JUDGMENT : Shree Chandrashekhar, J. In SC No.43 of 2006, the appellant was convicted and sentenced to RI for life and a fine of Rs. 5000/- under section 302 of the Indian Penal Code. 2. Pakur (M) PS Case No. 188 of 2005 was lodged against Rafikul Sk. @ Rafique Sk., Kadyan Bibi, Joyel Sk. and Hazra Bibi on an allegation that in furtherance of common intention they have caused dowry death of Dilera Bibi due to non-fulfillment of demand of dowry. During the investigation the parents and uncle of Dilera Bibi gave statements to the police that she was done to death by her husband in his house. The witnesses who are co-villagers of Rafikul Sk. have however given a different version about death of Dilera Bibi. On 29.09.2005 Rafikul Sk. was arrested and he suffered a disclosure statement in which he told the Investigating Officer that on the day of occurrence when he came back home he found his wife talking to an unknown young person who on seeing him fled away and when he asked his wife about the unknown person she did not disclose his identity whereupon he became angry and started assaulting his wife. The doctor who conducted the postmortem examination on 22.09.2005 has found marks of bruises and abrasions on nostril, lips, face and right knee of Dilera Bibi. In his opinion the death had occurred due to suffocation caused by smothering. 3. A charge-sheet was filed against the above named accused and they have faced the trial on the charge under section 304-B/34 of the Indian Penal Code, with an alternative charge framed under section 302/34 of the Indian Penal Code. 4. In the trial, the prosecution has examined eight witnesses out of whom PW4-Kalam Sk., PW5-Morsalim Sk., PW6-Suleman Sk. and PW7-Nurul Sk. were closely and intimately related to Dilera Bibi. They made allegations about demand of dowry against the accused and claimed that they have seen marks on the neck of Dilera Bibi. The learned trial Judge has held that no evidence was produced by the prosecution that soon before her death Dilera Bibi was subjected to cruelty or harassment in connection with demand of dowry by her husband or his family members. 5. The learned trial Judge has held that no evidence was produced by the prosecution that soon before her death Dilera Bibi was subjected to cruelty or harassment in connection with demand of dowry by her husband or his family members. 5. The learned trial Judge has referred to several judgments of the Hon'ble Supreme Court to hold that the charge under section 304-B of the Indian Penal Code was not proved against the accused. 6. Kadyan Bibi, Joyel Sk. and Hazra Bibi were also acquitted of the charge under section 302 of the Indian Penal Code. 7. In so far as the charge against the appellant of murder is concerned, the learned trial Judge has held as under: "28. But I find that the deceased Dilera Bibi was murdered in his house on 21.09.05. The accused Rafikul Sk. neither informed anybody of his village regarding her death nor police. These circumstances clearly shows that the deceased Dilera Bibi was murdered by accused Rajikul Sk. He has not explained even in court about the reason of death of his wife Dilera Bibi. Circumstances clearly shows that except him nobody has committed the murder of Dilera Bibi. 29. Considering the facts and circumstances of the case, I am of the opinion that no offence U/S 304B IPC has been proved against all the four accused person, accordingly, they are acquitted of the charge u/s 304B IPC Further, no charge u/s 302 IPC has been proved against the accused Joyel Sk., Kadyan Bibi and Hazra Bibi. Accordingly, they are also acquitted of the charge U/S 302 IPC They and their sureties are also discharged from the liabilities of their respective bail bonds. 30. But I am of the opinion that the prosecution has been able to prove the charge u/s 302 IPC against accused Rafikul Sk. only beyond all reasonable doubts. Therefore, I hold and declare accused Rafikul Sk. guilty U/S 302 IPC. Accordingly, he convicted thereunder" 8. Mr. A.K. Kashyap, the learned Senior counsel for the appellant would submit that there is no evidence how Dilera Bibi was murdered and the medical evidence that Dilera Bibi has died due to suffocation caused by smothering would not take place of such evidence merely on the basis of which a husband can be held guilty by shifting onus on him. A.K. Kashyap, the learned Senior counsel for the appellant would submit that there is no evidence how Dilera Bibi was murdered and the medical evidence that Dilera Bibi has died due to suffocation caused by smothering would not take place of such evidence merely on the basis of which a husband can be held guilty by shifting onus on him. In support of his submission, the learned Senior counsel has relied on the judgments of Hon'ble Supreme Court in "Ranjit Singh v. State of Punjab" (2011) 15 SCC 285 , "State of MP v. Abdul Latif" (2018) 5 SCC456 and in "Tulshiram Sahadu Suryawanshi v. State of Maharashtra:' (2012) 10 SCC 373 . 9. The case of the prosecution is that Dilera Bibi who was married with Rafikul Sk. about two years back could not bear a child and her husband would cause harassment and torture to her in connection to demand of dowry. PWI and PW3 who are co-villagers of Rafikul Sk. have deposed in the Court that on the day of the occurrence they were at home and they heard about death of wife of the appellant. PWI was declared hostile, and in his examination-in-chief PW3 has not stated anything significant. PW4 who is the nephew, and PW5 and PW6 who are sons-in-law of the informant have deposed in the Court that they heard hulla in their villages that Dilera Bibi was killed. PW4 has stated that Dilera Bibi told him that her husband and in-laws were demanding Rs. 20,000/- and in his cross-examination he has stated that he did tell the police about injuries on the dead body of Dilera Bibi. PW5 has also deposed about Dilera Bibi informing him about demand of Rs. 20,000/- by her husband; PW6 has however stated that once Dilera Bibi asked him Rs. 10,000/- for her husband, and; PW7, the informant, has of course made allegation of demand of Rs. 20,000/-. 10. But, as noticed above, the charge for committing dowry death of Dilera Bibi has failed and the other accused were not found involved in causing death of Dilera Bibi. 11. The learned trial Judge has taken two circumstances against the appellant for convicting him under section 302 of the Indian Penal Code viz. 20,000/-. 10. But, as noticed above, the charge for committing dowry death of Dilera Bibi has failed and the other accused were not found involved in causing death of Dilera Bibi. 11. The learned trial Judge has taken two circumstances against the appellant for convicting him under section 302 of the Indian Penal Code viz. (i) dead body of Dilera Bibi was found in her matrimonial home, and (ii) the appellant has failed to offer any explanation how his wife has died. 12. Mr. Vineet Kumar Vashistha, the learned APP has referred to the judgments in "Harijan Bhala Teja v. State of Gujarat" (2016) 12 SCC 665 , "Gajanan Dashrath Kharate v. State of Maharashtra" (2016) 4 SCC 604 and "Sooguru Subrahmanyam v. State of A.P." (2013) 4 SCC 244 , to contend that once it is established that a married woman has suffered homicidal death in her matrimonial home and her husband fails to offer a plausible and acceptable explanation on the cause of her death, the law presumes that he is the one who has committed murder of his wife. 13. From the prosecution evidence, it IS not clear how an information about death of Dilera Bibi has reached almost simultaneously to three different villages - Sangrampur, Tilbhitha and Sangrampur; where PW4, PW5 and PW6 were residing. The informant has stated that on 21.09.2005 near Tilvita railway gate on his way back home one person told him that his daughter has been murdered but in the Court he has failed to identify that person. How an information about death of Dilera Bibi has reached the police station is also not clear. No witness who came to the matrimonial house of Dilera Bibi from different villages has stated that he had informed the police. The informant says that after seeing the dead body of his daughter he started for the police station but midway, after about five kilometers, he saw the police coming to village Kulapahari. But this time again he has failed to identify the person who was taking him on a motorcycle to the police station. The prosecution case on this point has been further made messy by PW 4 who has stated that he came to matrimonial house of Dilera Bibi with the police. But this time again he has failed to identify the person who was taking him on a motorcycle to the police station. The prosecution case on this point has been further made messy by PW 4 who has stated that he came to matrimonial house of Dilera Bibi with the police. On the other hand, the Investigating Officer has stated that on a rumor information he came to the place of occurrence and recorded the fardbeyan. His further evidence is that the dead body of Dilera Bibi was found on varanda of the house of the appellant. He has disclosed name of the persons who were immediate neighbors of the appellant and admits that he did not record their statement. He has further admitted that he conducted the inquest inquiry before the First Information Report was lodged and his cross-examination by the defence reveals that there are serious discrepancies in the entries in the case diary viz-a-viz the steps taken by him after he visited the place of occurrence. 14. Dr. Lalit Kumar Bhagat who conducted postmortem on the dead body on 22.09.2005 has found the following injuries : (A) Antimortem injury on External Examination : (i) One bruise on left side of nostril 1/4," x 1/4", (ii) One bruise on left lower lip 3/4"x 1/4", (iii) One bruise on left upper lip 1/2" x 1/4", (iv) One bruise over face in between left molar bone and left angle of mouth 1 " x 1/4", (v) One bruise over face in between right molar bone and right angle of mouth 1 "x 1/4", (vi) One abrasion on right knee 1/2 " x 1/4", 15. The doctor has found both eyes congested, both hands clenched, mouth semi-open and froth coming out from the mouth and nostrils. He further opined that the time elapsed since death was within 24 to 36 hours and the cause of death was suffocation caused by smothering by closure of mouth and nostrils. 16. It was in the afternoon of 21.09.2005 when according to the prosecution Dilera Bibi was murdered. The informant has admitted that he received an information about death of his daughter around 04:00-04:30 PM and the other witnesses heard hulla in their village about death of Dilera Bibi sometime between 03:30-05:30 PM. 16. It was in the afternoon of 21.09.2005 when according to the prosecution Dilera Bibi was murdered. The informant has admitted that he received an information about death of his daughter around 04:00-04:30 PM and the other witnesses heard hulla in their village about death of Dilera Bibi sometime between 03:30-05:30 PM. No witness, not even the independent witnesses who are co-villagers of the appellant, came forward to say that he has heard any hulla, quarrel or cries in the house of the appellant. No one says that he ,has seen or heard about marpit in the house of the appellant on 21.09.2005. As seen earlier, it is not known who gave information to the prosecution witnesses about death of Dilera Bibi and how an information about her death reached the police station is also not known. It is also important to note that no witness has stated in the Court how Dilera Bibi has suffered death. From the evidence of the witnesses, it appears that it was a love marriage between the appellant and Dilera Bibi, and Dilera Bibi was kept in her matrimonial home quite comfortably at least for six months. PW6 has stated that his relations with the appellant was quite good and it was a love marriage of the appellant with Dilera Bibi. PW7 has also stated that after the marriage of his daughter with the appellant, which was against his wishes, his relations with him became cordial and the couple were visiting his house. The Investigating Officer has stated that in the confessional statement the appellant indicated about illicit relationship of his wife with an unknown person. If this part of the confessional statement of the appellant is to be believed, the prosecution does not say who was that unknown person with whom Dilera Bibi had any objectionable relationship. Any neighbor of the appellant has not come forward to say that he ever saw or heard about any objectionable conduct, behaviour or relation of Dilera Bibi bordering to illicit relationship with another man. We find that the materials on record indicate that the bruise marks on the dead body of Dilera Bibi might have been caused due to the inhuman manner in which the dead body was brought to the hospital. We find that the materials on record indicate that the bruise marks on the dead body of Dilera Bibi might have been caused due to the inhuman manner in which the dead body was brought to the hospital. The postmortem report records that the dead body was tied with a rope, and in his cross-examination the doctor has stated that if the body is brought by tying rope such type of abrasions and bruises may appear. 17. Faced with the difficulty that the initial case of the prosecution about demand of dowry and harassment of Dilera Bibi has failed, Mr. Vineet Kumar Vashistha, the learned APP would contend that absence of motive is not a ground to disbelieve the prosecution case and we would agree with the learned APP but with a rider that motive plays an important role in a case based on circumstantial evidence. The significance of motive in a criminal case is well discussed in various judgments of the Hon'ble Supreme Court. The law laid down by the Supreme Court is that even in cases based on eyewitness account presence of motive substantially strengthens the prosecution case, though absence of motive may not erode credibility of the prosecution story. Motive as such 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. But, at the same time, it is also well settled in a catena of judgments including the one in "Surinder Pal Jain v. Delhi Administration" 1993 Supp (3) SCC 681 that absence of motive puts the Court on its guard to scrutinize the circumstances more carefully. 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" 18. On abscondance of the appellant, we need not probe much beyond what has been observed in "Matru v. State of UP " (1971) 2 SCC 75 . The Hon'ble Supreme Court has observed that; "19. The appellant's conduct in absconding was also relied upon. On abscondance of the appellant, we need not probe much beyond what has been observed in "Matru v. State of UP " (1971) 2 SCC 75 . The Hon'ble Supreme Court has observed that; "19. The appellant's 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 Jeel 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 it 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." 19. There is another important aspect of the case which raises a substantial ground for interfering with the judgment under challenge. The framing of charge is the first important step in a criminal trial and though every error in framing the charge may not prove fatal the trial would vitiate if it is proved that substantial prejudice was caused to the accused and such prejudice has resulted in miscarriage of justice. 20. The charge framed against the appellant vide order dated 19.04.2006 reads as under: "FIRSTLY - That you, on or about the 21st day of September, 2005 at 4 PM at Kulapahari near Tilvita Railway gate P.s. Pakur (M) Dist. Pakur in Jurtherance of the common intention of you all you committed murder by causing death oj Dilera Bibi Jor dowry demand and thereby committed an offence punishable under Section 304B/34 of the Indian Penal Code, and within my cognizance. Pakur in Jurtherance of the common intention of you all you committed murder by causing death oj Dilera Bibi Jor dowry demand and thereby committed an offence punishable under Section 304B/34 of the Indian Penal Code, and within my cognizance. Alternative SECONDLY - That you, on or about the same day you committed murder by causing death of Dilera Bibi in furtherance of the common intention of all and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance." 21. A glance at the above charge would disclose that the charge under section 302/34 of the Indian Penal Code is quite cryptic and bereft of the foundational facts. The examination of the appellant under section 313 of the Code of Criminal Procedure was even more cryptic. The cause of death, the injuries on the dead body of Dilera Bibi and the circumstance like whether the appellant was present in the house in the afternoon of 21.09.2005 were not put to him. Only three questions were put to the appellant under section 313 of the Code of Criminal Procedure whereas the law mandates that every incriminating material should have been put to him - atleast the materials which would warrant invocation of section 106 of the Indian Evidence Act. 22. On the scope of section 313 of the Code of Criminal Procedure, in "Ajay Singh v. State of Maharashtra" (2007) 12 SCC 341 the Hon'ble Supreme Court has observed as under: "13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The lilord "generally" in sub-section (1)(b) does not limit' the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in' the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give." 23. Furthermore, we are of the View that the appellant had insufficient assistance during the trial and he is not the one who knew the niceties of law. In his examination under section 313 of the Code of Criminal Procedure he has stated that he is innocent and would not produce any evidence in his defence. That was an exceptional statement from the mouth of an accused - it reflects his resentment against his false implication. 24. In the aforesaid facts, we are in agreement with Mr. A.K. Kashyap, the learned Senior counsel for the appellant, that merely because death of a married woman has occurred in her matrimonial home - though, in this case the prosecution evidence is completely lacking when, how and where Dilera Bibi suffered homicidal death; an inference by operation of section 106 of the Indian Evidence Act cannot be raised against the husband to make him guilty [refer: "Ranjit Singh v. State of Punjab" (2011) 15 SCC 285 ]. At this stage we would also add that in "Shambhu Nath Mehra v. State of Ajmer" AIR 1956 SC 404 the Hon'ble Supreme Court has held that section 106 of the Indian 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 always on the prosecution and it never shifts. 25. 25. In view of the aforesaid discussions, we are of the firm opinion that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against the appellant and therefore his conviction for the said offence is found unsustainable. 26. In the result, the judgment of conviction under section 302 of the Indian Penal Code dated 06.09.2007 and the order of sentence of RI for life and a fine of Rs.5,000/- against the appellant, namely, Rafikul Sk. @ Rafique Sk. dated 12.09.2007 passed by the learned pI Additional Sessions Judge, Pakur in SC No. 43 of2006 are set-aside. 27. Mr. Vineet Kumar Vashistha, the learned APP states that the appellant, namely, Rafikul Sk. @ Rafique Sk. is in custody. 28. Accordingly, the appellant, namely, Rafikul Sk. @ Rafique Sk. shall be set free forthwith, if not wanted in connection to any other case. 29. In the result, Criminal Appeal (DB) No. 1287 of 2007 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' .