JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Against the judgment of acquittal of Nirmal @ Mantu Mahto, Jamni Devi and Bhola Mahto passed in Sessions Trial No. 49 of 2004, the State of Jharkhand has filed this Acquittal Appeal under section 378(1) of the Code of Criminal Procedure. 2. Dugda PS Case No. 46 of 2002 was lodged on the basis of a written report given to the police on 23rd August 2002 by Shishu Mahto who is the father of Mundrika Devi. In his written report, the informant has stated that in the evening of 22nd August 2002 when he came back home, he found that around 05.00 PM Nirmal Mahto had come and left his daughter home. His daughter informed him that her husband was demanding Rs.20,000/-for business and after dropping her there he left saying that he would not come back. The informant has further stated that around 09.00 PM in the night Nirmal Mahto came back and demanded Rs.20,000/-from him and, on his request, he agreed to stay in the night. The informant left home for attending night duty at Madhuban Washery and when came back around 07:15 AM the next day morning his wife informed him that she heard some noises around 04.00 AM coming from the room of the daughter and around 05.00 AM Nirmal Mahto was seen sneaking out of the house. Though his wife offered him tea but he did not stop and left the house. Thereafter his wife started searching for the daughter but could not find her and when he came back home around 07.15 AM and started search for her with co-villagers the dead body of his daughter was found in the well. The informant suspected that on account of non-fulfillment of the demand of Rs.20,000/-and a CD player his daughter was killed by his son-in-law and her dead body was thrown in the well. 3. The dead body of Mundrika Devi was recovered from a well behind the house of Shishu Mahto in village Ratari and the postmortem examination report revealed abrasion around wrist, swelling on the head and two lacerated wounds on her head and forehead. He rendered an opinion that the injuries found on the dead body of Mundrika Devi were caused by hard and blunt object and she died of cardio-respiratory failure due to asphyxia caused by drowning associated with head injury. 4. Dr. Ratneshwar Pd. He rendered an opinion that the injuries found on the dead body of Mundrika Devi were caused by hard and blunt object and she died of cardio-respiratory failure due to asphyxia caused by drowning associated with head injury. 4. Dr. Ratneshwar Pd. Verma conducted an autopsy at around 04:30 PM on 23rd August 2002 and found the following antemortem injuries on the dead body of Mundrika Devi: “(i) lacerated wound of size 2” x 1/2” bone deep in right side of anterior part of the head. (ii) abrasion of size 1/2” x 1/4” in back of right elbow. (iii) abrasion 1/2” x 1/4” in back side of left forearm near wrist. (iv) swelling of size 3” x 2 1/2” in right side of the head. (v) lacerated wound of size 1”x 1/4” skin deep in right side of forehead.” 5. After the investigation, a charge-sheet was laid in the Court against Nirmal Mahto, Jamni Devi and Bhola Mahto under sections 304-B and 120-B of the Indian Penal Code. However, the trial Judge having found sufficient materials against them framed a common charge under sections 304-B/34, 302/34, 498-A/34, 120-B of the Indian Penal Code, and sections 3 & 4 of the Dowry Prohibition Act by an order dated 15th May 2004. The aforesaid charges were explained to them by the trial Judge and they pleaded not guilty and claimed to be tried. 6. Thirteen witnesses came in the dock to prove the aforesaid charges against the accused. The prosecution has laid in the evidence signature of Shishu Mahto over the written report vide Ext.1, signature of Shishu Mahto over the inquest report vide Ext.2, post-mortem report vide Ext.3, formal FIR vide Ext.4, written report vide Ext.5, inquest report vide Ext.6 and case diary vide Ext.7 to lay further support to the charges framed against the accused. On the other hand, the accused set up a defence that in the night the deceased accidentally slipped in the well and suffered injuries, and to demonstrate that the accused are well-of having good business and there was no demand of dowry, Ledger pertaining to the business was produced which was marked 'X'. 7. On the other hand, the accused set up a defence that in the night the deceased accidentally slipped in the well and suffered injuries, and to demonstrate that the accused are well-of having good business and there was no demand of dowry, Ledger pertaining to the business was produced which was marked 'X'. 7. The evidence of Bhikhani Devi who in the early hours of 23rd August 2002 found Nirmal Mahto leaving the house has been disbelieved by the trial Judge on the ground that it is contrary to human conduct that the accused after committing murder and throwing the dead body in the well would again come back in the same house, stay there in the night, and leave the house early morning. The charge under section 498-A of the Indian Penal Code has been found not proved as the prosecution failed to adduce clinching evidence to establish that there was a demand for dowry and that the deceased was harassed by the accused persons in connection to the demand of dowry. Similarly, the charge under sections 3 & 4 of the Dowry Prohibition Act has also failed. As regards the charge under section 304-B of the Indian Penal Code, the trial Judge has rendered an opinion that merely because Mundrika Devi died an unnatural death within 7 years of her marriage is not sufficient to prove the said charge and, that, the prosecution was not able to rule out the possibility of accidental or suicidal death of Mundrika Devi. 8. Based on the aforesaid findings, Nirmal Mahto, Jamni Devi and Bhola Mahto have been acquitted of the charges framed against them in Sessions Trial No. 49 of 2004. 9. The trial Judge has made the following discussions on the aforementioned aspects of the case: “9. In case in hand prosecution claimed that on 22.08.02 accused Jamni Devi came with accused Nirmal Mahto and on way to the parental house of the deceased she alighted at Amratand and that accused Bhola Mahto visited accused Nirmal Mahto and spoke to him for half an hour at the in-law's house of later. The aforesaid two facts, firstly could not be established beyond doubt by the prosecution. There is no witness on file who have seen the mother-in-law Jamni Devi coming with the accused Nirmal Mahto. The aforesaid two facts, firstly could not be established beyond doubt by the prosecution. There is no witness on file who have seen the mother-in-law Jamni Devi coming with the accused Nirmal Mahto. Regarding the fact that she went back with Nirmal Mahto although PW-8 Tejlal Mahto, brother of the deceased has testified that while returning from his Sasural he met Nirmal Mahto and Nirmal's mother on scooter but evidence of PW-8 is also showing that his wife (PW-1) was also with him and PW-1 Manju Devi, his wife is silent in chief-examination about presence of mother-in-law and in cross-examination by defence she categorically deposed that she is not recollecting whether any one met her on the way of her arrival back from her maternal house as she was perturbed at that time. Secondly PW-9 Shanti Devi, in her evidence testified that in that night she, on awaking saw three persons near the well. She is not speaking about the presence of any lady though accused Jamni Devi and deceased both are woman. Regarding arrival of accused Bhola Mahto to the parental house of the deceased on relevant day it is only the solitary evidence of PW-2 Bhikhani Devi. It is strange that expect PW-2 none else from her family have stated that he has seen accused Bhola Mahto coming to the house of the deceased PW-2 too in chief-examination is silent about arrival of Bhola and she only in cross-examination by defence deposed that Bhola come at 10 or 11 P.M. at 10 or 11 P.M the father of the deceased ought to have been at house as he, as per his evidence arrived to house, on the that day at 9 P.M but the father is totally silent about arrival of Bhola Mahto to his house. The evidence adduced by the defence is showing that on relevant day Bhola and Jamni Devi were at Deoghar and it is not only the bald oral evidence of the defence but the Bahi of the Panda who performed the Mundan Sanskar of son of accused Bhola is also showing presence of accused Bhola and Bhola's mother-in-law (accused Jamni) at Deoghar temple in that night. The prosecution thus could not be able to establish by convincing evidence the facts asserted by it that accused Jamni Devi came with accused Nirmal Mahto or that accused Bhola visited Nirmal Mahto when the later was at the house of his in-laws. Further even if these two facts, on the basis of infirm and inadequate evidence of prosecution is assumed to be correct despite that there is, no evidence about their participation in action or to show that there was a plan or meeting of mind for committing murder so accused Jamni Devi and Bhola Mahto deserve acquittal as far as offence u/s 302/34, 201/34 and 120(B) of the I.P.C. 10. Now turning to the alleged the culpability of accused Nirmal Mahto for the offence u/s 302 1.P.C, 201 or u/s 120(8) I.P.C I find that for the offence u/s 120(B) I.P.C meeting of mind is the foremost requirement and for meeting of mind at least two persons is needed. I have already found that accused Bhola Mahta and Jamni Devi has not been proved the conspirator or sharer of the common intention or there was no prior meeting of mind of them with accused Nirmal Mahto so accused Nirmal Mahto also deserve acquittal for the offence u/s 120(B) I.P.C.” 10. Six prosecution witnesses who are sister-in-law, niece, brother, cousin sister, mother and father of the deceased tendered evidence on the demand of dowry and harassment and torture of the deceased in her matrimonial home. All these prosecution witnesses are related to Mundrika Devi but their relationship cannot be a ground to doubt their credibility. This is the law settled by the Hon'ble Supreme Court [Sucha Singh v. State of Punjab, (2003) 7 SCC 643 ] that merely because a witness is a close relative that by itself is not enough to reject his testimony, if it is otherwise credible. In Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 the Hon'ble Supreme Court has observed that the evidence of an interested witness does not suffer from any infirmity as such but it is required as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Having this rule of caution in our mind, we would not examine what the witnesses have said in the Court. 11. Having this rule of caution in our mind, we would not examine what the witnesses have said in the Court. 11. PW1 Manju Devi is the sister-in-law of the deceased who has deposed in the Court that Mundrika Devi and her husband came to village Ratari on the occasion of Raksha Bandhan and stayed together in the night. She admits that in the night she was not in village Ratari and had gone to her parent's place and when she came back her mother-in-law Bighni Devi told her the entire episode. She has stated in the Court that the husband and mother-in-law of Mundrika Devi were demanding Rs.20,000/-and a CD player, about which she could know from her sister-in-law. She has given a detailed description of the house and, according to her testimony, there are three rooms on the upper floor and a well was about 10-12 yards behind the house. She has stated in the Court that she was not in a proper frame of mind and, seems to retort in anguish to a defence suggestion, that she could not have made any enquiry from the neighbors at that time. 12. PW2 Bhikhani Devi, who is mother of the deceased, has been projected as a prime witness for the prosecution. She deposed in the Court that jewelry, house-hold articles and Rs.70,000/-were given in dowry but immediately thereafter Nirmal Mahto made further demands of Rs.20,000/-and a CD player. This is her specific evidence that Nirmal Mahto would ask her daughter also to get dowry from her parents. According to PW2, Nirmal Mahto brought her daughter on the occasion of Raksha Bandhan and stayed in the night and slept in the upper floor room. On that night, her son had left for his in-laws' village to bring his wife back home and her husband had left for night shift duty at Madhuban Colliery and she slept in a room on the ground floor. She has further stated that on hearing some murmuring she woke up around 03:00 AM-04:00 AM and found Nirmal Mahto leaving the house. She asked him for tea but he did not wait and left the house. She then went to the room of her daughter but she was not in the room and found the door of the house towards Bari open. She asked him for tea but he did not wait and left the house. She then went to the room of her daughter but she was not in the room and found the door of the house towards Bari open. She narrated these incidents to her husband when he came back from duty around 7:00 AM the next day. 13. For a better appreciation of the evidence of Bhikhani Devi, her deposition in the Court given as PW2 is extracted in full herein-below: English Translation: “1. My daughter’s name was Mundrika @ Sumitra. She was married with Nirmal Mahto two years ago in the month of Baisakh. Dowry was given in the marriage including Rs. 70,000/-cash, jewellery, utensils, almirah etc. 2. She went to her matrimonial house after the marriage. Immediately thereafter, demand of Rs. 20,000/-and a C.D started. The nick name of son-in-law was Mantu. Demand was made by Mantu and his mother from me. 3. They asked my daughter to demand from the parents. We could not meet the demand. We also could not fulfill the last demand. 4. My daughter came three times after the marriage. Once after the marriage and second time on 16th day after marriage as per custom. He took her away on Rath Dwitiya and my son-in-law returned with her on a Scooter at the time of Raksha Bandhan. He also brought his mother. His mother stayed at his sister’s house situated at Amratand. This village is adjacent to my village. 5. My daughter and son-in-law came. My daughter told that he was demanding Rs. 20,000/-and a C.D. otherwise he would not bring her back. My daughter narrated the entire story to Penia, the daughter of my Bhaisur (elder brother of husband). She started weeping holding her. She told Penia that upon not fulfilling demand of Rs. 20,000/- and a C.D., her husband would not take her back to his house. She further told Penia that it was better to be unmarried than to face day-to-day torture. My daughter Mundrika as well as Penia revealed these facts to me. 6. My son-in-law had brought my daughter in the evening. The occurrence took place on Raksha Bandhan which was 2nd occasion prior to the concerned one. 7. My daughter and son-in-law stayed at my home at night and had dinner. They stayed in a room on upper floor. My daughter Mundrika as well as Penia revealed these facts to me. 6. My son-in-law had brought my daughter in the evening. The occurrence took place on Raksha Bandhan which was 2nd occasion prior to the concerned one. 7. My daughter and son-in-law stayed at my home at night and had dinner. They stayed in a room on upper floor. My son had gone to his matrimonial house at that night accompanying his wife. My husband went on duty at Madhuban Colliery on that night. I slept in my room on the ground floor. 8. There are two exits in my house, one at the front side and another at the back side. The main door was locked. I woke up at 3:00-4:00 AM. My son-in-law murmured a few words. I unlocked Kulhi side. My son-in-law started to leave. I requested him to stay for taking tea, but he did not stay and left. I asked when he would take Mundrika, he said that she has stayed back. I did not find Mundrika. I went to her room but she was not there. The door was open towards Bari. 9. My husband returned at 7:00 AM after discharging his duties, I narrated entire facts to him. We began to search for the daughter. We sent Penia to Amratand. She came back and narrated that cousin sister of son-in-law asked her to look into the well. She came weeping. A large number of villagers assembled there. The villagers searched the well as told by Penia. The dead body of my daughter was taken out with help of Jhaggar. By then my husband came there. 10. My son-in-law is not present today. Bhola is present in the Court today. He is brother-in-law of Nirmal. 11. Nirmal came in the evening and Bhola came to meet him on the same night. He came when my husband left the place. He came at 10:00-11:00 PM. 12. I had seen the dead body. x x x 13. Mundrika studied upto Class-V or VI. She never wrote a letter. She did not use to write a letter. 14. No one told me that she was being tortured in her matrimonial house. Herself:-The girl herself narrated this fact. 15. Nirmal Mahto never made any demand himself from me. He always used to put pressure on my daughter and made demands. His mother also used to make demands. She did not use to write a letter. 14. No one told me that she was being tortured in her matrimonial house. Herself:-The girl herself narrated this fact. 15. Nirmal Mahto never made any demand himself from me. He always used to put pressure on my daughter and made demands. His mother also used to make demands. 16. The distance of Khetko from Ratari may be 5-6 mile (kos). Nirmal brought Mundrika as per his will. Earlier she went to bring her but she was not allowed to return. 17. Nirmal Mahto, being my son-in-law never paid obeisance by touching my leg. He had never brought sweets etc. 18. I was not able to know anything on looking at the boy and girl (daughter and son-in-law). Herself, the girl was not willing to come but he (Nirmal Mahto) brought her forcefully. 19. I had not informed the Mukhiya about the matter related to demand. 20. I heard the murmuring (xaqqjeqaj ) of the boy at 3:00 AM. I did not go there. I did not go there as they are my daughter and son-in-law. 21. I told before the Daroga that Mundrika told Penia that he used to quarrel every day. I had also stated that Penia asked to look into the well. 22. My husband Shishu Mahto had gone for her Bidai on two occasions, once at the time of Solwa and thereafter in the month of Asadh. Earlier my daughter had not informed her father. 23. This is not true that we implicated accused persons in a false case. It is not a matter of fact that my daughter committed suicide. It is not a matter of fact that I have given false evidence on the direction of my husband.” 14. PW3 Penia Devi is cousin sister of the deceased whose matrimonial home is in a nearby village. She has stated in the Court that on Shrawan Purnima day she was at the house of Shishu Mahto. On that day, around 05.00 PM, Mantu (Nirmal Mahto) and Mundrika came on a scooter and he left asking her sister to get Rs. 20,000/-and a CD player from her parents. She has stated in the Court that on Shrawan Purnima day she was at the house of Shishu Mahto. On that day, around 05.00 PM, Mantu (Nirmal Mahto) and Mundrika came on a scooter and he left asking her sister to get Rs. 20,000/-and a CD player from her parents. She has stated that after dropping Mundrika Devi there, when Nirmal Mahto was leaving, she asked him to wait till his parents-in-law come back home but he left and, that, around the time of Azaan the next day morning she saw Nirmal Mahto going on a scooter. She has further stated that in search for her sister she had gone to Amratand where the wife of Bhola Mahto suggested her to search for Mundrika also in the well. This is also her evidence that, after Nirmal Mahto left, Mundrika Devi hugged her and started weeping and told her that she was being harassed in her matrimonial home for money and a CD player. 15. The testimony of PW3 given in the Court is extracted in full herein-below: English Translation “1. My maternal house (Naihar) is in Katari. Mundrika is my cousin sister. This occurrence took place on Sawan-Purnima, Raksha Bandhan. It will be three years of the occurrence on the next Raksha Bandhan. On that day, I was at the doors of Shishu Mahto (Uncle) around 5:00 O'clock. 2. At that time, Mantu and Mundrika came on a Scooter. The name of husband of Mundrika is Mantu. He is present in the dock today. I identify him. 3. At that time, Mantu left Mundrika there and demanded Rs. 20,000/-and a C.D. from her. He said her to get it from her parents. Mantu also threatened that he would not come to her house if the demand of cash and a C.D. is fulfilled. Saying this, he began to move away. I asked him to wait at home till mother-in-law and father-in-law come. Mantu said that he would not wait as his mother had also come and she is in Amratand locality so he would go there. Amratand is very close to my maternal house (Naihar) i.e. less than one mile (kos). Mantu said that he would not come back again. Saying this, he went away. 4. After he left, Mundrika held me and began to weep. Amratand is very close to my maternal house (Naihar) i.e. less than one mile (kos). Mantu said that he would not come back again. Saying this, he went away. 4. After he left, Mundrika held me and began to weep. I asked her you have not completed even three months of your marriage so why you are so sad and weeping. She told me that all used to torture her in her matrimonial house and sent her for grazing buffalos. They used to ask her to bring money and a C.D. Her husband and mother-in-law used to make demand. She also said that it would have been better if she was married in a poor family. It was wrong decision to marry to a rich person. 5. She also told me that she (Mundrika) was not willing to come. They brought her to her maternal house forcefully. Her mother-in-law snatched cloths and briefcase. She told her mother-in-law that her brother had gone to his in-law's house so (why are you taking me there) whom I would tie Rakhi. 6. Mundrika was my cousin sister. She was my contemporary. We were very close. 7. I went to my maternal house in the evening. My father's house is in neighbourhood. 8. Next morning at the time of Azaan, I came out with my child to help him attending the nature call and I saw that Mantu was going on a Scooter. I inquired from him how did he come back whereas he wanted not to come? He did not reply and went away. Thereafter, I went to my house. 9. About 7:00 O'clock, my aunt (Mundrika's mother) came to me. She took me to her home. She said that Mundrika was missing. She told Akali Devi and me to search her. We went to Amratand. Mantu's cousin sister lives there. After reaching there, I asked Bhola's wife who is Mantu's cousin sister, whether both mother and son are still there or have they left. She said that they have just left. We told her that we are looking for Mundrika but are not able to find her and inquired from her whether she has come here? Then she asked to search in the well. 10. We returned from there. There was a crowd. I said in the crowd that she asked us to search her in the well. We told her that we are looking for Mundrika but are not able to find her and inquired from her whether she has come here? Then she asked to search in the well. 10. We returned from there. There was a crowd. I said in the crowd that she asked us to search her in the well. When the people of the village put Jhaggar in the well, Mundrika's body was found. She had already died. Her dead body was taken out. 11. Two persons are present today. One is Mantu and I do not identify another. The witness does not identify Bhola Mahto. X X X 12. I was married before Mundrika. I was married about 15 years ago. I do not have any child. I always visit my parent's house. 13. I was present in the marriage of Mundrika. Mundrika has three sisters and one brother. Mundrika was the youngest. Her marriage was solemnized well. It was solemnized in the house. She went to her matrimonial house after the marriage. I meet her at the time of marriage and thereafter in the Raksha Bandhan itself. I had come to tie Rakhi to my brother on the day of Raksha Bandhan itself. 14. No one was present in the house when I reached there. They had gone to sow paddy in the field. I met the parents of Mundrika in the evening at about 6:00 P.M. I had not have conversation with the parents of Mundrika before that. 15. I am unable to tell as to how many times Mundrika came to her paternal house after the marriage because I was in my matrimonial house. I am unable to say as to how Mundrika was leading her life in her matrimonial house. I came to know about it when she returned and narrated the same to me. 16. My statement was not recorded. The police had not inquired me. 17. Mundrika was my younger sister. She came to tie Rakhi. 18. I am giving true statement. It is not a matter of fact that I am giving false statement. It is true that I met Mundrika and she narrated all facts to me. 19. This well is in front of the house of Shishu Mahto. 20. It is not a matter of fact that Mundrika jumped herself and died.” 16. 18. I am giving true statement. It is not a matter of fact that I am giving false statement. It is true that I met Mundrika and she narrated all facts to me. 19. This well is in front of the house of Shishu Mahto. 20. It is not a matter of fact that Mundrika jumped herself and died.” 16. As PW4, niece of the deceased has also deposed about harassment of Mundrika Devi in her matrimonial home. This witness was about 12 years of age when she was deposing in the Court. The trial Judge put questions to her to ascertain her maturity and she indicated in her examination-in-chief that she was studying in an English medium school and knows Hindi and English languages very well. Goddard, J. [Mohamed Sugal Esa Mamasan Rer Alalah v. King, AIR 1946 PC 3 ] once said that any Judge would not accept as a witness a person whom he considers incapable of understanding the nature of an oath and the necessity of speaking the truth when examined as a witness. Section 118 of the Indian Evidence Act makes it very clear that by reason of tender age a witness is not rendered incompetent to give evidence and it is for the Court to form an opinion whether a child witness is capable of understanding the questions put to him. PW4 has narrated the incident in the house of the accused which happened in her presence, when she had gone there about 16 days after the marriage of Mundrika Devi. 17. PW5 and PW6 are co-villagers of the informant who were present in the village when the dead body of Mundrika Devi was recovered from the well. They have deposed in the Court that they have seen black marks over the wrist and neck of Mundrika Devi and her hands were tied. PW7, PW9, PW10 and PW11 are also co-villagers of the informant who have however not stated anything incriminating against the accused. PW9 has said that in the morning she saw three unidentified persons near the well. PW10 has stated about the wife of Shishu Mahto telling him that her daughter was murdered on account of non-fulfillment of demand for a dowry of Rs.20,000/-and CD player. PW11 is another witness who was also present there when the dead body of Mundrika Devi was drawn from the well. PW10 has stated about the wife of Shishu Mahto telling him that her daughter was murdered on account of non-fulfillment of demand for a dowry of Rs.20,000/-and CD player. PW11 is another witness who was also present there when the dead body of Mundrika Devi was drawn from the well. PW8 is brother of the deceased who was not at home in the night of nd August 2002 and admits in the Court that his deposition is based on the information gathered on inquiry. PW12 who is father of the deceased has spoken extensively about the demand of dowry and stated in the Court that on 22nd August 2002 he had a talk with his daughter and son-in-law and, that, Nirmal Mahto made demands of Rs. 20,000/-and a CD player from him. 18. The learned counsel for the accused has contended that there are inconsistencies and omissions in the testimony of prosecution witnesses on important aspects of the case, such as, presence of PW3 and PW12 in the evening of 22nd August 2002 and also presence of Nirmal Mahto in the house of the informant in the said night. The conduct of PW2 who gave evidence to the effect that in the early morning of 23rd August 2002 around 03.00-04.00 AM she woke up on hearing murmuring of her son-in-law has been criticized on the ground that she did not bother to go inside the room nor did she raise any hulla or enquired from her neighbors when she did not find her daughter in the room. On the other hand, Mrs. Vandana Bharti, the learned APP has contended that minor contradictions, inconsistencies, embellishments or improvements in the testimony of a witness on trivial matters which do not affect the core of the prosecution case should not be made a ground to reject his evidence in its entirety. Indeed, it is not possible and may be impracticable to lay down any norm or formulate a law to test credit-worthiness of a witness. In Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 the Hon'ble Supreme Court has observed that a witness may be (i) wholly reliable (ii) wholly unreliable or (iii) neither wholly reliable nor wholly unreliable. In Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 the Hon'ble Supreme Court has observed that a witness may be (i) wholly reliable (ii) wholly unreliable or (iii) neither wholly reliable nor wholly unreliable. A wholly reliable witness whom we sometimes refer as a sterling witness is the one who has tendered such evidence that the Court without any hesitation can accept for its face value. In our opinion, there is no discrepancy, contradiction, omission, etc. in the testimony of PW2 of such magnitude that would materially affect her evidence in the Court. 19. A mother who was perplexed by the unusual conduct of her son-in-law that he was trying to leave in the wee hours without informing her and when found that her daughter was not in her room might have thought to wait for her husband, who was expected to come home soon. She also must have been in a state of shock when she found the dead body of her daughter soon thereafter. Now two years thereafter, when she was deposing in the Court, she may not remember some minor and insignificant incidents of 22nd/23rd August 2002. She is a truthful witness who has simply narrated the incidents of the fateful night and truth seems to be flowing in her testimony. Her version of the occurrence on the core spectrum of the case remains intact and she has withstood the rigors of cross-examination. There is no cross-examination of PW2 by the defence in respect of her statement that her daughter was seen alive last in the company of Nirmal Mahto and this evidence on last seen together has remained intact. The cross-examination of PW2 is spread over 11 small paragraphs and the same is confined primarily to demands of dowry and harassment of Mundrika Devi by the accused. This is quite a settled position in law that in similar situations different persons may react differently and merely because conduct of a witness may appear unnatural his testimony cannot be discarded. Therefore, what is required to be seen is that whether there is a plausible and acceptable explanation for the impugned conduct of the witness and if his testimony inspires confidence the Court can act upon his evidence without hesitation. Therefore, what is required to be seen is that whether there is a plausible and acceptable explanation for the impugned conduct of the witness and if his testimony inspires confidence the Court can act upon his evidence without hesitation. Bhikhani Devi admitted in the cross-examination that she did not go to the room of her daughter but in the same breath she seems to explain that she did not go there because her daughter was with husband in the room. This conduct of PW2 was not at all unnatural and her cross-examination as appearing in paragraph no. 20 seems to be a desperate attempt by the defence to discredit her. She was sleeping on the ground floor and might not have heard loud noises and that is the reason she says that she heard some murmuring which was perhaps not sufficient to suspect any foul play. Secondly, this is an accepted behavioral pattern of an elderly women in the society that she would not go inside the room in which young couple were sleeping. The inconsistency in the testimony of Bhikhani Devi sought to be projected by the trial Judge is a figment of his imagination and not real. 20. The presence of PW3 at the house of the informant in the evening of 22nd August 2002 has been challenged on the ground that she is a married woman and she admitted in her cross-examination that she could meet Mundrika Devi for the first time on the occasion of Raksha Bandhan after her marriage. There was an attempt by the defence to discredit her on the ground that she was a chance witness who has failed to establish her presence at the house of the informant in the evening of 22nd August 2002. Not only there is no law of universal application that evidence of a chance witness cannot be accepted, PW3 seems to have offered a plausible explanation for her presence on that evening at the house of the informant. She has stated that it was the occasion of Raksha Bandhan and her matrimonial home is in a nearby village and, in the evening, she had gone back to her home. Furthermore, her evidence that at the time of Azaan in the morning of 23rd August 2002 she had noticed Mantu (Nirmal Mahto) going on a scooter has not even been challenged by the defence. Furthermore, her evidence that at the time of Azaan in the morning of 23rd August 2002 she had noticed Mantu (Nirmal Mahto) going on a scooter has not even been challenged by the defence. The trial Judge has however disbelieved her testimony on the ground that Azaan is performed around 05.00 AM and Nirmal Mahto was seen by PW2 leaving her home around 03:00 AM–04.00 AM. Such a view of the trial Judge is least to say hypothetical and an irrational way of scrutinizing the evidence of a witness. 21. The prosecution case against Nirmal Mahto is primarily based on the evidence of PW2 that he came with her daughter on the occasion of Raksha Bandhan in the evening of 22nd August 2002 and stayed there in her house in night. There are other prosecution witnesses who have tendered evidence in support of the prosecution case on other vital aspects of the case, such as, demand of dowry and the deceased narrating her miseries in her matrimonial home before them. However, this is the evidence of PW2 on the deceased last seen alive with Nirmal Mahto which if found cogent, consistent and creditworthy the same would be highly incriminating material against him. 22. In Nizam v. State of Rajasthan, (2016) 1 SCC 550 the Hon'ble Supreme Court has held as under: “14........Undoubtedly, the “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.” 23. The circumstance of last seen together would be clinching if there is evidence, direct or circumstantial, that the victim was last seen alive with the accused and there are other independent incriminating circumstances available on record which the accused has failed to explain satisfactorily and all taken together complete the chain of circumstances to draw a conclusive inference that the accused is guilty. PW2 has deposed in the Court that her daughter and son-in-law stayed in her house in night and after taking dinner they went to sleep in a room on the upper floor of the house. She has further stated that she woke up in the night around 03.00-04.00 AM on hearing some noise of her son-in-law and then saw him trying to sneak out of the house from the backdoor and within few hours the dead body of her daughter was found in the well. As PW13, Dr. Ratneshwar Pd. Verma has tendered evidence that on external examination of the dead body, he found rigor mortis present in all forelimbs; eyes closed; pupils dilated; mouth closed; lips closed; tongue on the oral cavity and; hands partially closed. He has found blood stains on the scalp and face; froth at the nostrils; watery discharge from the nostrils with increased volume on pressing the chest and; soil and sand particles on the different parts of the body. He has also observed froth and fluid including particles of sand in the congested mucus membrane; pericardium, peritoneum, spleen, and kidney congested; lungs distended which protruded when sternum was removed; heavy oedematose of lungs which pitted on pressure and; a large quantity of floaty blood started flowing on suction. This is also the observation of PW13 that the left side of heart was empty but the right side contained dark-colored liquid blood; the small intestine contained digested food, fluid and gas and; the liver was congested and swollen. 24. According to the learned counsel for the respondents, Mundrika Devi died due to suicidal or accidental drowning and this cause of her death stands corroborated by the findings of PW13 inasmuch as her stomach was full of water, digested food materials, mud and soil particles. This argument has been advanced on the ground that a dead person shall not swallow water, mud or soil particles and the presence thereof establishes struggle by the person alive. However, the observations of PW13 regarding presence of injuries over the dead body two of which are serious lacerated wounds tell a different story. The lacerated wound over right anterior side of the head of the size 2”X1/2” which was bone deep and another lacerated wound over right side of forehead of the size of 1”X1/4” could not have been caused by a simple fall in the well. The lacerated wound over right anterior side of the head of the size 2”X1/2” which was bone deep and another lacerated wound over right side of forehead of the size of 1”X1/4” could not have been caused by a simple fall in the well. There was abrasion on the back side of the left forearm and swelling on the right side of head of the size of 3”X2½” on the dead body. Presumably to a suggestion by the defence that Mundrika Devi suffered these injuries due to a fall on earth, PW13 has explained that such injures may be caused due to several falls on the earth. 25. From the evidence of PW13, this is quite apparent that Mundrika Devi suffered violent assaults in the night of 23rd August 2002 but she was alive before her dead body was thrown in the well. The observation of the trial Judge that the prosecution has failed to remove the doubt that Mundrika Devi died on account of accidental or suicidal death is a kind of conjecture and contrary to the rules of evidence. Rather, in the circumstances of the case it was for the accused to explain how his wife suffered such injuries. 26. The proof of motive constitutes a link in the chain of circumstances inasmuch as clear motive for the crime lends additional support to the prosecution. There is clear evidence on record which indicates motive for the murder. PW3 and PW12 have given direct evidence against Nirmal Mahto on demand of dowry. A hint of harassment of Mundrika Devi in her matrimonial home is also found in the testimony of PW4. The evidence of PW1, PW2 and PW8 on demand of dowry from Mundrika Devi and her harassment in connection therewith is also usable by the prosecution to the extent their evidence is relied upon by the prosecution to establish the factum of demand of dowry and harassment of Mundrika Devi. Against Nirmal Mahto, PW3 and PW12 have tendered direct evidence on demand of dowry and harassment of Mundrika Devi and their evidence is corroborated by PW1, PW2, PW4 and PW8. According to the learned counsel for the accused, there is serious infirmity in the prosecution case inasmuch as the investigating officer of this case was not examined. However, no prejudice was caused to the accused for that reason. According to the learned counsel for the accused, there is serious infirmity in the prosecution case inasmuch as the investigating officer of this case was not examined. However, no prejudice was caused to the accused for that reason. In the face of the testimony of PW2 and PW3 and other prosecution witnesses, non-examination of the Investigating Officer was at best a formal defect in the trial more particularly because there is no cross-examination of the witnesses with respect to their statements made before the police. There is no universal law that in every case in which the investigating officer has not been examined ipso facto prejudice would be caused to the accused person. On non-examination of the investigating officer, the following observations of the Hon’ble Supreme Court in Behari Prasad v. State of Bihar, (1996) 2 SCC 317 make the law on the subject very clear: “23.............We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial...........” 27. The law on circumstantial evidence has crystallized through a long line of judgments of the Hon'ble Supreme Court that conviction can be recorded on the basis of circumstantial evidence but great care must be taken in evaluating the evidence to find that the circumstances from which conclusion of the guilt is to be drawn are conclusive in nature and fully established. What is popularly known as Hodge's Rule [Reg v Hodge, (1838) 2 Lewin 227 : 168 ER 1136] that before convicting a person on the basis of circumstantial evidence the jury must be satisfied not only that the evidence is consistent with the guilt of the person but is also inconsistent with any other rational inference on innocence of the accused seems to have received a nod from the Courts in India. In Gambhir v. State of Maharashtra, (1982) 2 SCC 351 the Hon'ble Supreme Court laid down triple test for examining the circumstantial evidence relied upon against an accused, as under: “9......When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (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. 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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.....” 28. The evidence of last seen together has been proved and there are other independent evidence to corroborate the theory of last seen together. As we have seen, the prosecution witnesses who are villagers have given testimony in a simple and natural way. They had no enmity with the accused and Nirmal Mahto who is the son-in-law could not have been implicated by the informant by making false allegations against him. The prosecution witnesses have not tendered evidence merely on suspicion, and the possibility of Mundrika Devi committing suicide or falling accidentally in the well and dying by downing are ruled out. This is common knowledge that if water enters the airways of a conscious person, he may often take more water involuntarily. In most cases of unconsciousness, water may enter the lungs and this symptom is considered in forensic pathology a sign that the person was still alive at the point of drowning in the water. The medical jurisprudence is also unanimous in the opinion that bulky oedematose which exude copious and frothy blood-stained fluid can be detected in the lungs in antemortem drowning and there may be water, mud or weeds including diatoms in stomach and intestine. This is also common in accidental drowning that there may be some injuries on the dead body but marks of violence would be distinctly absent. 29. This is also common in accidental drowning that there may be some injuries on the dead body but marks of violence would be distinctly absent. 29. In Jayantilal Verma v. State of M.P. (Now Chhattisgarh), (2021) 12 SCC 71 a wife was found dead in her matrimonial home and the medical evidence was not conclusive whether the strangulation was homicidal or suicidal. The Hon'ble Supreme Court has held that it was an obligation on the accused to give a plausible explanation regarding the cause of death in the statement recorded under section 313 of the Code of Criminal Procedure and mere denial could not be the answer in such a situation. The Hon'ble Supreme Court has observed as under: “25. We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime. Trimukh Maroti Kirkan v. State of Maharashtra (supra). The appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under section 313 of the Cr.P.C., 1973 and mere denial could not be the answer in such a situation.” 30. In Sessions Trial No. 49 of 2004, a common charge under sections 304-B/34, 302/34, 498-A/34, 120-B of the Indian Penal Code, and sections 3 & 4 of the Dowry Prohibition Act was framed against Nirmal Mahto, Bhola Mahto and Jamni Devi. The incident narrated by PW4 was more than two months before the death of Mundrika Devi. PW1, PW2, PW4 and PW8 are also almost silent about the time when Mundrika Devi informed them about the demands of Rs.20,000/-and a CD player by the accused. The incident narrated by PW4 was more than two months before the death of Mundrika Devi. PW1, PW2, PW4 and PW8 are also almost silent about the time when Mundrika Devi informed them about the demands of Rs.20,000/-and a CD player by the accused. Section 32(1) of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Except for the statements made by PW3 and PW12, the evidence of other witnesses does not relate to any cause of or any circumstance of the transaction relating to the cause of death of Mundrika Devi and whatever these witnesses have said about the demand of dowry and harassment are not saved under section 32(1). 31. On hearsay evidence, Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 elucidates the law on the subject, thus: “Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made.” 32. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made.” 32. Therefore, the story of the demand of dowry from Mundrika Devi as narrated by PW1, PW2, PW4 and PW8 is not saved under section 32(1) of the Evidence Act as the incident of demand of dowry and harassment of Mundrika Devi in connection therewith as described by them was not simultaneous to or immediately before her death. Notwithstanding that, their statements are admissible to the extent to establish that Mundrika Devi made such statement before them. The testimony of PW1, PW2, PW4 and PW8 shall be hearsay as truthfulness of the statement made by Mundrika Devi before them cannot be tested, but their evidence is not altogether worthless and is usable by the prosecution to support PW3 and PW12 who have stated in the Court that the demand of dowry was made by Nirmal Mahto in their presence. 33. Explanation (b) to section 498-A of the Indian Penal Code provides that “cruelty” means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand. Section 498-A of the Indian Penal Code was inserted by the Criminal Law (Second Amendment) Act, 1983 which is a reflection of the pressing needs of the society to stop all sorts of cruelty towards a married woman. In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619 the Hon'ble Supreme Court has held that in a given case mental torture would be a case of cruelty and harassment. The prosecution which produced direct evidence against Nirmal Mahto through PW3 and PW12 on demand of dowry is therefore supported by sufficient evidence to prove the offence under section 498-A of the Indian Penal Code against him. Since the prosecution has laid sufficient materials to establish a prima-facie case against Nirmal Mahto now by operation of section 106 of the Indian Evidence Act onus would be upon him, to demonstrate from the prosecution evidence or by leading independent evidence that he was not involved in the murder of his wife. Since the prosecution has laid sufficient materials to establish a prima-facie case against Nirmal Mahto now by operation of section 106 of the Indian Evidence Act onus would be upon him, to demonstrate from the prosecution evidence or by leading independent evidence that he was not involved in the murder of his wife. Else, an inference under section 106 of the Indian Evidence Act has to be drawn against him that he is the person who has committed murder of Mundrika Devi. The provisions of section 106 lay down that when any fact is especially within the knowledge of a person the burden of proving that fact is upon him. 34. In our opinion, the prosecution discharged its burden by leading evidence against Nirmal Mahto and the onus had shifted on Nirmal Mahto to offer a plausible and acceptable explanation of how the dead body of Mundrika Devi was found with serious injuries. In his examination under section 313 of the Code of Criminal Procedure, Nirmal Mahto denied every incriminating material put to him and offered a false explanation to the cause of death of his wife. Mrs. Vandana Bharti, the learned APP has rightly contended that Nirmal Mahto must be held guilty for the murder of Mundrika Devi. 35. The learned APP has referred to State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 wherein the Hon'ble Supreme Court has held as under: “23.......The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in re: Naina Mohd.” 36. In a catena of judgments the Hon'ble Supreme Court has reiterated the same rule of evidence including in Rajender v. State (NCT of Delhi), (2019) 10 SCC 623 wherein the Hon'ble Supreme Court has held as under: “12.2.4. Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 37. The Additional Session Judge, Fast Track Court No. 1, Bermo at Tenughat after having scrutinized the prosecution evidence came to a conclusion that except for a statement of Bhikhani Devi in her cross-examination, no other prosecution witness has seen Bhola Mahto coming to her house on 22nd August 2002. Similarly, there is no evidence on complicity of Jamni Devi who did not even come to the house of the informant on 22nd August 2002. The learned Judge arrived at a conclusion that Jamni Devi and Bhola Mahto were not involved in the murder of Mundrika Devi and therefore deserved acquittal from the charge under sections 302/34, 304-B/34, 201/34 and 120-B of the Indian Penal Code. 38. There is no evidence against Bhola Mahto making demand of dowry or causing harassment of Mundrika Devi in connection to demand of dowry. The evidence of PW2 that he came in the night of 22nd August 2002 and had a chat with Nirmal Mahto does not establish his complicity in the crime. Similarly, the evidence against Jamni Devi in causing the death and dowry death of Mundrika Devi in furtherance of common intention is not available on record. Except the evidence of PW1, PW2, PW3 and PW8 on demand of dowry which has remained in the realm of hearsay, there is no other evidence appearing against Jamni Devi in the prosecution's evidence. Section 34 of the Indian Penal Code envisages that when a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone. The prosecution evidence against Bhola Mahto is that he called on Nirmal Mahto around 10:00 PM in the night of 22nd August 2002 and after a talk with him for 10-15 minutes he left. The prosecution evidence against Bhola Mahto is that he called on Nirmal Mahto around 10:00 PM in the night of 22nd August 2002 and after a talk with him for 10-15 minutes he left. Bhola Mahto who is a resident of the nearby village Amratand is the brother-in-law of Nirmal Mahto and no inference from his visit to the house of the informant in the night of 22nd August 2002 can be drawn to hold that he shared common intention or conspired with Nirmal Mahto to commit murder of Mundrika Devi. Therefore, we would concur with the trial Judge to the extent Bhola Mahto and Jamni Devi have been acquitted of all the charges. 39. To the above extent, the judgment rendered in Sessions Trial No. 49 of 2004 is affirmed and Acquittal Appeal No. 47 of 2008 is dismissed qua Bhola Mahto and Jamni Devi. 40. The trial Judge has acquitted Nirmal Mahto also for the charge under section 304-B of the Indian Penal Code for the similar reasons as noticed hereinabove. 41. The essential ingredients for constituting an offence under section 304-B of the Indian Penal Code are (i) death of a woman caused by burn or bodily injury or otherwise than under normal circumstances; (ii) death occurred within seven years of marriage; (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or by relative of her husband, and; (iv) such cruelty or harassment was for or in connection with demand of dowry. The offence under section 304-B was inserted in the Indian Penal Code by way of Amendment Act, 1986 and a corresponding amendment was made in the Indian Evidence Act to insert section 113-B, to raise a presumption of dowry death. The language employed under section 304-B of the Indian Penal Code and section 113-B of the Indian Evidence Act reveals a common point of reference in both the provisions, that the woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with demand of dowry. The language employed under section 304-B of the Indian Penal Code and section 113-B of the Indian Evidence Act reveals a common point of reference in both the provisions, that the woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with demand of dowry. In Bakshish Ram v. State of Punjab, (2013) 4 SCC 131 the Hon’ble Supreme Court has observed that a perusal of section 113-B of the Indian Evidence Act and section 304-B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment for or in connection with demand of dowry. This now stands proved that Mundrika Devi whose marriage with Nirmal Mahto was solemnized on 19th May 2002 died homicidal death within 7 years of marriage and there had been instances of her harassment in her matrimonial home in connection to the demand of dowry. This is also the prosecution evidence that Nirmal Mahto made a demand for Rs. 20,000/-and a CD player just a few hours before Mundrika Devi was found dead with several serious injuries on her person. 42. Such a state of affairs in the matrimonial home of a married woman has been dealt with in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 wherein the Hon’ble Supreme Court has observed as under: “13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a 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 an accused to offer any explanation.” 43. The failure of Nirmal Mahto to offer any explanation to the incriminating materials put to him when he was examined under section 313 of the Code of Criminal Procedure cannot be the sole basis for his conviction but his failure to offer a satisfactory explanation of how the dead body of his wife has been found in the well while both were under the same roof in the intervening night of 22nd/23rd August 2002 would no doubt raise a grave doubt that he is the one who has committed the murder of Mundrika Devi. An accused has a right to remain silent but if he offers a false explanation in his examination under section 313 of the Code of Criminal Procedure it would become an additional incriminating material against him and as held by the Hon'ble Supreme Court in State of Maharashtra v. Suresh, (2000) 1 SCC 471 his false explanation would provide a missing link and complete the chain of circumstances. 21st-century exposition of the law on section 313 of the Code of Criminal Procedure puts a corresponding duty on the accused to furnish an explanation in his statement under section 313 of the Code of Criminal Procedure to furnish some explanation to the incriminating materials produced against him. 21st-century exposition of the law on section 313 of the Code of Criminal Procedure puts a corresponding duty on the accused to furnish an explanation in his statement under section 313 of the Code of Criminal Procedure to furnish some explanation to the incriminating materials produced against him. 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 the accused when he is examined under section 313 to furnish some explanation with respect to the incriminating circumstances associated with him. 44. The explanation offered by Nirmal Mahto on the cause of death of his wife when he was examined under section 313 of the Code of Criminal Procedure has to be held false. When he was examined under section 313 of the Code of Criminal Procedure, Nirmal Mahto denied that on 22nd August 2002 he had gone with his wife to the house of the informant at village Ratari or, that, his brother-in-law Bhola Mahto had also come there for a while. He has denied the prosecution evidence on demand of Rs.20,000/-and a CD player and, that, he committed murder of his wife. The dead body of Mundrika Devi was recovered from a well behind the house of Shishu Mahto in village Ratari and the postmortem examination report revealed serious injuries on the person of Mundrika Devi. The alibi set up by him that he alongwith his mother and brother-in-law had gone to Deoghar for Mundan must be rejected in the face of clinching evidence that he was with his wife in the intervening night of 22nd/23rd August 2002. Having regard to the proved circumstances, we hold that the chain of circumstances is complete and all circumstances put together establish the guilt of Nirmal Mahto. 45. In Pudhu Raja v. State, (2012) 11 SCC 196 the Hon'ble Supreme Court has held as under: “17. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to the circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances.” 46. The judgment in Sessions Trial No. 49 of 2004 is however based on surmises and conjunctures as regards the involvement of Nirmal Mahto in the crime. The trial Judge scrutinized the prosecution evidence on such a hypothesis which lacks legal foundation and, in the process, ignored legally admissible evidence to record the acquittal of Nirmal Mahto. Lord Russell of Killowen [Sheo Swarup v. King Emperor, AIR 1934 PC 227 (2)] has written in his opinion that the High Court in its conduct of the appeal should act in accordance with rules and principles well known and recognized in the administration of justice. In Harbans Singh v. State of Punjab, AIR 1962 SC 439 the Hon'ble Supreme Court has observed that before interfering in appeal with an order of acquittal the High Court must examine not only the questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused. About half a century thereafter, in Ghurey Lal v. State of U.P. (2008) 10 SCC 450 the Hon'ble Supreme Court again observed that the appellate Court in dealing with the cases in which the trial Courts have acquitted the accused should bear in mind that the trial Court's acquittal bolsters the presumption that the accused is innocent. 47. Now keeping the aforementioned rules of caution in our mind, we have once again examined the evidence laid by the prosecution in Sessions Trial No. 49 of 2004 and are satisfied after such examination that the conclusion reached by the lower Court qua Nirmal Mahto that the guilt of the accused has not been proved is unreasonable. 47. Now keeping the aforementioned rules of caution in our mind, we have once again examined the evidence laid by the prosecution in Sessions Trial No. 49 of 2004 and are satisfied after such examination that the conclusion reached by the lower Court qua Nirmal Mahto that the guilt of the accused has not been proved is unreasonable. On a thorough re-appreciation of the entire evidence, this is our conclusion that this is not a case where the trial Court's view may appear “more probable one” rather no two views is possible and the only irresistible conclusion is that Nirmal Mahto is guilty of causing murder and dowry death of his wife. 48. In summation, we hold that the prosecution has established the charge under section 302 and section 304-B of the Indian Penal Code against Nirmal Mahto and accordingly he is convicted for the said offences. 49. On the point of sentence, we have in our mind the mitigating factors such as (i) young age of the convict (ii) chances of his rehabilitation and reformation (iii) a possibility that he would become a useful member of the society and (iv) a clear legislative approach worldwide and judicial approach in India that death penalty shall be an exception. But, at the same time, we cannot ignore that within two years of her marriage Mundrika Devi has been killed. The injuries on her head and forehead would indicate attack on her but this is not known what really had happened in the intervening night of 22nd/23rd August 2002. This remains in the realm of doubt whether the incident started with a minor quarrel between the couple or was ignited by the convict who intentionally and knowingly caused injuries on her head and forehead. 50. Having regard to the aforesaid circumstances in the case, Nirmal Mahto is sentenced to imprisonment for life under section 302 of the Indian Penal Code. He shall also suffer imprisonment for life under section 304-B of the Indian Penal Code. However, both sentences shall run concurrently. 51. Acquittal Appeal No. 47 of 2008 is allowed qua Nirmal @ Mantu Mahto and he is convicted and sentenced in the manner and to extent indicated above. I agree - Anubha Rawat Choudhary, J.