JUDGMENT : Shree Chandrashekhar, J. Giridih (T) PS Case No.20 of 2010 was lodged on 30.01.2010 against Rashid Sheikh and his family members on the allegation that they have caused dowry death of Sanjida Khatoon by setting her on fire in the night of 28.01.2010. 2. In his fardbeyan which was recorded by Sushil Kumar, Sub-Inspector of Police posted at Chas PS, on 29.01.2010 at 13.00 hrs. at Muskaan Hospital, Chas (Bokaro), Fakruddin has stated that in the midnight of 28.01.2010 he received an information that his sister had caught fire in her matrimonial house at Bishanpur. He alongwith his parents and other family members therefore immediately proceeded for village-Bishanpur where the villagers informed him that on their persuasion his sister was taken to Bokaro for treatment – where she succumbed to the burn injuries. The marriage of his sister Sanjida Khatoon was solemnized with Md. Rashid about 7-8 years ago and after the marriage for some time his sister was looked after in her matrimonial home quite well but thereafter her husband and his family members started harassing her in connection to demand of dowry and on few occasions Rashid Sheikh had threatened to leave his sister and solemnize second marriage. The informant has further stated that on several occasions he had visited Bishanpur and tried to reason with Rashid Sheikh and his family members but they remained adamant on their demand of dowry. He has expressed his apprehension that his sister was set on fire by her husband, father-in-law, mother-in-law and brother-in-law with an intention to kill her. On conclusion of the investigation, charge-sheet was submitted against Rashid Sheikh @ Md. Rashid, Samsuddin Sheikh and Zarina Khatoon while investigation against Khursid Sheikh remained pending on account of his abscondence. 3. Mr. Ravi Prakash, the learned Spl.PP has informed us that he has received information from the officer-in-charge of Town PS, Giridih that charge-sheet no.25 of 2013 was lodged on 31.01.2013 against Khursid Sheikh who faced trial in ST Case No.230 of 2013 on the charges framed under sections 302/201 and 498-A/34 of the Indian Penal Code and by judgment dated 21.02.2018 he has been acquitted of the criminal charges framed against him. 4. Against Rashid Sheikh, Samsuddin Sheikh and Zarina Khatoon charges under sections 302/34 and 498-A/34 of the Indian Penal Code were framed by an order dated 08.07.2010. 4. Against Rashid Sheikh, Samsuddin Sheikh and Zarina Khatoon charges under sections 302/34 and 498-A/34 of the Indian Penal Code were framed by an order dated 08.07.2010. During the trial, the prosecution has examined 11 witnesses to prove the aforesaid charges against the accused. Two witnesses were examined by the accused in their defence to prove that marriage of Rashid Sheikh was solemnized in the year 2001, that is, about 10 years ago and it was not that Sanjida Khatoon had died within 7 years of her marriage. Rashid Sheikh set up a plea of alibi and the stand taken by Samsuddin Sheikh and Zarina Khatoon was that they were living separately in different house. 5. The learned Sessions Judge, Giridih has held as under: “19. From the aforesaid evidence available on record, it is crystal clear that there is no direct evidence of the occurrence to prove the charge u/s 302 IPC. The prosecution has been able to prove the following circumstances in order to substantiate the aforesaid charge:- (i) The accused was living with his wife and old parents on the date of occurrence and the deceased died while she was under the custody of accused persons. (ii) The motive for crime was illegal demand of money by the accused Md. Rashid and part payment of Rs.8000/-by the parents of deceased at their own house was made. Md. Rashid was insisting upon payment of rest money. (iii) Due to non fulfillment of complete demand of money to accused Md. Rashid, deceased was being frequently subjected to assault and torture, which was complained to her parents and brothers. (iv) It is no parties case that the death was suicidal rather the plea was taken by defence is that the death was accidental. In this regard, the evidence of doctor (i.e.P.W.8), who proved the Post Mortem report of deceased (Ext 2) found 95% extensive burn injury on all over the body of deceased, is totally inconsistent with the theory of accidental death. (v) The plea taken by accused Md. In this regard, the evidence of doctor (i.e.P.W.8), who proved the Post Mortem report of deceased (Ext 2) found 95% extensive burn injury on all over the body of deceased, is totally inconsistent with the theory of accidental death. (v) The plea taken by accused Md. Rashid in his statement u/s 313 Cr.P.C that deceased told him at Sadar Hospital, Giridih that she caught fire while going to urinate and slipped with dhibri is also not believable because a small dhibri in the shape of bottle hardly containing 50-60 ml K. Oil was not sufficient to cause such severe bodily burn injuries due to fall from any angle. The deceased was a young lady of 24 years and she was able to avoid severe burn injury, if the incident might have taken place in the aforesaid manner. (vi) There was absolutely no possibility of such extensive burn injuries on both sides of all over the body of deceased including singeing of scalp hairs due to fall with K. Oil dhibri. As such, it is purely a case of homicidal death. (vii) The plea of alibi taken by accused Md. Rashid is purely false and projected to save his skin from legal consequences. He has failed to produce any documentary evidence regarding his employment in the Zerro Error Construction Private Ltd Factory, Bengabad nor any duty chart showing his night shift duty has been brought on record to substantiate the above plea. The burden of proving this plea certainly lies on defence. (viii) The accused during his statement u/s 313 Cr.P.C has given inconsistent and contradictory reply to the question no.5 that he was on his duty in the factory where he received telephonic information about burning case of his wife at about 10.30 pm. In reply to question no.6, wherein it was asked that on 28.01.10 he alongwith other family members set on fire Sanjida Khatoon by sprinkling K. Oil he replied that he cannot say that how his wife died. And in reply to last question what is his defence, he asserted about oral dying declaration of his wife to him that her leg slipped while she was going to urinate and her clothes caught fire from dhibri. These false pleas can be taken as additional link to the chain of circumstances against the accused. And in reply to last question what is his defence, he asserted about oral dying declaration of his wife to him that her leg slipped while she was going to urinate and her clothes caught fire from dhibri. These false pleas can be taken as additional link to the chain of circumstances against the accused. (ix) No medical report has been produced by defence to show that what treatment he had given to the deceased after the occurrence either at Sadar Hospital, Giridih or at Muskaan Hospital, Bokaro and there is no creditworthy oral or documentary evidence that at any point of time deceased was in conscious state to speak anything. (x) D.W.2 is none else but real uncle of accused who has animus to depose in favour of accused persons and given false, inconsistent and contradictory story of defence. No independent local villager was examined by defence hence adverse inference can be drawn that none of independent witnesses were willing to depose false in the court in his favour. (xi) Accused Md. Rashid has not disclosed the name of any persons who gave him telephonic information about accidental catching of fire by his wife. False plea of alibi taken by him belies any information to him in the factory.” 6. The learned Sessions Judge has referred to and discussed several judgments relied upon by the learned APP and the learned defence counsel and has finally concluded thus; “22. From the discussions of aforesaid circumstantial evidence available on record in the light of reported judgments relied upon by both the sides, it is crystal clear that there was demand of dowry just prior to the occurrence by accused Md. Rashid from his site and her parents. Due to non fulfillment of said demand she was being subjected to cruelty, torture and harassment by her husband, which was the core motive for commission of this offence. Post mortem report of deceased (Ext. 2) definitely shows the burn injuries sustained by deceased was homicidal and not suicidal or accidental. The plea of alibi taken by accused Md. Rashid was not proved with all certainty to exclude his presence from the scene of occurrence at the relevant date and time. No medical treatment report either of Sadar Hospital, Gindih or of Muskaan Hospital, Bokaro was adduced by accused. The deceased died while in the custody of her husband. The plea of alibi taken by accused Md. Rashid was not proved with all certainty to exclude his presence from the scene of occurrence at the relevant date and time. No medical treatment report either of Sadar Hospital, Gindih or of Muskaan Hospital, Bokaro was adduced by accused. The deceased died while in the custody of her husband. As such, the burden to prove the circumstances under which she died lies upon accused u/s 106 of Indian Evidence Act. The accused has given evasive and deliberate false reply in his statement u/s 313 Cr.P.C. that he does not know how his wife burnt and further she gave an oral dying declaration to him about accidental catching of fire while she was going to discharge urinal with a dhibri, is self-contradictory, which reflects the commission of crime by accused Md. Rashid Sheikh. It is further apparent that no medical report was adduced to show that at any point of time deceased was in conscious state to talk with any person, as such the very defence of oral dying declaration of deceased to accused Md. Rashid as well as to D.W.2 is totally unbelievable. Extensive burn injuries about 95% over all parts of body of deceased, front and back side including singeing of scalp hairs itself tells the story of murderous ablazing her. Such burn injuries could not have been caused simply by falling down with burning dhibri unless somebody had caught hold of deceased and forcibly set her on fire. No man of ordinary prudence can believe such a false defence of accidental death of a young lady aged about 24 years, by falling with a small dhibri containing only 50-60 ml kerosene oil. Since there is no evidence and any motive against accused Samsuddin Sheikh and Zarina Khatoon, who are old aged persons, they are not found guilty for the offence u/s 302 IPC. No common intention of both these accused persons have been proved hence they are acquitted from the aforesaid charge.” 7. In ST Case No.212 of 2010, Md. Samsuddin Sheikh and Zarina Sheikh were acquitted, however, Rashid Sheikh was found guilty under sections 302 and 498-A of the Indian Penal Code for causing death of Sanjida Khatoon, his wife. No common intention of both these accused persons have been proved hence they are acquitted from the aforesaid charge.” 7. In ST Case No.212 of 2010, Md. Samsuddin Sheikh and Zarina Sheikh were acquitted, however, Rashid Sheikh was found guilty under sections 302 and 498-A of the Indian Penal Code for causing death of Sanjida Khatoon, his wife. By the order of sentence dated 02.07.2011, Rashid Sheikh was sentenced to undergo RI for life and a fine of Rs.10,000/-under section 302 of the Indian Penal Code and RI for 3 years with a fine of Rs.5,000/-under section 498-A of the Indian Penal Code, with a default stipulation to undergo RI for six months on each count. 8. There is no eyewitness to the occurrence which according to the prosecution has happened in the night of 28.01.2010 at around 09:00 PM in which Sanjida Khatoon suffered severe burn injuries in her matrimonial house. In a case based on circumstantial evidence an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with innocence of the accused and the circumstances from which an inference of guilt of an accused are drawn must be proved beyond reasonable doubt. In “Bhagat Ram v. State of Punjab” reported in AIR 1954 SC 621 , the Hon'ble Supreme Court has observed that when a case depends upon the conclusions drawn from the circumstances the cumulative effect of the circumstances must be such as to negate innocence of the accused and bring home the offences beyond reasonable doubt. In the celebrated decision in “Sharad Birdhichand Sarda v. State of Maharashtra” reported in (1984) 4 SCC 116 , on which Mr. Arwind Kumar, the learned counsel for the appellant has heavily relied, the Hon'ble Supreme Court has laid down the fundamental principles relating to a case based on circumstantial evidence, thus: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 9. The case of the prosecution is that Sanjida Khatoon was continuously harassed and tortured by the accused persons in connection to demand of Rs.30,000/-and finally in the night of 28.01.2010 they set her ablaze with an intention to kill her but under the pressure of the villagers who had gathered there took her for treatment, however, she could not survive and in the wee hours of 29.01.2010 succumbed to the burn injuries at Muskaan Hospital, Chas (Bokaro). 10. Seven witnesses all relatives of Sanjida Khatoon were examined by the prosecution to establish that she was subjected to harassment and torture by her husband and in-laws in connection to demand of Rs.30,000/-. PW1-Zahir Sheikh is the father, PW2-Md. Kamruddin Sheikh and PW4-Md. Fakruddin are the brothers, PW3-Sajda Khatoon is the mother and PW5-Nizamuddin, PW6-Abdul Rashid and PW7-Md. Tahir Sheikh are uncle/maternal uncles of Sanjida Khatoon. They are intimately related to her and therefore the proper judicial approach to scrutinize their evidence has to be cautious. 11. PW1-Zahir Sheikh is the father, PW2-Md. Kamruddin Sheikh and PW4-Md. Fakruddin are the brothers, PW3-Sajda Khatoon is the mother and PW5-Nizamuddin, PW6-Abdul Rashid and PW7-Md. Tahir Sheikh are uncle/maternal uncles of Sanjida Khatoon. They are intimately related to her and therefore the proper judicial approach to scrutinize their evidence has to be cautious. 11. No doubt, relationship is not a ground to discard testimony of a witness and as observed by the Hon'ble Supreme Court in “Dinesh Kumar v. State of Rajasthan” reported in (2008) 8 SCC 270 generally a relative would not try to shield the real culprit and rope the innocent person, however, this cannot be overlooked that related witnesses may be partisan and sometimes on account of enmity, doubt or other reasons may falsely implicate an innocent person. The proper approach how evidence of interested witness should be examined was indicated long before by the Hon'ble Supreme Court in “Masalti v. State of U.P.” reported in AIR 1965 SC 202 , wherein the Court has observed thus: “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …………… The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 12. With the aforesaid principles in the mind, we would now examine testimony of the prosecution witnesses. All the witnesses, with a little variation, have deposed in the Court that in the midnight of 28.01.2010 an information was received that Sanjida Khatoon had caught fire in her matrimonial home. With the aforesaid principles in the mind, we would now examine testimony of the prosecution witnesses. All the witnesses, with a little variation, have deposed in the Court that in the midnight of 28.01.2010 an information was received that Sanjida Khatoon had caught fire in her matrimonial home. They have also claimed that on such information they proceeded for Bishanpur where they were informed by the villagers that Sanjida Khatoon was taken to Sadar Hospital, Giridih for treatment. PW1 has stated that he was at home in village-Gando where he received information about his daughter. He has stated that Rashid Sheikh and his family members were demanding Rs.30,000/-and he gave Rs.8,000/-to Rashid Sheikh, his son-in-law. In his cross-examination he has stated that he had gone to Bishanpur and paid Rs.8,000/-on 27.09.2009 but in the same breath he further says that Rashid Sheikh visited him and personally collected the money. PW2 has also stated about demand of dowry and payment of Rs.8,000/-. In his cross-examination he has admitted that he cannot indicate day, date, month and year when Rs.8,000/-was paid to the accused persons. He further says that one person ( ,d vkneh ) had gone to matrimonial home of his sister to pay Rs.8,000/-. PW3 who is the mother of Sanjida Khatoon has however claimed in her examination-in-chief that she herself had gone to Bishanpur and handed over Rs.8,000/-to Rashid Sheikh. In her cross-examination she says that about 2-4 months before the occurrence she had paid Rs.8,000/-. PW4 has stated that about 6-7 months after the marriage the accused started harassing his sister in connection to demand of Rs.30,000/-and therefore Rs.8,000/-was paid to Rashid Sheikh, who was threatening to desert his sister and solemnize another marriage. PW5 who is the maternal uncle of Sanjida Khatoon was living in another village at a distance of about ½ kilometer from Bishanpur. He has stated that Rs.8,000/-was paid by PW1 to Rashid Sheikh who used to beat Sanjida Khatoon due to non-fulfillment of his demand of dowry. From his evidence it appears that for the first time PW1 informed him at his residence about demand of dowry and payment of Rs.8,000/-to Rashid Sheikh. PW6 has also claimed that he himself paid Rs.8,000/-to Rashid Sheikh and in his cross-examination he has reiterated that he had stated before the police that about 2-3 months before the occurrence he had himself paid Rs.8,000/-to Rashid Sheikh. PW6 has also claimed that he himself paid Rs.8,000/-to Rashid Sheikh and in his cross-examination he has reiterated that he had stated before the police that about 2-3 months before the occurrence he had himself paid Rs.8,000/-to Rashid Sheikh. PW7 has stated that PW1 had tendered Rs.8,000/- to Rashid Sheikh. 13. From the aforesaid evidence, we gather that there is serious contradiction in the deposition of these witnesses as to who was the person who paid Rs.8,000/-to Rashid Sheikh. All the witnesses have admitted in the Court that no complaint was lodged with the police nor any case was filed against the accused in connection to harassment and torture of Sanjida Khatoon for demand of dowry. In this context, it is important to keep in mind that the defence has brought on record a copy of Nikahnama which was admitted by PW10 and PW11 and according to this Nikahnama marriage of Sanjida Khatoon was solemnized with Rashid Sheikh about 10 years prior to the occurrence and as a result of her cohabitation with Rashid Sheikh three children were born, but the prosecution witnesses have tried to bring the case within section 304-B of the Indian Penal Code by saying that the marriage was solemnized about 6-7 years back. From the evidence of the prosecution witnesses, we further find that the alleged payment of Rs.8,000/-was made about 2-3 months prior to death of Sanjida Khatoon. Some of the witnesses have further claimed that they were frequently visiting the matrimonial house of Sanjida Khatoon at Bishanpur but no one has alleged that the accused were not permitting her to visit her parents. PW1 has stated that the accused persons were demanding money from the parents of Sanjida Khatoon for contesting a Court case but no one has even indicated the nature of Court case, the persons with whom the accused were litigating or the place where the case was filed. In our opinion, in a routine manner these details would have been disclosed by the accused had there was a demand from the parents of Sanjida Khatoon to contest the Court case. 14. All the prosecution witnesses were resident of another village and no neighbour of the accused at village-Bishanpur was examined by the prosecution. In our opinion, in a routine manner these details would have been disclosed by the accused had there was a demand from the parents of Sanjida Khatoon to contest the Court case. 14. All the prosecution witnesses were resident of another village and no neighbour of the accused at village-Bishanpur was examined by the prosecution. The investigating officer has admitted in the Court that there are houses of Khursid, Minhaj and Samsuddin around the place of occurrence and he did not record statement of any neighbour of the accused. In fact, in paragraph no.31 of his cross-examination he has admitted that in the case-diary there is no reference regarding the investigation from 31.01.2010 to 09.02.2010. 15. In our opinion, there is no consistency rather serious inconsistencies in the evidence of the prosecution witnesses on the point of demand of dowry and harassment and torture of Sanjida Khatoon. 16. The learned trial Judge has though recorded that there are contradictions, additions and improvements in the testimony of the prosecution witnesses as regards day, date, month and year of demand of dowry and the quantum of amount paid to the accused but the learned Judge was of the opinion that those discrepancies are not touching upon the core of the matter. However, the opinion of the learned trial Judge that the contradictions, embellishments and improvements in the prosecution evidence are fit to be rejected because they are rustic and illiterate persons, in our opinion, cannot be accepted as a ground for accepting their testimony in toto. There is no rule of law that testimony of a rustic and illiterate villager would always contain contradictions, embellishments and improvements. Of course, as a general proposition it has been observed by the Hon'ble Supreme Court that in the deposition of witnesses there are always normal discrepancies howsoever honest and truthful they may be [refer, “State of Rajasthan v. Kalki” reported in (1981) 2 SCC 752 ], but in a case of this nature with which we are presently dealing with the discrepancies and inconsistencies in the testimony of the prosecution witnesses cannot be brushed aside as minor discrepancies. 17. There is evidence of a defence witness who though related to the accused has categorically stated that Sanjida Khatoon was happily married to Rashid Sheikh and she never complained about her ill-treatment at the hands of the accused. 17. There is evidence of a defence witness who though related to the accused has categorically stated that Sanjida Khatoon was happily married to Rashid Sheikh and she never complained about her ill-treatment at the hands of the accused. It is also note-worthy that on the same set of evidence the learned trial Judge has acquitted the father-in-law and mother-in-law of Sanjida Khatoon observing that the evidence against them is not cogent and reliable. 18. In the aforesaid state of affairs, we are of the opinion that the prosecution has failed to prove the charge under section 498-A of the Indian Penal Code against the appellant. 19. The defence set up by the accused is that Sanjida Khatoon caught fire incidentally from a kerosene dhibri and suffered intense burn injuries. 20. Dr. Vikash Kumar who conducted the post-mortem examination has tendered evidence on behalf of the prosecution as PW8. The doctor has recorded the following observations: General Examination-Rigor Mortis present both upper & lower limbs. Eyes closed, mouth partially open, tongue inside. Injury (External)-Burn about 95% including scalp hairs all over face, front and back of neck, chest both sides, all over abdomen, both side of arm, forearm and the palm, both side of pelvic region, both side of thigh and right side of leg including foot. On dissection: skull intact. Brain-N.A.D., Hyoid Bone intact, trachea and larynx congested. Heart right chamber full of blood and left chamber empty. Lung, liver, spleen, kidney congested, stomach-empty, bladder-empty and uterus-N.A.D. Cause of death-Deep burn injury. Time since death within 24 hrs. 21. Modi in book “Medical Jurisprudence and Toxicology” (22nd Edition) writes that in case of death by kerosene oil, petrol or some other combustible substance characteristic smell of that substance is distinctly found emitting from the dead body. While conducting the post-mortem examination PW8 has not found any trace of kerosene oil or smell of kerosene oil emitting from the dead body. Modi says that sooty blackening of the parts of the dead body is also a characteristic feature which in the present case was absent. Modi has written that in case of death by intense heat the brain, its meninges and the lungs are usually congested. PW8 has found that trachea, larynx, lung, liver, spleen and kidney of Sanjida Khatoon were congested, and he did not observe any sooty blackening of the dead body. Modi has written that in case of death by intense heat the brain, its meninges and the lungs are usually congested. PW8 has found that trachea, larynx, lung, liver, spleen and kidney of Sanjida Khatoon were congested, and he did not observe any sooty blackening of the dead body. It is also important to record that the post-mortem doctor has not rendered an opinion that Sanjida Khatoon has suffered a homicidal death and insofar as evidence of PW2 who has stated that he found smell of kerosene oil in the courtyard of the house of the accused is concerned, we need to keep in mind evidence of the investigating officer who has stated that PW2 did not state before him that he had observed smell of kerosene oil in the courtyard of the accused. For the aforesaid reasons, the defence version would definitely become important. 22. From the evidence of the investigating officer, we gather that his claim in the examination-in-chief that he visited the place of occurrence was not correct and that precisely is the reason no seizure was made by the investigating officer from the place of occurrence. Consistent case set up by the appellant is that at the time of occurrence he was on duty at Bengabad and after an information was received at 10.00 PM in the night of 28.01.2010 he rushed home but by that time his wife was taken to the nearby hospital at Giridih. There is evidence of the witnesses that Bishanpur is inside Giridih town and from there she was referred to Bokaro. The appellant was employed at Bengabad and in his evidence the investigating officer has admitted the same in the Court. DW1 who is co-employee of the appellant in Zerro Error Construction Private Ltd. Factory, Bengabad has deposed in the Court that the appellant, who was employed there before he joined the Factory, was assigned duty on 28.01.2010 from 4.00 PM till midnight. On that day around 10.00 PM the appellant received a telephonic message that his wife had caught fire where-after he left the factory. Md. Kalim Sheikh who was produced by the defence as DW2 has deposed in the Court that the marriage of the appellant was solemnized with Sanjida Khatoon about 10 years ago. On that day around 10.00 PM the appellant received a telephonic message that his wife had caught fire where-after he left the factory. Md. Kalim Sheikh who was produced by the defence as DW2 has deposed in the Court that the marriage of the appellant was solemnized with Sanjida Khatoon about 10 years ago. Sanjida Khatoon was happily married and she never made any complaint of her ill-treatment at the hands of her husband or any other family member, though he was visiting her almost every day. 23. All the prosecution witnesses who are related to Sanjida Khatoon have also stated in the Court that Sanjida Khatoon was first admitted in the Sadar Hospital, Giridih and thereafter she was admitted in Muskaan Hospital, Chas (Bokaro). Some of them have tried to give a twist to this fact by saying that under the pressure of the villagers she was taken to the hospital, but what is significant to note is that no one – even according to the prosecution witnesses – has stated in the Court that at the time of the occurrence the appellant was seen around the place of occurrence. On the contrary, the prosecution evidence is that the appellant returned home with PW1 from Bokaro together and all the time he was there in the hospital. 24. Mr. Ravi Prakash, the learned Spl.PP would contend that the evidence of the prosecution witnesses is cogent, consistent and reliable and the extent of burn injury, that is, about 95% would definitely belie the defence story. 25. In his defence, the appellant has stated during his examination under section 313 CrPC that when he attended his wife she informed him that while going to the washroom she fell on the ground and caught fire from a dhibri she was carrying. The learned trial Judge has disbelieved his defence on the ground that severe bodily injury would not have caused by fire from a small dhibri which would hardly contain 50-60 ml. kerosene oil. The plea of alibi taken by the appellant was also not believed by the learned trial Judge on the ground that no documentary evidence regarding his employment with Zerro Error Construction Private Ltd. Factory, Bengabad nor his duty chart for 28.01.2010 was produced by the defence. In our opinion, the learned trial Judge has committed serious errors in law on both counts. In our opinion, the learned trial Judge has committed serious errors in law on both counts. Section 313 CrPC confers a valuable right upon an accused to put forth his defence of innocence. It is the duty of the Court to examine the entire material on record to find out whether the defence set up by the accused is a probable one. It is not necessary that an accused must lead evidence in his defence and it is always open to him to demonstrate from the prosecution evidence that his version of the occurrence is probablized from the prosecution evidence itself, and where the accused has also laid evidence in defence which is consistent and compatible with the prosecution evidence the defence set up by the accused would cast a serious doubt on veracity of the prosecution case. The plea of alibi set up by the appellant is no doubt a weak piece of evidence and a reasonable doubt regarding accidental death of Sanjida Khatoon occurs when we find that she had suffered 95% burn injuries. But two things which are fundamental in law would overcome this doubt in the present case. First, the yardstick to test the truthfulness of a defence witness is the same as is applied to a prosecution witness and, therefore, minor inconsistency, omission or any normal human error in his testimony cannot be a ground to reject the defence evidence. 26. In “Dudh Nath Pandey v. State of U.P.” reported in (1981) 2 SCC 166 , the Hon’ble Supreme Court has observed as under: “19. …Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.” 27. In “State of Haryana v. Ram Singh” reported in (2002) 2 SCC 426 , the Hon’ble Supreme Court has observed as under: “19. …………Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court.” 28. Secondly, the defence is not required to prove its case beyond all reasonable doubt rather it is the duty of the prosecution to lead evidence to prove the charges to the hilt. The prosecution witnesses have not claimed that the appellant was not an employee of Zerro Error Construction Private Ltd. Factory, Bengabad. All along the appellant was with his wife in the hospital, he was not found absconding and, more importantly, the prosecution has not produced evidence to establish that around the time of occurrence the appellant was found in or around his house, though several villagers had gathered there. It was the duty of the investigating officer to gather information from Zerro Error Construction Private Ltd. Factory, Bengabad, take statement of the other employees and make seizure of the employee register, duty chart etc. which he has failed to do. The explanation offered by the appellant under section 313 CrPC is consistent with the prosecution evidence. The medical evidence corroborates the defence story of accidental fall of Sanjida Khatoon inasmuch as, PW8 did not observe smell of kerosene oil emitting from her dead body. Though the investigating officer did not seize any incriminating material from the place of occurrence, we would assume as observed by the learned trial Judge that a small dhibri would contain merely 50-60 ml. kerosene oil a small portion of which might have fallen on her clothes and she caught fire and that was the reason PW8 did not observe smell of kerosene oil. She was given treatment at the hospital is also reflected in the cross-examination of PW8 who has found bandage all over her body. No doubt, when a woman is caught fire in her matrimonial home and she dies the law requires that the inmates of the house should say how she caught fire. The provisions of section 106 of the Evidence Act are very clear and do not admit any ambiguity. No doubt, when a woman is caught fire in her matrimonial home and she dies the law requires that the inmates of the house should say how she caught fire. The provisions of section 106 of the Evidence Act are very clear and do not admit any ambiguity. It clearly lays down that when any fact is specially within the knowledge of the person, the burden of proving that fact is upon him and therefore it must be first shown that such facts were predominantly and without exception within the knowledge of the accused. But in a case of this nature where there is no evidence that the appellant was present in his house when his wife caught fire, rather contrary evidence has been produced by the defence, the onus would not shift upon him to show that he was present at the time of the occurrence. 29. The learned Sessions Judge has erroneously shifted the burden upon the accused when he says that the accused failed to produce any positive evidence from Sadar Hospital, Giridih and Muskaan Hospital, Chas (Bokaro). It was the duty of the investigating officer to examine the doctor, nurses and attendants in the hospital where Sanjida Khatoon was admitted for treatment. This was important also for the reason that the defence has laid evidence to the extent that Sanjida Khatoon was alive and talking till she was shifted to Muskaan Hospital, Chas (Bokaro). 30. The burden of proof in a criminal case is always on the prosecution and it never shifts. Section 106 of the Evidence Act only lays down the rule that when the accused does not throw any light upon the facts which are within his special knowledge, the Court can consider his failure to explain the incriminating circumstance as an additional link in the chain of circumstances. In “Shambhu Nath Mehra v. State of Ajmer” reported in AIR 1956 SC 404 , the Hon'ble Supreme Court has observed that section 106 of the Evidence Act cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution. The absence of any positive evidence regarding pouring kerosene oil and setting Sanjida Khatoon on fire which the prosecution was required to establish lends credence to the defence version. The absence of any positive evidence regarding pouring kerosene oil and setting Sanjida Khatoon on fire which the prosecution was required to establish lends credence to the defence version. The defence story is not contradicted by the medical evidence and for the reason that the extent of burn injury on Sanjida Khatoon raises a question on the manner of her death if we were to find the appellant guilty, we would be really traveling in the realm of conjunctures and speculations. 31. In “Sujit Biswas v. State of Assam” reported in (2013) 12 SCC 406 , the Hon'ble Supreme Court has observed as under: “13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.” 32. In view of the aforesaid discussions, we are of the opinion that merely because Sanjida Khatoon caught fire in her matrimonial home the appellant cannot be held guilty for causing death of his wife. In “Ranjit Singh v. State of Punjab” reported in (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 Evidence Act to hold an accused guilty for murder. In a slightly different factual scenario, in the context of dowry death the Hon'ble Supreme Court has observed in “Baijnath v. State of M.P.” reported in (2017) 1 SCC 101 , that mere factum of unnatural death in the matrimonial home is not sufficient to convict the accused. 33. We, therefore, hold that the prosecution has failed to establish the charges under sections 302/34 and 498-A/34 of the Indian Penal Code and, accordingly, conviction of the appellant in ST Case No.212 of 2010 for the aforesaid offences is set-aside. 34. The appellant who is in jail custody shall be set free forthwith if not wanted in connection to any other case. 35. Criminal Appeal (DB) No.472 of 2011 is allowed. 36. Let the lower Court records be sent to the Court concerned forthwith. 37. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail superintendent through 'FAX'.