JUDGMENT (Prayer: Appeal filed under Section 374(2) of Cr.P.C. against the judgement of conviction and sentence dated 17.10.2018 passed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in S.C.No.52 of 2014 convicting the appellants for offences u/s 302 and 201 of IPC and sentencing each of them to undergo Imprisonment for Life and to pay a Fine of Rs.2,500/- for offence under Section 302 of IPC in default to undergo Rigorous Imprisonment for a further period of 2 years and to undergo Rigorous Imprisonment for 7 years and to pay a Fine of Rs.2,500/- for offence under Section 201 of IPC in default to undergo Rigorous Imprisonment for a further period of 1 year.) P.N. Prakash. J. 1. Challenging the judgement of conviction and sentence dated 17.10.2018 made by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri, in S.C.No.52 of 2014 convicting the appellants for offences u/s 302 and 201 of IPC and sentencing each of them to undergo Imprisonment for Life and to pay a Fine of Rs.2,500/- for offence under Section 302 of IPC in default to undergo Rigorous Imprisonment for a further period of 2 years and to undergo Rigorous Imprisonment for 7 years and to pay a Fine of Rs.2,500/- for offence under Section 201 of IPC in default to undergo Rigorous Imprisonment for a further period of 1 year, A1 to A4 in the trial court have come up with the present Criminal Appeal. 2. The prosecution story runs thus:- The deceased Asina @ Rasiya is the daughter of one Anwar, sister of Mubaarak Basha (P.W.4) and sisterin- law of Ahamad Basha (P.W.5). They hail from Singarampettai village in Krishnagiri District. The deceased Rasiya was given in marriage to one Bargath of Singarampettai Village about 8 years prior to her death. Since their marriage ran into a rough weather, they got divorced by pronouncing triple talaq. Two years after the divorce, the deceased Rasiya was given in marriage to Basha (A1) of Kalkundu village in Krishnagiri District. Basheer Sayabu (A2) and Amnu @ Abinabi (A3) are the parents of Basha (A1). Basha (A1) developed intimacy with his relative Asina (A4) which was strongly opposed by the deceased Rasiya on account of which, there used to be frequent quarrels between the two and the deceased Rasiya would be sent back to her parental home in Singarampettai village. 3. Basheer Sayabu (A2) and Amnu @ Abinabi (A3) are the parents of Basha (A1). Basha (A1) developed intimacy with his relative Asina (A4) which was strongly opposed by the deceased Rasiya on account of which, there used to be frequent quarrels between the two and the deceased Rasiya would be sent back to her parental home in Singarampettai village. 3. While so, the deceased Rasiya conceived. However, it is alleged that her husband Basha (A1) brought and kept Asina (A4) in his house much to the discomfiture of the deceased Rasiya. Therefore, the quarrel between Basha (A1) and the deceased Rasiya continued unabated and the deceased Rasiya returned to her parental home a few weeks prior to her death. It is alleged that 8 days prior to her death, she was dropped back in her matrimonial home in Kalkundu Village. Around 05.00 a.m. on 25.05.2013, Rasiya's father received a call that Rasiya had committed self immolation and died. Therefore, he along with his relatives rushed, to the house of Basha (A1) in Kalkundu Village and found the dead body of his daughter in the house with burn injuries. Suspecting foul play in the death of his daughter, alleging involvement of Basha (A1) and his parents Basheer Sayabu (A2) and Amnu @ Abinabi (A3), Anwar, the father of the deceased Rasiya, gave a written complaint (Ex.P6) against his son-in-law Basha (A1) and co-parents-in-law Basheer Sayabu (A2) and Amnu @ Abinabi (A3) and Asina (A4) to the police, based on which, Veeramani (P.W.13), Sub Inspector of Police, Kallavi Police Station, registered a case in Crime No.93 of 2013 at 10.00 a.m. on 25.05.2013 u/s 302 of IPC against A1 to A4 and prepared the printed FIR (Ex.P.13) which reached the jurisdictional Magistrate concerned at 01.00 p.m. on the same day. 4. Investigation of the case was taken over by Kumaran (P.W.17), the Inspector of Police, Kallavi Police Station. P.W.17 went to the place of occurrence and prepared an observation mahazar (Ex.P.1) and rough sketch (Ex.P.18) in the presence of witnesses Raman (P.W.3), the Village Administrative Officer and Sakthivel. From the place of occurrence, the investigating officer seized a 5 litre kerosene can (M.O.1) , half burnt mat (M.O.2), half burnt pillow cover (M.O.3), cement scrapings from the floor (M.O.4) , half burnt cotton bundle (M.O.5) and a blouse in orange colour (M.O.6) under the cover of a mahazar (Ex.P.2). From the place of occurrence, the investigating officer seized a 5 litre kerosene can (M.O.1) , half burnt mat (M.O.2), half burnt pillow cover (M.O.3), cement scrapings from the floor (M.O.4) , half burnt cotton bundle (M.O.5) and a blouse in orange colour (M.O.6) under the cover of a mahazar (Ex.P.2). He conducted inquest over the body of the deceased and prepared an inquest report (Ex.P.19). Thereafter, he sent the body to the Government Hospital, Uthangarai, for post-mortem. Dr.Ramesh (P.W.8) and Dr.Kandhasamy (P.W.9) formed a team and together conducted autopsy on the body of the deceased. During autopsy, the Doctors found that there were minimal burns on the back side of the body, but, the soles of the feet were found fully burnt. They also noticed 6-7 months old dead male foetus in the uterus. Apart from other notings, they found right superior horn of thyroid cartilage fractured with surrounding dark red soft tissue contusion around the neck. They did not find soot particle deposits in the trachea. After the post-mortem was over, the doctors sent the samples of the visceral organs for chemical examination. The Viscera Report (Ex.P.11) showed that no poison was detected. Thereafter, the Doctors gave their final opinion which is as follows:- “Final Opinion - The deceased would appear to have died of asphyxia due to compression over the neck.” The post-mortem certificate has been marked as Ex.P.9.Thus, the postmortem findings showed that the deceased Rasiya had not died of the burn injuries but, was murdered and thereafter her body was burnt. 5. During the course of investigation, the investigating officer arrested Basha (A1), his father Basheer Sayabu (A2) and Asina (A4) at 07.00 a.m. on 26.05.2013 and sent them in judicial custody. Amnu @ Abinabi (A3), the mother of A1 surrendered before the Judicial Magistrate, Pochampalli on 30.05.2013 and thereafter, she was taken into police custody. The seized material objects were sent to the Forensic Sciences Department for examination and the chemical examination report (Ex.P.8) showed that, kerosene was detected in M.O.1 and M.O.3. After examining the various witnesses and collecting reports from the experts, the investigating officer completed the investigation and filed a final report in PRC NO.33 of 2013 in the court of the District Munsif-cum-Judicial Magistrate, Uthangarai, u/s 120-B, 302 and 201 of IPC against A1 to A4. 6. After examining the various witnesses and collecting reports from the experts, the investigating officer completed the investigation and filed a final report in PRC NO.33 of 2013 in the court of the District Munsif-cum-Judicial Magistrate, Uthangarai, u/s 120-B, 302 and 201 of IPC against A1 to A4. 6. On appearance of the accused, the provisions of Section 207 of Cr.P.C. were complied with and the case was committed to the Court of Session, Krishnagiri, in S.C.No.52 of 2014 and thereafter, it was made over to the Sessions Judge, Fast Track Mahila Court, Krishnagiri, for trial. The trial court framed charges under Sections 120-B, 302 and 201 of IPC against A1 to A4. 7. The sum and substance of charges are that Basha (A1) developed intimacy with his relative Asina (A4) which was opposed by his wife Rasiya (deceased) and therefore, the accused conspired to get rid off Rasiya, pursuant to which, A2 and A3 held the legs of Rasiya, A4 held her hands and A1 throttled her to death and thereafter, poured kerosene over her body, burnt it, in order to make it to look as if she had committed suicide by self immolation. 8. The accused denied the charges and thereafter, the prosecution examined 17 witnesses, marked 22 exhibits and 7 material objects. As the deceased Rasiya's father viz., Anwar died during trial, the complaint (Ex.P.6) was marked through his son Mubaarak Bash (P.W.4) and proved through Veeramani (P.W.13), the Sub Inspector of Police, who received the complaint and prepared the printed FIR (Ex.P.13). When the accused were questioned under Section 313 of Cr.P.C. on the incriminating circumstances appeared against them, they denied the same. No explanation whatsoever was given by them as to how Rasiya died in their house. No witness was examined nor any document marked from the side of the accused. 9. After considering the evidence brought on record, the trial court, by judgement dated 17.10.2018, convicted the Appellants/A1 to A4 as stated in the 1st paragraph of this judgement. Challenging the conviction and sentence imposed on them by the trial court, present appeal has been filed by A1 to A4. 10. It was brought to the notice of this court by the learned Additional Public Prosecutor that during the pendency of this appeal, Basheer Sayabu (A2) died on 27.05.2021. Mr.V.Gopinath, the learned senior counsel on instructions admitted the said position. 11. 10. It was brought to the notice of this court by the learned Additional Public Prosecutor that during the pendency of this appeal, Basheer Sayabu (A2) died on 27.05.2021. Mr.V.Gopinath, the learned senior counsel on instructions admitted the said position. 11. Heard Mr.V.Gopinath, the learned Senior Counsel on behalf of Mr.L.Mahendran, the learned counsel on record for the Appellants/A1 to A4 and Mr.M.Babu Muthumeeran, the learned Additional Public Prosecutor for the respondent/State. 12. The prosecution has proved the following facts beyond a peradventure:- (1) The deceased Rasiya was the daughter of Anwar and a resident of Singarampettai Village in Krishnagiri District; (2) She was given in marriage to Basha (A1) and she was pregnant at the time of her death; (3) Her dead body was found in the house of the accused on 25.05.2013; and (4) Her death was not a natural one. 13. Before adverting to the testimony of the other witnesses, we propose to discuss the testimony of Dr.Ramesh (P.W.8) and Dr.Kandhasamy (P.W.9) of Government Hospital, Uthangarai, who formed a team and together conducted autopsy on the body of the deceased Rasiya. In their evidence as well as in the post-mortem certificate, they have stated about the burn injuries and also about the injuries around the neck of the deceased. 14. Both in the chief examination as well in the cross examination of Dr.Ramesh (P.W.8), he has stated that there was no soot particles in the trachea and that is why, he did not send the thyroid for chemical examination. Doctors have further stated that they found 3 x 1 x 1 c.m. deep blackish contusion across the thyroid cartilage. The internal examination showed that there was a fracture of the right superior horn across the thyroid cartilage. The defence was not able to make any serious dent in the testimony of Dr.Ramesh (P.W.8) and Dr.Kanthasamy (P.W.9). From the fact that, that minimum burn injuries were found on the back side of the body, soles of both the feet were fully burnt and no soot particles were found in trachea and lungs, we have no hesitation in coming to the conclusion that Rasiya was throttled to death and thereafter, her body was set fire with kerosene. From the fact that, that minimum burn injuries were found on the back side of the body, soles of both the feet were fully burnt and no soot particles were found in trachea and lungs, we have no hesitation in coming to the conclusion that Rasiya was throttled to death and thereafter, her body was set fire with kerosene. P.W.1 and P.W.2, who are neighbours have inter alia stated that on 25.05.2013 while they were in their respective houses, around 04.30 – 05.00 a.m. they heard a hue and cry and, therefore, they rushed to the house of A1 where they saw Rasiya in flames; they immediately, wrapped her with a bed sheet and doused the fire. In the cross examination of P.W.1, when he was asked as to whether Rasiya's father came at 8 O' clock and assaulted A1, he stated in the affirmative. P.W.1 has also further stated that the father of Rasiya gave police complaint and the police came and took A1 with them. 15. Mr.V.Gopinath, the learned senior counsel, contended that none of the accused were present in the house at the time of the occurrence as no witness has spoken about their presence except the solitary statement of P.W.1 in the cross examination. He further contended that this statement of P.W.1 cannot be true because, the investigating officer, has stated that A1 was arrested only on the next day near the bus stand along with A2 and A4. 16. We find a ring of truth in the statement of P.W.1 vis-a-vis the version of the investigating officer, because P.W.1 did not state this in the chief examination. Only in the cross-examination, when it was suggested to him that Rasiya's father came at 8'O clock and assaulted A1, he affirmed the suggestion. Rasiya's father, out of frustration and anger would have assaulted his son-in-law (A1) on seeing the body of his daughter with burns. P.W.4, the brother of the deceased, P.W.5, the brother in law of the deceased, P.W.6 and P.W.7, the relatives of the deceased have all stated about the marriage of the deceased Rasiya to A1 after which A1 developed intimacy with his relative A4 which was opposed by the deceased due to which, A1 and the deceased quarrelled very frequently. 17. P.W.4, the brother of the deceased, P.W.5, the brother in law of the deceased, P.W.6 and P.W.7, the relatives of the deceased have all stated about the marriage of the deceased Rasiya to A1 after which A1 developed intimacy with his relative A4 which was opposed by the deceased due to which, A1 and the deceased quarrelled very frequently. 17. Mr.V.Gopinath, the learned senior counsel further contended that even in the complaint (Ex.P.6), it has not been stated that 8 days prior to the death of Rasiya, she was left in her matrimonial home. He also pointed out that P.W.4, the brother of the deceased has stated that 8 days prior to the incident, the deceased was left in the matrimonial home but whereas, P.W.5, the brother in law of the deceased has stated that 3 days prior to the incident, she was dropped in the house of A1. 18. In our opinion, this discrepancy is not very serious because it does not matter whether the deceased was left in her matrimonial home 3 days prior to the death or 8 days prior to the death as admittedly, she had died in her matrimonial home [the house of A1] and not elsewhere. The neighbours of A1 have clearly stated that Rasiya was found in flames in the house of A1 and it was the neighbours who doused the flames. We asked ourselves a simple question, where was A1 at that time, for which, there is no satisfactory answer anywhere even in the Section 313 Statement. Simple question is where was A1 at that time. 19. Mr.V.Gopinath, the learned senior counsel, took us through the evidence of P.W.6, one of the relatives of the deceased who has stated that Rasiya's father put up a cycle shop for his son-in-law (A1), and as the cycle shop business went into a loss, he closed the shop and went for employment to Bangalore. Based on this statement, the learned senior counsel contended that A1 was not available in the place of occurrence at the relevant point of time. We carefully read the evidence of P.W.6, who has narrated the course of the life of A1 and the deceased Rasiya stretching backwards to a period of six years prior to the death of Rasiya. P.W.6 has not stated that A1 was in Bangalore when the incident occurred in his house. 20. We carefully read the evidence of P.W.6, who has narrated the course of the life of A1 and the deceased Rasiya stretching backwards to a period of six years prior to the death of Rasiya. P.W.6 has not stated that A1 was in Bangalore when the incident occurred in his house. 20. From the evidence of P.W.4, P.W.5 & P.W.6, we are able to see that the motive for the crime has been satisfactorily established, in that, the main quarrel between A1 and the deceased Rasiya was the promiscuous relationship between A1 and A4. The defence has not suggested even to P.W.1 that A1 was in Bangalore at the time of the incident and was not in his house at Kalkundu Village. That apart, even in the examination under Section 313 of Cr.P.C. A1 has not stated that he was not in his house but, was elsewhere. 21. In Rajasthan v. Thakur Singh, 2014 (12) SCC 211 : 2014 (8) Scale 82 , the Honourable Supreme Court has held as under:- “22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. This fact need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. 23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.” 22. As regards A3 and A4, we find that except the police confession, there is no other material to show their presence in the house of A1 at the relevant point of time and hence, we hold that the prosecution has not proved the charges as against A3 and A4 beyond all doubts. Thus, A3 and A4 are entitled for acquittal from the charges levelled against them. 23. For the foregoing discussions, the conviction of the 1st Appellant- Basha @ Badhusha (A1) by the trial court for offence u/s 302 and 201 of IPC and the sentence imposed thereof are confirmed. The prosecution has not proved the charges u/s 302 & 201 of IPC as against Amnu @ Abinabi (A3) and Asina (A4) and therefore, they are entitled to the benefit of doubt and to be acquitted from the charges levelled against them. Insofar as Basheer Sayabu (A2) is concerned, in view of the submission made by the learned Additional Public Prosecutor, since A2 died pending appeal, charges against him stood abated as his near relatives who are co-accused in this case, did not seek under the proviso to Section 394(2) of Cr.P.C. In the result, this Criminal Appeal is partly allowed in the following terms:- (i) The conviction and sentence imposed by the trial court on the 1st Appellant-Basha @ Badhusha are confirmed; (ii) The 3rd Appellant - Amnu @ Abinabi (A3) and the 4th Appellant - Asina (A4) are acquitted of all the charges; (iii) Appeal as against the 2nd Appellant - Basheer Sayabu (A2) is dismissed as abated. (iv) The police are directed to immediately produce A1 before the trial court for undergoing the sentences; and (v) The bail bond executed by the Appellants 3 and 4 shall stand cancelled.