Point of Law: Once prosecution has brought home evidence of presence of accused at scene of crime, then onus stood shifted on defence to have brought-forth suggestions as to what could have brought them to spot in dead of night. Accused were apprehended and they were under an obligation to rebut this burden discharged by prosecution and having failed to do so, trial-court was justified in recording its findings on this issue.

JUDGMENT :

AJAI TYAGI, J.

1. This appeal has been preferred by the appellant-Prakash against the judgment and order dated 16.2.2008, passed by Additional Sessions Judge, Court No.9, Kanpur Dehat, in Session Trial No.87 of 2007 (State vs. Prakash) arising out of Case Crime No.678 of 2006 under Section 302, 323, 324 IPC, Police Station-Ghatampur, District-Kanpur Nagar, whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.10,000/-. He was directed to undergo further imprisonment for one year, in case of default of fine. The appellant was further convicted and sentenced under Section 323 IPC for six months RI and further convicted and sentenced under Section 324 IPC for one year RI. All sentences were directed to run concurrently.

2. The facts giving rise to this appeal are that complainant-Ram Khelawan submitted written-report at Police Station-Ghatampur, District-Kanpur Nagar, stating therein that on 18.12.2006, his elder brother Prakash was going to the brick-kiln of Jawahar with his wife Phoolkali (aged about 40 years) and children. He was milching his buffalo. At about 10:40 in the morning, he heard the noise of screaming from the side of field of pradhanRamesh Yadav. On hearing the screaming, he and his cousin (brother), Shiv Raj s/o Bheekkhu, ran towards that direction and saw that Prakash was attacking on his own wife-Phoolkali with spade. They anyhow saved both the children, during which, Shiv Raj and daughter of Prakash, namely, Goldi (aged about 6 years), also sustained injuries. So many people of village gathered on the spot, but Prakash fled way. He brought injured Phoolkali for treatment, but she died.

3. A case crime bearing No.678 of 2006 was registered at police station under Sections 302 and 323 IPC. Investigation was taken up by SI-Badam Singh. Investigating Officer recorded statements of witnesses, prepared site-plan, collected plain and blood-stained earth. Inquest report was also prepared. Postmortem was conducted on the body of deceased by Dr.Autar Singh and postmortem report was prepared. In the postmortem, cause of death was ascertained as excess bleeding from antemortem injuries. Injured Shiv Raj and Kumari Goldi were also medically examined and their injury reports were also prepared by Dr.Vinod Kumar Mishra. During the course of investigation, the Investigating Officer arrested the accused-Prakash and on his pointing out made recovery of spade, which was said to be used in commission of crime. After completing the investigation, charge-sheet was submitted against accused appellant-Prakash under Sections 302, 324 and 323 IPC. The case being exclusively triable by court of session was committed to the court of session for trial.

4. Learned trial court framed charges against appellant under Sections 302, 324 and 323 IPC. Charges were read over to the accused, who denied the charges and claimed to be tried.

5. To bring home the charges, following witnesses were examined by the prosecution:

6. Apart from oral evidence, following documentary evidence were produced by prosecution and proved by leading the evidence: