Point of Law: Section 106 of the Evidence Act reads 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.

JUDGMENT :

This Appeal is directed against the judgment of conviction and order of sentence dated 28/29.11.2017 rendered by the Trial Court in Sessions Case No.2/2017, sentencing the appellant/accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months for an offence under Section 302 of the Indian Penal Code, 1860 (in short 'IPC').

2. Heard the arguments of Sri.N.R.Krishnappa, learned counsel representing the appellant/accused and Smt.Rashmi Jadhav, learned HCGP representing the respondent/State. Perused the impugned judgment and the evidence relied by both sides.

3. The case pleaded by the prosecution in brevity is that, the appellant/accused (hereinafter referred to as 'the accused') was married to one Meenakshi and begotten a female child. Because of the misunderstanding, both husband and wife parted ways and were residing separately. At the same time, one Smt.Radha (deceased in the instant case) was married to one Nanjaiah of Chigateri village. Her marital life with Nanjaiah was failed as there was a frequent quarrel between them and for this reason, deceased Radha left Nanjaiah and came back to her native place. Since the accused as well as deceased Radha were leading life singly, they got to know each other and married and started residing together and due to the said wedlock, they begot one male and one female minor children. The marital life of the deceased and the accused was cordial only for a period of one year and thereafter the deceased started drinking alcohol and accused started complaining against her for her drinking habit. There was a frequent quarrel in the family. On 04.09.2016, it was a Gowri-Ganesha festival. On the said date, the children were in the house and the deceased was sleeping in the room. At about 8.00 p.m., the accused, who came from work, picked up a quarrel with the deceased that she has not celebrated the festival and she has not cooked food for the children and the said quarrel went out of the control and the accused knowingly well that any assault on the head of the deceased will cause her death, intentionally took out a weapon of offence viz., club kept in the house and inflicted head injury, as a result of which, the deceased succumbed to the injuries and the accused throwing the club in the house did not inform the incident to anybody nor taken the deceased to Hospital, but on the very day night, the death of the deceased was revealed to fellow villagers, who visited the house of the accused, saw the dead body of the deceased and the same was informed to PW-2/Geetha, sister of the deceased who, on the next day morning, saw the dead body of the deceased in the house of the accused and filed the written complaint and set the law into motion and thereby a case has been registered in Crime No.89/2016 before the Banakal Police Station, Chikkamagaluru. The accused, who was hiding in plantation behind the house, was traced out and he was subjected to inquiry and at the voluntary statement of the accused, the weapon of offence was seized, PW-9/Chandrashekar registered the FIR, apprehended the accused and PW-17/M.Jagadish is the Investigating Officer, who conducted the investigation thoroughly and filed the charge sheet before the committal court i.e., the Court of Additional Civil Judge and JMFC, Mudigere, Chikmagalur District.

4. The learned Additional Civil Judge and JMFC, Mudigere, on receipt of the charge sheet taken cognizance of the offences and registered a case in C.C.No.900/2016. After compliance of Section 207 of Cr.P.C., case has been committed to the Court of Sessions under Section 209 of Cr.P.C. Hence, case has been registered in S.C.No.2/2017 by the learned Principal District and Sessions Judge, Chikkamagaluru.

5. The presence of the accused was secured by the learned Sessions Judge as he is in judicial custody since from the date of his arrest i.e., 06.09.2016. The accused was represented by the defence counse