K. Palanichamy vs State

A. Selvam, J—Challenge in this Criminal Appeal is to the conviction and sentence dated 19.12.2008 passed in Sessions Case No. 130 of 2008 by the Additional District and Sessions Court/Fast Track Court, Pudukkottai.

The case of the prosecution is that the accused is the husband of the deceased Subbammal and due to lack of beauty frequent tussle has had happened in between the accused and deceased. On 26.11.2007 at about 04.00 a.m., in the house of both the accused and deceased, the accused jugulated the deceased and also attacked her by using an aruval and due to his overtacts, she passed away. After occurrence, one Samikkannu has given a complaint to the Sub Inspector of Police (P.W.8) and the same has been registered in Crime No. 280 of 2007 and the same has been marked as Ex.P.1.

On receipt of Ex.P.1, the Inspector of Police (P.W.11) has taken up investigation, examined connected witnesses and made all arrangements for conducting necropsy on the body of the deceased and accordingly Dr.N.Maheswari (P.W.10) has conducted autopsy and she found the following external and internal injuries on the body of the deceased:

"1) 2x1x1 cm punctured wound over the chin, lower jaw (mandible).

2) ? shaped lacerated wound of about 4 x 3 x A 1/2 cm over the scalp behind Lt. Ear.

3) Lt. Ear pinna skin torn.

4) Punctured wound of 1 x 1 x A 1/4 cm over Lt. Maxillary region.

5) A 1/2 x A 1/2 cm abrasion over Rt. eyebrow.

6) C/O.Bleeding from Rt. Ear.

7) Neck and submandibular and swollen.

No sings of decomposition. Scalp intact, eyelids closed, Nose no bleeding. Mouth and lips - partially open. Tongue inside mouth. Teeth 8 / 8 - 8/8. mandible. Ears: bleeding from Rt. ear. Thorax: intact. Abdomen intact generative organs (N). Abdomen & Peritoneal cavity intact. Ribs No. Heart pale contains 50 ml of liquid blood. Both lungs pale. Stomach pale contains about 100-150 gm of partially digested rice particles. Liver pale. Spleen congested. Kidneys pale. Intestines pale, distended with air. Bladder empty. Uterus pale. Uterus cavity - empty. Hyoid bone Rt horn of hyoid & Rt horn displaced inwards. Skull: depressed skull bone. Curvilinear over Lt pane to occipital area. Membranes: A circular tear 1 x 1 cm over Lt. Parieto occipital region. Brain Hemorrhage + over it parieto occipital region. Spinal Cord : Intact"

The Postmortem Certificate has been marked as Ex.P.7.

The successor in office of P.W.11 viz., P.W.12 has conducted further investigation and after completing the same, laid a final report on the file of the District Munsif cum Judicial Magistrate''s Court, Keeranur and the same has been taken on file in P.R.C. No. 18 of 2008.

The District Munsif cum Judicial Magistrate, Keeranur after considering the fact that the offence alleged to have been committed by the accused is triable by Sessions Court, has committed the case to the Court of Sessions, Pudukkottai Division and taken on file in Sessions Case No. 130 of 2008 and subsequently made over to the trial Court.

The trial Court after hearing both sides and upon perusing the relevant records, has framed a charge under Section 302 of the Indian Penal Code against the accused and the same has been read over and explained to him. The accused has denied the charge and claimed to be tried.

On the side of the prosecution, P.W.s.1 to 12 have been examined and Exs.P.1 to P.14 and M.Os.1 to 6 have been marked.

When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.

The trial Court after hearing both sides and also analysing the evidence available on record, has found the accused guilty under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also imposed a fine of Rs. 2,000/- with usual default clause. Against the conviction and sentence passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the accused as appellant.

Before perpending the rival submissions made on either side, it has become shunless on the part of the Court to narrate the place of occurrence.

It is an admitted fact that the entire occurrence has taken place inside the house, where both the accused and deceased have lived together. In fact this Court has groped the entire evidence available on record and ultimately found that on the side of the accused the place of occurrence has been clearly admitted.

The learned counsel appearing for the appellant/accused has raised the following points so as to supplant the conviction and sentence passed by the trial Court:

(a) In the instant case, P.W.1 is the brother of P.Ws.2 and 3 and his specific evidence is that both P.Ws.2 and 3 have reached the place of occurrence at about 08.00 a.m. and even prior to their arrival necessary information has been given to the police and police have also reached the place of occurrence at about 08.00 a.m., whereas Ex.P.1 has been registered at about 10.45 a.m. Further P.W.6 and P.W.8 have given contra evidence with regard to lodging of Ex.P.1 and further P.W.2 has stated in her evidence that she reached the place of occurrence at 09.00 a.m. and under the said circumstances Ex.P.1, complaint is nothing, but a concocted document.

(b) The specific evidence given by P.W.2 is that P.W.6, Palaniyandi has tried to purchase a house plot and his request has been turned down and therefore a strong motive has been in existence between the deceased and P.W.6 and the trial Court has failed to consider the same.

(c) On the side of the prosecution, P.Ws.1 to 3 have been examined and they are nothing, but brother and sisters of the deceased and no independent witnesses have been examined and further the independent witnesses namely P.Ws.4 and 5 have become hostile witnesses and therefore the entire conviction and sentence passed by the trial Court against the appellant/accused are liable to be set aside.

As a repartee to the contentions putforth on the side of the appellant/accused, the learned Additional Public Prosecutor has sparingly contended that in the instant case, the entire occurrence has taken place inside the house, where both the accused and deceased have lived together and on the side of the accused no proper explanation has been given as to how the occurrence has taken place and further P.W.1 has given clinching evidence with regard to tussle occurred earlier to occurrence in between the accused and deceased and the trial Court after considering plenitude of evidence available on the side of the prosecution has rightly invited conviction and sentence against the accused and the same do not warrant interference.

As pointed out earlier, the entire occurrence has taken place inside the house where both the accused and deceased have lived together and no contra evidence is available with regard to the said aspect. Further it is not the defence of the accused that on the date of occurrence he has been away from the place of occurrence. Under the said circumstances, it would be apropos to look into Section 106 of the Indian Evidence Act, 1872 and the same reads as follows:

"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"

A mere reading of the said provision reveals that if a particular fact is especially within the knowledge of a particular person, the entire burden lies upon him.

In the instant case, it is an admitted fact that the accused is the husband of the deceased and the entire occurrence has taken place inside their house. Therefore the entire burden lies upon him as to how or in what manner the occurrence has taken place In fact this Court has analyzed the entire evidence available on record as well as answers given by the accused to the questions posed to him under Section 313 of the Code of Criminal Procedure, 1973, no proper explanation has been given by him. Therefore it is needless to say that as per Section 106 of the Indian Evidence Act, 1872, even though the entire burden lies upon the accused, he has not discharged the same. Since he has not discharged his burden as contemplated as per Section 106 of the Indian Evidence Act, 1872, the Court can very well draw presumption.

The learned counsel appearing for the appellant/accused, as marshalled earlier, has contended that Ex.P.1 itself is a concocted document.

As rightly pointed out by the learned counsel appearing for the appellant/accused, some flimsy contra evidence is available with regard to lodging of Ex.P.1. The de facto complainant viz., P.W.1 has stated in his evidence that even prior to arrival of P.Ws.2 and 3, necessary information has been given to the police and P.W.6 has stated in his evidence that only at about 10.45 a.m. Ex.P.1 has been given and P.W.8, who registered Ex.P.1 has stated that he received necessary information at 10.00 a.m.

As pointed out earlier, some minor contradictions are available with regard to lodging of Ex.P.1 and that itself would not pave the way for rejecting the case of the prosecution, since in the instant case the entire burden lies upon the accused as per the provision of Section 106 of the Indian Evidence Act, 1872.

The learned counsel appearing for the appellant/accused has also made an abortive attempt that P.W.6 has tried to purchase a house plot and due to that a motive has been in existence between him and the family of the deceased. In fact this Court has scanned the entire evidence available on record and no acceptable evidence is available that a strong motive has been in existence in between P.W.6 and the family of the deceased. Even at the time of asking questions under Section 313 of the Code of Criminal Procedure, 1973, no mention has been made by the accused about the motive alleged to have existed in between his family and P.W.6. Therefore the second contention putforth on the side of the appellant/accused is sans merit.

The last contention putforth on the side of the appellant/accused is that no independent witnesses have been examined on the side of the prosecution. On the side of the prosecution some independent witnesses have been examined and for the reasons best known to them, they become hostile witnesses and further the entire occurrence has taken place inside the house and that too at about 04.00 a.m. Since the occurrence has taken place inside the house, no occasion has arisen on the part of outsiders to witness the occurrence. Therefore the last contention putforth on the side of the appellant/accused also goes out without merit.

It has already been pointed out that the entire burden lies upon the accused as per Section 106 of the Indian Evidence Act, 1872. But he has not discharged the same. Under the said circumstances there is no incertitude in coming to a conclusion to the effect that the accused has murdered the deceased.

The learned counsel appearing for the appellant/accused has drawn the attention of this Court to the decision in Kanhaiya Lal Vs. State of Rajasthan, (2014) AIRSCW 1828 : (2014) CriLJ 1950 : (2014) 4 JT 165 : (2014) 2 RCR(Criminal) 180 : (2014) 3 SCALE 598 : (2014) 4 SCC 715 , wherein the Hon''ble Supreme Court has dealt with a case purely rests upon circumstantial evidence and ultimately the Hon''ble Supreme Court has come to a conclusion that no person has been examined with regard to last seen.

In the instant case, the position is otherwise. The occurrence has taken place inside the house of the accused as well as deceased and further the entire burden lies upon the accused under Section 106 of the Indian Evidence Act, 1872. In fact in the decision mentioned supra, Section 106 of the Indian Evidence Act, 1872 has not been dealt with. Therefore, the decision in Kanhaiya Lal Vs. State of Rajasthan, (2014) AIRSCW 1828 : (2014) CriLJ 1950 : (2014) 4 JT 165 : (2014) 2 RCR(Criminal) 180 : (2014) 3 SCALE 598 : (2014) 4 SCC 715 cannot be attuned to the facts and circumstances of the present case. Therefore viewing from any angle, the contentions putforth on the side of the appellant/accused cannot be accepted.

The trial Court after considering the available evidence on record has rightly found the accused guilty under Section 302 of the Indian Penal Code and in view of the discussion made earlier, this Court has not found any illegality nor infirmity in the conviction and sentence passed by the trial Court and therefore the present Criminal Appeal deserves to be dismissed.

In fine, this Criminal Appeal is dismissed and the conviction and sentence passed in Sessions Case No. 130 of 2008 by the Additional District and Sessions Court/Fast Track Court, Pudukkottai are confirmed. Bail bond if any executed by the appellant/accused, shall stand cancelled. The trial Court is directed to take appropriate steps so as to immure the appellant/accused to serve out the remaining period of sentence.