JUDGMENT The convictions and sentences dated 1st day of December, 2006 passed in Sessions Case No.118 of 2006 by the Additional District and Sessions Court (Fast Track Court No.2), Kanchipuram are being challenged in the present Criminal Appeal. 2. The sum and substance of the case of the prosecution is that the accused is sister-in-law of the defacto complainant by name Ellammal and both the families have not maintained concordial relationship and with an intention to murder the daughter of the defacto complainant, aged 4-1/2 years, by name Charu @ Iswarya on 18.11.2004 during morning hours, the accused has jugulated the deceased and after her demise, with an intention to screen the evidence, put the dead body into the well of one Nagappan. After occurrence, the defacto complainant has given a complaint and the same has been registered in Crime No.1358 of 2004 by the Sub Inspector of Police (P.W.12). The complaint given by the defacto complainant has been marked as Ex.P.1. 3. On receipt of Ex.P.1, the Investigating Officer, viz., P.W.16, has taken up investigation and in the meanwhile, the concerned Tahsildar, viz., P.W.14 has conducted inquest and his report has been marked as Ex.P.9. The Investigating Officer has made arrangements to conduct autopsy on the body of the deceased and accordingly, Doctor Parasakthi, viz., P.W.13 has conducted autopsy and she found the following external and internal injuries: "Appearances found at the post-mortem: On the decomposed body of a female child, face bloated, tongue protruded out, abdomen distended, greenish black coloured discolouration on the abdomen, chest, face and libs, distended with marbling signs were noted. Eye balls were softened and protruded out. Small petechial haemorhages seen in the mouth, lips and tongue were cyanosed. Blood stained mucous froths exuded from the mouth and nostrills. Blisters and peeling of the skin noted on and off all over the body. Crawling maggots seen all over the body. Foul smelling odour were emanating from the body. Hairs from the scalp were loosened and easily peeled away. Swollen and emphysematous subcutanous tissues of limbs and body. On the decomposed body of a female child, Mud particles seen all over the body surface. Following Antemortem injuries seen on the body: Diffuse contusion seen on the anterior surface of right and left side neck. O/D -Dark brown contusion seen on the front of neck muscles. Swollen and emphysematous subcutanous tissues of limbs and body. On the decomposed body of a female child, Mud particles seen all over the body surface. Following Antemortem injuries seen on the body: Diffuse contusion seen on the anterior surface of right and left side neck. O/D -Dark brown contusion seen on the front of neck muscles. -Fracture seen on both sides greater horn of hyoid bone with surrounding areas of contusions. -Thyroid and cricoid cartilage normal Skull -Intact. Brain -liquified Both lungs -normal with decomposition changes Heart -Normal in size, Flabby chambers contained few cc of fluid blood Greater vessels Intact, coronaries -patent Stomach -empty, nil specific smell, Mucosa Decomposed All other internal organs decomposed Uterus -Infantile, Genitelia -Normal Viscera preserved for chemical analysis 4. The Post Mortem Certificate has been marked as Ex.P.6. After completing investigation, P.W.15, the Inspector of Police, has laid a final report on the file of Judicial Magistrate Court No.2, Kanchipuram and the same has been taken on file in P.R.C.No.21 of 2005. 5. The Judicial Magistrate No.2, Kanchipuram, after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Chengelpet Division and the same has been taken on file in Sessions Case No.118 of 2006 and thereafter made over to the trial court. 6. The trial court, after hearing both sides and upon perusing relevant documents, has framed first charge under section 302 of Indian Penal Code, second charge under section 201 of Indian Penal Code against the accused and the same have been read over and explained to her. The accused has denied the charges and claimed to be tried. 7. On the side of the prosecution, P.Ws.1 to 15 have been examined and Exhibits 1 to 12 have been marked. 8. When the accused has been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against her, she denied her complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused. 9. 8. When the accused has been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against her, she denied her complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused. 9. The trial court, after hearing arguments of both sides and after pondering the available evidence on record has found the accused guilty under Section 304(ii) of the IPC and sentenced her to undergo 7 years Rigorous Imprisonment and she has also been found guilty under section 201 of Indian Penal Code and sentenced to undergo one year rigorous imprisonment. Against the convictions and sentences passed by the trial court, the present Criminal Appeal has been preferred at the instance of the accused as appellant. 10. The consistent case put forth on the side of the prosecution is that the accused is sister-in-law of the defacto complainant and due to animosity in between two families, with an intention to murder the deceased by name Charu @ Iswarya, aged 4-1/2 years, daughter of the defacto complainant, on 18.11.2004, the accused has jugulated her and after her demise, with an intention to screen evidence, placed the dead body into the well of one Nagappan. Under the said circumstances, the accused is said to have committed the offences punishable under sections 302 and 201 of Indian Penal Code. 11. For the purpose of proving the case of the prosecution, P.Ws.1 to 15 have been examined. Even though P.Ws.1 to 15 have been examined, the trial court has solely relied upon the evidence given by P.W.3. 12. The learned counsel appearing for the appellant/accused meticulously contended that the occurrence has taken place on 18.11.2004, but P.W.3 and other connected witnesses have been examined on 30.8.2005 and the prosecution has not given any acceptable explanation for belated examination of vital prosecution witnesses and the trial court, without considering the said aspect, has erroneously invited convictions and sentences against the accused/appellant and therefore, the convictions and sentences passed by the trial court are liable to be interfered with. 13. 13. In order to sustain the convictions and sentences passed by the trial court, the learned Additional Public Prosecutor has contended that in the instant case, the parents of the deceased have been examined as P.Ws.1 and 2 and their specific evidence is that prior to occurrence, the deceased has been entrusted to the accused and therefore, under section 106 of Indian Evidence Act, 1872, entire burden lies upon the accused and since the accused has not discharged her burden, the conclusion arrived at by the trial court is perfectly correct and the same cannot be interfered with. 14. The specific charge framed against the accused/appellant is that the families of defacto complainant and accused are not maintaining cordial relationship and only due to animosity, the accused has committed murder of the deceased. 15. The prosecution has set the law in motion only on the basis of Ex.P.1, Complaint. In fact, this Court has groped the entire averments made in Ex.P.1, wherein, it has not been specifically stated about the alleged entrustment of the deceased to the accused. 16. It is a settled principle of law that as per Section 106 of the Evidence Act, 1872, if a particular fact is especially within the knowledge of a particular person, the entire burden lies upon him or her. 17. In the instant case, even the alleged entrustment has not been proved on the side of the prosecution. It has also been pointed out in the charge that the families of defacto complainant as well as accused are not maintaining cordial relationship. If that be the case, it is needless to say that the alleged entrustment is nothing but farce and the same cannot be accepted. 18. The trial court has simply relied upon the oral testimony adduced by P.W.3. The specific evidence given by P.W.3 is that on the date of occurrence, after taking bath from a pump set, he proceeded from East to West and in front of him, the accused along with the deceased has proceeded towards the same direction. As rightly pointed out on the side of the accused/appellant, the occurrence has taken place on 18.11.2004, but P.W.3 has been examined on 30.8.2005 and no explanation has been given on the side of the prosecution for examining P.W.3 belatedly. As rightly pointed out on the side of the accused/appellant, the occurrence has taken place on 18.11.2004, but P.W.3 has been examined on 30.8.2005 and no explanation has been given on the side of the prosecution for examining P.W.3 belatedly. Since P.W.3 has been examined belatedly and since P.Ws.1 to 3 are residing in the same Village, the evidence given by P.W.3 cannot be a sole basis for inviting convictions and sentences against the accused/appellant. Except the ipse dixit of P.W.3, the prosecution has not adduced any other piece of evidence so as to point out the alleged guilt of the accused. 19. It has already been pointed out that Section 106 of Indian Evidence Act, 1872 cannot be invoked in the present case, even as per the charge frame against the accused/appellant and further the last seen theory put forth on the side of the prosecution cannot be accepted. Under the said circumstances, virtually there is no evidence on the side of the prosecution so as to point out the guilt of the accused. 20. The trial court, without considering the lack of evidence on the side of the prosecution, has simply relied upon the evidence given by P.W.3 and erroneously invited convictions and sentences against the accused/appellant and in view of the discussions made earlier, this Court is of the view that the convictions and sentences passed by the trial court are not factually and legally sustainable and altogether the same are liable to be set aside. In fine, this Criminal Appeal is allowed. The convictions and sentences passed against the appellant/accused in Sessions Case No.118 of 2006 by the Additional Sessions Judge (Fast Track Court No.II, Kanchipuram) are set aside. The accused/appellant is acquitted. The bail bond, if any executed by the accused/appellant, shall stand cancelled.