Abdulla vs The State Of Kerala on 28 March, 2012

[Cites 11, Cited by 0]

Kerala High Court

Abdulla vs The State Of Kerala on 28 March, 2012

The accused in Sessions Case No.96/2010 is the appellant herein, who challenges judgment dated 28/3/2012 by which he was convicted under Section 302 of the Indian Penal Code (I.P.C) and sentenced to undergo imprisonment for life. The prosecution case is that, on 6/9/2007, at about 4.20 p.m., the accused assaulted his wife Fathima by throwing a bottle and thereafter she was murdered by using a dagger thereby committing culpable homicide. She was stabbed on her neck. The offence was committed in the bedroom of their dwelling house. She died on the same day on account of injuries sustained by her.

2. The first information was given by brother of the deceased before the Badiadka Police Station. FIR was registered as Crime No.170/2007. The final report was submitted before the Judicial First Class Magistrate Court, Kasaragod. The final report and Crl.Appeal No.652/12 -:2:- documents were committed to the Sessions Court and after complying with the procedural requirements, charge was framed under Section 302 of the I.P.C. The accused denied having committed the offence by pleading that he is not guilty.

3. The prosecution examined 16 witnesses as PWs 1 to

16. Exts.P1 to P13 were marked and MO's 1 to 6 were the material objects that had been taken on record. The accused was examined under Section 313 of the Criminal Procedure Code.

4. The Sessions Court found that prosecution had proved the case beyond reasonable doubt and therefore, he was convicted and sentenced to undergo life imprisonment.

5. The learned counsel for the appellant contended that the prosecution had not proved the case beyond reasonable doubt. There is no eyewitness to the incident and the accused was convicted only based on circumstantial evidence. That apart, there had been several infirmities in the investigation which was not taken into consideration by the Sessions Court while convicting the accused. It is therefore contended that on a re- appreciation of the entire evidence, it could be seen that the prosecution could not prove the case against the accused beyond Crl.Appeal No.652/12 -:3:- reasonable doubt. The first contention urged was that PW11 on whose evidence the presence of the accused was found at the relevant time of incident was a tutored witness. PW10, brother of the deceased, had given the first information statement only based on the hearsay information. Further, when the blood sample of the deceased was tested, it was found to be O +ve but the Analyst in her report had indicated that the blood samples available in the material objects collected were of A group. It is therefore pointed out that the presence of somebody else in the crime of scene is virtually clear especially when the blood group in the material objects had a different blood group in comparison with the blood group of the deceased. When such a possibility is there, it was not at all safe to assume that the accused had committed the crime.

6. On the other hand, learned Public Prosecutor submitted that PW11, son of the accused and deceased, was a natural witness. He had come from the school. His mother told him that she was thrown with a bottle and she was bleeding. She immediately asked him to call her father who was staying a little far away. She asked him to go in a bus and he was asked to take Crl.Appeal No.652/12 -:4:- the money from the shelf. He went to his grand father's house, called them. His grandfather and uncles came in a jeep. When they reached the house, they saw the deceased lying in the courtyard bleeding. It is submitted that son of the accused PW11 is a natural witness and it is totally incorrect to contend that he was a tutored witness. There is no material to indicate so. Further, it is submitted that the contention of the accused was that he was not in the house at the relevant time and he was at Mangalore. In fact, his defence was alibi which he could not prove. It is therefore contended that this is a fit case in which the Court below was justified in finding the accused guilty of the offence charged. Deceased is the second wife of the accused and the evidence clearly suggests that there was usual quarrel between them and as per the prosecution case, he intended to do away with the deceased to have a peaceful life with the second wife.

7. After hearing the learned counsel on either side and after having perused the records, it is rather clear that the entire prosecution case rests upon circumstantial evidence, especially the presence of the accused in the house at the relevant time. There is no doubt about the fact that PW11 is the witness who Crl.Appeal No.652/12 -:5:- speaks about the presence of the accused at the relevant time. Therefore, it is necessary to scan the evidence of PW11 before arriving at a conclusion.

8. The fact that the deceased died on account of the injury sustained by her in her house is not disputed. The Doctor who had conducted post mortem had substantiated the above fact. The Doctor has also stated that the injury could be caused with the weapon produced as MO1. Therefore, the only fact which requires consideration is the presence of accused in the house at the relevant time and whether his case of innocence can be accepted.

9. PW1 is a person who knew the accused and the deceased. He deposed that he had seen the deceased lying dead in the courtyard of the house in which accused and deceased were residing. He was going through the road in an auto rickshaw and saw people proceeding to the scene of occurrence. He got down and saw the dead body. He asked a friend of him to inform the matter to the relatives of deceased. He was cited for proving the scene mahazar, but he turned hostile. He deposed that he was not in the scene when the police came there next day. Police Crl.Appeal No.652/12 -:6:- came to his house and as per their request, he had signed in the seizure mahazar, Ext.P1. It was signed at 9 am in the morning. At that time, there were no one else. Police had not recorded his statement. He had not seen the police taking any material objects from the scene of occurrence. He was not present when the inquest report was prepared. The witness was declared hostile. He denied having seen any of the materials in the house and the said materials being seized by the police. During cross examination, he deposed that there was a crowd of 10 to 200 persons in the scene and his house is 1 km away from the said place.

10. PW2 is a person who knew the accused and he was aware of the death of accused. He is residing 2 kms away from the house of accused when he was coming from Badiadka town, he saw a crowd. He reached the house of accused and found deceased lying dead. He did not see the accused. There was blood in the body of deceased. He was not present when inquest report was prepared. The signature shown in the inquest report and in the mahazar is not his signature. When he saw the dead body, police was in the site. Next day he did not go to the scene, Crl.Appeal No.652/12 -:7:- nor has he entered the house. Police has not taken any statement from him and he was not questioned on 7/9/2007. He had not informed the police that he had seen any of the items being taken by the police from the house. He was declared hostile and cross examined. The suggestion put to him was that he has changed his deposition only to help the accused, which he denied.

11. PW3 is a person who knew the accused since his childhood. He knew that the accused was married and he does not know about the death of Fathima. He does not know any person in the neighbourhood of the accused. Police had not questioned him. He denied having stated before police about having seen the dead body of the deceased. He was declared hostile and cross examined by the prosecution. He was asked whether he admitted that the accused was residing very near to his house. He denied the suggestion that he was deposing only to help the accused.

12. PW4 is a Panchayat member. He deposed that he had gone to the house of the accused at about 6 p.m after knowing about the death of deceased. He identified his signature in the inquest report Ext.P2. He does not know who had committed the Crl.Appeal No.652/12 -:8:- crime. He did not see the accused in the site. He know that the house was belonging to the accused. People who had assembled there were telling that the accused was not seen in the locality. He did not enquire as to who had committed the crime. There was no cross examination to the witness.

13. PW5 is the Professor, Forensic Medicine and Police Surgeon of Pariyaram Medical College Hospital. He conducted post mortem on the body of the deceased. Ext.P3 is the postmortem certificate. The following were the injuries noticed by him in the body of the deceased.

"1. Wedge shaped stab wound 2.8x0.8x3cm, obliquely placed on the right side of front of neck, the inner lower blunt and being 4cm to the right of midline and 4cm below the jaw bone. The wound had a small tailing directed upwards and to the right. At the upper part, the jugular vein and carotid artery were found partially cut.

2. Wedge shaped stab wound 2.5x1x3cm, obliquely placed on the front of neck, the upper outer blunt end being 2cm to the left of injury No.1. The other end at the midline, ended in a tailing, 2.5cm long, towards the left.

3. Incised wound 3x1.5cm vertically placed on the front of neck, in the midline, the upper end being 1cmbelow injury No.2.

4. Incised wound 2.5x1cm, horizontally placed on Crl.Appeal No.652/12 -:9:- the left side of neck, 3cm below the ear. No major blood vessel was cut underneath.

5. Incised wound 2x0.3cm, just behind the left ear, 1.5cm above the outer end of injury No.4.

6. Incised wound 2.6x1cm on he back of left ear at its base.

7. Superficial incised wound 2cm long cutting away a tag of skin from the outer aspect of let ear lobe, at its middle.

8. Wedge shaped stab wound 2.8x1x3.5cm, obliquely placed on the right side of front of neck, the inner lower blunt and being 1.5cm to the right of midline and 4cm above the inner end of collar bone. The wound was directed backwards, downwards and to the left. It punctured the oesophagus, and trachea and terminated by making a superficial cut on the spine.

9. Superficial incised wound 0.8x0.3cm, on the right side of neck, 1cm above injury No.8.

10. Wedge shaped incised penetrating wound, 3.5x1cm, obliquely placed on the lower part of front of neck, the lower outer blunt and being across the inner end of left collar bone. The wound entered the chest cavity through the first intercostal space and terminated by making a superficial puncture mark on the lung. Chest cavity contained a few ml. of blood only.

11. Superficial incised wound, 1x0.4cm, on the left side of front of neck 3cm above injury No.10, with a tailing directed upwards and to the right.

12. Superficial incised wound 1.5x0.3cm on the scalp overlying the right parietal eminence. Skull Crl.Appeal No.652/12 -:10:- and brain were intact.

13. Superficial incised wound 0.8x0.2cm on the right thumb, at its base, towards the back.

14. Superficial cut, 0.5cm long, on the left palm at its middle."

14. PW5 further deposed that the blood group of the deceased was O +ve and according to him, the deceased died due to the bleeding from the multiple stab injury sustained to the neck. He also deposed that the injury can be caused due to a single edged sharp edged weapon like a knife. In cross examination he had deposed to the investigating officer that all the 14 injuries could be caused by a single sharp edged weapon. He however stated that he had not seen any injuries which could be caused with a glass bottle. All the injuries were fresh one.

15. PW6 is the Assistant Surgeon, Taluk Headquarters hospital who had collected the samples of hair, nail clippings and blood from the accused and he had handed over the same to the investigating officer.

16. PW7 is the Scientific Assistant, DCRB Kasaragod. He had deposed that he had inspected the scene of crime along with the investigating officer and collected blood stains from the pool of blood found in the bed room, hair was collected from the blood Crl.Appeal No.652/12 -:11:- from the bed room, blood stained knife and entrance floor of the bed room, blood was collected from the knife, from the central hall, from the main hall and from the sit out. He had also collected hair from blood stained area 720 cms away from the veranda wall, glass pieces collected from the blood pool, blood stained soil from the blood stained area 720 cms away from the veranda wall, and control soil. He deposed that all the items were separately packed and handed over to the investigating officer. The room where the incident had taken place was opened and the scene was guarded by the police. He saw the knife at the place of occurrence itself. He made a detailed report about it to the investigating officer. During cross examination, he stated that he has not seen the mahazar as he was not expected to do so.

17. PW8 is the Head Constable of Kasaragod Police Station. He accompanied the Circle Inspector of Police to the hospital at the time the accused was in the hospital. He identified his signature in the scene mahazar which is marked as Ext.P4 relating to the materials collected from the accused. He also identified his signature in P5 the seizure mahazar. He also identifies the signature in Ext.P6 for collecting 17 photographs. Crl.Appeal No.652/12 -:12:-

18. PW9 is the Village Assistant who had prepared a sketch as Ext.P7. In cross examination the suggestion was that he had not gone to the site.

19. PW10 is the brother of the deceased. He deposed that the accused and deceased had 3 children and they were residing together in a house. They were living together as husband and wife about 10 to 13 years back. Accused was employed abroad and he had come back two years back. Elder son was staying in a madrassa for his studies and the younger two children were residing with them. Accused has another wife other than Fathima. Her name is Rukiya. Accused married Rukiya three years prior to the incident. The accused and the deceased were not having a good marital life. Two years prior to the incident, the deceased had given a complaint against the accused before the police station. The matter was settled by mediation. The accused offered to take care of the deceased. He had come to know about the death of deceased when his mother telephoned him. Sainudheen, son of deceased had come to their house at 5.20 pm stating that accused threw a bottle on the deceased and she was bleeding. On knowing about the incident, he contacted his father. Brother Crl.Appeal No.652/12 -:13:- Sharif took a jeep, went home, collected Sainudheen and proceeded to the house of accused. They reached the house of accused at about 5.45 p.m. They saw several people being assembled in their house. They saw Fathima lying on the ground behind an auto rickshaw. She was dead. She was bleeding and she had injuries on her head, neck and ear. He immediately proceeded to the police station and gave the First Information Statement which he identifies as Ext.P8. According to him, the accused would have killed his sister for avoiding the marriage. In cross examination, he had reiterated the statement given by him. Nothing has been brought in cross examination to discredit the witness. However, the cross examination proceeded on the basis that the accused had gone to Mangalapuram for seeing a Doctor and when he reached Goliadukkath, he heard about the death of Fathima. According to the defence, the incident would have happened when there was an attempt for robbery. The witness was also cross examined on the manner in which the material objects were collected. He deposed that the police after coming to the site had sealed the area and the material objects were collected only on the next day. He also deposed that when he Crl.Appeal No.652/12 -:14:- entered the house after coming back from the police station, he saw blood stained articles in the bed room of the house.

20. PW11 is the son of accused and the deceased who was only aged 7 years at the time when the statement was taken by the police. At the time when he was examined before court, he was 12 years. The Court had put questions to him in order to find his competence to depose and it was found that he was giving rational answers and therefore he was found to be a proper witness. In his evidence, PW11 states that at the time when his mother died, he was in Standard 4. During the relevant time, his father was having an auto rickshaw and he was running the same. When his father used to go with the auto rickshaw, his mother and younger brother alone will be in the house. He used to come back home by 4.20 p.m from school. From the school, he takes a bus and reaches Goliadukkath.On the fateful day, when he returned from school, he saw his mother inside the room in the cot and she was crying. Younger brother was sitting in the sit out. Father was walking in the sit out. He was angry. He asked his mother the reason and she told him that father had thrown a bottle on her head. Blood was flowing from the top side of her ear. Mother Crl.Appeal No.652/12 -:15:- asked him to go to his grand father and tell him about the incident and to request the grand father to come to their house. He was asked to go in a bus and asked him to take the money from the cup board. He took `10. He checked up the timing of the bus. At the time, it was 4.20 p.m. He went through the kitchen side since he feared his father. His father saw him and asked him what he was doing and he came behind him. He told his father that he was going for a bath. Father asked him to wear an old dress. He told father that he will come immediately after having a bath and he proceeded to the compound of one Pallichan. At that time, his father was coming behind him. He waited behind a bush to avoid seeing father. He saw his father going back. Thereafter he heard his mother crying aloud. He went to the bus stop. Bus did not stop. An auto rickshaw came by. It was going to Badiadka. He got into the same and proceeded to Badiadka. Thereafter, he took the bus and proceeded to Mavinakatta, the house of his grand father. After getting down from the bus, he had to walk a little further to grand father's house and he reached there. Grand mother alone was there. He told his grandmother about the incident. Grand mother called PW10. They immediately came in a Crl.Appeal No.652/12 -:16:- jeep and all of them proceeded to his house. A lot of people assembled at that time in the courtyard of their house. They saw his mother lying behind an auto rickshaw. She was in a pool of blood. He grabbed PW10 and stood by the side. He did not see his father in the scene. In the nearby houses, father's relatives are residing. He did not enter the house. He knew that the mother was dead. According to him, father had killed mother. Father has another wife by name Rukiya. She used to come to their house at times. She has a daughter. He has given a statement to police. After the death of mother, he is being taken care of by his grand father. In cross examination, he stated that he does not know at what time father used to leave the house in the auto rickshaw. He does not know whether he used to go before he goes to school. He goes to school by 9 a.m. There will be other children in the locality along with him. Father used to come in the auto rickshaw by night. He used to sleep alone. At times, brother used to sleep with him. Father and mother used to sleep separately. Mother used to wear salwar which is pant and top. Father uses a lungi. Uniform is compulsory in the school on Monday and Thursday. On other days, regular dress is being worn. On the date of incident, Crl.Appeal No.652/12 -:17:- he was not wearing uniform. After coming from school, he used to have porridge. On the date of incident, he did not have porridge. He had gone to his grand father's house in the same dress which he was wearing. On that day morning, when he was going to school, father was in the house. A suggestion was put to him that when he came back from school, he saw his mother lying dead which he denied. A further question was asked that, on that day, his father was not at all in the house and he was lying, which also he denied. Again it was suggested that he was giving false evidence at the instance of his grand father and uncle, which also he denied. He denied the suggestion that he had given statement to the police that he saw mother bleeding and blood was coming from her face. It was further suggested that he was giving false evidence that he had gone to the grand father's house which he denied. He further deposed that in the nearby houses, there are other persons residing and if somebody talks aloud from their house, the people in the locality can hear. Though he stated about the injury mother suffered on account of his father throwing a bottle on her, he did not mention the same to Pallichan. He reiterated that he had heard his mother's cry when he was hiding Crl.Appeal No.652/12 -:18:- behind the bush without being seen by his father. His mother does not have a mobile phone. He did not ask anyone to take his mother to the hospital. He does not remember at what time he reached Mavinakatta. He denied the suggestion that he had come to Kasargod two days prior to deposing before Court and he denied that he was being tutored.

21. PW12 is the father of deceased. He deposed that the accused starting assaulting the deceased after the second marriage. Children used to come and reside with him and they used to tell him about the assault and abuse by the accused. He refers to a complaint given by his wife and that subsequently it was settled. At the time when she died, he was in his shop. His wife called him in the mobile and informed about PW11 having informed her about the incident of the accused throwing a bottle on his daughter. That was about 5.20 p.m. and they proceeded to the house of accused along with PW10 . They saw his daughter lying dead. There were lot of people in the locality. He found that there was blood in the sit out. PW10 immediately went to the police and informed about the incident. The accused was not in the scene. During cross examination, he reiterated his earlier Crl.Appeal No.652/12 -:19:- statement. Suggestion was that the accused was at Mangalapuram on the fateful day and he had come back only after hearing the incident of the death of his wife, which he denied.

22. PW13 is the Assistant Sub Inspector of Police who was the Station House Officer on the date of incident. He had registered the First Information Report, Ext.P8(a), on the basis of statement of PW10.

23. PW14 was the Circle Inspector of Police, Kasaragod on 6.9.2007. He had taken over the investigation of the crime. He made arrangements for guarding the scene of occurrence on receiving the information. He had arranged experts, scientific assistant, photographer etc to come to the scene of occurrence. Inquest report was prepared in the presence of witnesses who had signed the same. He had also taken the pardha, churidar top, churidar, pant, shorts and braziers. Arrangement was made to guard the scene of occurrence. Necessary arrangements were made for postmortem. He came on 7/9/2007. In the presence of witnesses, scene mahazar was prepared. Items 1 to 12 were recovered by PW7. A polyster lungi with blood stains was seized. Crl.Appeal No.652/12 -:20:- He also seized a knife which was blood stained which was having a length of 53 cms with sharp edge. Ext.P9 is the property list. All the materials were sent for analysis along with a forwarding note which is marked as Ext.P10. He also identified Exts.P5 and P6. He examined witnesses and, in between, the accused was arrested on 10/9/2007 in the vicinity of Kasaragod new bus stand. Ext.P11 is the arrest memo. He details about the statements taken and the steps that had been taken in the matter. The suggestion to the investigating officer was that she died when there was an attempt to commit robbery. His answer was that, at no point of time during investigation he could arrive at such a conclusion. He was again recalled and he identified MO1 pardha, MO2 churidar top and MO3 churidar pant. He also stated that there were blood stains in the above material objects. MO4 is the knife which was recovered from the scene of occurrence. The knife has 33 cms length. He also identified Ext.P5 by which the blood stained lungi was seized. He also identified all other exhibits under which the seizure has been effected.

24. PW15 is the Circle Inspector of Police, Kasaragod. He had submitted the final report before court before getting Crl.Appeal No.652/12 -:21:- chemical analysis report.

25. PW16 is the Assistant Chemical Examiner, Regional Chemical Examination Lab, Kozhikode. She produced the worksheet in respect of examination pertaining to properties sent to her for chemical examination. She identifies Ext.P12, the chemical examination report issued by her. It is stated that as per Ext.P12, blood stains on materials objects on item 1 to 3, 5, 6, 10 to 12, 13 and 16 on examination was found as A group. She further deposed that due to contamination, the blood group may change. The authenticity of that fact is detected in blood group serology by Boomen and Dodd. As per the worksheet, pardha was affected with fungal growth. She further deposed that test was conducted by her junior Assistant. However, his initials did not find a place in the work sheet register. She received the article on 30/11/2007 and the test was conducted only on 16/12/2009 after two years from the date of report. Delay was on account of insufficiency of staff. When she was asked when exactly the examination was over, she said it was conducted on 7/3/2011, when she prepared Ext.P12. When she was asked whether there could be change in the grouping of blood on account of delay in Crl.Appeal No.652/12 -:22:- examining the article, she denied the said suggestion and she further submitted that Ext.P13 is the relevant page of the worksheet register corresponding to Ext.P12. In cross examination, she stated that she saw fungal growth only in item No.1 and that bacterial infection will happen only if the properties are not properly taken and seated in such a condition. In re- examination she deposed that Ext.P13 is not at all a serially numbered register.

26. Though PW's1 to PW3 have turned hostile, we do not think that their hostility has affected the prosecution case in any manner. The defence does not have a case that the deceased did not suffer the injuries and she succumbed to the injuries on the fateful date, ie. on 6/9/2007. The contention of the defence is that the incident would have happened at the time of burglary by someone else. The dead body was found in the courtyard of the building. The scene of crime is the building and the courtyard. PW10 had deposed that when he entered the house, he found blood stains inside the building and also in various articles. The police also visited the crime on the same day and had prepared the inquest report Ext.P2, which is proved by PW4. The materials Crl.Appeal No.652/12 -:23:- were collected from the scene by PW7 and it was handed over to the investigating officer who had sent the same for scientific analysis. The investigating officer had clearly indicated about the preparation of the scene mahazar, inquest report and seizure mahazar. Necessary photographs which were relevant were also proved by examining PW8. The site plan has been prepared by PW9. There is no infirmity in the preparation of the scene mahazar. The photographs would show that there was blood in the room, in the cot, in the knife, in the veranda, on the doors and in the area where she was lying dead. The fact that she died on account of the injury suffered by her is proved by PW5, the Doctor who conducted the postmortem. He had clearly given evidence stating that she died on account of the injury suffered by her.

27. The main contention urged by the counsel for the appellant was regarding the presence of the accused. It is contended that though he was residing in the very same building, there is no evidence to prove that he was present in the house at the time of the incident which according to the prosecution is between 3 p.m. and 6 p.m on the fateful day. Another argument raised is that the evidence of PWs10 and 11 are not believable. Crl.Appeal No.652/12 -:24:- PW11 is a tutored witness. Yet another argument is regarding the disparity in the blood group of the deceased. As per the postmortem report Ext.P3 and evidence of PW5, the blood group of the deceased is O+ve. But, as per the evidence of PW16 and Ext.P12 report, the blood stains which were seen in different properties from the scene of occurrence was group A. It is submitted that there is no explanation for the said difference, which is fatal to the prosecution case. The contention is that the prosecution had not proved the case.

28. Perusal of the evidence of PW11 in its entirety does not give an impression that he was a tutored witness. There is no contradiction in his evidence which requires any doubt being cast upon his version. A boy aged 7 years was sent by his mother to fetch his grand father on account of an incident by which his father is said to have thrown a bottle on the head of his mother. Learned counsel for the appellant points out that as per the deposition of PW11, his mother was bleeding and blood was coming from the top side of the ear whereas in the postmortem certificate Ext.P3, no such injury is seen noticed. It is also contended that in the Section 161 statement given by PW11, his Crl.Appeal No.652/12 -:25:- statement was that he saw the mother bleeding from her face. It is therefore contended that the incident of the bottle being thrown and the deceased suffering an injury and bleeding is a cooked up story. From the ante mortem injuries, it could be seen that there were 14 injuries of which injury Nos.1, 2, 3, 4, 9 and 11 were in and around the neck. Injury No.5 was behind the left ear. Injury No.6 in the back of the left ear and injury No.7 on the outer aspect of the left year block at its middle. There were injuries in and around the collar bone which punctured the oesophagus and trachea into the spine. There were also injuries on the right thump, left palm, scalp etc. Such injuries would show that there was a deliberate attempt to commit murder and it is not a stray incident of a robber getting away from the crime scene. The Doctor in his evidence as PW5 has only stated that the 14 injuries could be caused by a single sharp edged weapon. He also states that he has not seen any injuries which can be caused with a glass bottle and all the injuries are fresh. From the materials placed on record, it may not be possible for us to arrive at a conclusion that the version given by PW11 can be disbelieved in regard to the bleeding caused to his mother. Of course, he has Crl.Appeal No.652/12 -:26:- not seen the incident of the accused throwing a glass bottle on his mother. It was a statement given by the deceased. But, he saw blood from the top side of the ear. This fact is supported by the evidence of PW10 and PW12. They were informed by the grand mother of the boy, PW11, in regard to the said incident. Therefore, there is no necessity to rule out the possibility of the deceased having suffered some injury by throw of a bottle and therefore, merely for the reason that PW5 the Doctor did not identify an injury which could have been caused by throw of a bottle, there is no justification to disbelieve the prosecution case. There are 14 ante mortem injuries which had been caused with the knife that has been produced in the case which would be sufficient to hold that death was caused on account of the injury sustained by her and not on account of a bottle being thrown on her. It is an incident which has been spoken to by PW11 and when we believe his version, there is no necessity to doubt the prosecution case.

29. Another important feature which has been highlighted by the learned counsel for appellant is with reference to the presence of the accused on the fateful day. In fact, the accused Crl.Appeal No.652/12 -:27:- had taken a plea of alibi. It is settled law that alibi is a rule of evidence recognised under Section 11 of the Evidence Act. The plea of alibi can be taken as a defence, but, it is required to be proved only after prosecution has proved its case against the accused. In Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1], the Apex Court held that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. It is also held that while weighing the plea of alibi, it has to be weighed against the positive evidence led by the prosecution. In the case on hand, though the prosecution had clearly proved his presence at the time when the incident had occurred, he had not attempted to prove his absence from the scene of occurrence by adducing any positive evidence. Therefore, his defence of alibi has not been proved.

30. There is no dispute about the fact that the accused was residing in the same building along with his wife, the deceased and his two children. The question is whether he was present in the house on the fateful day. PW11 had deposed that at the time he left to his grand father's house, accused was very much Crl.Appeal No.652/12 -:28:- present in the house and he was very angry. Therefore, as far as the prosecution is concerned, evidence of PW11 clearly indicates the presence of accused in the house at the time of death and therefore burden is on the accused to explain, how the death was caused under Section 106 of the Indian Evidence Act. The accused has an explanation that he was not in station at all and that he had gone to Mangalore. As already stated, his presence is proved by the testimony of PW11 in the house at 4.20 p.m on the fateful day and he saw his mother bleeding on account of a throw by a bottle. There were traces of glass pieces in the room also soaked in blood which was taken by the police as evident from the seizure mahazar. Section 106 of the Indian Evidence Act reads as under:-

"106 - Burden of proving fact especially within knowledge-. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had Crl.Appeal No.652/12 -:29:- a ticket is on him."

31. In Gajanan Dashrath Kharate v. State of Maharashtra [(2016) 4 SCC 604], the Apex Court held that when the prosecution has proved the presence of the accused in the scene of occurrence at the time of death, he is duty bound to explain as to how the death of the victim was caused. In the said case, the Apex Court also placed reliance upon Trimukh Maroti Kirkan v. State of Maharasthra [(2006) 10 SCC 681] and State of Rajasthan v. Parthu [(2007) 12 SCC 754].

32. Other than giving certain suggestion to the witnesses that the accused was at Mangalore on the fateful day and he had come to know about the death of his wife when he came back by evening, there is no evidence to support the said view. No witnesses were examined to prove the said fact. Under such circumstances, the defence of alibi cannot be sustained.

33. Therefore, from the evidence of PW11, when the prosecution had proved his presence in the scene of occurrence at 4.20 pm and a little late, he is bound to explain as to what happened to his wife. Further, evidence of PW's 4, 10 and 12 would clearly indicate that the accused was not present in the scene at the relevant time. The accused had virtually absconded Crl.Appeal No.652/12 -:30:- from the scene and he is arrested only on 10/9/2007 by the police while he was waiting at the Kasargode Bus station. His absence from the crime scene is also a clear indication of his admission of guilt. All these facts together clearly point out that the accused alone is responsible for the crime and his contention that it is committed by some other person during an attempt for burglary cannot be believed. The nature of injury sustained by the deceased clearly points out a deliberate attempt to commit murder and ensure that she is dead. From the blood stains in the house, it could be seen that injuries were inflicted on the deceased inside the house and she was taken outside the house or she would have been carried outside the house and left there. Nature of injuries clearly indicate profuse bleeding and death on account of such bleeding. At the time when PWs10, 11 and 12 reached the scene of occurrence by about 5.45 pm, the deceased was lying dead.

34. There is no dispute about the fact that in a case which is based on circumstantial evidence, all the circumstances are to be proved beyond reasonable doubt [Sharad v. State of Maharashtra (AIR 1984 SC 1622)]. Here the presence of the Crl.Appeal No.652/12 -:31:- accused in the scene of occurrence at the relevant time inside their house is proved by evidence of PW11. That he had absconded from the site is also proved by the evidence of PWs4, 10 and 12. That the deceased suffered injures in the house of the accused is also proved. That the knife which is the weapon used for committing the crime was also recovered from the house. The alibi which is set up by the defence is not proved. There is no explanation from the accused in terms of Section 106 of the Evidence Act. The circumstantial evidence projected by the prosecution stands proved beyond reasonable doubt and the entire chain has been completed.

35. Another important argument is in regard to the disparity in the blood group as shown in Exts.P12 and P3. It is true that in the report submitted by PW16, the blood group in the material objects sent for analysis were shown as A group, whereas in the postmortem report Ext.P3, the blood group of the deceased was shown as O +ve. Taking into consideration the evidence of PW7, there is no difficulty in accepting the version of PW5 that the blood group of the deceased was O+ve and as rightly pointed out by the learned Public Prosecutor, the analysis Crl.Appeal No.652/12 -:32:- was done after four years. Even PW16 submits that the blood group may change if there is any contamination of the blood. The fact that the deceased was murdered in her house is a proven fact and it is on account of a weapon which is identified by the investigating officer. She suffered grievous injuries and the material objects were taken from her body as well as from the surrounding area. Either it might be a case where there was contamination in the blood on account of which the group was not correctly obtained or it might be a case of a mistake. PW16 however submits that even as per the worksheet, it is not a mistake because the blood group is clearly written as A. But despite such disparity in the blood group, from the evidence of PW7, it is evident that he had collected blood stains from hair, glass pieces, soil etc., on 7/9/2007 along with the investigating officer and that he had handed over the same to the investigating officer. Further, the deceased was wearing a black coloured pardah and inside the same, a churidar top and pant. She was also wearing under garments. The inquest report is proved by PW4, P.G.Chandra Hasa Rai. The aforesaid material objects were produced before Court and proved as MO1, MO2 and MO3. The Crl.Appeal No.652/12 -:33:- aforesaid material objects were proved through PW14 after recalling him. There is no cross examination to indicate that the material objects were not taken from the body of the deceased. Therefore, the aforesaid disparity in the grouping of the blood by itself cannot be stated as a lacuna in the investigation in order to create a doubt regarding the case set up by the prosecution.

36. Under such circumstances, we do not find any error in the judgment of the Sessions Court which warrants interference of conviction. The sentence awarded for having committed the murder is life imprisonment and there is no necessity to take a different view and the accused is not entitled for any leniency in the sentence.

Appeal is, therefore, dismissed.

Sd/-

A.M. SHAFFIQUE, JUDGE Sd/-

P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge

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