Point of Law: Section 106 of the Indian Evidence Act, 1872, states as 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 :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of Cr.PC is directed against the impugned judgment of conviction and order of sentence dated 11.12.2012 passed in Sessions Trial No.36/2011, whereby, learned Additional Sessions Judge, Pendra Road, District Bilaspur (CG) has convicted the appellant under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.200/-, in default of payment of fine, to undergo additional RI for 1 month.

2. Case of the prosecution, in brief, is that on the fateful day i.e. 5.5.2011, at 2:00 p.m., at village Lamni (Baigapara), scuffle took place between the appellant and his wife Manglibai and during the said quarrel, the appellant assaulted his wife (deceased) with an axe on her neck, which was witnessed by Shakuntala Baiga (PW-4), who is their daughter-in-law. Shankuntala Baiga immediately went to her husband Shiv Nath Singh (PW-3), who was attending a marriage ceremony in the village itself and informed him about the said incident. Thereafter, both reached the place of occurrence and Shiv Nath Singh (PW-3) also saw the dead body of the deceased lying inside the room. Shiv Nath Singh (PW-3) lodged an FIR-Ex.P/1 in the Police Station Gaurela, pursuant to which, offence under Section 302 of the IPC was registered against the appellant. Merg intimation was also given to the Police vide Ex.P/14 and thereafter, during investigation, Naksha Panchayatnama was prepared vide Ex.P/2. The Panchas recommended for postmortem and the dead body was sent for postmortem and the postmortem was done by Dr. Kamal Kumar Soni (PW-8), who submitted his report vide Ex.P/13. The postmortem report shows that cause of death was shock and cardio respiratory failure due to vigorous bleeding from the sharp cut injury on the neck and the nature of death was homicidal. Thereafter, from the place of the incident, blood stained soil, plain soil, broken bangles of the deceased and blood stained blanket were seized vide Ex.P/6. The appellant was taken into custody and on his memorandum statement vide Ex.P/7, recorded in presence of Parbhu Ram Baiga (PW-5) and Jethu Ram Baiga (PW-9), the weapon of offence i.e. axe, stained with blood, was seized vide Ex.P/8 and T-Shirt and jeans pant stained with blood was seized vide Ex.P/9 from the possession of the appellant. The statements of the witnesses were recorded under Section 161 of Cr.P.C. The seized articles were sent for FSL examination and the FSL report was received Ex.-P/22 & 23 respectively. As per the FSL report, except Article C’ - plain soil, on almost all the articles i.e. Article ‘A’ & ‘’B’ - soil and blanket and ‘FI’ & ‘F2’ - sari and blouse, human blood was found. Thereafter, the accused/appellant was arrested vide Ex.P/17.

3. After usual investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and the same was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Additional Sessions Judge, Pendra Road, Bilaspur, received the case on transfer for hearing and disposal in accordance with law.

4. The accused/appellant abjured the guilt and entered into witness box. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 23 documents. The appellant in his defence examined Dr. R. Singh (DW-1), who examined him and proved his report-Ex.D/1.

5. The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of the judgment against which the instant appeal has been preferred.

6. Mr. Sanjeev Verma, learned counsel for the appellant, would submit that :

(i) Shiv Nath Singh (PW-3), who lodged the FIR, has turned hostile and even after permitting the prosecution to ask leading question, he has not supported the case of the prosecution and as such, the FIR s