JUDGMENT : Ajai Tyagi, J. 1. This appeal has been preferred against the judgment and order dated 08.08.2011 passed by Additional Sessions Judge, Court No.16 in Session Trial No.403 of 2009 (State Vs. Rakesh and others), arising out of Case Crime No.04 of 2009, under Section 498A, 304B IPC and 3/4 D.P. Act, Police Station-Colonelganj, District-Kanpur Nagar, whereby the appellants were convicted and sentenced under Section 302/34 IPC for life imprisonment along with fine of Rs.10,000/-. 2. The brief facts of the case as culled out from the record are that first information report was lodged by informant Ram Chandra at Police Station-Colonelganj, District-Kanpur Nagar on 10.01.2009 with the averments that the marriage of his daughter was solemnized with Rakesh on 15.05.2006, in which informant had given dowry as per his financial condition. The husband, his mother Chhidana and father Shivram along with his three sisters were not satisfied with the dowry. After some days of the marriage, they used to torture his daughter for want of motorcycle and gold chain as additional dowry. His daughter had complained several times to the informant but he could not meet out the aforesaid demand. On 10.01.2009 at about 9:00 am husband and in-laws of his daughter killed her. He got the information at 01:30 pm on telephone and reached to the matrimonial home of his daughter. 3. On the basis of aforesaid report, a Case Crime No.04 of 2009 was registered at police station. 4. Investigation was taken up by I.O., who visited the spot and recovered Dupatta from the spot, the dead body of the deceased was sent for post mortem after completing the inquest proceedings. Inquest report was prepared. The post mortem of the dead body was conducted by concerned doctor and post mortem report was prepared. I.O. recorded statements u/s 161 Cr.P.C. Site plan was also prepared. After completion of investigation, a charge sheet was submitted by the I.O. against accused Rakesh, Shivram and Smt. Chhidana u/s 498A, 304B IPC and 3/4 Dowry Prohibition Act. Magistrate took the cognizance and committed it to the Court of Sessions because the case was triable exclusively by Court of Sessions. 5. Learned trial court framed charges against all the accused persons u/s 498A, 304B IPC, alternatively u/s 302 r/w Section 34 IPC and u/s 3/4 Dowry Prohibition Act. Accused persons denied the charges and claimed to be tried. 6. 5. Learned trial court framed charges against all the accused persons u/s 498A, 304B IPC, alternatively u/s 302 r/w Section 34 IPC and u/s 3/4 Dowry Prohibition Act. Accused persons denied the charges and claimed to be tried. 6. The prosecution so as to bring home the charges, framed against the accused, examined the following witnesses: 1. Ram Chandra PW1 2. Siya Ram PW2 3. Smt. Shiv Kali PW3 4. Shailendra Tiwari PW4 5. Shiv Ratan PW5 6. Siya Ram Maurya PW6 7. Rajesh Kumar PW7 8. R.C. Vidyarthi PW8 7. Following documentary evidence was filed by prosecution, which was proved by leading evidence: 8. After completion of prosecution evidence, the statements of accused u/s 313 of Cr.P.C. were recorded, in which they stated that false evidence has led against them and the deceased had committed suicide for not having the child. No defense witness is examined by the accused persons. 9. The learned trial court after hearing both the parties, convicted the accused persons Rakesh, Shiv Ram and Chhidana for the offence u/s 302 r/w Section 34 IPC and sentenced them for life with fine of Rs.10,000/- each. 10. It is pertinent to mention that when we have heard this appeal, the accused appellants Shivram and Smt. Chhidana had passed away. So now, we are concerned with the appeal of appellant Rakesh only, who is the husband of the deceased. 11. Heard Shri Ganesh Mani Tripathi, learned counsel for the appellant and Shri N.K. Srivastava, learned AGA appearing on behalf of the State. 12. Learned counsel for the appellants has submitted that this is no evidence case. No prosecution witness has supported the case of prosecution. It is submitted that prosecution has examined three witnesses of fact, namely, PW1 Ram Chandra, PW2 Siya Ram and PW3 Shiv Kali. All the three witnesses have turned hostile and nobody has supported the prosecution version. Even then, the trial court convicted and sentenced the appellant along with deceased appellants. It is further submitted that learned trial court has opined that demand of additional dowry is not proved, hence no presumption can be raised u/s 113B of Indian Evidence Act. All the three witnesses have turned hostile and nobody has supported the prosecution version. Even then, the trial court convicted and sentenced the appellant along with deceased appellants. It is further submitted that learned trial court has opined that demand of additional dowry is not proved, hence no presumption can be raised u/s 113B of Indian Evidence Act. Learned trial court was of the view that the case of dowry death is not proved and after holding that finding, learned trial court went further and took the recourse of provision of Section 106 of Indian Evidence Act and convicted the appellant on the basis of circumstantial evidence. At the time of alleged occurrence, the appellant Rakesh was not in the house. He had gone to his duty at 9:00 am on the date of occurrence. There was nobody inside the house when the suicide was committed by the deceased. 13. Learned counsel for the appellant further submitted that prosecution had established the case of dowry death and dowry death is not proved as found by the learned trial Judge. Hence, no motive for committing the alleged murder remains on the record. Smt. Madhuri Devi, who had seen the deceased first time and Jitendra Kumar who had given information to the police station, were not examined during trial. Time of death is not mentioned in inquest report, which was prepared on 10.01.2009. 14. Learned counsel for the appellant submitted that in the morning at 9:00 am on the said date of occurrence, the appellant had gone on his duty and this plea of alibi was not confronted by the prosecution witnesses, namely, PW1, PW2 and PW3. Hence, the burden could not be shifted on the appellant u/s 106 of Indian Evidence Act. Hence, learned trial court has committed a grave error in convicting and sentencing the appellant u/s 302 of IPC on the basis of circumstantial evidence because there was no circumstantial evidence existed against the appellant. 15. Learned counsel for the appellant relied on Satye Singh Vs. State of Uttrakhand 2022 0 Supreme (SC) 143, Tomaso Bruno and another Vs. State of U.P. 2015 1 Crimes (SC) 105, Harjinder Singh @ Bhola Vs. State of Punjab 2004 (5) Supreme 578 , Ramasankar Kushwaha Vs. State of U.P. 2021 0 Supreme (All) 935 and Siddappa Vs. State of Karnataka 2022 LawSuit (Kar) 2541. 16. State of Uttrakhand 2022 0 Supreme (SC) 143, Tomaso Bruno and another Vs. State of U.P. 2015 1 Crimes (SC) 105, Harjinder Singh @ Bhola Vs. State of Punjab 2004 (5) Supreme 578 , Ramasankar Kushwaha Vs. State of U.P. 2021 0 Supreme (All) 935 and Siddappa Vs. State of Karnataka 2022 LawSuit (Kar) 2541. 16. Learned AGA opposed the submissions made by learned counsel for the appellants and submitted that although the witnesses of fact have turned hostile in this case and not supported the prosecution case, there was ample evidence against the appellant on the basis of which, he was convicted. It is contended that the death of the deceased had taken place in his matrimonial home where she used to reside with her husband in-laws. Hence, the burden was on appellant to prove how the death was taken place and according to opinion of doctor, conducting the post mortem, the cause of death was asphyxia due to throttling. Hence, trial court has not committed any mistake and appeal is liable to be dismissed. 17. Prosecution has established this case as a case of dowry death. According to the prosecution story, the marriage of daughter of informant was solemnized with appellant Rakesh and she was tortured for demand of additional dowry. It is also the prosecution case that she was done to death by the appellant Rakesh along with his parents, who have passed away now. 18. To prove its case, the prosecution has examined three witnesses of fact, namely, PW1 Ram Chandra, PW2 Siya Ram and PW3 Smt. Shiv Kali. All these witnesses have turned hostile. They have not supported the prosecution version rather have deposed in the testimony that the deceased was not subjected to cruelty in connection with additional dowry. Learned trial court has opined that the ingredients of offence of dowry death are not proved in this case because no witness of fact has supported the prosecution case. He went further and considered the case under alternative charge of Section 302 IPC on the basis of circumstantial evidence and the provision of Section 106 of Indian Evidence Act. 19. To prove the case under circumstantial evidence, the motive assumes a great importance. The motive of offence is set up by the prosecution as demand of dowry but all the three witnesses PW1 to PW3 have denied this factum in their respective testimony. 19. To prove the case under circumstantial evidence, the motive assumes a great importance. The motive of offence is set up by the prosecution as demand of dowry but all the three witnesses PW1 to PW3 have denied this factum in their respective testimony. They have not supported the prosecution version and turned hostile and even in the cross-examination, the prosecution could not elicit any evidence which could prove the motive. Hence, the motive fails. Learned trial court has opined in impugned judgment that when the death of the deceased had taken place, the entire house was not locked from inside and if the deceased would have committed the suicide when she was alone then in that case she should have bolted the room inside because no person wants any sort of interception when he is going to commit suicide. We are of the opinion that this is not the thumb rule. The mindset of the person, going to commit the suicide differs from person to person. If the room was not bolted from inside, it cannot be considered the incriminating circumstances against the appellant. Another circumstance, mentioned by the learned trial court, is that PW3 has admitted that when she reached to the matrimonial home of her daughter, accused were not there. This conduct of accused is also not indicative that they had committed the crime because residents of the house may flee out of fear also. 20. Learned trial court has given finding in the impugned judgment that appellant and deceased were residing in the same house, hence, the burden to prove the innocence was on the appellant in the light of Section 106 Indian Evidence Act. Learned trial court goes forward and applied the theory of last seen evidence in this case by stating that the appellant Rakesh had gone to his duty at 9:00 am and the dead body of the deceased was first seen hanging at 10:30 am. This duration was too short, hence, it was also the factor, pointing to the guilt of the appellant. 21. In our opinion, learned trial court has misread the provisions of Section 106 Indian Evidence Act. This duration was too short, hence, it was also the factor, pointing to the guilt of the appellant. 21. In our opinion, learned trial court has misread the provisions of Section 106 Indian Evidence Act. For invoking the provision of Section 106 Indian Evidence Act, it cannot be said that the appellant and deceased were residing in the same house but first of all the prosecution will have to prove the fact that at the time of commission of offence, the appellant was inside the house. Prosecution cannot escape from its liability to discharge its burden first. 22. Section 106 of Indian Evidence Act read as under: 1. FIR Ex.ka8 2. Written Report Ex.ka1 3. Recovery memo of Dupatta Ex.ka13 4. Recovery memo of Wedding card & Vyabhar Copy Ex.ka11 5. P.M. Report Ex.ka2 6. Panchayatnama Ex.ka3 7. Chalan Lash Ex.ka4 8. Charge sheet (Mool) Ex.ka12 9. Site plan with index Ex.ka10 106. Burden of proving fact especially within knowledge— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 23. The Karnataka High Court in Siddappa Vs. State of Karnataka 2022 LawSuit (Kar) 2541 this issue was discussed. It is held in the aforesaid case as under: “42. In the case of Gajanan Dashrath Kharate Vs. State of Maharashtra (supra), the murder of the father of the appellant was committed secretly inside the house. Pertaining to the facts of that case, in para.13 of the said judgment, the Hon'ble Apex Court was pleased to observe as below: "13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime." (emphasis supplied) 43. Thus, the initial burden of proving that, as on the date of the alleged incident, the accused was present in the house or was lastly seen with the deceased or that he was lastly in the company of the deceased at the time of the incident would be primarily upon the prosecution. Thus, it is observed in the above paragraph by the Hon'ble Apex Court that the initial burden to establish the case would undoubtedly be upon the prosecution. It is only when the prosecution discharges the said burden that the accused was found in the company of the deceased, the burden of proving the facts which are exclusively within the knowledge of the accused would fall upon him 24. Since the prosecution could not discharge its burden by proving the fact that at the time of alleged occurrence, the appellant was inside the house. Since the prosecution could not discharge its burden by proving the fact that at the time of alleged occurrence, the appellant was inside the house. Moreover, in this case three accused persons are convicted, namely, Rakesh, Shivram and Smt. Chhidana, if they all were inside the house then also the question arises as to who had committed the crime. Co-accused Shivram and Chhidana have passed away now and as discussed above it is not sufficient for prosecution to prove the fact that the deceased and appellant were residing together in the same house. No benefit can be given to prosecution if it fails to prove the fact that at the time of alleged occurrence, the appellant was inside the house. Hence, Section 106 Indian Evidence Act has no applicability in this case. 25. As far as the circumstantial evidence is concerned, there is no doubt that conviction can be based on the basis of circumstantial evidence but it should be tested on the touchstone of the law relating to circumstantial evidence. 26. The Hon’ble Apex Court in This Court in C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193 , para (21) held as under : "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of [pic]evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 27. After referring to a catena of cases based on circumstantial evidence in Shivu and Anr. vs. Registrar General, High Court of Karnataka & Anr., (2007) 4 SCC 713 , this Court held as under:- "12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. {See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99 ; Eradu v. State of Hyderabad( AIR 1956 SC 316 ), Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi(1985 (Supp.) SCC 79), Balwinder Singh v. State of Punjab(1987) 1 SCC 16 and Ashok Kumar Chatterjee [pic]v. State of M.P (1989 Supp. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt." 28. In Padala Veera Reddy v. State of A.P. and Ors., 1989 Supp. (2) SCC 706, it was laid down that in a case of circumstantial evidence such evidence must satisfy the following test:- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351 )." 29. In this case, in the absence of proving any fact regarding the demand of additional dowry, motive is not proved. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351 )." 29. In this case, in the absence of proving any fact regarding the demand of additional dowry, motive is not proved. It is also not proved that at the time of occurrence appellant Rakesh was inside the house as he has taken plea that he had gone to his duty at 9:00 am. In medical evidence also the time of death is not established. The chain of circumstances is not complete against the appellant. We are of the considered view that prosecution has not established its case beyond reasonable doubt against the appellant Rakesh and he is entitled to be given benefit of doubt and appeal is liable to be allowed. 30. Appellant-Rakesh is given benefit of doubt and appeal is allowed accordingly. 31. Conviction and sentence of appellant Rakesh u/s 302 r/w Section 34 IPC is hereby set aside and he is acquitted of all the aforesaid charges framed against him. He be set free forthwith if not wanted in any other case. 32. Record and proceedings be sent back to the court below.