The application of Section 106 of the Indian Evidence Act necessitates the prosecution to establish foundational facts, particularly the 'last seen' theory, before adverse inferences can be drawn against the accused.

JUDGMENT :

N.ANAND VENKATESH, J.

The appellant assails the judgment of the Additional District and Sessions Judge, Virudhunagar passed in SC No.63 of 2018 dated 24.03.2023 convicting the appellant for offence under Section 302 IPC and sentencing her to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo further rigorous imprisonment for six months.

2. The case of the prosecution is that the appellant/A1 is the wife of the deceased Chellapandi. The deceased and A1 were residing in Kurandi Village. A1 is said to have developed intimacy with A2 and they had illicit relationship. The deceased Chellapandi, who was working in Tiruppur and on coming to know of the illicit affair between A1 and A2, returned back to the village and was working as a Coolie. The deceased is said to have scolded both A1 and A2, when he saw both of them in his house.

2.1. On 29.09.2017 at about 2.00 a.m. when the deceased Chellapandi was sleeping, A1 is said to have thrown the grinding stone (MO2) on the head of the deceased. As a result, the deceased sustained grievous injuries and died.

2.2. A1 is said to have informed PW1, who is the father of the deceased, about the incident, which resulted in PW1 giving a statement to the Sub Inspector of Police (PW18) on 29.09.2017 at 11.00 a.m., and an FIR (Ex.P11) came to be registered in Crime No.177/2017 for offence under Section 302 IPC .

2.3. The investigation was taken up by P.W.20 and he went to the scene of occurrence at about 11.45 a.m., and prepared the observation mahazar (Ex.P2) and rough sketch (Ex.P13) in the presence of witnesses P.W.12 and P.W.14. The investigating officer recovered bloodstained cement pieces and cement pieces without bloodstain from the floor and two bloodstained bedsheets and prepared Ex.P.3. The inquest was conducted on the body of the deceased at about 13 hrs.

2.4. The dead body was sent for postmortem through Grade I Police Constable (P.W.17) with a requisition. P.W.13 - Doctor conducted autopsy on the body of the deceased and Ex.P4 is the postmortem certificate, where the following injuries were recorded:

“1. Laceration 6x2x2 cm 1 cm above right eyebrow;

2. Laceration 6x2x2 cm 5 cm above right eyebrow;

3. Laceration Rt knee 3 x 3 x 1 cm ; 4. Laceration left elbow 3x2x1 cm ;

5. Laceration lower back 6x2x2 cm ;

6. Bleeding through nostril and left ear.”

In the final opinion, the cause of death was stated as head injury and injury in brain.

2.5. The investigating officer recorded the statements of the witnesses under Section 161 Cr.P.C., and also collected all the relevant materials.

3. The police report was laid before the Judicial Magistrate No.2, Virudhunagar against A1 and A2 for offence under Section 302 IPC , 302 read with 34 , 201 read with and 202 read with 302 and the copies of the documents relied upon by the prosecution was supplied to the accused persons under Section 207 Cr.P.C. Thereafter the case was committed to the file of Additional District and Sessions Judge, Virudhunagar.

4. The prosecution examined P.W.1 to P.W.22 and marked Ex.P1 to P. 18 and M.O.1 to M.O.7.

5. The incriminating circumstances were put to the accused persons while questioning them under Section 313 Cr.P.C., and they denied the same as false.

6. No witness was examined on the side of the accused person and no materials were relied upon by them.

7. The trial Court, on considering the facts and circumstances of the case and on appreciation of evidence, came to a conclusion that the prosecution has proved the case beyond reasonable doubts as against A1 for offence under Section 302 IPC . Insofar as the other offences are concerned, A1 was acq