JUDGMENT Hon’ble Alok Singh, J. (Oral) Present appeal is preferred assailing the judgment and order dated 21.05.2012, passed by the learned Sessions Judge Nainital in Session Trial No. 27 of 2009 whereby accused appellant was held guilty for the offences punishable under Sections 302, 498-A I.P.C; and was sentenced to undergo life imprisonment and to pay fine of Rs.20,000/- and in default of making payment of fine, to undergo additional imprisonment of one year under Section 302 I.P.C.; to undergo R.I. for a period of three years and to pay fine of Rs.5,000/- and in default of making payment of fine, to undergo additional imprisonment of six months under Section 498-A I.P.C. 2. Brief facts of the present case, inter alia, are that PW1 Lal Singh, reported the matter to Police Station Kotwali Haldwani, District Nainital on 03.09.2008; as per the F.I.R. his daughter Manju got married with accused appellant on 27.01.2006; so many items were given as gifts and dowry at the time of marriage; soon after the marriage, Manju was being treated with cruelty by her mother in law, brother in law Prakash Bhakuni and husband (accused appellant); accused appellant having consumed alcohol used to beat her; having acquired knowledge about the consumption of alcohol and beating of Manju, he (PW1 Lal Singh) spoke to the accused appellant and requested him to behave properly, however, he did not stop; PW1 Lal Singh handed over money to the accused appellant enabling him to purchase the plot near Bithoria; accused appellant was demanding more money from PW1 Lal Singh; Manju had one male child aged about 1-1/2 years; Manju and appellant were living together in a rented house near Lal Dhang; Manju reported the matter so many time about the behaviour of her in laws; in the noon of 02.09.2008, accused appellant came back from election duty and started quarrelling with Manju and administered poison to her; he did not inform us despite the fact we were in Haldwani; we acquired knowledge about at 6:00 p.m. that poison was administered to my daughter Manju; she was referred to Soban Singh Jeena Hospital Haldwani, however when her condition started deteriorating, she was taken to Sushila Tiwari Forest Hospital; she died at about 10:00 p.m. in the night in Sushila Tiwari Forest Hospital; accused appellant has fled away from the Hospital; dead body of Manju was lying in Sushila Tiwari Forest Hospital, therefore, having registered the F.I.R., appropriate action may be taken against the accused appellant. 3. Post mortem on the dead body of Manju was conducted on 03.09.2008 by Dr. C.P. Bhesora PW3. No anti mortem external or internal injuries were observed; vicera were preserved and were sent for chemical examination; as per the report of the F.S.L, Ex. 14, in the vicera, methyl and ethyl alcohol was found; having investigated the matter, police submitted the chargesheet against the accused appellant as well as his brother Prakash Bhakuni only for the offences punishable under Sections 304-B, 498-A and 306 I.P.C. and ¾ Dowry Prohibition Act. 4. 14, in the vicera, methyl and ethyl alcohol was found; having investigated the matter, police submitted the chargesheet against the accused appellant as well as his brother Prakash Bhakuni only for the offences punishable under Sections 304-B, 498-A and 306 I.P.C. and ¾ Dowry Prohibition Act. 4. After committal, learned Trial Court was pleased to frame charges against the accused appellant as well as the co-accused Prakash Bhakuni for the offences punishable under Sections 498-A and 304-B I.P.C. and 3/4 Dowry Prohibition Act. Alternate charge for the offence punishable under Section 306 I.P.C. was also framed against the accused appellant as well as co-accused. 5. To prove the prosecution story, informant Lal Singh PW1, Constable Mahendra Singh PW2, Dr. C.P. Bhesora PW3, Yashwant Singh PW4, Abdul Wajid PW5, Chandan Singh PW6, Constable Anubah Rawat PW7, and Investigating Officer Deputy S.P. Permendra Singh Dobhal PW8 were examined from the side of the prosecution and from the side of defence S.K. Sharma DW1 and Arjun Singh Bhakuni DW2 were examined. Thereafter, learned Trial Court was pleased to frame additional charges for the offence punishable under Section 302 read with 34 I.P.C. on 13.12.2011. 6. Since parties did not intend to lead any additional evidence after framing of the additional charge for the offence punishable under Section 302 read with 34 I.P.C., therefore, statement of the accused / appellant were recorded under Section 313 Cr.P.C. 7. Having perused the entire material available on the record, learned Trial Court was pleased to observe that prosecution could not prove that deceased was subjected to cruelty on account of demand of dowry soon before her death and it was further held by the learned Trial Court that prosecution has failed to prove the ingredients of offences punishable under Sections 304-B and 306 I.P.C. and 3/4 D.P. Act, consequently, accused were acquitted from the charges for the offences punishable under Sections 304-B and 306 I.P.C. and 3/4 D.P. Act. However, accused appellant was held guilty for the offences punishable under Section 302 and 498-A I.P.C. as reproduced hereinbefore. 8. Feeling aggrieved, accused appellant has preferred present appeal. 9. We have heard Mrs. Pushpa Joshi, Senior Advocate assisted by Mr. Navneet Kaushik and Mr. Saurav Adhikari, Advocates for the appellant and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. Milind Raj, Brief Holder for the State and have carefully perused the record. 10. 8. Feeling aggrieved, accused appellant has preferred present appeal. 9. We have heard Mrs. Pushpa Joshi, Senior Advocate assisted by Mr. Navneet Kaushik and Mr. Saurav Adhikari, Advocates for the appellant and Mr. A.S. Gill, learned Deputy Advocate General assisted by Mr. Milind Raj, Brief Holder for the State and have carefully perused the record. 10. PW1 Lal Singh, father of the deceased and PW4 Yashawant Singh, brother of the deceased Manju have stated that accused/appellant and Manju were living in rented house in Haldwani, however, all in-laws were living separately in other house; couple were having male child aged about 1-1/2 years out of their wedlock; Manju came to her parental house in the morning of 01.09.2008 when accused appellant went for election duty; in the morning of 02.09.2008, Manju (deceased) spoke to her husband (accused appellant) telephonically and inquired as to when he was planning to come back from the election duty; accused appellant informed Manju that he would be reaching by 1:00 P.M. in the noon same day, therefore, she should bring the food for him; Manju cooked food in her parental house for the accused appellant too; thereafter Manju left her parental house alongwith his brother Yashwant PW4 for the rented house wherein accused appellant as well as Manju were living as married spouse; Manju carried the lunch cooked by her for the accused appellant; Yashwant Singh PW4, after dropping Manju in her matrimonial house came back; Manju was taken to Soban Singh Jeena Hospital by the accused appellant in the afternoon and it was reported to the Doctor that Manju has consumed something; treatment was given to Manju in the Soban Singh Jeena Hospital, however, when her condition started deteriorating, she was referred to Sushila Tiwari Forest Hospital; she was taken to Sushila Tiwari Forest Hospital by the accused appellant; parents of Manju were informed telephonically that Manju was ill and was in the Hospital by the accused appellant; however, Manju expired at about 10:00 P.M. on the same day; next day, post mortem was conducted on the dead body of the Manju wherein no external and internal injuries were found. 11. It has come on record that Manju was living separately with her husband accused/appellant in a rented house in Haldwani while her in laws were living separately in another house. Out of their wedlock, Manju and accused were having 1-1/2 years old son. 11. It has come on record that Manju was living separately with her husband accused/appellant in a rented house in Haldwani while her in laws were living separately in another house. Out of their wedlock, Manju and accused were having 1-1/2 years old son. When appellant went for Election duty, Manju went to her father on 01.09.2008. In the morning of 02.09.2008, Manju herself spoke to the accused/appellant over the phone and enquired as to when accused was planning to come back whereupon accused/appellant told Manju that he would be reaching in the afternoon so that Manju should cook and bring lunch for him as well. Manju herself has cooked the lunch and brought the lunch for the accused from her father house. 12. Had there been any serious quarrel between the parties or cruel behaviour on the part of accused on account of demand of dowry, Manju would have not behaved in the fashion she behaved. 13. Now a days, it has become the fashion to implicate husband and relatives of the husband in a dowry harassment cases, in the event of untimely death of wife. In the present case also mother-in-law and brother-in-law were also named in the F.I.R. alongwith the husband accused/appellant. Police did not file any chargesheet against the mother-in-law, however, chargesheet was filed against the husband and brother-in-law. Brother-in-law was acquitted of the charges levelled against him. 14. To prove the guilt for the offence punishable under Section 304-B I.P.C., prosecution must prove that deceased was subjected to cruelty on account of demand of dowry soon before her death. Learned Trial Court, in the peculiar facts and circumstances of the case, seems to be justified in saying that case under Section 304-B I.P.C. has not been made out. Learned Trial Court further seems to be correct to observe that even case under Section 3/4 of Dowry Prohibition Act is not made out. 15. To prove the guilt under Section 306 I.P.C., prosecution must prove the ingredients of Section 107 I.P.C. which are totally missing in the present case, therefore, acquittal under Section 306 I.P.C. cannot be faulted with. 16. Let us now examine As to whether offences punishable under Section 302 I.P.C. and 498-A I.P.C. are made out ? 17. 15. To prove the guilt under Section 306 I.P.C., prosecution must prove the ingredients of Section 107 I.P.C. which are totally missing in the present case, therefore, acquittal under Section 306 I.P.C. cannot be faulted with. 16. Let us now examine As to whether offences punishable under Section 302 I.P.C. and 498-A I.P.C. are made out ? 17. Learned Trial Court, having observed that since Manju was in the company of accused /appellant in the rented house soon before her death, has held that it was the duty of the accused appellant under Section 106 of the Evidence Act to explain as to what was consumed by Manju and since accused appellant failed to discharge his burden as required under Section 106 of the Evidence Act, therefore, an inference could be drawn that it was the appellant who has administered the poison. Therefore, accused appellant was held guilty for the offence punishable under Section 302 I.P.C. Learned Trial Court has further observed that since it has come on record that accused appellant had frequent quarrels with the Manju, therefore, it can safely be held that Manju was subjected to mental as well as physical cruelty. Therefore, offence punishable under Section 498-A is also made out against the accused appellant. 18. As per the F.S.L report, in the vicera of Manju Methyl and ethyl alcohol was found. As per the Modi’s Medico Legal Jurisprudence, having consumed the methyl and ethyl alcohol, death may occur within 5-6 days after the consumption and some time when it is taken on the larger quantity, death may occur six to nine hours after consumption. As per Modi’s Medico Legal Jurisprudence, methyl and ethyl alcohol are often used as anesthesia. Modi’s Jurisprudence further opined that some time methyl and ethyl alcohol is used in preparing the de-nature spirit. 19. Mrs. Pushpa Joshi, learned Senior Counsel for the appellant has vehemently argued that Manju could have consumed liquor in the previous night when she was in her parental house. Modi’s Jurisprudence further opined that some time methyl and ethyl alcohol is used in preparing the de-nature spirit. 19. Mrs. Pushpa Joshi, learned Senior Counsel for the appellant has vehemently argued that Manju could have consumed liquor in the previous night when she was in her parental house. She further contended that even Manju could have consumed liquor and spirit lying in the rented house without knowledge of her husband; what was consumed by Manju in her father’s house in the previous evening and in the morning before leaving father’s house or thereafter in the matrimonial house cannot be said to be in the knowledge of the husband, therefore, accused appellant was not having any knowledge as to what was consumed by Manju. Therefore, no explanation was furnished by the husband. 20. Section 106 of the Evidence Act reads as under:- “Section 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.” 21. A perusal of Section 106 of the Evidence Act would demonstrate that any fact, which is especially within the knowledge of an accused, burden to prove that fact is upon him. “special knowledge” of that fact is sine qua non to press Section 106 of the Indian Evidence Act in service. 22. Had it been in the knowledge of accused appellant as to what was consumed by Manju in the house of her father before coming to the accused, accused would have definitely disclosed it. Even otherwise, if wife consumes something without the knowledge of the husband, no adverse inference should be drawn against the husband simply because husband fails to disclose as to what was consumed by the wife. 23. In our considered opinion, Section 106 of the Evidence Act, should be pressed in service when prosecution is able to make out strong prima-facie case against the accused. 24. Not only this, the moment accused appellant noticed that Manju was not feeling well, firstly, he has taken her to Soban Singh Jeena Base Hospital wherein doctors attempted to save her life by giving proper treatment. However, when her condition started deteriorating doctors referred her to Sushila Tiwari Forest Hospital wherein accused / appellant has taken her. 25. 24. Not only this, the moment accused appellant noticed that Manju was not feeling well, firstly, he has taken her to Soban Singh Jeena Base Hospital wherein doctors attempted to save her life by giving proper treatment. However, when her condition started deteriorating doctors referred her to Sushila Tiwari Forest Hospital wherein accused / appellant has taken her. 25. In our considered opinion, it is settled principle of law that presumption of innocence is always attached with the accused unless offence is proved beyond reasonable doubt. No accused should be held guilty on the probabilities, adverse inferences, assumption and presumption. Prosecution must prove the case against the accused beyond reasonable doubt. Section 106 of the Evidence Act independently should not be pressed in service to hold the accused guilty without proving strong prima-facie case against the accused ruling out any probability of innocence. 26. Manju was not found dead in the house, rather she was taken to two different hospitals by the accused appellant. Therefore, by invoking Section 106 of Evidence Act, no adverse inference should have been drawn against the accused appellant. 27. Merely because after death of Manju, accused appellant left the hospital and did not remain present with the dead body of Manju, does not mean that any adverse inference should be drawn against the accused appellant. 28. There is another aspect of the matter. Food was cooked by Manju herself, that too in her parental house. She herself brought the food, which was consumed by the appellant as well as by Manju. Manju was M.A. (English). Had methyl or ethyl alcohol been mixed by the accused/appellant in the food or drink, Manju could have easily noticed changed bitter taste and smell. Since, appellant and Manju were living separately in the rented house; they were having 1-1/2 years old son; Manju on 02.09.2008 spoke to the accused on phone and inquired as to when accused would come back from election duty; went to her matrimonial house with cooked food on 02.09.2008, therefore, there seems to be no cogent evidence to say that she was being treated with mental or physical cruelty. Floating statements are not sufficient to hold appellant guilty for the offence under Section 498-A I.P.C. too. 29. Floating statements are not sufficient to hold appellant guilty for the offence under Section 498-A I.P.C. too. 29. In our considered opinion, in the peculiar facts and circumstances of the present case, it would not be safe to hold the accused appellant guilty merely by pressing Section 106 of the Indian Evidence Act in service. Consequently, we are of the view that benefit of doubt should be extended in favour of the accused appellant. 30. In the result, appeal is allowed. Impugned judgment and order is set aside. Accused appellant is acquitted of the charges leveled against him. Accused appellant is in jail. Let he be released forthwith, if not wanted in any other case. 31. Let copy of this judgment along with LCR be sent to the learned trial court for information and compliance.