Point of Law: Section 106 of Indian Evidence Act provides that when any fact is especially within knowledge of any person, burden of proving that fact is upon him.

JUDGMENT :

P.B.Suresh Kumar, J.

The sole accused in S.C.No.474 of 2015 on the files of the Additional Sessions Court – IV, Thodupuzha is the appellant in this appeal. He challenges in this appeal, the conviction entered and the sentence passed against him in the said case.

2. The accusation against the accused in the case as narrated in the final report is that on 15.11.2014 at about 2 a.m., the accused banged the head of his second wife Nazeema Bewa on the wall of the rented building occupied by them and when she fell down unconscious on account of the same, the accused strangled her to death using a shawl, on account of the enmity towards her for having picked up a quarrel with him demanding a property which he intended to give to his first wife.

3. A case was registered in connection with the occurrence on the same day by the Thodupuzha police, on the basis of the information furnished by the owner of the building, and after investigation, a final report was filed in the case against the accused, alleging commission of the offence punishable under Section 302 of the Indian Penal Code (the IPC). On committing the accused for trial to the Court of Session, the Court of Session also framed charge against the accused for the offence punishable under Section 302 IPC. The accused, however, pleaded not guilty on the charge being read over to him.

4. The prosecution, thereupon, examined 20 witnesses as PW1 to PW20 and proved through them as many as 15 documents as Exts.P1 to P15. Mos.1 to 8 are the material objects caused to be identified by the prosecution through its witnesses. Exts.D1 to D4 are portions of case diary statements of PW14 and PW15 marked at the instance of the accused.

5. Among the witnesses examined, PW1, the owner of the building is the first informant, PW2 is the brother of the deceased, PW3 is the son-in-law of the deceased, PW4 is the next-door neighbour of the deceased, PW5 is an autorickshaw driver, PWs 13 and 15 are occupiers of the building adjoining to the building in which the occurrence took place, PW16 is the Police Surgeon who conducted post-mortem examination on the body of the deceased, PW19 is the child of the deceased and PW20 is the Police Officer who conducted the investigation. Among the documents proved, Ext.P1 is the First Information Statement and Ext.P7 is the post-mortem certificate.

6. After the prosecution tendered its evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution against him. The accused denied the same and maintained that he is not the person who caused the death of his wife. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called thereupon to enter on his defence. The accused, however, chose not to adduce any evidence.

7. On appraisal of the materials on record, the Court of Session found the accused guilty of the offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/-, and in default of payment of fine, to undergo rigorous imprisonment for a period of six months, for the offence punishable under Section 302 of IPC. It is aggrieved by the said decision of the Court of Session that this appeal is preferred by the accused.

8. Heard the learned counsel for the accused as also the learned Public Prosecutor.

9. It was submitted by the learned counsel for the accused that it is placing reliance solely on the evidence tendered by the child of the deceased as PW19, that the accused has been convicted by the Court of Session. It was argued by the learned counsel that the evidence tendered by PW19 is not reliable and trustworthy and therefore, the Court of Session ought not have convicted the accused based on the evidence tendered by PW19. According to the learned counsel, if one eschews the evidence of PW19, there is no evidence in t