian Evidence Act to hold an accused guilty for murder. The misconception on applicability of section 106 of the Evidence Act was finally laid at rest in "Shambu Nath Mehra v. The State of Ajmer" AIR 1956 SC 404 wherein the Hon'ble Supreme Court had held 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. 19. The prosecution story that the appellant had dislike for his wife and with a second marriage in his mind he committed her murder are not established. Except PW5, PW6 and PW7 who are intimately related to Simati Devi and have stated that the appellant would tell his wife that she was not beautiful and therefore he would solemnize second marriage, the evidences tendered by other witnesses are in the realm of hearsay. PW1 and PW2 have not said anything about the appellant not liking his wife, and PW3 and PW4 have admitted in their evidence that they came to know about complaint by Simati Devi that her husband was not liking her. For a moment we would proceed on a premise that the appellant was not impressed with the beauty of his wife and his dislike was made known to his in-laws, in absence of conclusive evidence how, when and where Simati Devi was done to death, the motive for the crime projected by the prosecution is not sufficient to record conviction. 20. Motive is a weak circumstance and as held in "Keshav v. State of Maharashtra" (2007) 13 SCC 284 motive alone is not sufficient to prove guilt of an accused. In "Surinder Pal Jain v. Delhi Administration” (1993) Supp. 20. Motive is a weak circumstance and as held in "Keshav v. State of Maharashtra" (2007) 13 SCC 284 motive alone is not sufficient to prove guilt of an accused. In "Surinder Pal Jain v. 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" 21. In the present case assuming that the parents and brother of Simati Devi were aware of dislike of the appellant that by itself, in our opinion, can be a reason for the informant why she has alleged murder of her daughter by the appellant, that is, out of suspicion. 22. The appellant was not present in the house when according to the prosecution the dead body of Simati Devi was found. The prosecution has relied on this circumstance to press hard that abscondence of the appellant would complete the chain of circumstances. We would not agree on this issue for two reasons - first, the Investigating Officer has stated in the Court that the prosecution witnesses had told him that the accused used to go out for earning livelihood; and second, that abscondence of an accused from the crime scene would become relevant only when there are other proved circumstances pointing to his guilt. 23. In "Matru v. State of U.P" (1971) 2 SCC 75 the Hon'ble Supreme Court has observed that; "19. The appellants conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating if as a very small item in the evidence for sustaining conviction. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating if as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence." 24. We are mindful that a young girl has died a homicidal death and the society is suffering from the malaise of bride killings, but this also cannot be overlooked that in every criminal trial the prosecution is required to lead cogent and consistent materials which are sufficient to establish complicity of the accused in the crime and before the onus shifts to the accused by operation of section 106 of the Evidence Act the prosecution must establish a prima- facie case against the accused. 25. In view of the aforesaid discussions, we hold that the prosecution has failed to prove that the proved circumstances are pointing towards guilt of the appellant and the chain of circumstances is so complete that the only inference that can be drawn is that the appellant has committed murder of his wife. 26. Accordingly, conviction of the appellant under section 302 of the Indian Penal Code passed by the learned Additional Sessions Judge-III, Bokaro in sessions Trial Case o. 357 of 2010 is set-aside. 27. Mrs. Priya Shreshtha, the learned Spl.PP states that the appellant, namely, Gangadhar Bawri is in custody. 28. Accordingly, the appellant, namely, Gangadhar Bawri shall be set free forthwith if not wanted in connection to any other case. 29. In the result, Cr. Appeal (DB) o. 642 of 20 12 is allowed. 30. Let lower Court records be transmitted to the Court concerned, forthwith. 31. Let a copy of the Judgment be transmitted to the Court concerned through ‘FAX’.