JUDGMENT : Shree Chandrashekhar, J. In Sessions Trial Case 0.160 of 2012, the appellants, namely, Dilawar Ansari, Salim Ansari and Sulki Bibi @ Jamila Devi have faced the trial on the charge under section 304-8/34 and section 302/34 of the Indian Penal Code for causing dowry death/death of Khairunnisha. The informant who is the father of Khairunnisha has alleged that his daughter who was married to Dilawar Ansari in the year 2005 was subjected to harassment and cruelty in connection to demand of a motorcycle and in the night of 12.03.20 she was done to death by her husband and his parents. In course of the investigation, Salauddin Ansari, Mumtaz Ansari, Nizamuddin Ansari and Samsuddin Ansari who are the neighbours of the informant stated before the Investigating Officer that Khairunnisha had visited her parents on several occasions and narrated her miseries in her matrimonial home to her father. After the investigation a charge-sheet was filed against the above-named accused persons and vide order dated 23.06.2012 charge under section 304-B/34 of the Indian Penal Code and, alternatively, under section 302/34 of the Indian Penal Code were framed against them. In the trial the prosecution has examined eight witnesses - PW-8, Kudus Ansari is the informant. The learned 2nd Additional Session Judge, Deoghar has held that the evidence led in defence by the accused persons cannot be relied upon and it is established from the prosecution evidence that Khairunnisha has died an unnatural death within seven years of her marriage. The learned trial Judge has further held that harassment and torture of Khairunnisha at the hands of the accused in connection to demand of dowry was established and they intentionally caused her death because their demand of dowry was not fulfilled. 2. The learned trial Judge after discussing the materials on record has concluded as under: “5. After going through the facts and circumstances of the case and the evidence available on the case record, J find that although the defence witnesses have stated before the court that the deceased was married, 10 years back, they have not stated the date of the deceased's marriage or even they were present in the marriage. Thus the evidences adduced by the defence witnesses that the deceased was married 10 years back cannot be relied upon. Thus the evidences adduced by the defence witnesses that the deceased was married 10 years back cannot be relied upon. P W 8 has stated in his evidence adduced before the court that his daughter was married in the year 2005 and this has been corroborated by the evidence adduced by P W 4. The death of the deceased has taken place on 13.3.11 which makes it clear that the death of the deceased took place within 7 years of her marriage. P.W.8 has clearly stated in his evidence that the accused persons used to demand dowry from the deceased and also used to torture her and P.W. 4 has also supported this fact. I also find evidence on the case record that the deceased was assaulted on the night prior to her death. These facts clearly lead to conclude that the fact that the deceased was being tortured for demand of dowry After going through Ext.-4, it is clear that the doctor has opined that the death of the deceased was caused by asphyxia due to throttling and hitting at back of neck with hard and blunt substance and it leads to conclude that the death of the death of the deceased was not natural rather it was unnatural. Although the defence witnesses have stated in their evidence that Dilawar and his father were in Kolkata at the time of occurrence, they have not produced any documentary evidence in support of this fact. Thus the evidences adduced by the defence witnesses that Dilawar and his father were in Kolkata cannot be relied upon. The evidences adduced by the witnesses clearly establishes the fact that the accused persons demanded dowry from the deceased and their demands were nut fulfilled This also leads me to conclude that the accused persons had the intention to kill the deceased as their demand of dowry was not being fulfilled and so they have intentionally caused death of the deceased. 16. Under these circumstances, after going through the facts and circumstances of the case, evidence available on the case record and the discussion made above, 1 come to the conclusion that prosecution has been fully able to prove it's case against the accused persons. As such, 1 find and hold the accused persons namely Salim Ansari, Dilawar Ansari and Sulki Bibi guilty for having committed offences u/s 304(B)/302/34 of the Indian Penal Code. As such, 1 find and hold the accused persons namely Salim Ansari, Dilawar Ansari and Sulki Bibi guilty for having committed offences u/s 304(B)/302/34 of the Indian Penal Code. Put up on 10.7.14 for hearing on (he point of sentence." 3. The essential ingredients for constituting the offence under section 304-8 of the Indian Penal Code are (i) death has occurred within seven years of marriage, (ii) the death was caused by any burn or any bodily injury or in the circumstances otherwise than normal, and (iii) soon before her death the victim was subjected to cruelty and harassment in connection to demand of dowry by her husband or any relative of her husband. 4. After going through the materials on record, we would not agree with the learned trial Judge that the appellants shared a common intention to cause dowry death and/or murder of Khairunnisha. We further find that the prosecution evidence is lacking in details and it is not proved that soon before her death Khairunnisha was subjected to harassment and torture in connection to demand of dowry. PW-8, Kudus Ansari has deposed in the Court that marriage of his daughter was solemnized with Dilawar Ansari in the year 2005 at village Deoghar. After the marriage she was received well in her matrimonial home however, after sometime Dilawar Ansari, Salim Ansari and Sulki Bibi started putting pressure on him for a motorcycle in dowry. He has further stated that his daughter came to him and informed him that due to non-fulfillment of their demand of dowry the accused persons used to commit marpit with her. On 13.03.2011 at about 11:45 AM, Salim Ansari called him and asked to come to his place immediately as condition of Khairunnisha was very serious. Then he has gone there with Israil, Salauddin, Mumtaz and Nizamuddin and found dead body of his daughter lying on a cot. His son-in-law and his parents had fled away; he has seen black mark on the neck of his daughter, and; the villagers informed him that they had heard quarrel (hulla) in the night and in the morning his daughter was found dead. lsrail Ansari PW-l, Salauddin Ansari PW-2, Mumtaz Ansari PW-3, Nizamuddin Ansari PW-4 and amsuddin Ansari PW-5 are distantly related to him and are the co-villagers - however, PW-5 was declared hostile. lsrail Ansari PW-l, Salauddin Ansari PW-2, Mumtaz Ansari PW-3, Nizamuddin Ansari PW-4 and amsuddin Ansari PW-5 are distantly related to him and are the co-villagers - however, PW-5 was declared hostile. The other witnesses have stated from the witness-box that they had accompanied Kudus Ansari to the matrimonial house of Khairunnisha at village Oeoghar. They have seen her dead body lying on a cot with a black mark on her neck. They have further stated that at that time the accused persons were not at home. Their evidence is that Oeoghar is at a distance of about 25-30 kilometers from their village and they do not have any relative of their own at Deoghar. They are not the eye-witnesses and their evidence in the Court is based on the information given to them by Kudus Ansari. They have admitted in their evidence that Kudus Ansari had informed them that he received a phone call that his daughter was in serious condition. PW-3 and PW-4 have stated that the villagers informed them that they had heard some quarrel in the night in the house of the accused - PW-3 has specifically alleged that the accused persons had committed marpit with Khairunnisha. However, in their cross-examination they have stated that they cannot tell name of the villagers who informed them about the quarrel/marpit with Khairunnisha and none of the co-villagers of the appellants has come forward to depose in the Court that he has seen the appellants quarreling or committing marpit with Khairunnisha. The testimony of PW-8 is to the effect that the villagers told him that in the night they had heard quarrel (hulla) but he has also failed to disclose name of the villagers. In the cross-examination he has failed to recollect when and where a demand of motorcycle was made by the accused persons (motorcycle kee mang kab kiya thaa, uska din, taarikh nahi kah sakte). 5. In "Bakshish Ram v. State of Punjab" (2013) 4 SCC 131 , the Hon'ble Supreme Court has held that the provisions under section 113-13 of the Indian Evidence Act and section 304-8 of the Indian Penal Code show that there must be definite material to show that soon before her death the victim was subjected to cruelty or harassment. 5. In "Bakshish Ram v. State of Punjab" (2013) 4 SCC 131 , the Hon'ble Supreme Court has held that the provisions under section 113-13 of the Indian Evidence Act and section 304-8 of the Indian Penal Code show that there must be definite material to show that soon before her death the victim was subjected to cruelty or harassment. The expression "soon before her death" is not capable of any precise definition and no strait 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. 6. In "Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar" (2005) 2 SCC 388 , the Hon'ble Supreme Court has observed as under: "II. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come 'within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. The determination of the period which can come 'within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” 7. The prosecution evidence is that Khairunnisha would tell her father about her harassment and torture by the appellants in connection to their demand of a motorcycle, but none of the witnesses has said that any demand by the appellants and/or harassment and torture of Khairunnisha has happened in his presence. PW-4 has stated that Khairunnisha when visited her parents in the month of January had told him that there was some tension (tana-rani) in her matrimonial home in connection to demand of a motorcycle. According to him, Khairunnisha had expressed her apprehension that she might be killed. The informant has, however, not stated about his daughter expressing before him an apprehension of murder. The statements made by Khairunnisha before her father and PW-4 is not admissible under section 32(1) of the Indian Evidence Act, 1972 which is the only provision in law under which her statement could have been admitted in evidence. The story of her plight allegedly narrated by Khairunnisha to the prosecution witnesses was not simultaneous to or immediately before her death - it was at least about two months in the past and it does not relate to any cause or any circumstance of the transactions relating to cause of her death and therefore cannot be used with the help of section 32(1) of the Indian Evidence Act. The law of evidence clearly bars admissibility of hearsay evidence except certain exceptions - one being under section 6 of the Indian Evidence Act which makes the statement admissible if proved to form a part of res gestae. The law of evidence clearly bars admissibility of hearsay evidence except certain exceptions - one being under section 6 of the Indian Evidence Act which makes the statement admissible if proved to form a part of res gestae. It provides that 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 can be 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. The statement of Khairunnisha made before her father does not satisfy the requirements under section 6. In our opinion, at best what the prosecution can be said to have established is that Khairunnisha made a statement before her father and PW-4 that in connection to demand of a motorcycle she was facing difficulties in her matrimonial home and the accused persons would quarrel and commit mar pit with her, but the truth of the statement of Khairunnisha made to these witnesses about demand of dowry and her harassment and torture is not proved and while so, we must hold that the prosecution has failed to establish one of the essential ingredients under section 304-B of the Indian Penal Code that soon before her death Khairunnisha was subjected to harassment and torture so as to raise a presumption under section 113-B of the Indian Evidence Act that the appellants have committed dowry death. 8. The appellants have examined four witnesses to set up a defence that Khairunnisha was happy in her matrimonial home; there was no complain of her ill-treatment and harassment, and; she died a natural death after about 10 years of the marriage. 9. The prosecution evidence led through PW-4 and PW-8 that marriage of Khairunnisha was solemnized in the year 2005 and the defence witnesses stating in the Court that her marriage was solemnized about ten years back are not conclusive in nature. The grounds on which the learned trial Judge has rejected the defence evidence that the witnesses had not participated in the marriage does not emanate from any rule of evidence and it is well-settled that the defence evidence is tested with the same yardstick as the prosecution evidence, but in the ultimate analysis we also do not find their evidence convincing. The cross examination of PW-4 and PW-8 and the defence witnesses is quite casual and, therefore, in view of the conflicting evidence laid by the prosecution and the defence to prove the date / year of the marriage of Khairunnisha, we hold that this has also not been established by the prosecution that Khairunnisha has died within seven years of her marriage. 10. Khairunnisha has died in her matrimonial home is not in dispute and she has suffered ante-mol1em injuries is established from the medical evidence. However, without establishing other ingredients of the offence under section 304-B of the Indian Penal Code, merely because Khairunnisha has died in her matrimonial home is not sufficient to hold the appellants guilty under section 304-B/34 of the Indian Penal Code and, accordingly, conviction and sentence of the appellants under section 304-B/34 of the Indian Penal Code are set-aside. 11. An alternative charge under section 302/34 of the Indian Penal Code was framed against the appellants. What we gather from the materials on record is that Salim Ansari and Sulki Bibi @ Jamila Bibi cannot be convicted for murder of Khairunnisha with the aid of section 34 of the Indian Penal Code. There is no material on record to establish that they shared the common intention with their son to commit murder of Khairunnisha and their abscondence from the house on 13.03.2011 as spoken by the prosecution witnesses is not a conclusive circumstance to hold them guilty under section 302/34 of the Indian Penal Code. 12. Section 34 is a rule of evidence and does not create a substantive offence by itself. It embodies the principle of joint criminal liability in the doing of a criminal act the essence of which is existence of a common intention. A common intention necessarily implies a pre-arranged concert. In "Bharwad Mepa Dana and Am: v. The State of Bombay" AIR 1960 SC 289 , the Hon'ble Supreme Court has observed that the principle which section 34 IPC embodies is pal1icipation in action with the common intention of committing a crime and once such pal1icipation is established section 34 is at once attracted. In "Bharwad Mepa Dana and Am: v. The State of Bombay" AIR 1960 SC 289 , the Hon'ble Supreme Court has observed that the principle which section 34 IPC embodies is pal1icipation in action with the common intention of committing a crime and once such pal1icipation is established section 34 is at once attracted. In a criminal trial, normally the inmates of the house where the death has occurred in unnatural circumstances are equally responsible but the Courts would be on guard to see whether the other members of the family are falsely implicated and to a limited extent the test on culpability of the husband stands on a different footing than the other members of the family who are facing the trial on a general allegation of causing dowry death/death. The quality of evidence against Salim Ansari and Sulki Bibi is so poor and fragile to carry the burden of their conviction under section 302/34 of the Indian Penal Code. There is no positive evidence that they were residing under the same roof with their son and no one has said that they were present in the house in the fateful night. Except a general allegation that Salim Ansari and Sulki Bibi have caused harassment and torture to Khairunnisha in connection to demand of a motorcycle - and there is no admissible evidence on this point; and absence of these two appellants from their house on 13.03.2011, there is no other material on record to infer that death of Khairunnisha was caused in furtherance of the common intention. However, the incriminating circumstances put forth by the prosecution clearly point out towards the guilt of Dilawar Ansari, the husband of Khairunnisha. 13. Abscondence from the place of occurrence is generally considered a weak piece of evidence though relevant in a criminal trial but only on the ground that a person accused of a crime was found absconding from house he cannot be convicted. As observed in "Sk. Yusuf v. State of W.B." reported in (2011) 11 SCC 754 , a person may be found absconding from his house due to fear or on account of apprehension of arrest but merely because of this reason an inference of his complicity in the crime cannot be drawn. However, abscondence soon after the occurrence becomes a relevant circumstance when other circumstances are pointing towards the guilt of an accused. However, abscondence soon after the occurrence becomes a relevant circumstance when other circumstances are pointing towards the guilt of an accused. In ""Kundula Bala Subrahmanyam v. State of A.P" reported in (1993) 2 SCC 684 , the situation in which abscondence of an accused would become relevant has been dealt with by the Hon'ble Supreme Court as under: 23. A closer link with the conduct of the appellants both at the time of the Occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. Baduruddin PW15, the investigating officer, deposed that he had taken up the investigation of the case and having examined PWs 1-4 had caused search to be made for the accused but they were not found in the village and despite search, they could not be traced. Appellant 1 surrendered before the court on November 10, 1981 while appellant 2 surrendered in the court on December 7, 1981. No explanation, worth the name, much less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the court in the face of such a gruesome 'tragedy'. Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance. The prosecution has successfully established this circumstance also to connect the appellants with the crime. 14. PW-6, Dr. and Lal Pandit who has conducted the post-mortem examination has found the following injuries on Khairunnisha: External findings: (I) Eyes partially opened and red conjuctiva, (2) mouth opened, (3) face swollen and cynosed (4) blood tinged secretion was there (5) hair black (6) rigor mortis present in the four limbs (7) abrasion at base of neck (8) many bruises on right side neck and front of neck in thyroid region." Internal Findings (1) On dissection of skull meninges found congested, (2) mouth bruises at the sense of tongue, (3) abrasion on gums and inside of lips with blood clot, (4) neck on dissection at- right sites, subfascial blood clot was there, (5) on right side neck-muscle level blood clot was found. At back of neck at abrasion site sub fascial blood clot was found, (6) Sub mucosed blood clot in larynx was found (7) Fracture of laryngeal cartilages was there. (8) In chest-lungs congested. In heart-both chambers contained blood clot/in abdomen-liver, spleen, kidneys were congested. Uterus was small and non gravid.” 15. The medical evidence is quite conclusive in nature and absence of cross-examination of PW-6 by the defence on his findings that Khairunnisha suffered a blow on her neck by hard and blunt substance and has died on account of asphyxia due to throttling is sufficient to hold that Khairunnisha has died homicidal death in her matrimonial home under section 106 of the Indian Evidence Act which lays down that when any fact is especially within the knowledge of a person the burden of proving that fact is upon him enjoins upon the Court to raise an adverse inference against the accused if he has remained silent and failed to offer a plausible and acceptable explanation to the incriminating circumstances put forth by the prosecution when he was examined under section 313 CrPC. A man who is charged with murder of his wife must say how his wife has died when both were living under the same roof. The relationship of a husband and wife is so intimate that an inference about his special knowledge regarding what has happened to his wife in the night she died in her matrimonial home can legitimately be drawn and if he fails to offer a plausible and acceptable explanation to the Court, a presumption that he has committed murder of his wife would arise. Dilawar Ansari has remained silent and demand of a motorcycle from the informant provides a hint about motive on his part to cause death of his wife, after battering her brutally as would appear from the injuries caused to Khairunnisha. 16. In "Munish Mubar v. State of Haryana" (2012) 10 SCC 464 the Hon'ble Supreme Court has held that it is obligatory on the part of accused when he is examined under section 313 of the Code of Criminal Procedure to furnish some explanation with respect to the incriminating circumstances associated with him. 17. In "Phula Singh v. State of HP" (2014) 4 SCC 9 , the Hon'ble Supreme Court has observed thus: "11. 17. In "Phula Singh v. State of HP" (2014) 4 SCC 9 , the Hon'ble Supreme Court has observed thus: "11. The accused has a duty to furnish an explanation in his statement under Section 3 13 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan." 18. On reappraisal of the materials on record, we hold that the prosecution has proved the charge under section 302 of the Indian Penal Code against Dilawar Ansari. However, the conviction and sentence of Salim Ansari and Sulki Bibi under section 302/34 of the Indian Penal Code are set-aside. 19. Accordingly, while maintaining the sentence awarded to Dilawar Ansari for committing murder of his wife his conviction is altered under section 302 of the Indian Penal Code. 20. Criminal Appeal (DB) No. 546 of 2014 fails, with the modification as indicated hereinabove. 21. Criminal Appeal (DB) 10. 513 of 2014 is allowed. 22. Mr. Ravi Prakash, the learned Spl. PP states that the appellants, namely, Salim Ansari and Sulki Bibi @ Jamila Bibi in Criminal Appeal (DB) No. 513 of 2014 are on bail. 23. Accordingly, the appellants, namely, Salim Ansari and Sulki Bibi @ Jamila Bibi in Criminal Appeal (DB) o. 513 of 2014 shall stand discharged from liability of the bail-bonds furnished by them. 24. Criminal Appeal (DB) o. 546 of 2014 and Criminal Appeal (DB) No. 513 of 20 14 are disposed of, as indicated hereinabove. 25. Let lower Court records be transmitted to the COUl1 concerned, forthwith. 26. Let a copy of the judgement be transmitted to the Court concerned and the concerned Jail Superintendent.