The main legal point established in the judgment is the application of Section 106 of the Evidence Act to shift the burden of proof to the accused.

JUDGMENT :

Heard Sri Yogesh Modi, learned Amicus Curiae appearing for the appellant and Mr. B.N. Ojha, learned A.P.P.

1. This appeal is directed against the judgment of conviction and order of sentence dated 28.02.2013 passed by Sri A.K. Singh “Ashok”, the then Additional Sessions Judge-I, Deoghar in connection with Sessions Case No. 88/2010, arising out of Madhupur P.S. Case No. 205/2009 corresponding to G.R. No. 480/2009 holding the appellant Suraj Sao @ Suraj Sah guilty of offence under Section 302 of the Indian Penal Code and thereby sentencing him to undergo imprisonment for life alongwith fine of Rs. 5,000/- and in default of payment of fine the appellant was further directed to undergo S.I. for six months. Appellant was acquitted for the offence under Section 304 B of the Indian Penal Code.

2. The prosecution case in brief is that on 26.10.2009 at about 03:30 P.M., the appellant and his wife Putul Devi (deceased) were in a room at her maike. Her niece Rakhi Kumari was present in the courtyard just outside their room. Rakhi Kumari saw smoke coming out from the room, on which she went inside and saw Putul Devi ablaze. The appellant was standing there with a kerosene container and a match box in his hand. She raised alarm, following which neighbours reached there. Appellant was apprehended and restrained by local persons. Putul Devi was taken to hospital where her fardbeyan was recorded. She died during the course of treatment.

3. Police after investigation found the occurrence to be true and submitted charge-sheet against the appellant. After Cognizance, learned S.D.J.M., Madhupur at Deoghar committed this case on 03.04.2010 as it was exclusively triable by a Court of Sessions.

4. Charge was framed against the appellant on 28.02.2011 under Section 304 B of the Indian Penal Code and also alternatively under Section 302 of the Indian Penal Code. When the charge was read over and explained to him in hindi he pleaded not guilty and claimed to be tried.

5. In order to prove its case the prosecution has adduced both oral and documentary evidence.

Chote Lal (P.W.1) and Shambhu Prasad Sah (P.W.2) are the neighbours who saw the deceased Putul Devi in burnt condition. Chote Lal (P.W.1) has proved his signature on the seizure list which has been marked as Exhibit-1, when he reached the place of occurrence, he saw that the appellant was restrained by the local people.

Saraswati Devi (P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao (P.W.5) are mother, father and brother of the deceased respectively. All have stated that on the date and time of occurrence they were in the clinic of a doctor. While there, they heard about the occurrence and rushed home. They found the deceased in burnt condition. Saraswati Devi (P.W.3) and Radhy Shyam Sao (P.W.4) have put their thumb impression and signature respectively on the fardbeyan of their daughter as witnesses. Signature of Radhy Shyam Sao (P.W.4) on fardbeyan has been marked as Exhibit-2. Radhy Shyam Sao has also identified his signature on the seizure list which has been marked as Exhibit 1/1. They have also stated that the appellant used to taunt the deceased for her dark complexion and wanted to leave her. Shashi Sao (P.W.5) has further stated that Rakhi Kumari (P.W.7) told him that appellant was present in the room holding a kerosene container and a match box while Putul Devi was ablaze. He has further stated that local people had restrained the appellant at the place of occurrence.

Dr. Md. Arif (P.W.6) (wrongly mentioned as Dr. Md. Anif in the impugned judgment), Medical officer at PHC Madhupur had examined the deceased on 26.10.2009 at about 03:30 P.M, when she was admitted to the hospital for treatment of burn injuries. He has proved the injury report which has been marked as Exhibit-4. Dr. Satish Thakur (P.W.8) had performed the post-mortem on the dead body of deceased Putul Devi. According to this witness, Putul Devi died of deep burn injuries and its complications. He has proved the po