JUDGMENT : Biren Vaishnav, J. 1. Having been convicted for the offence under section 302 of IPC and sentenced to life imprisonment by a judgment and order dated 21.04.2012 in Sessions Case No. 8 of 2011, the present appeal has been filed by the convict. First information report at Exh 38 was lodged by one Rameshkumar Rampraveshsing, a cousin of deceased Punitadevi on 12.11.2010. According to the complainant who was a resident of Bihar and posted at Delhi, when he was at Bhuj, he received a telephonic information from his brother Rajesh that his cousin Punita, who was at Rajkot, was done to death by her in-laws. On receiving such information, he proceeded to Rajkot from Bhuj. According to the complainant, the motive behind the act of killing Punita was that her husband Dhirendra was demanding dowry of Rs. 50,000/- so that he could expand his business. According to the complainant, Punita had returned to her matrimonial home three or four months back and she was being tortured by her in-laws in order to see that she gets some money from her parents. The complaint also states that Dhirendra's elder brother Harendrakumar was also instigating his brother. Based on this complaint, investigation was carried out and a charge sheet at Exh 4 was filed before the Trial Court. The accused Dhirendra was charged for having committed offence under sections 302 and 498A of IPC. According to the charge, the accused had attacked deceased Punita with a broom with the knowledge and intention that it will cause her death. Further, as a result of this, Punita succumbed to the injuries on 11.11.2010. 2. The complainant Rameshkumar was examined as PW 11 at Exh 37. Rameshkumar stated that Punita was his cousin who married the accused in the year 2008. After her marriage she was staying at Bihar with her in-laws. Dhirendra, the accused was staying in Gujarat. After her marriage with Dhirendra she was not in the company of her husband due to strained matrimonial relations. According to this witness, Punita would complain about her ill-treatment to her mother who, in turn, would pass on this information to his mother. Punita's brother was in Delhi. It was through him that he came to know that Punita was done to death. This witness stated that the accused had a shop. According to this witness, Punita would complain about her ill-treatment to her mother who, in turn, would pass on this information to his mother. Punita's brother was in Delhi. It was through him that he came to know that Punita was done to death. This witness stated that the accused had a shop. In order to see that he could expand his business, he had demanded some amount from his in laws. Since the demand was not satisfied, Punita was done to death by her husband. This witness further stated that since he was nearby Bhuj for some work and when informed of the incident, he came to Rajkot. When he reached Rajkot, the postmortem on Punita's body was already carried out. He further stated in his testimony that it was through Punita's mother that he came to know that Punita died due to the injuries sustained on her head as her head was banged against a wall and that her hands were tied. He confirmed to having lodged the complaint at Exh 38. 3. This witness has been cross examined. In his cross examination he stated that he had initially given names of three persons. He stated that he had never met Punita after she had married. He admitted that he had not stated in the complaint that he came to know through Punita's mother that she had succumbed to her injuries as a result of her head being banged against the wall with her hands tied. 4. Deceased Punita's mother Phulvadevi Nirmalsing has been examined as PW 12 at Exh 39. According to the testimony of this witness, Punita was married to Dhirendra in the year 2008 and she was staying with her in-laws at Bihar. According to this witness, Punita had called her to inform her that she was under tremendous pressure and that she was being beaten by her in laws. This witness was cross examined. She denied the suggestion that Punita had informed her that she was being beaten or tortured. She further stated that she has not stated this fact in her police statement. 5. Kundansinh Nirmalsing, the brother of the deceased was examined as PW 13 at Exh 40. In his testimony this witness stated that Punita had called him few days before she died and informed that she was not keeping well. She further stated that she has not stated this fact in her police statement. 5. Kundansinh Nirmalsing, the brother of the deceased was examined as PW 13 at Exh 40. In his testimony this witness stated that Punita had called him few days before she died and informed that she was not keeping well. Nothing substantial comes out in the cross examination of this witness. 6. PW 10, Dharmendraing Kishansing Bansidassing was the neighbour of the accused Dhirendra who has been examined at Exh 36. Though this witness has turned hostile, in his examination-in-chief, he has stated that Dhirendra, the accused was also staying in the same building. He was staying on the ground floor whereas he used to stay on first floor. According to this witness, Punita had sustained injuries as a result of a fall from the staircase. Punita had also informed him that she had sustained injuries on her head and her legs. Punita was taken to a doctor by Dhirendra. 7. PW 7 was one Dr. Ketan Chandulal Thakkar who was examined at Exh 27. He was an Orthopedic Surgeon. According to this witness, it was on 11.11.2010 at around 10 O'clock in the morning that Harendrabhai, the member of the staff, had brought his brother's wife Punitaben to the hospital. She was not conscious and therefore, he advised him to take her to a Neurosurgeon one Dr Kirit Shukla. Evidently, there was no sign of any external injuries. He advised to take her to the Neurosurgeon because of the fact that she was unconscious. A certificate to that effect was given by this doctor which is at Exh 28. 8. Dr. Kirit Shukla, PW 8 was examined at Exh 29. He is a Neurosurgeon. He has examined Punita and carried out MRI scan on 11.11.2010 on the advice of Dr. Ketan Thakkar. According to this witness, he did not see any injuries on Punita. He has issued a certificate which is produced at Exh 30. Punita succumbed to the injuries on 11.11.2010 and the postmortem was carried out by one Dr. Mahesh Pansora who was examined as PW 9 at Exh. 31. Dr. Pansora was working as Medical Officer at the Rajkot Civil Hospital. Postmortem was carried out at 7:15 in the evening. The injuries sustained by Punita have been elicited in the testimony of this witness which are as under: "Column 17. Mahesh Pansora who was examined as PW 9 at Exh. 31. Dr. Pansora was working as Medical Officer at the Rajkot Civil Hospital. Postmortem was carried out at 7:15 in the evening. The injuries sustained by Punita have been elicited in the testimony of this witness which are as under: "Column 17. Multiple contusions are seen as below: 1. Upper side of right arm size 4x2 cms; 2. Off side of left arm round shape sore skin size 20 cm x 10 cms of brownish black colour; 3. Left arm lower side 10 x 3 cms brownish black 4. Left leg off side 12 x 8 cm size blue-brownish sore skin 5. Left leg nr. ankle and on bone 6x 3 cm brownish black sore skin 6. Left leg ankle brownish black sore skin of 8x5 cm and 2x4 cm 7. Right leg 2x2 cm size sore skin 8. Off side on right leg small contusions of brownish colour of various size 9. Left lower thigh contusion size 10x4 cms brownish black 10. Lips lower 1.5 cms x 0.5 cms 11. Contusion right cheek 42.3 cms brownish black Above all injuries were due to hard and blunt objects." 9. In the opinion of the doctor, the injuries could be caused due to hard and blunt substance. During the examination, he did not find any fractures. All the injuries were ante-mortem. In the opinion of the doctor, the cause of death could be due to excessive bleeding as a result of injuries sustained. This doctor specifically opined that when shown muddamal article broom, he stated that the injuries could not have been sustained as a result of the broom. The postmortem report is at Exh 32. 10. This doctor was cross examined. In the cross examination, this witness stated that he had received yadi at Exh 34 wherein it had been stated that Punita had sustained injuries as a result of a fall from a staircase. He also admitted that the form at Exh 35 also stated that the injuries were caused due to a fall from a staircase. He admitted that a broom cannot be stated to be a hard and blunt substance. Corroborative evidence in the form of the recovery of broom has been done through panchnama Exh 20. The inquest panchnama is at Exh 22. He admitted that a broom cannot be stated to be a hard and blunt substance. Corroborative evidence in the form of the recovery of broom has been done through panchnama Exh 20. The inquest panchnama is at Exh 22. The panchas have stated that they were informed pursuant to the entry No. 11/10 in the station diary that Punita had sustained injuries on 08.11.2010 in the evening at 9 O'clock as a result of a fall from a staircase. She was first taken to a private hospital and subsequently, shifted and then succumbed to the injuries on 11.11.2010. 16.03.2017 11. Based on these evidences the learned Trial Judge by the impugned judgment and order dated 21.04.2012 acquitted the accused of the charge under section 498A, however, convicted the accused under section 302 of the Indian Penal Code. We need to assess the evidence independently to come to a conclusion. 12. Exh 38 is the first information report filed by the cousin of the deceased who is otherwise staying in Delhi. According to the version in the complaint while he was on his way to Bhuj to collect his luggage, he received a call from his brother Rajesh informing him that Punita had met with an accident. He, therefore, rushed to Rajkot and found Punita dead. Apparently, therefore, the informant has lodged this complaint only on the basis of a telephonic information that he received from his brother in Delhi. He cannot therefore be attributed to be in direct knowledge of the fact that Punita had died or the reason for her death and the manner, in which, she was done to death. The complainant has been examined as PW11. In his examination-in-chief for the first time he comes out with the case that Punita's mother had informed him that Punita had succumbed to the injuries as a result of her head being banged against the wall. He in his cross examination, admits that this fact was not stated by him in the complaint lodged before the police. 13. Punita's mother Phulwadevi has been examined as PW 12. She has admitted in her cross examination that though she denied the fact that she was being harassed by her husband, she admitted that it is possible that she had a fall from a staircase and had sustained injuries. 13. Punita's mother Phulwadevi has been examined as PW 12. She has admitted in her cross examination that though she denied the fact that she was being harassed by her husband, she admitted that it is possible that she had a fall from a staircase and had sustained injuries. The fact that she was physically sick is also borne out from the testimony of Punita's brother, PW 13. Dharmendrasing, PW 10, though turned hostile, in his examination-in chief, has stated that he was a neighbour and staying in the same compound. He, in his cross examination, has categorically stated that Punita had informed that she had sustained injuries on her head as a result of a fall from a staircase. 14. PW 15, Jayendrasinh Zala was the police officer posted at the Government Hospital. He has also recorded in the MLC register that Punita was brought to the hospital and it was informed that she had sustained injuries as a result of a fall from a staircase. 15. Evidently therefore, the witnesses of the prosecution have made a suggestion that the injuries that the deceased sustained could have been due to a fall from a staircase. However, the chargesheet which is at Exh 4 imputes that the accused Dhirendra had beaten Punita with a broom, as a result of which, she sustained injuries and succumbed to the injuries on 11.11.2010. 16. In light of these facts, the testimony of the doctor who performed the postmortem needs to be examined. Doctor Mahesh Pansora who carried out the postmortem of deceased Punita on 11.11.2010 in his examination in chief stated that the injuries could have been sustained due to hard and blunt substance. He however, categorically stated that the injuries which were seen on the body of Punita could not have been done by a broom. In his cross examination, he admits that he has seen the inquest form where it was stated that there was a mention of the cause of death being a fall from a staircase. He also admitted that the broom could not be stated to be hard and blunt substance. Obviously therefore, the prosecution witness, the doctor, in no uncertain terms has falsified the prosecution theory that the injuries that the deceased had sustained was on account of being beaten by a broom. 17. Mr. He also admitted that the broom could not be stated to be hard and blunt substance. Obviously therefore, the prosecution witness, the doctor, in no uncertain terms has falsified the prosecution theory that the injuries that the deceased had sustained was on account of being beaten by a broom. 17. Mr. H K Patel learned APP has sought support of section 106 of the Indian Evidence Act to bring home the point that it was for the accused to prove the existence of circumstances which the accused had not discharged. It was within his special knowledge. According to him the injuries that the deceased sustained was due to a fall from a staircase. Mr. H.K. Patel has relied on the decision in case of Harijan Bhala Teja v. State of Gujarat reported in 2016 (2) GLH 57. He has relied particularly on para 19 of the judgment to contend that when any fact is specifically within the knowledge of a person, the burden proving that fact is upon him. According to learned APP Mr. Patel since the accused was staying with his wife and there was no eyewitness to the incident, that the death occurred due to a broom has been established in view of the fact that the accused has not in accordance with section 106 discharged the burden of proving the fact which was especially within his knowledge. Section 106 of the Indian Evidence Act reads as under: "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. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him." 18. In the case of Shambhu Nath Mehra v. The State of Ajmer reported in AIR 1956 SC 404 , the Supreme Court has held that the general rule in a criminal case is that the burden of proof is on the prosecution to prove the case and by virtue of section 106 of the Evidence Act the prosecution is not relieved of its duty to prove its case. Aid of section 106 of the Indian Evidence Act could be taken in a criminal trial only when the prosecution has led the evidence and such evidence can be believed and the conviction can be sustained. 19. In case of State of W.B. v. Mir Mohammad Omar and ors. reported in (2000) 8 SCC 382 , the Supreme Court has held as under: "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty." 20. In case of Vikramjit Sing @ Vicky v. State of Punjab reported in (2006) 12 SCC 306 the Supreme Court had held in no uncertain terms that the prosecution is not relieved of discharging his burden of proving the guilt. Only when the prosecution case has been proved, the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. "13. In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the prosecution case should be accepted. In our opinion, the approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error. It invoked Section 106 of the Indian Evidence Act although opining: "The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference." 14. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference." 14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute. 15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt." 21. Looking to the case on hand, evidence on record of the prosecution witness Doctor Pansora who is examined as PW 9 it is clearly established that the prosecution theory that deceased Punita was done to death with a broom is not supported by the version of the doctor. He has categorically stated that though injuries could have been sustained with a blunt substance the broom was not a hard and blunt substance and that the injuries on the body of Punita are not which could have been caused as a result of the broom. Even the witnesses particularly, the neighbour though had turned hostile, PW 10 Dharmendrasing has stated that he was informed by Punita that the injuries that she had sustained was due to a fall from a staircase. The Police officer who recorded the MLC on the register in the Government Hospital states in his testimony that he was informed by the husband that Punita had sustained injuries as a result of a fall from the staircase. The Police officer who recorded the MLC on the register in the Government Hospital states in his testimony that he was informed by the husband that Punita had sustained injuries as a result of a fall from the staircase. Punita's mother also agrees when put a question in the cross examination that the injuries that she sustained were as a result of a fall from a staircase. 22. That the death of Punita occurred due to the injuries sustained on being beaten by a broom as is evident from the charge framed does not get support from the evidence on record from the prosecution witnesses particularly from the doctor who carried out the postmortem. Once the prosecution has failed to lead evidence to sustain the conviction of the accused, in accordance with the law laid down by the Supreme Court in the judgments referred to here-in-above it cannot be said that it is upon the accused to discharge his burden in accordance with the provisions of section 106 of the Indian Evidence Act and to disclose that which is within his special knowledge. The prosecution having failed to clearly establish its case on the basis of evidence on record that the injuries that the deceased sustained were as a result of being beaten by a broom, the burden does not shift on the accused to show something within his special knowledge. The conduct of the accused of having not taken his wife to the hospital for a period of three days also in light of this would not go against him. 23. We are of the opinion that the prosecution has failed to bring home the charge for having convicted the accused for the offence under section 302 of the IPC. Accordingly, the Criminal Appeal is allowed. Accused-convict is ordered to be set free, if not required in any other offence. 24. R & P to be transmitted back to the concerned Trial Court. Appeal Allowed