The burden lies on the prosecution to prove that the act alleged to constitute murder was really the act of a person other than the deceased.

Pandrang Row, J.

1. The appellant has been convicted of murder by the Sessions Judge of East Tanjore and sentenced to undergo transportation for life under Section 302, Penal Code. The charge against him is that he murdered his wife Annapurni by strangling her some time during the night of 8th June 1936 in his house at Kuttalam. The appellant and his wife belong to rich mirasdar families. They were married in April-May 1935. The appellant was about 22 years old and his wife about 19 years old at the time of the occurrence. The appellant and his paternal uncle Sivagurunatha Pillai are the only members of a joint family which owns properties worth about three lakhs of rupees. It is clear from the judgment of the learned Sessions Judge that this paternal uncle as well as the appellants father-in-law and the latters relations not only did nothing to help the appellant in his defence but even actively assisted the prosecution. At least three vakils appear to have been engaged to assist the prosecution while the appellant was left to his own devices. The trial of the accused in the Sessions Court did not begin till October 1937, that is to say, till after a long interval of 16 months during which period the appellant appears to have been in jail.

2. The case against the appellant rests entirely on circumstantial evidence. No eyewitness speaks to the alleged strangulation and even the medical evidence as to the cause of death is not clear or even helpful. The learned Judge does not appear to have given sufficient attention to the importance of first deciding whether the crime of murder had been committed, or in other words, whether the death of Annapurni was due to the act of another and not to her own act. It was seriously argued before him that the death was due to suicide and that it was incumbent on him to deal with this aspect of the case separately from the other question which would arise only if it was established by the prosecution that a crime had been committed in respect of the death of the deceased, because until the commission of a crime is proved, it is not incumbent on the accused to explain, nor can he be called upon to explain, anything in the evidence appearing against him. It would appear as if the evidence relating really to the connexion between the alleged crime and the appellant has been relied upon to a considerable extent in support of the conclusion that a crime had been committed. So far as the cause of death is concerned, it may be that it was due to strangulation, though even on this point I am not satisfied that the medical evidence is as cogent as it might have been. The Assistant Surgeon who was examined on this point was not asked what experience he had of cases of strangulation nor was he asked whether certain injuries observed by him were ante-mortem or post-mortem, questions which obviously should have been asked in order to make sure whether his opinion as to the cause of death was reliable and could be acted upon. Assuming however that the cause of death was strangulation the further question arises whether the strangulation was caused by the deceased herself or by the act of another. In other words, was the death suicidal or homicidal? The burden lies on the prosecution to establish that the act alleged to constitute murder was really the act of a person other than the deceased. As was laid down by their Lordships of the Judicial Committee of the Privy Council in Attygalle v. The King A.I.R. (1936) P.C. 169 the burden is not east upon an accused person of proving that no crime has been committed. No doubt this proposition was laid down with reference to the law in Ceylon, but the law in India is the same. Here also, as in Ceylon, there is a provision of law embodied in Section 106, Evidence Act, to the effect that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. But this does not absolve the prosecution from the duty of proving th