JUDGMENT 1. Accused-appellant Pawan Singh has approached this Court by way of instant appeal challenging the judgment dated 13.08.2008 passed by the Court of Special Judge, Women Atrocity and Dowry Cases, Jaipur City, Jaipur (for short 'the trial court') whereby the accused-appellant has been acquitted of the offences punishable under Sections 498-A and 304-B IPC, but convicted for the offence punishable under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 2,000/-, in default whereof, he would have to further undergo additional rigorous imprisonment for four months. 2. Factual matrix of the case is that on 09.07.2006 at about 5.15 P.M., complainant Chanchal Kant Verma (RW. 3) with his brother, Anil Kant Verma (P.W. 1) submitted a written report (Exhibit P-1) at Police Station Jhotwara, Jaipur stating therein that marriage of his sister Kirti @ Santosh Lata and accused-appellant Pawan Singh was solemnized at Nasirabad. On 08.07.2006 at about 11.45 P.M. he came to know that his sister had expired. When he reached at the house of the accused-appellant on 09.07.2006, he found that his sister had died in suspicious circumstances as some injuries were visible on her dead body. He further stated that he had doubt that accused-appellant and his family members had committed murder of his sister. It was further stated that the accused-appellant used to demand dowry from his sister. Since the accused-appellant had a life insurance policy in the name of his sister Kirti @ Santosh Lata, he had murdered his sister to get claim thereof. On the basis of written report (Exhibit P-1), FIR No. 474/2006 (Exhibit P- 2) was registered for offence under Sections 304-B and 498-A IPC. 3. The accused-appellant also lodged a report with Police Station Jhotwara (Exhibit P-15), in which the police started investigation under Section 176 Cr.RC. Dead body of the deceased was subjected to post-mortem and panchayatnama thereof was also prepared. 4. After completion of investigation, the police submitted charge-sheet against the accused-appellant. The trial court framed charges against the accused-appellant under Sections 498-A, 304-B IPC and in the alternative for offence under Section 302 IPC. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 14 witnesses and exhibited 19 documents. Thereafter, the accused-appellant was examined under Section 313 Cr.RC. wherein he pleaded innocence. In defence, one witness was produced and 8 documents were exhibited. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 14 witnesses and exhibited 19 documents. Thereafter, the accused-appellant was examined under Section 313 Cr.RC. wherein he pleaded innocence. In defence, one witness was produced and 8 documents were exhibited. The trial court, on conclusion of the trial, vide judgment and order dated 13.08.2008 acquitted the accused-appellant of the charges under Section 498-A and 304-B IPC, but convicted and sentenced him under Section 302 IPC in the manner indicated above. 5. Mr. Vinay Pal Yadav, learned counsel for the accused-appellant argued that conviction recorded by the learned trial court, being contrary to the provisions of law as also the material on record, is not legally sustainable. The trial court has not properly appreciated facts and circumstances of the case and only on perverse findings, convicted and sentenced the accused-appellant under Section 302 IPC. There is no direct or circumstantial evidence available on record to show that the deceased was murdered by the accused-appellant. The trial court in para 15 of the judgment has found that the prosecution has failed to prove allegation of demand of dowry as well as allegation of cruelty. Thus, the accused-appellant has been acquitted under Sections 498-A and 304-B IPC. The trial court further observed that testimony of the prosecution witnesses Chanchal Kant Verma (P.W. 3); Salil Kant Verma (PW. 4), Nirmal Kant (P.W. 5), Dr. Kamal Kant Verma (P.W. 6) is shaky, contradictory, unreliable, untrustworthy, yet convicted the accused-appellant under Section 302 IPC on the basis of surmises and conjectures. Dr. Rajendra Kakkar (P.W. 8) has categorically stated that he found no visible injury on skull of the deceased and that injury No. 1 to 3 may be sustained by the deceased due to fall down. The trial court has not appreciated evidence of Shalini Saxena (P.W. 11), investigating officer, who admitted that she found that the deceased was& suffering from mental disorder and neighbours of the deceased had not made any complaint about cruelty and demand of dowry against the accused-appellant. She also stated that after thorough investigation, she did not find that the appellant was an accused of offence of murder. The trial court has not considered the fact that the prosecution has not produced any neighbour of the deceased as witness. Learned counsel argued that the trial court has not considered the fact that Ajay Srivastava (PW. She also stated that after thorough investigation, she did not find that the appellant was an accused of offence of murder. The trial court has not considered the fact that the prosecution has not produced any neighbour of the deceased as witness. Learned counsel argued that the trial court has not considered the fact that Ajay Srivastava (PW. 13), brother-in-law of Anil Kant Verma (brother of the deceased) did not support the case of the prosecution and was declared hostile. 6. Mr. Vinay Pal Yadav learned counsel for the accused-appellant further argued that Dr. Shiv Gautam (D.W. 1), Superintendent of Mental Hospital, Jaipur, who was the treating doctor of the deceased Kirti @ Santosh Lata, specifically stated that the deceased was patient of Chronic Schizophrenia and she was suffering from that disease even prior to her marriage and was admitted in mental hospital on 03.04.2000 and her brother Dr. Kamal Kant got her discharged on 17.04.2000. He also stated that as per her case history, there was strong chance of her mental disorder. Trial Court has not properly considered the documents produced by the defence, i.e. Patient Record Sheet of Kirti @ Santosh Lata of Psychiatric Centre, Jaipur (Exhibit D-5A); OPD Card (Exhibit D-6A) and Prescription dated 04.04.2002 (Exhibit D-9) and convicted the accused-appellant only on the basis that the appellant failed to produce any document or proof of her treatment after the year 2002, the trial court failed to appreciate the evidence on record that brother of the deceased, Dr. Kamal Kant Verma (P.W. 6) got her discharged from the hospital and thereafter, the deceased was got treated by her brother Dr. Kamal Kant Verma and his sister Dr. Kusum Lata Johari. Therefore, the accused-appellant could not produce any prescription after the year 2002. Moreover, there is otherwise overwhelming evidence on record to establish that the deceased was the patient of chronic Schizophrenia and she died due to her violent act in mental disorder. 7. Learned counsel for the accused-appellant argued that Nirmal Kant (PW. 5), brother of the deceased, when specifically asked in his cross-examination about old ailment of Schizophrenia of the deceased, pleaded ignorance whereas another brother, Salil Kant Verma (P.W. 4) admitted treatment of deceased Kirti @ Santosh Lata from Dr. Shiv Gautam (D.W. 1) and stated that his brother had taken her to doctor for treatment. The trial court on question no. Shiv Gautam (D.W. 1) and stated that his brother had taken her to doctor for treatment. The trial court on question no. 4 formulated by it, in para 17 and 18 of the judgment recorded findings against the accused-appellant inasmuch as it has held that the accused-appellant has taken plea that injuries of the deceased were self inflicted and the appellant failed to explain this fact which was in his especial knowledge, therefore, by virtue of Section 106 of the Indian Evidence Act, he is liable to be convicted under Section 302 IPC. It is, therefore, prayed that the appeal be allowed and the accused-appellant be acquitted of the charge under Section 302 IPC. 8. Mr. V.S. Godara, learned Public Prosecutor has opposed the appeal and supported the judgment of the trial court in to. He argued that injuries sustained by the deceased, as per post mortem report (Exhibit P-13) were not such which could have been inflicted by the deceased herself. It was not a case of suicidal death, but it was a case of homicidal death and, therefore, the accused-appellant failed to prove the defence set up by him. The accused-appellant has, therefore, been rightly convicted under Section 302 IPC. Learned Public Prosecutor referred to statements of all major prosecution witnesses, which we shall deal at appropriate place hereinafter. 9. We have given our thoughtful and anxious considerations to the rival submissions, scanned the material on record. 10. A careful reading of the judgment of the trial court shows that the trial court in para 6 of its judgment formulated six questions for consideration.First question was whether the deceased Kirti @ Santosh Lata (wife of the appellant) died in mysterious circumstances on 08.07.2006 which has been answered in affirmative by the trial court in para 13 of its judgment. Question No. 2 is to the effect that whether death of the deceased Kirti @ Santosh Lata had taken place within seven years of her marriage ? In this case marriage of the appellant was solemnized with the deceased on 10.07.1999 and this question has also been answered in affirmative by the trial court which in para 14 of the judgment held that on the day of death of the deceased period of 6 years 11 months and 29 days was completed. In this case marriage of the appellant was solemnized with the deceased on 10.07.1999 and this question has also been answered in affirmative by the trial court which in para 14 of the judgment held that on the day of death of the deceased period of 6 years 11 months and 29 days was completed. Question No. 3 formulated by the-trial court was that whether the deceased Kirti @ Santosh Lata was subjected to cruelty and mental torture soon before her death by her husband in connection with demand of dowry where for presumption under Section 113-B of the Indian Evidence Act was liable to be raised against him. Trial court in para 15 of the judgment has dealt with this issue in greater detail and on analysing evidence of Anil Kant Verma (RW. 1); Chanchal Kant Verma (P.W. 3), Salil Kant Verma (RW. 4); Nirmal Kant (P.W. 5) and Dr. Kamal Kant Verma (P.W. 6) held that their testimony on this aspect of the matter was not believable as the same does not inspire any confidence and further held that the deceased was not subjected to any mental agony or cruelty soon before her death in connection with demand of dowry. 11. Question No. 4 framed by the trial court was whether the accused-appellant caused fatal injuries on the person of his wife Kirti @ Santosh Lata with intention to commit her murder amounting to culpable homicide punishable under Section 302 IPC where for alternative charge under Section 302 IPC was framed. This question has been answered by the trial court in affirmative by holding the appellant guilty of offence under Section 302 IPC and, therefore, the scope of examination in this appeal is very limited up to correctness of the findings, which have been recorded by the learned trial court in para 17 and 18 of the judgment. At this stage, it would be significant to note that investigating officer, Shalini Saxena (P.W. 11) in her statement had categorically stated that her investigation revealed that the deceased was an acute patient of mental disorder even before her marriage was solemnized with the appellant. This fact was revealed from the neighbours of the deceased. Her investigation also did not prove that the deceased was subjected to cruelty in connection with demand of dowry. This fact was revealed from the neighbours of the deceased. Her investigation also did not prove that the deceased was subjected to cruelty in connection with demand of dowry. She even did not find the allegation proved from 'Y' to 'Z' part in written report (Exhibit P-1) that the deceased was put to death by the accused-appellant because he wanted to realise insurance claim on her life and most importantly, investigating officer stated that prior to lodgment of FIR (Exhibit P-2) by Chanchal Kant Verma (P.W. 3), brother of the deceased, accused-appellant had lodged a mrig report (Exhibit P-15) with the police stating that his wife was suffering from mental disorder. It is in this context that when we examine post mortem report (Exhibit P-13), it is noticed that the deceased had three injuries on her body; No. 1 being abrasion in the size of 2.5 cm x 0.5 cm on back of track midline lower thoracic region. Second injury was bruise in the size of 4 cm x 2 cm on front of right thigh above knee and third injury described was no visible injury over scalp externally, on dissection sub scalp haematoma over left side of occipital region. 12. Dr. Rajendra Kakkar (RW. 8) stated that on dissection of head, he found sub scalp haematoma at left side of occipital region, which had fracture, which was going to base of skull. He stated that cause of death was not expressed in the post mortem report (Exhibit P-13) and the medical board decided to reserve the same till receipt of report of FSL and report of pathology examination to rule out common poisoning, for which reason, viscera, stomach as a whole, pieces of small intestine, liver, spleen, kidney, lungs, brain, blood and hair were preserved in separate jars. FSL report is Exhibit P-12, according to which, no poison was detected in viscera. Pathological report is Exhibit P-14, which also was found to be normal. At this stage, Dr. Rajendra Kakkar (P.W. 8) gave statement before the trial court that in his opinion cause of death of the deceased was as a result of injury No. 3, reference of which is made at Page 2 of the post mortem report (Exhibit P-13). 13. Pathological report is Exhibit P-14, which also was found to be normal. At this stage, Dr. Rajendra Kakkar (P.W. 8) gave statement before the trial court that in his opinion cause of death of the deceased was as a result of injury No. 3, reference of which is made at Page 2 of the post mortem report (Exhibit P-13). 13. Here comes the defence set up by the accused-appellant that the deceased was an acute patient of Schizophrenia and she had a long history of such ailment and was under treatment of Dr. Shiv Gautam, renowned psychiatric expert of the State (D.W. 1). This question was put to Nirmal Kant Verma (RW. 5) by the defence, who did not directly deny the fact that the deceased was suffering from that disease before her marriage and he pleaded ignorance, but Salil Kant Verma (PW. 4), another brother of the deceased, admitted that the deceased was taken for treatment to Dr. Shiv Gautam (D.W. 1) by his brother, while his brother Anil Kant (P.W. 1) denied that she was suffering from that disease. Although in the next line Salil Kant Verma (P.W. 4) tried to explain by stating that she was taken to doctor because she was very weak and had suffered a miscarriage. 14. Dr. Shiv Gautam (D.W. 1) has been produced in defence and he has given a detailed statement by stating that he was working as Superintendent in Government Psychiatric Centre, Jaipur, where the deceased was admitted on 03.04.2000 as patient of chronic Schizophrenia. She was discharged on 17.04.2000. Her marriage with the appellant, as per information, took place in July, 1999. She was admitted to hospital by her husband-appellant, who told that she had this ailment even before her marriage took place, but thereafter, brother of the deceased, D. Kamal Kant Verma (P.W. 6) got the deceased discharged from the hospital and took her to Jalore. This witness has proved in Patient Record Sheet of the deceased (Exhibit D-5A) running into 12 pages and categorically stated that in those papers it is stated that she was discharged even before the treatment at the request of her brother, Dr. Kamal Kant Verma (P.W. 6). OPD Card of the deceased is Exhibit D-6A. This witness has proved in Patient Record Sheet of the deceased (Exhibit D-5A) running into 12 pages and categorically stated that in those papers it is stated that she was discharged even before the treatment at the request of her brother, Dr. Kamal Kant Verma (P.W. 6). OPD Card of the deceased is Exhibit D-6A. Symptoms that were recorded on OPD Card (Exhibit D-6A) provide that the deceased used to complain that she hear mysterious voices and that she doubt that the other people were talking about her and trying to influence her behaviour. The deceased never complained him that the appellant was subjecting her to any kind of maltreatment and that she was forcibly hospitalized. In fact, Exhibit D-5 noted the behaviour pattern of the deceased that she complained that she was Laila; she was Johara Bai; she used to see 'baba'; she was 'Devi', sister of Lord Ganesh; she was ridhi sidhi and one girl came who made her sick by black magic. Dr. Shiv Gautam (D.W. 1), in response to a pin pointed query of the trial court, stated that this kind of ailment takes place due to chemical changes in the brain, which could be attributable to the mental condition, stress as also genetics. In response to another query of the trial court whether condition of the deceased was such that it reached the level of mental disorder, answer of Dr. Shiv Gautam (D.W. 1) was affirmative that it has certainly reached at that level. He has stated that the deceased visited him on 04.04.2002 also and prescription where for is Exhibit D-9. Discharge Ticket of the deceased was Exhibit D-8. She was prescribed inject-able medicine, which affects gradually. Other documents were Exhibit D-5A to Exhibit D-7A. The deceased remained hospitalized not only from 03.04.2000 to 17.04.2000, but thereafter also from 29.06.2000 to 20.07.2000. But, lastly she reached such level for being treated at home. She was advised Depo Injection. When she again came to him on 04.04.2002, she was still suffering from Schizophrenia and earlier treatment was repeated. In cross-examination of this witness by the prosecution, he has stated that it would depend on the extent of mental disorder whether the patient would commit suicide. At time, when the patient was living in illusion, he would commit suicide as well. 15. We have analysed statement of Dr. In cross-examination of this witness by the prosecution, he has stated that it would depend on the extent of mental disorder whether the patient would commit suicide. At time, when the patient was living in illusion, he would commit suicide as well. 15. We have analysed statement of Dr. Shiv Gautam (D.W. 1) in the light of statement of Dr. Rajendra Kakkar (P.W. 8), who in his cross-examination has stated that even allegation in the written that the deceased suffered injury by burning of cigarette was not correct. No such injury was found, but he categorically stated that Injury No. 3, which eventually proved fatal can be sustained due to sudden fall on the ground and said possibility could not be ruled out. He has also stated that if skull is opened, not by cutter but by graver and hammer, such kind of fracture is possible, but in that event ante mortem haematoma would not be present there. In cross-examination this witness has stated that in Schizophrenia, patient go to the extent of eating bricks and soil and even uneatable items. He has stated that if a patient is taking Phenergan tablet in the strength of 10 mg., he would suffer drowsiness, but if the tablet is of the strength of 40 mg. he would almost go to sleep. He further admitted that there was foam in larynx and trachea of the deceased, which are symptoms of coma in a patient of epilepsy. 16. Our purpose of highlighting this evidence is to test the correctness of findings of the learned trial court because while it has not accepted testimony of prosecution witnesses, but eventually convicted the accused-appellant on the basis of his failure to prove his defence. This approach is totally unacceptable in the known canons of criminal jurisprudence. The trial court has taken the plea of set up by the accused at the time of filing of third bail application that the appellant was not at home when the incident took place an when he came back, he found that the deceased had caused injuries on her head due to the effect of madness. The trial court in para 18 of its judgment has noted that no such suggestion was given by the defence to Dr. Rajendra Kakkar (RW. 8). The trial court in para 18 of its judgment has noted that no such suggestion was given by the defence to Dr. Rajendra Kakkar (RW. 8). The trial court has relied upon the contention contained in written report (Exhibit P-1) and the statements of Anil Kant Verma (P.W.1) and Chanchal Kant Verma (P.W. 3), brothers of the deceased as also Dr. Rajendra Kakkar (RW. 8) and held that their testimony given on oath have not been rebutted by the accused-appellant and he had not given any suggestion to any one of these witnesses 1n cross-examination that the deceased sustained injuries on her head by herself and burden of proof on that aspect was on the defence and not on the prosecution. Since, the prosecution has discharged it's burden, now it was for the defence to prove the innocence of the accused. If the deceased had actually committed suicide, family members of the appellant would have entered in the witness box to so assert, rather the defence set up by the accused-appellant at the time of argument of charge and filing of third bail application to that effect has not been proved and because the accused-appellant wanted to get rid of his wife, Kirti @ Santosh Lata, therefore, he inflicted fatal injury on her head, as result of which she died. The fact that now and in what circumstances the deceased died, was within his special knowledge for which he was required to give his explanation, in view of Section 106 of the Indian Evidence Act. 17. Guilt of the accused has to be proved beyond reasonable doubt and the burden of proving the charge of the offence against the accused is always on the prosecution. Merely because the accused has taken a particular defence, either at the time of argument while framing of charge or at the time of filing of third bail application, does not absolve the prosecution of its liability to prove the charge. Whatever has been stated by Anil Kant Verma (P.W. 1), Chanchal Kant Verma (PW. 3) and Dr. Rajendra Kakkar (P.W. 8) does not prove the charge of offence punishable under Section 302 IPC against the accused beyond reasonable doubt. Whatever has been stated by Anil Kant Verma (P.W. 1), Chanchal Kant Verma (PW. 3) and Dr. Rajendra Kakkar (P.W. 8) does not prove the charge of offence punishable under Section 302 IPC against the accused beyond reasonable doubt. This deficiency cannot be made good by the trial court which has heavily relied on failure of the accused-appellant to prove his defence, which was not set up by the accused-appellant in his examination under Section 313 Cr.P.C., but was taken when the arguments on charge took place and also when the accused-appellant filed third bail application. In his statement under Section 313 Cr.P.C., his specific defence was that the deceased was an acute patient of Schizophrenia and she was mentally ill and this led to the extent of her death. Defence has put specific question to Dr. Rajendra Kakkar (P.W. 8) that whether Injury No. 3, which proved fatal, could be caused by sudden fall and his answer thereto was that if a person falls backwards and his head is hit by hard surface, possibility of such injury cannot be ruled out. In response to another question that was put to him by the defence, he stated that if the dose of Phenergan tablet is increased from 10 mg to 40 mg, the patient would have acute drowsiness and feel like sleeping. Dr. Shiv Gautam (D.W. 1) with the help of several documents has amply proved that the deceased was under treatment for a long time. He in response to a query of the trial court that the ailment of Schizophrenia could reach the level of mental disorder and that the deceased had reached that level, he answered the same in affirmative. 18. In a case of circumstantial evidence, law is well settled that the charge against the accused have to be proved beyond reasonable doubt. Chain of circumstances sought to be proved against the accused should be so complete as to rule out any single hypothesis that may be pointing out towards his/her innocence. In the present case, the accused-appellant has amply proved his defence, which was his burden. It should be noted that the accused is to merely pro-bablise his defence and not to prove the same by the standard of reasonable doubt. In the present case, accused has pro-bablised his defence not only by the documents Exhibit D-5A to D-9A, but also by evidence of Dr. It should be noted that the accused is to merely pro-bablise his defence and not to prove the same by the standard of reasonable doubt. In the present case, accused has pro-bablised his defence not only by the documents Exhibit D-5A to D-9A, but also by evidence of Dr. Shiv Gautam (D.W. 1) and the statement of Salil Kant Verma (RW. 4) that the deceased was acute patient of Schizophrenia much prior to the date of marriage and he has also proved that the kind of fatal injury, which the deceased sustained could be caused by sudden fall backward which could hit the head against the hard surface. The trial court would not have expected from the accused to prove anything beyond this, much less to say that he should have proved his defence not when he was examined under Section 313 Cr.P.C. but when he took plea at the time of arguments on framing of charge and filing of third bail application. This would amount to putting the cart before the horse, which cannot be accepted. Burden of proof would always be on the prosecution and it can never be shifted on to the accused. In the present case it also cannot be said that the accused-appellant has failed to give any explanation in view of Section 106 of the Indian Evidence Act as to the fact within his special knowledge because in the first place, as per the allegation in the written report (Exhibit P-1), the house where the deceased was staying was a common house of the accused-appellant and his brothers and his family members and secondly, the accused-appellant has given satisfactory explanation as narrated above. 19. In view of above discussion, we are persuaded to allow the appeal and set aside the conviction of the accused-appellant under Section 302 IPC. The appeal is, accordingly, allowed. Impugned judgment dated 13.08.2008 passed by the trial court is quashed and set aside and the accused-appellant is acquitted of the charge under Section 302 IPC. Accused-appellant Pawan Singh, who is in jail for last more than nine years, be released forthwith, if he is not required to be detained in any other case. 20. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Pawan Singh is directed to forthwith furnish a personal bond in the sum of Rs. 20. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Pawan Singh is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.Appeal allowed. *******