IMPORTANT POINTS
1. A fact which is especially in the knowledge of any person then the burden of proving that fact is upon him.
2. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.-Accused No.1 is the appellant. The appeal is directed against the judgment of the High Court of Bombay in Criminal Appeal No.564 of 2006 dated 24.4.2008. By the judgment of the trial Court dated 25 & 28.11.2005 the appellant was convicted and sentenced to undergo life imprisonment apart from imposition of fine along with accused No.2 for offences under Section 302 read with Section 34, Indian Penal Code, and for causing disappearance of evidence under Section 201 read with Section 34, IPC and fine of Rs. 5,000/-each was also imposed and in default to suffer further rigorous imprisonment in custody. Both the accused preferred appeals before the High Court and the appeal preferred by accused No.2 in Criminal Appeal No.563 of 2006 was allowed and he was acquitted of the charges punishable under Section 302 and 201, IPC while the appellant’s appeal came to be dismissed confirming the conviction and sentence imposed on him by the learned Sessions Judge.

2. The case of the prosecution was that deceased Sita Devi was the first wife of the appellant, that on the date of occurrence, namely, on 06.12.2001 at 8 a.m. the appellant was seen going along with the deceased Sita Devi and accused No.2, who is none other than his brother. According to Sachidanand Baleshwar (PW-1) who is closely related to the deceased, the appellant told him that he is going with his wife for a stroll. It was stated that the appellant and A-2 were seen in the evening and the deceased was not with them at that time while their clothes were blood stained. On the next day, i.e. on 07.12.2001, appellant stated to have proclaimed that the deceased ran away from the matrimonial home.

3. On 08.12.2001, it was noticed that the appellant and his family were in the process of leaving the village by packing all their materials, the same was informed to Malvani police station, that PW-3 Sub-Inspector of Police of Malvani police station went to the residence of the appellant by around 12 noon when he was informed that the deceased was missing for the last two days and that the appellant and his second wife were planning to run away from the village. According to PW-3 the appellant informed that he took the deceased on 06.12.2001 in the morning to Gorai Creek where she was killed by him with the aid of a knife. PW-3 stated to have forwarded the complaint based on the information gathered by him to Borivali police station since the place of occurrence fell within their jurisdiction. All the papers stated to have been transferred around 1-1.30 p.m. along with the accused to the said police station.

4. Subsequently, at the instance of PW-4, A-2 was also stated to have been apprehended through whom the clothes were also seized. At the instance of the appellant, the dead body of the deceased Sita Devi was stated to have been fished out from Gorai Creek and the same was found to have been lying entangled in the weeds and parts of the body were also found to have been eaten away by aquatic animals. PW-1 stated to have identified the body with the aid of toe ring and the petticoat of the deceased. The motive for the alleged offence was stated to be that both the wives of the appellant were indulging in frequent fights which irked the appellant and this ultimately resulted in the killing of his first wife Sita Devi.

5. The appellant and his brother A-2 were tried for offences under Section 302 read with Section 34, IPC as well as Section 201 read with Section 34, IPC. As stated earlier while the conviction and sentence imposed on the appellant came to be confirmed by the impugned common order of the High Court, the conviction and sentence imposed on the second accused came to be set aside for want of proof. For the prosecution, PWs 1 to 10 were examined and Exhibits 1-26 were marked. When the accused were questioned under Section 313 Cr.P.C. they simply denied the offence alleged against them. None was examined on the defence side. It