# Manoj Kumar v. State of U.P

- **Citation:** (2026) 4 ILRA 1077
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-30
- **Case number:** Criminal Appeal No. 815 of 2012
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-v-state-of-u-p-54692
- **Pages:** 12

## Text

4 All. Manoj Kumar Vs. State of U.P.
1077
37. In view of the foregoing discussion, I am of the view that the offenses under sections
364 and 307 IPC are not made out against the appellants. Instead, the appellant no. 1 is held guilty
for committing offenses under sections 362 and 323 IPC.

38. Although both the appellants have filed an application for giving them the benefit of
Section 4 of the Probation of Offenders Act, I have already held that the prosecution could not
prove the guilt of the appellant no. 2 beyond reasonable doubt and have acquitted him of all the
charges. The appellant no. 2 was accused in a case under section 307 IPC lodged from the victim?s
side, in which he already stands acquitted in that case. The learned AGA-I does not oppose the
request for grant of the benefit of the Probation of Offenders Act.

39. Accordingly, the application for benefit of the Probation of Offenders Act to the
appellant no. 1 Anant Kumar is allowed and he is granted benefit of Section 4 of the Probation of
Offenders Act. As the appellant no. 1 was convicted in the year 2012 and during the past about 14
years, he has not committed any offense, the good conduct of the appellant no. 1 during the
aforesaid period does not warrant keeping him on probation for any further period.

40. Accordingly, the appeal is partly allowed in the aforesaid terms.
---------
(2026) 4 ILRA 1077
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.04.2026

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 815 of 2012

Manoj Kumar ...Appellant
Versus
State of U.P. ...Respondent

Issue for Consideration
Matter pertains to whether, after acquittal of the accused of the charges under Ss. 498-A, 304-B, 302/34 IPC
and Ss. 3/4 Dowry Prohibition Act, there was sufficient material to establish that the appellant had abetted his
wife to commit suicide so as to sustain conviction under S. 306 IPC and whether S. 106 of the Evidence Act
could be invoked to shift the burden upon the accused. (Paras 16, 25-38)

Headnotes
Criminal Law - Abetment of Suicide - Indian Penal Code, 1860 - Ss. 306 and 107 - Ingredients of
abetment - Requirement of instigation, intentional aid, active act or direct act and clear mens
rea - Conviction under S. 306 IPC cannot be sustained without evidence that the accused had
abetted the deceased to commit suicide - In the present case, there was no allegation of
commission of any act which may amount to instigating the deceased to commit suicide and
there was no evidence that any incident took place in close proximity of time when the deceased
committed suicide or that the quarrels were intended to induce the victim to commit suicide -
Prosecution failed to establish that the appellant had abetted the deceased to commit suicide -
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
Offence under S. 306 IPC not made out - Conviction and sentence set aside. (Paras 17-27, 3639)
Evidence - Burden of Proof - Indian Evidence Act, 1872 - S. 106 - Scope and applicability - S. 106
does not relieve the prosecution to prove its case beyond all reasonable doubt and cannot be
used to shift the burden of proving the offence from the prosecution to the accused -
Applicability arises only when the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding existence of certain other facts - In the present
case, there was no evidence to even prima facie establish that the appellant had abetted the
deceased to commit suicide - Trial Court erred in holding the appellant guilty merely because he
could not explain the reason due to which his wife committed suicide - Conviction unsustainable.
(Paras 28-37)
Held: The appellant as well as all the accused persons stand acquitted of the charge under S. 498-A IPC as it
could not be established that they had subjected the deceased to cruelty - there is no allegation of
commission of any act which may amount to instigating the deceased to commit suicide - the only evidence is
the evidence of PW-2 that the appellant used to consume liquor and if the deceased objected against it he
used to beat her in an inebriated condition - there was no evidence that any such incident took place in close
proximity of time when the deceased committed suicide - there is no evidence that the quarrels were intended
to induce the victim to commit suicide and there is no evidence that the quarrel had left the deceased with no
option except to commit suicide - even if the victim committed suicide being aggrieved by the aforesaid
conduct of the appellant there is no evidence to even prima facie establish that the appellant had abetted the
deceased to commit suicide - the prosecution has not been able to discharge its burden of establishing
beyond reasonable doubt that the appellant had abetted his wife to commit suicide - the trial court could not
have held the appellant guilty just because the appellant could not explain the reason due to which his wife
committed suicide - the prosecution failed to establish that the appellant had abetted the deceased to commit
suicide - the offence under S. 306 IPC is not made out - the order of conviction and sentence is not
sustainable in law and the appellant is entitled to acquittal - Appeal allowed. (Paras 25-38) (E-7)

Case Law Cited
Ramesh Kumar v. State of Chhattisgarh: (2001) 9 SCC 618; State of W.B. v. Orilal Jaiswal: (1994) 1 SCC
73; Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi): (2009) 16 SCC 605; M. Mohan v. State:
(2011) 3 SCC 626; Prabhat Kumar Mishra v. State of U.P.: (2024) 3 SCC 665; Nipun Aneja v. State of
U.P., 2024 SCC OnLine SC 4091; Vikramjit Singh v. State of Punjab: (2006) 12 SCC 306; Joydeb Patra v.
State of W.B., (2014) 12 SCC 444; Sucha Singh v. State of Punjab [(2001) 4 SCC 375]; Balvir Singh v.
State of Uttarakhand, (2023) 16 SCC 575; State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 :
2000 SCC (Cri) 1516; M. Vijayakumar v. State of T.N.: (2024) 4 SCC 633; Sawal Das v. State of Bihar:
(1974) 4 SCC 193; Upendra @ Balveer versus State of U.P.: Neutral Citation No. - 2024:AHC:172173DB.

List of Acts
Indian Penal Code, 1860; Indian Evidence Act, 1872; Dowry Prohibition Act,1961; Code of Criminal
Procedure,1973

List of Keywords
Abetment of suicide; instigation; intentional aid; mens rea; cruelty; dowry demand; suicide; burden of proof;
fact especially within knowledge; S. 106 Evidence Act; prima facie case; conviction; acquittal; prosecution
burden; quarrel; consumption of liquor; burn injuries; suicide by burning.

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal under S. 374(2) Cr.P.C. against the judgment and order dated
06.04.2012 passed by the learned Special Judge, E.C. Act, Gonda in Session Trial No. 217 of 2008 arising out
of Case Crime No. 127 of 2008 under Ss. 498-A, 304-B (alternative S. 302/34 IPC) and Ss. 3/4 Dowry
Prohibition Act, Police Station Kaudiya, District Gonda.
4 All. Manoj Kumar Vs. State of U.P.
1079
Appearances for Parties
Advs. for the Appellant:
Sri Pawan Kumar Mishra
Advs. for the Respondents:
Sri Mohd. Asif Khan, learned A.G.A.-I. for the State of U.P.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Pawan Kumar Mishra, the learned counsel for the appellant and Sri Mohd. Asif
Khan, the learned A.G.A.-I.

2. By means of the instant appeal filed under Section 374 (2) Cr.P.C, the appellant has
challenged the validity of a judgment and order dated 06.04.2012 passed by the learned Special
Judge, E.C. Act, Gonda in Session Trial No. 217 of 2008, arising out of Case Crime No. 127 of
2008, under Sections 498-A, 304-B (alternative Section 302/34 IPC) and 3/4 Dowry Prohibition
Act, Police Station Kaudiya, District Gonda.

3. The aforesaid case was instituted on the basis of an FIR lodged against four persons - the
appellant Manoj Kumar, his father Faujdar, mother Maya Devi and brother Pawan Kumar, stating
that the informant had got his daughter married to the appellant Manoj Kumar about six years ago.
Gauna ceremony was performed three years after the marriage. About one year after the Gauna, the
accused persons started demanding Rs. 30,000/- as additional dowry. The informant had paid Rs.
10,000 and had committed to pay the balance amount soon. The appellant had taken the
informant?s daughter with him about 8 days ago and had stated that unless the balance amount of
Rs. 20,000/- was paid within 10 days, his daughter would be set ablaze. His daughter was set ablaze
on 10.04.2008, the FIR was lodged on 09.05.2008, i.e. after one month since the incident.

4. The victim was admitted to the District Hospital, Gonda at about 7:55 p.m. on
11.04.2008 and she died at 7:50 a.m. on 12.04.2008. An inquest report was prepared and
postmortem examination report was prepared.

5. Charge-sheets were submitted against the appellant and his parents. The involvement of
the appellant?s brother Pawan Kumar could not be established during the investigation and he was
exonerated.

6. The informant Goli Ojha (father of the deceased) was examined as PW-1. The mother of
the deceased was examined as PW-2. The informant?s brother was examined as PW-9. The other
witnesses were police officials and the doctor who had conducted the postmortem examination of
the dead body. The appellant denied the allegations in his statement recorded under Section 313
CrPC and he examined two witnesses: DW-1-Parmatma Prasad and DW-2-Lakshmi Narayan.

7. The informant PW-1 stated that his daughter?s husband (the appellant) had taken her to
the District Hospital, Gonda and she died in the Hospital. He did not know that his elder brother
Mathura Prasad (PW-9) was present at the time of preparation of the inquest report. The FIR was
lodged 28-29 days after the incident. He or any of his family members had not witnessed the
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
incident. He denied the suggestion that the victim had set herself ablaze being disturbed by her
ailment.

8. Mother of the victim (PW-2) stated that information of death of her daughter was
received from her sasural (matrimonial home). Her daughter had been admitted to the hospital by
her husband and his family members. She had gone to the District Hospital along with the elder
brother of her husband. She stated that the elder brother of her husband was present at the time of
preparation of the inquest report. She stated that the FIR was lodged about a month after the
incident. She denied that the victim had opposed her husband from consuming liquor, an altercation
followed between them and that she had suffered injuries in this incident.

9. The elder brother of the informant was examined as PW-9. He stated that the appellant?s
father had sent information by making a telephone call to a neighbour stating that the victim was
not well, there was no hope of her survival and in case anyone wanted to see her, he should reach
the hospital. He had gone to the District Hospital, Gonda along with the informant?s wife (PW-2)
after receiving the information. When he reached the hospital, the victim had already died. PW-9
stated that after death of the victim, his brother Goli (father of the victim) had given an information
to the police. The police had come, the dead body was seen by the mother of the victim and an
inquest report was prepared.

10. The post-mortem examination report mentions the cause of death to be shock and the
doctor examined as PW-4 has proved that the victim had died due to burn injuries. There was no
mark of injury on the dead body.

11. PW-1 stated that he could not tell the date, month and year of his daughter?s wedding.
He stated that at the time of marriage his daughter was aged 19 years. The Gauna ceremony was
performed 3 years after the marriage. A similar statement was given by PW-2 also. PW-9 stated
that the deceased got married about five-six-years ago. Five-six days after the marriage, the
informant had brought her back home. She stayed in the house of her father for about five-six
months and thereafter her gauna was performed.

12. Therefore, there was a discrepancy in the statements of PW-1 & PW-2 who stated that
gauna was performed three years after the marriage and the statement of PW-9, who stated that it
was performed five-six months after the marriage. PW-9 stated that the victim died six years after
her marriage.

13. DW-1 Parmatma Prasad stated that the deceased had got married nine years prior to her
death and he denied that she got married six years prior to her death. He also denied that gauna was
performed three years after the marriage. DW-2 Lakshmi Narayan also gave a similar statement
and he stated that the appellant got married in the year 2001, nine years prior to her death.

14. The trial court held that the prosecution could not establish the demand of dowry and
harassment for this reason. The trial Court further held that although the PW-2 and PW-9 had
reached the hospital, the informant PW-1 had falsely stated that he received information of the
incident after one month and there is no explanation for the delay of one month in lodging the FIR.
4 All. Manoj Kumar Vs. State of U.P.
1081
However, as the victim has died of burning in the house of her husband, the reason for death was to
be proved by her husband and his family members as per the provisions contained in Section 106 of
the Evidence Act. The accused persons have failed to adduce evidence regarding reasons of the
suicide committed by the victim. PW-2 has stated that the appellant used to consume liquor and if
the deceased objected against it, he used to beat her in inebriated condition. The trial Court held
that it indicates that the victim committed suicide being aggrieved by the aforesaid conduct of the
appellant and, therefore, the appellant is liable to be convicted for the offence under Section 306
IPC. The trial court stated that as charges were framed under Sections 304B, 498A (alternatively
Section 304/34) IPC. Section 306 IPC being an offence of lesser seriousness, the appellant can be
convicted for the aforesaid offence without framing a charge.

15. The trial court has acquitted the other accused persons of all the charges.

16. As the trial court has acquitted the appellant of the charges under Sections 498A, 304B,
302/34 IPC and 3/4 Dowry Prohibition Act, this Court has to examine whether there was sufficient
material to establish that the appellant had abetted his wife to commit suicide.

17. Section 306 of the Code deals with ?abetment of suicide? which reads as under: -

 "306. Abetment of suicide.?If any person commits suicide, whoever abets the commission
of such suicide, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine."

18. "Abetment of a thing" has been defined under Section 107 of the Code in the following
words:-

 "107. Abetment of a thing--A person abets the doing of a thing, who?

 First.-Instigates any person to do that thing; or

 Secondly.-Engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or

 Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.?

 Explanation 2 which has been inserted along with Section 107 reads as under:

 'Explanation 2.?Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby facilitates the commission
thereof, is said to aid the doing of that act."

19. In Ramesh Kumar v. State of Chhattisgarh: (2001) 9 SCC 618, the Hon'ble Supreme
Court held that: -
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
 "20. Instigation is to goad, urge forward, provoke, incite or encourage to do ?an act?. To
satisfy the requirement of instigation though it is not necessary that actual words must be used to
that effect or what constitutes instigation must necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt
out. The present one is not a case where the accused had by his acts or omission or by a continued
course of conduct created such circumstances that the deceased was left with no other option
except to commit suicide in which case an instigation may have been inferred. A word uttered in
the fit of anger or emotion without intending the consequences to actually follow cannot be said to
be instigation."

20. In State of W.B. v. Orilal Jaiswal: (1994) 1 SCC 73, the Hon?ble Supreme Court has
cautioned that: -

 17. ...the Court should be extremely careful in assessing the facts and circumstances of
each case and the evidence adduced in the trial for the purpose of finding whether the cruelty
meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires
to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society to which the victim belonged and such
petulance, discord and differences were not expected to induce a similarly circumstanced
individual in a given society to commit suicide, the conscience of the Court should not be satisfied
for basing a finding that the accused charged of abetting the offence of suicide should be found
guilty..."

 (Emphasis added)

21. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi): (2009) 16 SCC 605,
the Hon'ble Supreme Court held that there should be intention to provoke, incite or encourage the
doing of an act by the latter. Each person?s suicidability pattern is different from the others. Each
person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any
straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own
facts and circumstances.

22. In M. Mohan v. State: (2011) 3 SCC 626, the Hon?ble Supreme Court held that: -

 "44. Abetment involves a mental process of instigating a person or intentionally aiding a
person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained.

 45. The intention of the legislature and the ratio of the cases decided by this Court are
clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act which led the deceased to commit
suicide seeing no option and this act must have been intended to push the deceased into such a
position that he/she committed suicide."
4 All. Manoj Kumar Vs. State of U.P.
1083
23. The aforesaid ratio has been followed in Prabhat Kumar Mishra v. State of U.P.:
(2024) 3 SCC 665.

24. The learned counsel for the appellant has placed reliance on decision of the Hon'ble
Supreme Court in the case of Nipun Aneja v. State of U.P., 2024 SCC OnLine SC 4091, in which
the Hon'ble Supreme Court referred to numerous precedents on the point of what would constitute
abetment to commit suicide and concluded that: -

 "21. The ingredients to constitute an offence under Section 306 of the IPC (abetment of
suicide) would stand fulfilled if the suicide is committed by the deceased due to direct and alarming
encouragement/incitement by the accused leaving no option but to commit suicide... The problem
is that the courts just look into the factum of suicide and nothing more. We believe that such
understanding on the part of the courts is wrong. It all depends on the nature of the offence &
accusation. ..."

25. In the present case, the appellant as well as all the accused persons stand acquitted of
the charge under Section 498-A IPC as it could not be established that they had subjected the
deceased to cruelty. There is no allegation of commission of any act which may amount to
instigating the deceased to commit suicide.

26. The only evidence is the evidence of PW-2, who stated that the appellant used to
consume liquor and if the deceased objected against it, he used to beat her in an inebriated
condition. There was no evidence that any such incident took place in close proximity of time when
the deceased committed suicide. There is no evidence that the quarrels were intended to induce the
victim to commit suicide. There is no evidence that the quarrel had left the deceased with no option
except to commit suicide.

27. Even if the trial Court came to the conclusion that the victim committed suicide being
aggrieved by the aforesaid conduct of the appellant, it would only indicate that the victim was
hypersensitive and she over reacted. It has not been shown that consuming liquor and quarrels were
not common to the society to which the victim and the appellant belonged. The prosecution has
failed to show that the appellant's intention behind consuming liquor was to provoke or incite the
victim to commit suicide and that the deceased committed due to direct and alarming
encouragement/incitement by the accused leaving no option but to commit suicide. The trial Court
just looked into the factum of suicide and nothing more, and held the appellant guilty of the offence
under Section 306 IPC without there being any evidence to prove that the appellant had abetted the
deceased to commit suicide.

28. The trial Court has held that as the victim has died of burning in the house of her
husband, the reason for death was to be proved by her husband and his family members as per the
provisions contained in Section 106 of the Evidence Act.

29. Section 106 of the Evidence Act provides as follows: -
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
 "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."

30. The trial Court held that PW-2 has stated that the appellant used to consume liquor and
if the deceased objected against it, he used to beat her in an inebriated condition. The accused
persons have failed to adduce evidence regarding reasons of the suicide committed by the victim.
The trial Court held that it indicates that the victim committed suicide being aggrieved by the
aforesaid conduct of the appellant and, therefore, the appellant is liable to be convicted for the
offence under Section 306 IPC.

31. In Vikramjit Singh v. State of Punjab: (2006) 12 SCC 306, the Hon'ble Supreme
Court held that: -

 "14. Section 106 of the 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."

32. In Joydeb Patra v. State of W.B., (2014) 12 SCC 444, the Hon?ble Supreme Court
reiterated that: -

 "10.....This Court has repeatedly held that the burden to prove the guilt of the accused
beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that
the accused could prove any fact within his special knowledge under Section 106 of the Evidence
Act to establish that he was not guilty. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375] this
Court held: (SCC p. 381, para 19)

 "19. We pointed out that Section 106 of the Evidence Act 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 for which a reasonable
inference can be drawn regarding the existence of certain other facts, unless the accused by virtue
of special knowledge regarding such facts failed to offer any explanation which might drive the
court to draw a different inference."
4 All. Manoj Kumar Vs. State of U.P.
1085
33. In Balvir Singh v. State of Uttarakhand, (2023) 16 SCC 575, the Hon?ble Supreme
Court has elaborated upon the principles for invocation of Section 106 against an accused, in the
following words: -

 "35. Section 106 of the Evidence Act referred to above provides that when any fact is
especially within the knowledge of any person, the burden of proving that fact is upon him. The
word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the
accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution
to prove the guilt of the accused is not in any way modified by the rule of facts embodied in
Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of
the Evidence Act. Section 101 with its Illustration (a) lays down the general rule that in a criminal
case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it
of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be
impossible or at any rate disproportionately difficult for the prosecution to establish the facts
which are, ?especially within the knowledge of the accused and which, he can prove without
difficulty or inconvenience

* * *

 45. To recapitulate the foregoing : What lies at the bottom of the various rules shifting
the evidential burden or burden of introducing evidence in proof of one's case as opposed to the
persuasive burden or burden of proof i.e. of proving all the issues remaining with the prosecution
and which never shift is the idea that it is impossible for the prosecution to give wholly convincing
evidence on certain issues from its own hand and it is therefore for the accused to give evidence on
them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same
rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate
all possible defences or circumstances which may exonerate an accused. Again, when a person
does not act with some intention other than that which the character and circumstances of the act
suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused
had a different intention that is a fact especially within his knowledge and which he must prove (see
Professor Glanville Williams? The Proof of Guilt : A Study of the English Criminal Trial, Ch. 7, p.
127 and following) and the interesting discussion?para 527 negative averments and para
528??require affirmative counter-evidence? at p. 438 and foil, of Kenny's Outlines of Criminal
Law, 17th Edn. 1958.

* * *

 49. Section 106 of the Evidence Act would apply to cases where the prosecution could be
said to have succeeded in proving facts from which a reasonable inference can be drawn regarding
death.

* * *

 51. To explain what constitutes a prima facie case to make Section 106 of the Evidence
Act applicable, we should refer to the decision of this Court in Mir Mohammad [State of W.B. v.
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , wherein this Court has
observed in paras 36 and 37, respectively, as under : (SCC p. 393)

 "36. In this context we may profitably utilise the legal principle embodied in Section 106
of the Evidence Act which reads as follows:?When any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him."

 37. 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."

(emphasis added)

34. In M. Vijayakumar v. State of T.N.: (2024) 4 SCC 633, the Hon'ble Supreme Court has
held as under: -

 "25. We are at a loss to understand as to how Section 106 of the Evidence Act could be
applied in the case on hand against the appellant in view with facts narrated above. This section is
an exception to the general rule laid down in Section 101 which casts burden of proving a fact on
the party who substantially asserts the affirmative of the issue. Section 106 is not intended to
relieve any person of that duty or burden. On the contrary, it says that when a fact to be proved,
either affirmatively or negatively, is especially within the knowledge of a person, it is for him to
prove it. This section, in its application to criminal cases, applies where the defence of the accused
depends on his proving a fact especially within his knowledge and of nobody else.

 26. In short, Section 106 of the Evidence Act cannot be used to shift the burden of proving
the offence from the prosecution to the accused. It can only when the prosecution led evidence,
which, if believed, will sustain a conviction or which makes out a prima facie case, that the
question of shifting the onus to prove such fact(s) on the accused would arise. (See the decision in
Sawal Das v. State of Bihar [Sawal Das v. State of Bihar: (1974) 4 SCC 193)"

35. Upendra @ Balveer versus State of U.P.: Neutral Citation No. ? 2024:AHC:172173DB is a judgment rendered by the Division Bench of this Court where the appellant was charged
under Sections 498-A, 304-B , 316 IPC and of D.P. Act, but the trial court found the charges
under Sections 498-A, 304-B and of D.P. Act not proved against the appellant and convicted the
appellant for offences under Section 302 and 316 IPC on the basis of a presumption drawn against
him under Section 106 of the Evidence Act. The Division Bench held that such an interpretation of
Section 106 was in fact a misreading of the aforesaid Section and the intial burden of establishing a
prima facie case would still lie on the prosecution. It was observed that: -

 "21. As far as the concept of Section 106 of Indian Evidence Act is concerned, that is
misread by the learned trial Judge because when the offence like murder is committed in secrecy
4 All. Manoj Kumar Vs. State of U.P.
1087
inside the house, the initial burden to establish the case would undoubtedly be upon the
prosecution. In view of Section 106 Indian Evidence Act, there will be a corresponding burden on
the inmates of the house to give cogent explanation as to how the crime was committed. The
inmates of the house cannot get away by simply keeping quite and offering no explanation on the
supposed premise that the burden to establish its case lies entirely upon the prosecution. Initial
burden of proving that, as on the date of the alleged incident, the accused was present in the house
or lastly seen with the deceased or that he was lastly in the company of the deceased at the time of
the incident would be primarily upon the prosecution.

* * *

 23. In our case, it is established fact that the appellant and his deceased wife used to
reside in same house. Hence, the burden to prove factum of the death of the deceased cannot be
shifted on the shoulders of the appellant unless the prosecution first of all discharged its burden by
proving the fact that at the time of alleged occurrence or at the time when the deceased was put on
fire, the appellant was also inside the house. Learned AGA, in this regard, has contended that
appellant has not taken the plea that he was not in the house when the incident took place but this
was the negative burden on the appellant accused. The prosecution has not brought forward any
evidence which could at least establish the fact that the time of occurrence, the appellant was
inside the house. Hence, there is no applicability of Section 106 of Indian Evidence Act in this
case."

36. Apart from the statement of PW-2, that the appellant used to consume liquor and if the
deceased objected against it, he used to beat her in an inebriated condition, there was no evidence
that any such incident took place in close proximity of time when the deceased committed suicide
and that the quarrels were intended to induce the victim to commit suicide. There is no evidence
that the quarrel had left the deceased with no option except to commit suicide. Even if the trial
Court came to the conclusion that the victim committed suicide being aggrieved by the aforesaid
conduct of the appellant, there is no evidence to even prima facie establish that the appellant had
abetted the deceased to commit suicide.

37. As the prosecution has not been able to discharge its burden of establishing beyond
reasonable doubt that the appellant had abetted his wife to commit suicide, the trial court could not
have held the appellants guilty just because the appellant could not explain the reason due to which
his wife committed suicide.

38. In view of the foregoing discussion, I am of the view that the prosecution failed to
establish that the appellant had abetted the deceased to commit suicide. The offence under Section
306 IPC is not made out. The order of conviction and sentence of the appellant passed by the trial
court is not sustainable in law.

39. The appeal is allowed. The judgment and order dated 06.04.2012 passed by the learned
Special Judge (EC Act), Gonda in Sessions Trial No. 217 of 2008 arising out of Case Crime No.
127 of 2008, under Sections 498-A, 304-B (alternative Section 302/34 IPC) and 3/4 Dowry
Prohibition Act, Police Station Kaudiya, District Gonda, is set aside. The appellant is acquitted of
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
the charges. The appeal was admitted by means of an order dated 12.06.2012 and the appellant was
enlarged on interim bail by means of an order dated 27.09.2012 and he was requied to deposit 50%
of the amount of fine. This amount of fine should be refunded to the appellant.

40. The appellant is directed to comply with the provision of Section 437-A Cr.P.C. and
execute bail bonds with sureties within a period of two weeks, to appear before the Hon?ble
Supreme Court in case any appeal is filed against this order and the Hon?ble Supreme Court issues
notice of the appeal and such bail bonds shall be in force for six months.
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(2026) 4 ILRA 1088
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2026

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

Criminal Appeal No. 964 of 2026

Fahimuddin Ansari ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Issue for consideration
Whether order passed u/s 173(4) BNSS is amenable to Appeal / Revision?

Headnotes
Appeal/Revision against interlocutory order u/s 173 (4) BNSS-provisions of Section 156(3) CrPCwhich is replaced by Section 173(4) BNSS, are invoked by the complainant-the learned court below directed
the SHO to register FIR and investigate -compliance to be ensured within 10 days-impugned-impugned order
being interlocutory in nature- prospective accused is debarred from challenging the said order by way of filing
a criminal revision or statutory appeal under Section 14-A(1) of the Act 1989-appeal not maintainable-Appeal
dismissed. (E-9)

Case Law Cited
1. Om Prakash Ambadkar vs. The State of Maharashtra and others, Criminal Appeal No.352 of 2020
2. Kamlesh Meena and others vs. State of U.P. and Others, reported in 2025 (5) ALJ 578
3. Babu Venkatesh v. The State Of Karnataka reported in (2022) 5 SCC 639
4. Amar Nath v. State of Haryana, AIR 1977 SC 2185
5. Father Thomas versus State of UP and Others, 2011 (72) ACC 564
6. Jagannath Verma and Others versus State of UP and Another, reported in 2014 (8) ADJ 439

List of Acts
1. Code of Criminal Procedure,1973
2. Bharatiya Nagarik Suraksha Sanhita, 2023
3. The scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

List of Keywords

Appearances of parties