JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The marriage of Gulshan Arra was solemnized with Sahadat Ansari about six years prior to her death under suspicious circumstances. In his fardbeyan which was recorded at 11:15 AM on 23.01.2012 at village Matiyala near Barihet Kahar Khet (field), Nasim Ansari has stated that after the marriage Sahadat Ansari took care of his sister and from the wedlock a girl child was born. About one year after the marriage the accused started demanding Rs. 25,000/- and on protest of his sister that her father cannot fulfill their demand of dowry she was subjected to various acts of harassment and torture, sometimes the accused would not give food to her. A Panchayati was convened in his village and the villagers arranged Rs. 4500/- which was sent to the accused. On 23.01.2012, early morning, he received an information from Basir Ansari who was the husband of Mukhia of village Matiyala that Gulshan Arra was murdered. Soon thereafter accompanied by Anwar Ansari, Azad Ansari, Yunus Ansari, Nasim Shah, Md. Safiul Haque, Ramjan Ansari and few others he left for village Matiyala. No body was present in the matrimonial house of his sister and about 200 yards from the house blood stained dead-body of his sister was found. He has seen injury on the neck of his sister and a blood stained chhura/knife was lying there. The informant expressed his doubt that Sahadat Ansari and his family members committed murder of his sister, disposed of her dead-body and fled away. On the basis of the fardbeyan of Nasim Ansari, Govindpur P.S. Case No. 32 of 2012 was lodged against Sahadat Ansari @ Bablu Ansari, Manauwar Alam, Nasibat Ansari @ Miyan, Julekha Bibi and Fatima Bibi under sections 304-B/201/34 of the Indian Penal Code. 2. In course of investigation, Abdul Rahman and Basir Ansari who are co-villagers of the accused stated before the investigating officer that Gulshan Arra was murdered in her matrimonial house. The co-villagers of Nasim Ansari gave their statements before the investigating officer about harassment and torture of Gulshan Arra at the hands of her husband and other family members. Dr. Sapan Kumar Sarak who conducted the post-mortem examination found one incised penetrating wound of the size of 1” x 1/4” over lower part of front of the neck of Gulshan Arra, bone deep. He has also observed bruises over her chest and cheek. Dr. Sapan Kumar Sarak who conducted the post-mortem examination found one incised penetrating wound of the size of 1” x 1/4” over lower part of front of the neck of Gulshan Arra, bone deep. He has also observed bruises over her chest and cheek. The incised wound had penetrated trachea, esophagus, neck and blood vessels and the internal organs were found severely pale. In the opinion of the doctor, the cause of death was hemorrhage and shock resulting from the wound caused by hard penetrating weapon and the death had occurred within 12-18 hours of the post-mortem examination. The above named accused were sent up for trial and a common charge under sections 304-B/34, 302/34 and 201/34 of the Indian Penal Code was framed against them vide order dated 13.08.2012. The prosecution has examined 13 witnesses during the trial to establish the charges framed against the accused - the informant, Nasim Ansari was examined as PW-12. 3. In a lengthy judgment, the learned Addl. Sessions Judge-VII, Dhanbad has discussed the prosecution evidence in detail and having noticed ingredients for constituting the offences under sections 304-B and 302 of the Indian Penal Code held that the prosecution has proved the charge under sections 304-B/34 and 201/34 of the Indian Penal Code. 4. The learned trial Judge has discussed the prosecution evidence in the following manner: “33. Adverting to the case in hand, it is an undisputed case of the prosecution that the marriage of the deceased Gulshan Arra had taken place with accused Sahadat Ansari @ Babloo Ansari within seven years from the death of deceased Gulshan Arra and the death of deceased Gulshan Arra was took place on 23.01.2012 at her in-laws house and according to fardbeyan of informant (Ext.4/2) an evidence of the prosecution witnesses namely, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8, PW-11 and PW-12 (informant), the accused persons used to make demand of Rs. 25,000/- as dowry from deceased Gulshan Arra and the accused persons subjected to cruelty, harassment and torture of deceased Gulshan Arm for non-fulfillment of their demand and the witnesses has also stated during their evidence that there was Panchayat in their village in this regard and Rs. 4500/- was collected by them by way of Chanda which was handed over to Sahadat Ansari husband of deceased. but, again after some months the accused persons started making demand of remaining amount of Rs. 4500/- was collected by them by way of Chanda which was handed over to Sahadat Ansari husband of deceased. but, again after some months the accused persons started making demand of remaining amount of Rs. 25,000/- from deceased Gulshan Arra and they again started subjected to cruelty, harassment and torture to deceased Gulshan Arra for the demand aforesaid dowry and lastly on 23.01.2012 deceased Gulshan Arm was murdered while she was in her in-laws house for the dowry and her dead-body was dragged and thrown in filed which is 200 yard away behind her in-laws house and they have found piercing wound in the neck of deceased Gulshan Arra and dead-body was in pool of blood and a Chhuri (Material Ext.I) was also found near the dead-body of deceased Gulshan Arra and police came there and seized one white-Asmani Coloured Lungi stained with blood (material Ext.II) from the house of accused persons. The murder of deceased Gulshan Arra look place while she was living at her in-laws house at Matiyala and during the postmortem examination (Ext.3) Dr. Sapan Kumar Sarak (PW-7) who conducted the postmortem examination over the dead-body of deceased found ante-mortem external wound as follows: 1. Incised penetrating wound (stab wound) 1” x 1/4” up to bone deep over lower part front of neck in mid line just above suprasternal notch with margins clean, sharp and regular, spindle shaped and both edges sharp. 2. Bruise: (a) 2” x 1” over lower part front of chest in mid line. (b) 4” x 3” over left cheek. No other external wound found On dissection: On exploration of incised wound trachea, esophagus, neck and blood vessels found cleanly cut and margins sharp. Skull found normal, brain and meanings pale. Both lungs found pale and both ventricles found empty. Uterus normal and empty and all other internal organs found severely pale. Time elapsed since death 12 to 18 hours. Cause of death - Death was caused due to hemorrhage and shock as a result of hard penetrating weapon with both edges sharp. While going through the evidence of PW-7 Dr. Sapan Kumar Sarak and Ext.3 post-mortem examination report it is undoubtedly and undisputed established that the death of deceased Gulshan Arra is unnatural death and which is homicidal death. Cause of death - Death was caused due to hemorrhage and shock as a result of hard penetrating weapon with both edges sharp. While going through the evidence of PW-7 Dr. Sapan Kumar Sarak and Ext.3 post-mortem examination report it is undoubtedly and undisputed established that the death of deceased Gulshan Arra is unnatural death and which is homicidal death. The investigating officer PW-13 during his evidence clearly stated in Para 7 of his evidence that the deceased was dragged from her room which is situated in the house of accused persons to Bari het which is situated near about 200 yard away from the house of in-laws of deceased where deceased Gulshan Arra was murdered by piercing Chhuri in her neck for the demand of dowry and the dead-body of Gulshan Arra was being hidden there in order to disappear the evidence of murder of Gulshan Arra. Investigating officer (PW-13) recovered one blood stained Chhuri (Material Ext.1) and blood stained soil (Material Ext.III) from the place of occurrence and during search one white Asmani coloured Lungi stained with blood (Material Ext.II) has been seized from the house of accused persons and I.O. has also stated that all the witnesses including PW-9 and PW-10 have supported the case of prosecution before him during their statement made u/s. 161 Cr.P.C. Neither any oral or documentary evidence has been adduced by accused persons during their defence in order to rebut the evidence of the prosecution witnesses deposed by them during the course of trial. The accused persons have stated during their statement u/s. 313 Cr.P.C. that they are innocent and falsely been implicated in this case and they have also denied about the dowry death of deceased Gulshan Arra committed by them and also denied that neither blood stained Chhuri, blood stained soil from the place of occurrence nor one White - Asmani coloured Lungi stained with blood has been recovered from the house of Sahadat @ Babloo Ansari, but, no any evidence have been adduced by the accused persons during their defence, except denial of occurrence and their innocence during the statement u/s. 313 Cr.P.C. After scrutinizing the evidence of prosecution witnesses and the seizure of material Ext.I, II and III from the place of occurrence and seizure of blood stained White - Asmani coloured Lungi (Material Ext.II) from the house of accused persons and seeing the subjecting to cruelty and harassment for the demand of dowry of Rs. 25,000/- by accused persons from deceased soon be/ore her death within the seven years of the marriage of deceased and death of deceased is unnatural (Homicidal) and deceased died in her in-laws house and in light of provision of Section 113-B Evidence Act and circumstances of case in hand completely prove and establish dowry death of deceased Gulshan Arm by accused persons beyond the shadow of reasonable doubts because there is no any evidence adduced by accused persons in order to rebut the dowry death of deceased Gulshan Arra by them. 34. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be establish by the prosecution beyond the probability of any reasonable doubts. Even if there may be and element of truth in the prosecution story against the accused but considering as a whole there is in variably a long distance to travel and whole of this distance must be covered by prosecution by legal reliable and unimpeachable evidence before and accused can be convicted.” 5. However, without analyzing the prosecution evidence so far as the effect of section 106 of the Evidence Act is concerned, the learned trial Judge has held that charge under section 302/34 of the Indian Penal Code was not established, for the following reasons: “35. In view of the aforesaid facts, circumstances and comments made above in the light of essential ingredients for the offence punishable u/s. 304-B, 302 and 201 IPC. In view of the aforesaid facts, circumstances and comments made above in the light of essential ingredients for the offence punishable u/s. 304-B, 302 and 201 IPC. I find that the prosecution has been able to prove and establish all the essential ingredients for the offence punishable u/s. 304-B/34 and 201/34 IPC in the light of the provision of Section 113-B of Evidence Act in the facts and circumstances of the case in hand and the prosecution has been able to bring home the guilt of accused persons beyond the shadow of reasonable doubts for the offence punishable u/s. 304/34 and 201/34 IPC. But, prosecution has not been able to prove and establish the alternative charge for the offence punishable u/s. 302/34 IPC against the accused persons. Thus from the discussions of the evidence available on record and comments made above in the light of essential ingredient for the offence punishable u/s. 304-B/34 and 201/34 IPC and in the light of provision of Section 113-B of Evidence Act I am of the considered opinion and reached on the conclusion that the prosecution has proved the charge punishable u/s. 304-B/34 and 201/34 IPC against the accused persons namely, Sahadat Ansari @ Bablu Ansari, Manauwar Alam, Nasibat Ansari @ Miyan, Julekha Bibi and Fatima Bibi beyond all shadow of reasonable doubts by cogent and reliable evidence for the reasons recorded so above and such the accused persons namely, Sahadat Ansari @ Bablu Ansari, Manauwar Alam, Nasibat Ansari @ Miyan, Julekha Bibi and Fatima Bibi found guilty for the offence punishable u/s. 304-B/34 and 201/34 IPC and accordingly the accused persons namely, Sahadat Ansari @ Bablu Ansari, Manauwar Alam, Nasibat Ansari @ Miyan, Julekha Bibi and Fatima Bibi are here by convicted for the aforesaid offence......” 6. The learned APP have informed us that by an order dated 02.08.2017 Fatima Bibi who is the appellant no. 2 in Criminal Appeal (DB) No. 662 of 2016 was released on bail by a co-ordinate Bench of this Court but at the same time a notice for enhancement of sentence was also issued to Julekha Bibi and Fatima Bibi - Julekha Bibi has served the sentence and was released from custody on 10.09.2020. 2 in Criminal Appeal (DB) No. 662 of 2016 was released on bail by a co-ordinate Bench of this Court but at the same time a notice for enhancement of sentence was also issued to Julekha Bibi and Fatima Bibi - Julekha Bibi has served the sentence and was released from custody on 10.09.2020. In Criminal Appeal (DB) No. 666 of 2016, by an order dated 11.08.2017 Manauwar Alam was released on bail by a co-ordinate Bench of this Court and by the same order notice for enhancement of sentence was issued to Manauwar Alam and Nasibat Ansari @ Miyan - Nasibat Ansari has served the sentence and was released from custody on 28.09.2020. 7. The proceedings before us disclose that these criminal appeals were listed along with Criminal Appeal (DB) No. 2275 of 2017 on 27.01.2020. On that day, the learned APP informed the Court about release of Sahadat Ansari @ Bablu Ansari who had preferred Criminal Appeal (DB) No. 2275 of 2017. On 11.02.2021, Criminal Appeal (DB) No. 2275 of 2017 was therefore listed under the heading “for orders.” But, we do not find any reference about notice for enhancement of sentence to Sahadat Ansari. He has been released from custody and Criminal Appeal (DB) No. 2275 of 2017 was dismissed as not pressed. In view of the aforesaid facts and circumstances, we would not proceed against Sahadat Ansari, though we find that his acquittal under section 302 of the Indian Penal Code does not appear proper - there is no State appeal against the acquittal. 8. The offence of dowry death was incorporated in the Indian Penal Code by Amendment 43 of 1986. A corresponding amendment in the Evidence Act was made to incorporate section 113-B. To constitute the offence under section 304-B of the Indian Penal Code the facts constituting the following ingredients must be proved (i) death within seven years of marriage, (ii) death of a woman otherwise than under normal circumstances and (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with demand of dowry. Section 113-B of the Evidence Act raises a presumption of dowry death if soon before a woman dies she was subjected to cruelty or harassment for, or in connection with any demand of dowry. Section 113-B of the Evidence Act raises a presumption of dowry death if soon before a woman dies she was subjected to cruelty or harassment for, or in connection with any demand of dowry. The explanation to section 113-B of the Evidence Act provides that the expression “dowry death” shall have the same meaning as in section 304-B of the Indian Penal Code. In Kunhiabdulla vs. State of Kerala, (2004) 4 SCC 13 the Hon'ble Supreme Court has observed that the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death. There must be a proximate and live-link between the effect of cruelty based on demand of dowry and the death. 9. PW-1 Nasim Shah, PW-2 Md. Samimul Hague, PW-3 Abdul Majid Ansari and PW-4 Ramjan Ansari were co-villagers of Nasim Ansari, the informant. They are not the witnesses who have seen murder of Gulshan Arra. These witnesses have spoken about marriage of Gulshan Arra with Sahadat Ansari and birth of a child from their wedlock. PW-1 has stated that after birth of the child the husband of Gulshan Arra and his family members would quarrel with her saying that she gave birth to an infirm child. He has further stated that the accused would demand Rs. 25,000/- and a Panchayati was convened in the village and it was decided to arrange money for paying dowry to the accused. An amount of Rs. 4500/- was collected by the villagers and given to Sahadat Ansari. In his cross-examination he has stated that his office was situated at a distance of about 7-8 kilometers from the matrimonial house of Gulshan Arra and he did not participate in the Panchayati held at the village of the accused. He was brought to the Court by the informant and in the cross-examination he has admitted that he did not inform the police about demand of Rs. 25,000/- and payment of Rs. 4500/- to Sahadat Ansari. PW-2 has also stated about demand of Rs. 25,000/- and payment of Rs. 4500/- to Sahadat Ansari about 3-4 months prior to murder of Gulshan Arra. In his cross-examination he admits that he cannot say the date when Rs. 4500/- was paid to Sahadat Ansari. PW-3 has also stated that Rs. 4500/- was paid to Sahadat Ansari about 3-3½ months before death of Gulshan Arra. 25,000/- and payment of Rs. 4500/- to Sahadat Ansari about 3-4 months prior to murder of Gulshan Arra. In his cross-examination he admits that he cannot say the date when Rs. 4500/- was paid to Sahadat Ansari. PW-3 has also stated that Rs. 4500/- was paid to Sahadat Ansari about 3-3½ months before death of Gulshan Arra. He has stated that his house is about 5 kilometers away from village Matiyala and he does not know when payment was made to the accused. He further admitted in cross-examination that about the demand of dowry Nasim Ansari had informed him. PW-4 has stated that Gulshan Arra stayed for about two years in her matrimonial home and her in-laws would take proper care but thereafter they started demanding Rs. 25,000/-. A meeting was convened in the village, Rs. 4500/- was collected and paid to her husband. PW-5 Atikur Ansari is the brother of Gulshan Arra who has also stated about happy stay of his sister in her matrimonial home. PW-6 Wahid Ansari is another co-villager of the informant who has also deposed in the Court on the same lines. In his cross-examination he has admitted that the child of Gulshan Arra was living with her mother-in-law. PW-8 Md. Azimuddin Ansari is another co-villager who has also stated in his cross-examination that daughter of Gulshan Arra was looked after and brought up by the family of Bablu Ansari (Sahadat Ansari). 10. From the evidence of these witnesses, we find that there is no specific allegation of demand of dowry by the appellants, rather the witnesses have stated that Rs. 4500/- was paid to Sahadat Ansari to satisfy his demand. PW-9 Abdul Rahman Ansari and PW-10 Basir Ansari who are co-villagers of the accused have turned hostile. These witnesses have flatly refused in the Court that their statement was recorded by the police. They have denied every suggestion by the prosecution regarding their statements recorded under section 161 of the Code of Criminal Procedure. The evidence of a hostile witness can be used by the prosecution and the defence as well but there is nothing in the testimony of PW-9 and PW-10 which can be used by the prosecution. We would also indicate that the statement of PW-9 and PW-10 in the cross-examination by the defence would remain in the realm of hearsay and can not be used by the defence. We would also indicate that the statement of PW-9 and PW-10 in the cross-examination by the defence would remain in the realm of hearsay and can not be used by the defence. The evidence of PW-6 and PW-8 who are the co-villagers of the informant that the child of Gulshan Arra was living with the family of her husband is a relevant piece of evidence which creates a serious doubt on involvement of these appellants in death of Gulshan Arra. 11. In our opinion, the prosecution has failed to establish demand of dowry, harassment and torture of Gulshan Arra at the hands of these appellants and in any case there is no material on record to show that soon before her death Gulshan Arra was subjected to harassment and torture by the appellants for, or in connection to demand of dowry. 12. In Baijnath vs. State of M.P. (2017) 1 SCC 101 the Hon'ble Supreme Court has observed as under: “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.” 13. Gulshan Arra has died a homicidal death and her dead body was found about 200 yards away from her matrimonial house. The appellants, namely, Manauwar Alam is the brother-in-law and Fatima Bibi is the sister-in-law of Gulshan Arra - Fatima Bibi is wife of Manauwar Alam. It appears from cross-examination of the investigating officer that these appellants took a specific stand that they were not residing together with Gulshan Arra. The investigating officer has admitted that he did not make enquiries about place of residence of the accused and Mr. Ranjan Kumar, the learned counsel for the appellants would submit that it is difficult to accept that in a house consisting of two rooms, which is observation of the investigating officer, so many people were residing together. The investigating officer has admitted that he did not make enquiries about place of residence of the accused and Mr. Ranjan Kumar, the learned counsel for the appellants would submit that it is difficult to accept that in a house consisting of two rooms, which is observation of the investigating officer, so many people were residing together. 14. A plain reading of the evidences tendered by the independent witnesses do not establish one of the essential ingredients for constituting the offence under section 304-B of the Indian Penal Code that “soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry.” Gulshan Arra has died homicidal death within seven years of her marriage but in absence of any evidence that her death had any nexus with harassment and torture in connection to any demand of dowry by the appellants, they cannot be convicted for the offence under section 304-B of the Indian Penal Code. 15. In view of the aforesaid discussions, we hold that the prosecution has failed to establish the charge under sections 304-B/34 and 201/34 of the Indian Penal Code against the appellants, notwithstanding release of the appellants, namely, Julekha Bibi in Criminal Appeal (DB) No. 662 of 2016 and Nasibat Ansari in Criminal Appeal (DB) No. 666 of 2016 after completing the sentence. Accordingly, the judgment of conviction dated 12.05.2016 and the order of sentence dated 20.05.2016 passed by the learned Addl. Sessions Judge-VII, Dhanbad in Sessions Trial No. 346 of 2012, are set-aside. 16. Mrs. Priya Shrestha, the learned Spl. P.P. and Mrs. Vandana Bharti, the learned APP state that the appellant, namely, Fatima Bibi in Criminal Appeal (DB) No. 662 of 2016 and the appellant, namely, Manauwar Alam in Criminal Appeal (DB) No. 666 of 2016 are on bail. 17. Accordingly, the appellant no. 2-Fatima Bibi in Criminal Appeal (DB) No. 662 of 2016 who was released on bail vide order dated 02.08.2017 and the appellant no.1-Manauwar Alam in Criminal Appeal (DB) No. 666 of 2016 who was released on bail vide order dated 11.08.2017 shall be discharged of liability of the bail-bonds furnished by them. 18. In the result, Criminal Appeal (DB) No. 662 of 2016 and Criminal Appeal (DB) No. 666 of 2016 are allowed. 19. 18. In the result, Criminal Appeal (DB) No. 662 of 2016 and Criminal Appeal (DB) No. 666 of 2016 are allowed. 19. Consequently, I.A. No. 10224 of 2018 in Criminal Appeal (DB) No. 662 of 2016 and I.A. Nos. 10225 of 2018 and 909 of 2021 in Criminal Appeal (DB) No. 666 of 2016 stand disposed of. 20. Let the lower Court records be sent to the Court concerned forthwith. 21. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through Fax.