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2025 DIGILAW 1391 (ALL)

Ram Brijesh v. State of U. P.

2025-12-05

SALIL KUMAR RAI, VINAI KUMAR DWIVEDI

body2025
JUDGMENT : SALIL KUMAR RAI, J. The appellant has been convicted under Section 302 IPC and Section 25 Arms Act by judgment and order dated 19.4.2019 passed by the Sessions Judge, Auraiya in Sessions Trial No. 249 of 2011 registered under Sections 498-A, 304-B, 201, 404/411, 302/149 IPC and Section 4 Dowry Prohibition Act as well as in Session Trial No. 250 of 2011 registered under Section 25 of the Arms Act. The appellant has been sentenced to undergo life imprisonment and a fine of Rs.5,00,000/- for the charge under Section 302 IPC and two years imprisonment and a fine of Rs.5,000/- for the charge under Section 25 Arms Act. One Priyanka Raj (hereinafter referred to as the ‘deceased’), daughter of Raj Mohan Singh, the first informant, was married to the appellant on 13.5.2009. On 15.5.2010, the dead body of the deceased was found in the bushes outside the village. A first information report registering Case Crime No. 99/2010 under Sections 498-A / 304-B / 201 IPC read with Section 3/4 Dowry Prohibition Act was registered in Police Station Bidhuna, District Auraiya on 15.5.2010 at 05:15 p.m. The case of the prosecution, in short, is that the appellant and the in-laws of the deceased, i.e., the mother-in-law, the father-in-law, the brother-in-law (jeth) and the sister-in-law (jethani) of the deceased were not satisfied with the dowry given during the marriage. The appellant and the in-laws used to harass the deceased for more dowry and demanded a Maruti Car as well as Rs.1,00,000/- (Rs. one lakh) in cash from the deceased. It has been stated in the first information report that the appellant and the in-laws of the deceased threatened the first informant that they would not let the deceased live in peace till their demand for dowry was satisfied. On 15.5.2010, the first informant received information on phone that his daughter had been beaten by her in-laws and the appellant and shot dead outside the village and Sanoj Kumar s/o Ahivaran Singh and Pankaj @ Chhote s/o Vishram Singh assisted the appellant and others in the crime. The dead body had been thrown in the bushes. It was alleged in the first information report that the deceased was shot dead only because the first informant could not fulfill the demand for dowry made by the in-laws of the deceased. The appellant was arrested on 16.5.2010. The dead body had been thrown in the bushes. It was alleged in the first information report that the deceased was shot dead only because the first informant could not fulfill the demand for dowry made by the in-laws of the deceased. The appellant was arrested on 16.5.2010. It has been alleged that a 315 bore country made pistol allegedly used in the crime was recovered at the instance of the appellant from near the dead body of the deceased. A recovery memo was prepared and a first information report registering Case Crime No. 102 of 2010 under Section 25 of the Arms Act was registered on 16.5.2010 at Police Station Bidhuna, District Auraiya. Some jewelries were also allegedly recovered from the appellant while he was being arrested and it is alleged that the appellant had confessed that the said jewelries belonged to her wife which was removed from her body by the appellant after the deceased was murdered and some of those jewelries were given to Sanoj Kumar and Pankaj @ Chhote. A recovery memo of the jewelries was also prepared. The inquest was prepared on 15.5.2010 at 06:15 p.m. showing that the dead body was found in the bushes near the graveyard. It is the prosecution case that another 315 bore country made pistol, two gold rings and a Pulsar motorcycle with registration no. UP 79A - 2297 was recovered on 6.6.2010 at the instance of Sanoj Kumar s/ o Ahivaran Singh one of the co-accused in Case Crime No. 99 of 2010. The prosecution alleges that Sanoj Kumar confessed that the country made pistol recovered at his instance was used in the crime. A recovery memo was prepared and Case Crime No. 102 of 2010 under Sections 25/27 Arms Act was registered against Sanoj Kumar. The autopsy was done on 16.5.2010 at 03:00 p.m. The autopsy report showed the following ante-mortem injuries on the body of the deceased :- “ Firearm wound of entry 1 cm x 1 cm x bone deep on right cheek at 2 cm below the right lower eyelid margins inserted blackening out around the wound. Firearm wound of exit 1.5 cm x 1.5 cm x through & through to injury No. (1), margin exerted on right side of neck at 8 cm behind right ear.” A charge-sheet was filed and the case was committed for trial to the Sessions Court. Firearm wound of exit 1.5 cm x 1.5 cm x through & through to injury No. (1), margin exerted on right side of neck at 8 cm behind right ear.” A charge-sheet was filed and the case was committed for trial to the Sessions Court. The appellant along with Sanoj Kumar, Pankaj @ Chhote, Sarla Devi (mother-in-law of the deceased), Mahaveer Singh (father of the appellant and father-in-law of the deceased), Shiv Nath Singh (jeth of the deceased), Guddi Devi (sister-in-law, i.e., jethani of the deceased) and one Kuldeep were charged under Sections 498-A, 304-B, 201, 404/411, 302/149 IPC and in the alternative, under Section 302 read with Section 149 IPC in Session Trial No. 249 of 2011. The appellant was also charged under Section 25 of the Arms Act in Session Trial No. 250 of 2011. Sanoj Kumar was also charged under Sections 25/27 of the Arms Act in Session Trial No. 01 of 2017. All the aforesaid trials were consolidated and tried together. The prosecution examined a total of eleven witnesses to prove its case. The first informant, who was the father of the deceased, was examined as P.W.-1 and Sharad Kumar, the cousin of the deceased, was examined as P.W.-2 by the prosecution. In his testimony, P.W.-1 has stated that his daughter was married to the appellant on 13.5.2009 and during the marriage the witness had given Rs.4,00,000/- (Rs. Four Lakh) in cash and goods worth Rs.1,00,000/- (Rs. One Lakh) as dowry. The witness stated that the appellant and his family were not satisfied with the dowry and after marriage, demanded one Maruti Car and Rs.1,00,000/- (Rs. One Lakh) in cash which was communicated to the witness by the deceased. The witness stated that the in-laws of the deceased threatened that they would not let the deceased live in peace till their demand for more dowry was satisfied. The witness stated that on 15.5.2010 at 02:00 p.m., he received information that his daughter (the deceased) was physically assaulted by the accused and was shot dead outside the village. The witness further stated that Sanoj Kumar, Pankaj and Kuldeep had helped the appellant in the aforesaid crime and Sanoj and Pankaj had reached the spot on a motorcycle. It was stated by the witness that the accused had removed all the jewelries worn by the deceased on the fateful day. The witness further stated that Sanoj Kumar, Pankaj and Kuldeep had helped the appellant in the aforesaid crime and Sanoj and Pankaj had reached the spot on a motorcycle. It was stated by the witness that the accused had removed all the jewelries worn by the deceased on the fateful day. In his cross- examination, the witness stated that the dowry given him during the marriage of the deceased was given voluntarily. It was stated by the witness that he did not take any loan for the marriage of the deceased. It was admitted by the witness that the marriage of the deceased was solemnized in a marriage hall whose rent was paid by the father of the appellant who had also gifted clothes and jewelries to the deceased. In his cross-examination, the witness stated that he was informed about the incident by the Gram Pradhan of the village of the appellant and the first information report was lodged by the appellant on the information given by different persons. In his cross-examination, the witness admitted that he did not save the phone number from which he got information regarding the incident. It has been stated by the witness that Naem Singh, who was the Gram Pradhan, had met the appellant at the place of incident and had told the witness the manner in which the deceased was murdered. The noticeable feature of the testimony of P.W.-1 is that in his evidence, P.W.-1 admitted that the dowry given by him to the appellant were given voluntarily. It has also been admitted by the witness that Naem Singh, the Gram Pradhan of the village of the appellant, had told the witness about the incident and the role of the accused in the crime. P.W.-2, i.e., Sharad Kumar stated in his testimony that in the marriage of the deceased, his uncle, i.e., P.W.-1 had given Rs.4,00,000/- (Rs. Four Lakh) in cash and goods worth Rs.1,00,000/- (Rs. One Lakh) but the in-laws of the deceased were not satisfied with the dowry given in marriage and demanded a Maruti Car and Rs.1,00,000/- (Rs. One Lakh) in cash from P.W.-1. It was also stated that after the marriage, the appellant and his family members threatened that they shall not let the deceased live in peace till their demand was satisfied. One Lakh) in cash from P.W.-1. It was also stated that after the marriage, the appellant and his family members threatened that they shall not let the deceased live in peace till their demand was satisfied. In his evidence, the witness stated that the deceased told the aforesaid fact to her parents and also to the witness when she came to her maternal home. It was admitted by the witness in his cross-examination that the demand for a Maruti Car was made by the accused before the marriage but the first informant, i.e., P.W.-1 pleaded his inability to give a Maruti Car, however, still the marriage of the deceased and the appellant was agreed upon and solemnized. P.W.-3 has proved the chick FIR and P.W.-4 as well as P.W.-6 proved the inquest report. The Medical Officer who conducted the autopsy was examined as P.W.-5 and has proved the post mortem report. According to the witness, the cause of death was shock and hemorrhage due to ante mortem fire arm injuries. In his testimony, the witness stated that there were only two firearm wounds on the body of the deceased out of which one was an exit wound. There were no other injuries on the body of the deceased. The Investigating Officer of the case was examined as P.W.-8. In his evidence, P.W.-8 has stated that on 30.5.2010, Sanoj Kumar had confessed his participation in the crime and had informed the witness that the pistol as well as motorcycle used in the crime and also the jewelries removed from the body of the deceased were recovered at the instance of Sanoj Kumar after he was taken on police remand. In his evidence, the witness also stated that the statements of Naem Singh and Dharam Singh were recorded under Section 161 Cr.P.C. in which they had claimed themselves to be the eye-witness of the incident and had also claimed that they had seen Sanoj Kumar, Pankaj and Kuldeep on a motorcycle going to the place of incident. The appellant in his statement under Section 313 Cr.P.C. denied the charges and stated that the jewelries allegedly shown to have been recovered from him were taken from the home of the appellant and were falsely shown as recovered from the appellant. In his statement under Section 313 Cr.P.C. the appellant pleaded his innocence. The appellant in his statement under Section 313 Cr.P.C. denied the charges and stated that the jewelries allegedly shown to have been recovered from him were taken from the home of the appellant and were falsely shown as recovered from the appellant. In his statement under Section 313 Cr.P.C. the appellant pleaded his innocence. The appellant stated that he was going with the deceased on a cycle and mid way his wife went in the bushes to relieve herself when the members of the Bikers gang shot the deceased because she resisted their attempt to rob her. It is the case of the appellant that he had gone to Kudarkot Police Chowki to inform the police personnel about the incident but no report was lodged by the police personnels but the appellant was detained by the police chowki. The appellant claims that he had been falsely implicated in the case. The trial court vide its judgment and order dated 19.4.2019 has acquitted all the accused of the charge under Sections 498-A, 304-B, 201, 149, 404/411 IPC and Section 4 Dowry Prohibition Act. The trial court has convicted the appellant under Section 302 IPC and Section 25 of the Arms Act and also convicted Sanoj Kumar under Section 25 of the Arms Act. The other accused have been acquitted of the charge under Section 302 IPC. The sentence awarded to the appellant has been mentioned earlier. In its judgment, the trial court has held that the prosecution had not been able to prove the demand for dowry or that any cruelty or harassment was meted out to the deceased by her husband, i.e., the appellant or any relative of her husband, therefore, the death of the deceased cannot be termed as dowry death. It has been held by the trial court that the prosecution failed to prove that the jewelries recovered from the appellant or Sanoj Kumar belonged to the deceased, therefore, no offence under Section 404/411 IPC was made out. It has been further held by the trial court that there was no evidence to support the charges under Sections 304-B, 498-A, 404/411 IPC and Section 201 IPC or under Section 4 of the Dowry Prohibition Act. The trial court has also rejected the case of the prosecution regarding participation of Kuldeep in the crime. It has been further held by the trial court that there was no evidence to support the charges under Sections 304-B, 498-A, 404/411 IPC and Section 201 IPC or under Section 4 of the Dowry Prohibition Act. The trial court has also rejected the case of the prosecution regarding participation of Kuldeep in the crime. It is in light of the aforesaid findings that the trial court has acquitted all the accused including the appellant from offences under Sections 304-B, 498-A, 404/411 and Section 201 IPC or under Section 4 of the Dowry Prohibition Act. So far as the offence under Section 302 IPC and Section 25 Arms Act is concerned, the trial court has held that in light of the explanation of the appellant under Section 313 Cr.P.C. that the appellant and the deceased were going on a cycle when the deceased stopped mid way to relieve herself and the bikers shot at the deceased when she resisted, the burden of proof shifted on the appellant under Section 106 to prove his explanation. The trial court took note of the fact that the appellant had not given any details of the motorcycle allegedly used by the robbers. The trial court relying on the recovery of pistol allegedly used in the crime held that the recovery completed the chain of necessary links to prove the prosecution case. The trial court after holding that the appellant had failed to discharge his burden, convicted the appellant under Section 302 IPC and under Section 25 Arms Act. The conviction and the consequential sentence have been passed as noted previously. It was argued by the counsel for the appellant that the trial court has misread the evidence on record and has also misapplied the law regarding Section 106 of the Indian Evidence Act. It was argued that there is no evidence that the deceased was last seen with the appellant or was with the appellant at the time of the commission of offence, therefore, the trial court has erred in shifting the burden of proof on the appellant. It was argued that the burden to prove its case was on the prosecution and the prosecution failed to discharge its burden. It was argued that the burden to prove its case was on the prosecution and the prosecution failed to discharge its burden. It was argued that the trial court had not correctly applied the law while considering the explanation of the appellant under Section 313 Cr.P.C. It was argued that there was no motive for the appellant to murder his wife and the trial court has wrongly convicted the appellant. Rebutting the arguments of the appellant, the Additional Government Advocate has supported the judgment of the trial court and has argued that the evidence on record proved that the appellant was with the deceased at that time and the burden to prove his claim as made in his explanation was on the appellant. The appellant had failed to discharge the burden, therefore, the conviction by the trial court is in accordance with law. It was further argued that the pistol used in the commission of crime was recovered at the instance of the appellant which proved that the appellant had murdered the deceased. It was further argued that for the aforesaid reasons, the appeal is liable to be dismissed. We have considered the submissions of the counsel for the parties. As noted earlier the case of the prosecution, in short, is that the deceased was murdered by the appellant and his family members because the parents of the deceased were not able to satisfy the demand for more dowry made by the in-laws of the deceased. The motive for killing the deceased has not been accepted by the trial court which has acquitted the accused of the charge under Section 304-B IPC. The trial court has convicted the appellant on the ground that on his own explanation, the appellant was with the deceased, therefore, under Section 106 of the Indian Evidence Act, the burden to prove the circumstances of the death as claimed by the appellant was on the appellant and because the appellant failed to discharge the burden, therefore, he was liable to be convicted under Section 302 IPC. The trial court has held that the explanation of the appellant coupled with the fact that the pistol used in the offence was recovered at the instance of the appellant completes the chain of circumstances necessary to prove the guilt of the appellant. We find the reasoning of the trial court unacceptable. The trial court has held that the explanation of the appellant coupled with the fact that the pistol used in the offence was recovered at the instance of the appellant completes the chain of circumstances necessary to prove the guilt of the appellant. We find the reasoning of the trial court unacceptable. We agree with the findings of the trial court that the charges under Sections 304-B, 498-A, 404/411 and Section 201 IPC or under Section 4 of the Dowry Prohibition Act 304-B were not proved. The significance of acquitting the appellant of the charges under Sections 304-B, 498-A and Section 4 Dowry Prohibition Act and Section 201 IPC shall be considered later. The trial court has held that the charge of Section 302 IPC against the appellant had been proved by circumstantial evidence and the trial court has relied on the explanation of the appellant under Section 313 Cr.P.C. We do not accept the findings of the trial court regarding the conviction of the appellant under Section 302 IPC. The necessary ingredients to prove a charge by circumstantial evidence were laid down by the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 . It would be relevant to reproduce the observations of the Supreme Court in Paragraph nos. 153 to 157 of its judgment : - “153 . A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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. 154 . These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 155 . It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry, thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for." 156 . Lord Goddard slightly modified the expression, morally certain by “such circumstances as render the commission of the crime certain”. 157 . This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case was approved by this Court in Anant Chintaman Lagu v. State of Bombay. Lagu case as also the principles enunciated by this Court in Hanumant case have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases : - Tufail case, Ramgopal case, Chandrakant Nyalchand Seth v. State of Bombay, Dharmbir Singh v. State of Punjab. Lagu case as also the principles enunciated by this Court in Hanumant case have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases : - Tufail case, Ramgopal case, Chandrakant Nyalchand Seth v. State of Bombay, Dharmbir Singh v. State of Punjab. There are a number of other cases where although Hanumant case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration, Mohan Lal Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharashtra and M.G. Agarwal v. State of Maharashtra - a five - Judge Bench decision.” (Emphasis supplied) In order to prove the guilt of the appellant under Sections 302 IPC, the prosecution had to either prove that the appellant and the deceased were together when the crime was committed or that the appellant was last seen with the deceased. The prosecution has not examined any witness to prove that the appellant was last seen with the deceased or was seen with the deceased at the time the crime was committed. So far as the effect of the explanation of the appellant under Section 313 Cr.P.C. is concerned, the same shall be considered later on in the judgment. At this stage, it would be relevant to note that in his testimony, P.W.-2 has stated that Naem Singh informed him about the incident and in his cross-examination, the witness also admitted that Naem Singh told him the manner in which the deceased was killed by the accused. It has also been testified by the Investigating Officer, i.e., P.W.-8 that he had interrogated Naem Singh and Dharam Singh. The aforesaid persons have not been examined by the prosecution. Naem Singh is the eye-witness of the incident. The witness was a material witness but was not examined by the prosecution. The failure of the prosecution to examine Naem Singh persuades us to draw an adverse presumption that in case, he had been examined, he would have not supported the prosecution case. At this stage, it would be relevant to refer to the observations of the Supreme Court in Takhaji Hiraji vs. Thakore Kubersing Chamansing & Ors. (2001) 6 SCC 145 . The observations of the Supreme Court are reproduced below:- “19 . At this stage, it would be relevant to refer to the observations of the Supreme Court in Takhaji Hiraji vs. Thakore Kubersing Chamansing & Ors. (2001) 6 SCC 145 . The observations of the Supreme Court are reproduced below:- “19 . … It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. …” (Emphasis supplied) The prosecution failed to prove from the evidence produced that the appellant was last seen with the deceased or was with the deceased immediately before her death. It is not the case of the prosecution that the witness was not available for examination. The evidence produced by the prosecution does not prove that the appellant was with the deceased when the crime was committed or that the deceased was last seen with the accused. The failure of the prosecution to examine Dharam Singh and Naem Singh is fatal to the prosecution case. The evidence produced by the prosecution does not prove that the appellant was with the deceased when the crime was committed or that the deceased was last seen with the accused. The failure of the prosecution to examine Dharam Singh and Naem Singh is fatal to the prosecution case. The explanation of the appellant under Section 313 Cr.P.C. does not help the prosecution. It is settled law that an explanation given by the accused under Section 313 Cr.P.C. cannot be used to fill the gaps in the prosecution evidence. The prosecution has to stand on its own legs and is required to prove its case beyond doubt on its own evidence. The statement under Section 313 Cr.P.C. cannot be used to nail the accused. The explanation of the accused under Section 313 Cr.P.C. is sought after the prosecution has examined its witnesses, therefore, it cannot be a substitute for the prosecution evidence. At this stage, it would be relevant to reproduce the observations of the Supreme Court in Paragraph no. 151 of Sharad Birdhichand (supra) :- “151 . It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court . (Emphasis supplied) It is apparent that in case, the explanation of the appellant under Section 313 Cr.P.C. is not taken into consideration, there is no evidence on record to show that the deceased was last seen with the appellant or was with the appellant. (Emphasis supplied) It is apparent that in case, the explanation of the appellant under Section 313 Cr.P.C. is not taken into consideration, there is no evidence on record to show that the deceased was last seen with the appellant or was with the appellant. The trial court has used the explanation of the appellant to fill the gaps in the prosecution evidence regarding the presence of the accused at the place of the offence and that the appellant was either with the deceased or was last seen with the deceased. The trial court has also held that the recovery of pistol at the instance of the deceased completed the links in the circumstantial evidence to prove the guilt of the appellant. Here again, we are not able to agree with the trial court. We find and it is also evident from the judgment of the trial court that two pistols were claimed to have been recovered from the place of incident - One country made pistol of 315 bore was recovered at the instance of the appellant and the other country made pistol of 315 bore was recovered at the instance of Sanoj Kumar. The recovery memo of both the pistols have been proved by the concerned officers. A perusal of the post mortem report of the deceased shows that there is only one gun shot wound. Wound no. 2 is the exit wound and corresponds with wound no. 1. Sanoj Kumar has been acquitted for the offence under Section 302 IPC. There is no evidence on record to establish that the gun shot wounding the deceased was fired from the pistol allegedly recovered at the instance of the appellant. At this stage, it would also be relevant to note that in cases of circumstantial evidence, motive is an important factor to be established to prove the guilt of the accused. The prosecution pleaded dowry to be the motive for crime. The evidence produced by the prosecution regarding demand of dowry by the appellant or his family members has been disbelieved by the trial court and the trial court has held that there was no evidence on record to show that any cruelty or harassment for dowry was meted out to the deceased before her death. As noted earlier, we have agreed with the findings of the trial court. As noted earlier, we have agreed with the findings of the trial court. Apparently, the motive for the appellant to kill his wife has also not been proved. It has also been argued by the prosecution that in light of his explanation under Section 313 Cr.P.C., the burden to prove the circumstances of the death of the deceased as claimed by the appellant was on the appellant. We disagree with the reasoning of the trial court and reject the argument of AGA. Section 106 of the Evidence Act does not shift the burden of proof from the prosecution to the defence. The burden of proof regarding commission of crime and the involvement of the accused is on the prosecution. The said burden never shifts. Section 106 of the Evidence Act only provides that a fact especially within the knowledge of any person is to be proved by the person who has the knowledge of the fact. Section 106 does not relieve the prosecution from discharging its duty to prove the guilt of the accused. It does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which burden of proof would lie upon the accused. At this stage, it would be relevant to refer to the observations of the Supreme Court in Paragraph nos. 50 to 52 of its judgment reported in Md. Anowar Hussain vs. State of Assam (2022) 19 SCC 264 : - “50 . In Gargi, where the appellant was held guilty of murder of her husband by the two courts essentially with reference to the operation of Section 106 of the Evidence Act, this Court pointed out that this provision does not absolve the prosecution of its primary burden in the following words: "33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden." 51 . In Shivaji Chintappa Patil, this Court reiterated the principles that Section 106 of the Evidence Act does not absolve the prosecution of discharging the primary burden; and that want of explanation or falsity of explanation in the statement under Section 313 can only be used as an additional circumstance when the prosecution has proved the other circumstances leading to no other conclusion but that of guilt of the accused. In that case, one of the significant features had been that as per the post-mortem report, the cause of death of the victim was asphyxia due to hanging but, admittedly, there were no marks on the body of the victim which could suggest violence or struggle; and the medical expert himself had not ruled out the possibility of suicidal death. This Court observed and said as under: "23. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused. 25. Another circumstance relied upon by the prosecution is that the appellant failed to give any explanation in his statement under Section 313 CrPC. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda." 52 . However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda." 52 . In Satye Singh, wherein the prosecution failed to prove the basic facts is against the accused, this Court, again, emphasised that Section 106 of the Evidence Act does not relieve the prosecution of its primary duty to prove the guilt of the appellant as follows: "19. ... the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by the learned advocate Mr Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused . (Emphasis supplied) The prosecution failed to prove the presence of the appellant at the scene of the crime or that he was last seen with the deceased. There is no evidence to prove that the gun shot wounding the deceased was fired from the pistol recovered at the instance of the appellant and not the other pistol. Both the pistols were of the same make. Prosecution failed to prove the motive for murder. In the circumstances, we are not able to persuade ourselves that the burden to prove the circumstances of the death of the deceased shifted on the appellant under Section 106 of the Evidence Act. For all the aforesaid reasons, we hold that the prosecution has not been able to prove, beyond, doubt the appellant guilty of the charge either under Section 302 IPC or Section 25 Arms Act. The appellant has already undergone actual imprisonment for more than 9 years as as on date. The appeal is allowed. The judgment and order dated 19.4.2019 passed by the Sessions Judge, Auraiya in Sessions Trial No. 249 of 2011 registered under Sections 498-A, 304-B, 201, 404/411, 302/149 IPC and Section 4 Dowry Prohibition Act so far as it convicts the appellant under Section 302 IPC and also in Session Trial No. 250 of 2011 so far as it convicts the appellant under Section 25 of the Arms Act are, hereby, set-aside. Consequently, the sentences awarded to the appellant, as noted earlier, in Session Trial No. 249 of 2011 and in Session Trial No. 250 of 2011 also stand set-aside. The appellant is acquitted of the charges in Sessions Trial No. 249 of 2011 and Session Trial No. 250 of 2011. The appellant is in jail and shall be released forthwith from jail if not detained in any other case. Let the present judgment of this Court be certified to the trial court. The records of the case along with the judgment shall be remitted back to the trial court for necessary action.