ORDER : Goutam Bhaduri, J Heard. 1. The present appeal is against the judgment of conviction and sentence dated 11.06.2019 passed in Sessions Trial No.31/2018 by the Sessions Judge, Mahasamund, District Mahasamund, C.G. whereby the appellant has been convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced for life imprisonment and to pay fine of Rs.1000/- and in default of payment of fine 6 months additional R.I. was also ordered. 2. Brief facts of this case are that on 02.03.2018, the appellant came drunk in his house and on such, the dispute occurred in between the husband and the wife i.e. the appellant and the deceased. The same was intervened by the mother of the accused and the wife stated that because of such drinking habit, she will leave him. Being enraged by that the accused poured kerosene on the deceased. On such incident, the deceased wife ran away from the house and entered into the house of one neighbor namely Naresh and the accused/appellant went there, caught hold of her and dragged her back to his house which was seen by Uwandas Manikpuri (PW-2), Manohar Das (PW-4) and Naresh Chand Mahanand (PW-16), thereafter she was found 100% burnt at her house and when she was even taken to the hospital her statement could not be recorded. The appellant subsequently was arrested on the basis of the memorandum and kerosene jerrican was recovered and subsequently after taking the statement of the witness, the charge-sheet was filed. At the relevant time, it is stated that the mother of the accused went out to search for the children of the appellant & deceased and when she came back she found that Sevti, daughter-in-law, was on fire. After the fire was extinguished, the deceased was taken to the hospital and eventually she died on 05.03.2018 in the Government Hospital, Raipur. The map of the area was prepared and the seized property was subjected to FSL and subsequently the charge-sheet was filed. During the course of trial, the appellant abjured the guilt and claimed to be tried. The prosecution on their behalf examined as many as 17 witnesses and the Court after evaluating the facts convicted the accused as aforesaid. Hence this appeal. 3. During the course of trial, the appellant abjured the guilt and claimed to be tried. The prosecution on their behalf examined as many as 17 witnesses and the Court after evaluating the facts convicted the accused as aforesaid. Hence this appeal. 3. Learned counsel for the appellant would submit that there is no direct evidence of the incident and it is only based on circumstantial evidence and only because of the fact a prior quarrel took place in between the husband and wife the allegation of burn is attributed to the appellant. He would further submit that the way the incident has happened at their Kitchen (Rasoi) it might have also happened that she might have committed suicide. He would further submit that in order to prove the accusation, the prosecution has to prove the evidence beyond reasonable doubt and the witnesses have not supported the case of the prosecution even the memorandum and seizure witnesses have also not supported the case of the prosecution. He would further submit that the kerosene jerrican which was seized at the instance of the accused was not subjected to any finger print examination to show that he poured kerosene on the deceased by picking up the jerrican and set her ablaze, therefore, since no direct evidence is available, the appellant is liable to be acquitted by giving him benefit of doubt. 4. Per contra, learned State counsel would submit that the statement of Uwandas Manikpuri (PW-2), Manohar Das (PW-4) and Naresh Chand Mahanand (PW-16) would show that before the incident happened, the deceased was subjected to assault, she was dragged from a distance, which was seen by these witnesses and immediately thereafter she was put to fire. He would further submit that there is nothing on record to substantiate the conduct of the accused whether he wanted to save the deceased, who was his wife. He would further submit that the circumstances as it happened is required to be appreciated because the trial Court has done it in the proper perspective, therefore, the judgment is well merited which do not call for any interference. 5. We have heard learned counsel for the parties and perused the evidence and the record. 6. He would further submit that the circumstances as it happened is required to be appreciated because the trial Court has done it in the proper perspective, therefore, the judgment is well merited which do not call for any interference. 5. We have heard learned counsel for the parties and perused the evidence and the record. 6. According to the prosecution, at about 08:00-08:30 pm Uwandas Manikpuri (PW-2) as states that he was sitting along with Manohar Das (PW-4) and Naresh Chand Mahanand (PW-16) near a road square, at that time the accused was abusing & dragging her wife, they intervened and tried to make him understand that do not quarrel and stay calm & happy. On such advise the accused stated that Sevti is his wife, he can do anything, do not intervene, thereafter they went away. Subsequently, the deceased Sevti was found burnt. The statement of Uwandas Manikpuri (PW-2), Manohar Das (PW-4) and Naresh Chand Mahanand (PW-16) is only prior to the incident to the effect that they saw the deceased was being dragged into her house. Subsequently, they heard that the wife of the appellant has died because of the burn injuries. Uwandas Manikpuri (PW-2) and Manohar Das (PW-4) are the memorandum and seizure witnesses, who have not supported the memorandum or seizure. 7. Admittedly, the witnesses have not seen the incident to the effect that who has put the deceased on fire by pouring kerosene. The memorandum statement Ex. P-4 though discloses confessional part that the appellant/accused poured kerosene on his wife and set her on fire only leads to the recovery of jerrican of the kerosene but the jerrican of the kerosene which was found in the house was not subjected to any finger print examination. It is quite normal that in a house in village in kitchen the availability of the kerosene can be found. 8. The incident happened inside the house and no dying declaration was recorded. According to the MLC (Ex. P-8), which is proved by Dr. M.S. Kanwar (PW-5) while the deceased was brought to the Health Center and while she was brought there her general condition was poor and she was 100% burnt and from entire body the smell of Kerosene was coming. According to the MLC (Ex. P-8), which is proved by Dr. M.S. Kanwar (PW-5) while the deceased was brought to the Health Center and while she was brought there her general condition was poor and she was 100% burnt and from entire body the smell of Kerosene was coming. Subsequently, she was referred to the bigger hospital wherein she died and as per the postmortem report dated 05.03.2018 the cause of death was because of complication which arose because of the burn injury. The postmortem report Ex. P-9 was proved by Dr. Ulhas Gonnade (PW-6). In the cross-examination he further states that in the trachea the carbon particles were not present for the reason that she was brought alive to the hospital and carbon particles might have come out because it must have gone inside the body or might have come out by coughing. Therefore, the death of Sevti Sonwani was because of burn injury. 9. The mother of the appellant namely Phool Bai (PW-13) has not supported the case of the prosecution. She maintained her stand that at time of incident she was not at home. Though the suggestion was given to her that she tried to intervene the dispute in between the appellant and the deceased, she stated that she was out of home. She disowns her statement vide Ex. P-17 statement recorded under Section 161 Cr.P.C. and stated that she has not seen the incident. 10. According to the statement of Dulari (PW-10), the mother of the deceased, the deceased and the appellant had three children and the marriage took place prior to 15-16 years and after hearing the news that her daughter was admitted with burn injuries, she went to Pithoura. This witness is also a hearsay witness and do not say anything about any past quarrel in between the deceased and the appellant. No evidence of the children has been recorded by the police. According to Phool Bai (PW- 13), the mother of the appellant, she went out to search for the children and when came back saw Sevti in the burnt state. The non-examination of the children by the prosecution also creates a doubt to the fact that the appellant was the only author of the crime eliminating any question of suicide. 11. According to Phool Bai (PW- 13), the mother of the appellant, she went out to search for the children and when came back saw Sevti in the burnt state. The non-examination of the children by the prosecution also creates a doubt to the fact that the appellant was the only author of the crime eliminating any question of suicide. 11. Only because of the fact that prior to the incident some quarrel took place in between the appellant and the wife and the appellant was taking his wife to his home will not lead to form an opinion that he had poured kerosene on the wife and set her ablaze. In the cross-examination under Section 313 of the Cr.P.C., the question which has been answered by the appellant, he denies the allegation. The prosecution evidence is silent on the point that at the time of incident whether the appellant was in the house or after the incident he fled away and who brought the deceased to the hospital. 12. In absence of the eye witness to the incident, the evidence to the conduct of the appellant after the incident was required to be brought forward to draw an adverse inference under Section 106 of the Evidence Act. In absence of any evidence or any whisper to infer the conduct, the doctrine of exception under Section 106 of the Evidence Act cannot be shifted to the accused. Therefore, simply because of the fact that prior to the incident accused and the deceased went into some quarrel cannot lead to form an opinion that the accused was the sole author to commit the crime when the place of incident was in the Kitchen as per Ex. P/7. Therefore, we are of the view that the conviction and the sentence imposed on the appellant cannot be allowed to sustain and consequently benefit of doubt should lean in favour of the accused/appellant. 13. Accordingly, conviction and sentence imposed upon the appellant under Section 302 of the Indian Penal Code is hereby set aside and he is acquitted of the said charge. The appellant is in jail. He be released forthwith if not required in any other case, on his furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The appellant is in jail. He be released forthwith if not required in any other case, on his furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed. 14. Accordingly, the appeal stands allowed.