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2. In brief the facts of the case are that on 19.5.2006 complainant Avdesh Singh Gond (PW-12), cousin of the deceased Vimla lodged a report at Police Station Churhat to the effect that the first marriage of Vimla Devi daughter of Surajbhan Gond aged 19 years took place with Babulal Singh Gond at Village Barigawan Police Station Churhat where she stayed for four months and came back to her matrimonial house. There she be- friended appellant No.1 Shivkumar Gond at Village Sarai Police Station Laur District Rewa. According to the case of the prosecution, deceased Vimla Devi got married to A/1 Shivkumar who took her to Mumbai and came back after 15 days and when the complainant went to the house of Shivkumar to bring her, Shivkumar did not send her, hence they imposed a penalty of Rs.500/-, a buffalo and a goat to be given to Babulal the first husband of Vimla as she was earlier the wife of Babulal. Thereafter appellant Shivkumar took Vimla to the house of his brother-in-law Appellant No.2 Sukhlal Gond at Village Mohniya and on 17.5.2007 one Jaganandan Singh (PW-4) of his Village informed the complainant (PW-12) that Vimla Devi has passed away on 15.5.2007. On this information when they reached Village Gaddhai where Shivkumar and his brother-in-law A2 Sukhlal were residing and asked about how Vimla Devi died, they informed that she committed suicide and when they enquired why this information was not given to them to which they gave no reply. Subsequently when these persons went along with family members to Village Gaddhai to fetch the ashes of deceased Vimla Devi, as she was also cremated by the appellants, on seeing them, the appellants fled from the village hence on 19.5.2007 an FIR was lodged at Police Station Churhat and on the basis of information a marg intimation was registered and on enquiry it was found that the deceased was being treated with cruelty and was harassed mentally and physically by her husband and brother-in-law, hence she committed suicide on 15.5.2007. Thus, a case was registered against the appellant Shivkumar Gond and his brother-in-law Sukhlal Gond under Sections 306, 201, 120-B read with Section 34 of IPC at Crime No.140/2007. The appellants have taken a defence that the deceased Vimla had solemnized the marriage with appellant No.1 Shivkumar on her own volition and was residing with him only, which was not approved by her family members and hence when deceased died due to cholera, a false case has been registered against the appellants. Appellant No.2 Sukhlal Gond has taken a defence that since appellant Shivkumar is his brother-in-law, only to falsely implicate him along with Shivkumar, he is also dragged in the alleged offence as a co-accused.

1) has also stated that he is well acquainted with the appellants as appellant No.1 Shivkumar used to come to his house along with his wife Vimla Devi and both of them were working at Mohniya Paath Pahad (hill) on a road construction site. According to this witness (DW-1), between 12 O'clock to 2 PM during the lunch hour appellant Shivkumar's wife Vimla Devi suddenly suffered from loose motions and vomiting and as a result she died.

Its information was given to her family members and since nobody came, hence her body was cremated.

7. Heard the learned counsel for the parties and perused the record.

8. From the record, it is apparent that in support of the prosecution as many as 17 witnesses have been examined whereas the accused appellants have also examined one witness DW-1 Maan Bahadur. Although there is no evidence on record, but it appears that the deceased Vimla died on 15.05.2007 and it is alleged that she committed suicide and subsequently, the appellant No.1 Shivkumar Gond and his brother in law appellant No.2 Sukhlal Gond cremated her without any intimation to the family members of the deceased. However, it is also found that none of the prosecution witnesses have actually seen the appellants harassing the deceased Vimla in any manner and none of the witnesses have also seen the deceased to be hanging to prove that she committed suicide and after that she was cremated. Thus, the conviction of the appellants is solely based on the circumstantial evidence and has to be tested on the well settled principles of circumstantial evidence i.e. "there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused", as has been held by the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported as 1984(4)SCC 116.

"38. ... Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."

(emphasis supplied) Thus, testing on the anvil of the aforesaid dictum of the Apex Court, the aforesaid finding recorded by the learned Judge of the trial Court suffers from wrong appreciation of evidence and drawing unwarranted presumption by invoking Section 106 of the Evidence Act. In the present case, it is alleged that the deceased, a woman in her twenties died on account of suicide and has been cremated by her the husband without any intimation to her family members, but no evidence has been led by the prosecution of the neighbors of the appellants or other persons of the village regarding the suicide and the manner of cremation. Thus, in the absence of any other evidence on record it cannot be presumed that the appellants had cremated the body of the deceased only in order to cause disappearance of the evidence of the offence committed by them. Thus, it is apparent that the presumption under Section 106 of the Evidence Act cannot be used as a tool to justify a conviction if the accused is not able to discharge his burden, but such conviction has to be based on the other cogent evidence connecting the accused with the offence and the failure to explain any circumstance under Section 106 of the Evidence Act can be used only as a missing link in the chain of evidence and cannot be used as the chain itself. In the case on hand, such presumption cannot withstand the scrutiny of the law as has been enunciated by the Apex Court in the case of Gian Chand (supra).