JUDGMENT: The appellant-A1 is questioning his conviction for the offence under Section 326 of the Indian Penal Code by the trial Court. 2. The case of the prosecution is that PW.1 is the father of the deceased child and husband of Accused No.2. PW.1 and A2 were Assistant Cooks of A1 who was a senior cook. There was illicit intimacy in between A1 and A2. PW.1 warned both A1 and A2 to mend their ways, however, they continued their relation. A1 and A2 started living together along with the children of PW.1 and A2. On 10.11.2011, A1 and A2 found that the deceased boy Karthik was coming in the way of their sexual enjoyment, as such, they decided to eliminate the child. A2 hit the child with the stick while A1 hit him with a pipe and also burnt his face and genital area. Having received the injuries the boy was admitted in Niloufer Hospital by his relatives PWs.3 and 4. Thereafter, the boy died while undergoing treatment in the hospital. Complaint was filed by the father of the deceased boy-PW.1 after the boy’s death. Investigation commenced on the basis of complaint Ex.P2. 3. The Police having examined the witnesses and also on the basis of the evidence collected regarding the injuries found on the body of the boy, filed charge sheet against A1 and A2 for the offence under Section 302, r/w.34 of the IPC. Charge was framed against A1 and A2 for causing hurt to the deceased boy with an intent to eliminate the boy. 4. Charge was framed against A1 and A2 for causing hurt to the deceased boy with an intent to eliminate the boy. 4. The charge as framed against A1 and A2 reads as follows; “That prior to 7 months you A-1 used to take labour work (cook) of A-2 (married woman and having two children) and developed illegal intimacy with her and took her along with her two children Deepika, 5 years and Karthik, 4 years, to Sagngam city, Gandhamguda village and kept them in a rented room of Md.Areefuddin (LW.7), that on 10.11.2011 you-A2 beat Karthik (the deceased) with a stick and you A.2 beat with a iron pipe indiscriminately and burnt the face and gender parts with an intention to eliminate the deceased since the latter was disturbing your sexual relationship due to which the deceased boy sustained injuries, that on 03.12.2011 the deceased boy was admitted in Niloufer Hospital for treatment by his relatives i.e. LW.2 to LW.4 and while undergoing treatment on 06.12.2011 at 2.30 p.m. the deceased boy succumbed to injuries, that you both committed murder intentionally (or knowingly) causing the death of Karthik and thereby committed an offence punishable under Section 302 read with Section 34 IPC and within my cognizance.” 5. Learned Sessions Judged examined PWs.1 to 15 and also marked Exs.P1 to P18. Learned trial Judge found that though PW.1- father of the deceased turned hostile to the prosecution case, the other circumstantial evidence was believable. The learned Sessions Judge found A1 and A2 were not guilty of committing murder, but, A1 was liable to be convicted under Section 326 of Indian Penal Code and sentenced him to 10 years imprisonment. 6. Learned Legal Aid Counsel Sri M.K.Ratnam argued that there are no eye-witnesses to the alleged harassment or beating by the accused. The father of the deceased himself has turned hostile to the prosecution case and did not support the prosecution case in whatsoever manner. In fact PW.1 stated that the boy received injuries after he fell from a running bus. In the absence of any direct evidence regarding the accused causing any hurt to the deceased boy, the question of conviction under Section 326 of IPC, does not arise. 7. On the other hand, learned Assistant Public Prosecutor submitted that the barbaric acts of the appellant resulted in serious injuries to the deceased boy who was aged around 4 years. In the absence of any direct evidence regarding the accused causing any hurt to the deceased boy, the question of conviction under Section 326 of IPC, does not arise. 7. On the other hand, learned Assistant Public Prosecutor submitted that the barbaric acts of the appellant resulted in serious injuries to the deceased boy who was aged around 4 years. The learned Asst.Public Prosecutor also referred to the injuries that were received by the boy and the photographs-Ex.P13. Learned Assistant Public Prosecutor argued that the findings of the trial Court are reasonable and based on record. 8. PW.1 who is the husband of A2 and father of the deceased boy, turned hostile to the prosecution case. However, he stated that the boy was treated at Niloufer hospital and while undergoing treatment, he died. The reason given by PW.1 is that the boy fell from running bus. PW.1 was cross-examined by the Public Prosecutor. The doctor evidence regarding the injuries will be discussed in the later part of the judgment. 9. PW.2 who is the owner of the premises where A1 and A2 were living was also declared hostile. However, he stated that A1 was resided in his house for some time. Further, PW.2 did not identify A2. PW.2 admitted having acquaintance with A1 and also providing shelter to A1 at his premises. 10. PW.3 is the younger sister of PW.1. She stated that PW.1 and A2 were working under A1. Since A1 and A2 developed illicit intimacy, PW.3 suggested PW.1 and A2 to stop working with A1, however, A1 and A2 went away and two children were in her custody. PW.3 further stated that she knew where A1 and A2 were residing. 11. PW.4-who is also another sister of PW.1. PWs.3 and 4 when she was met A2 along with the children. She found injuries on the body of the boy and when questioned A2, A2 stated that A1 had beaten the boy since he was coming in their way of physical intimacy. 12. The boy was examined in the hospital by PW.14 who was working in Niloufer hospital. According to PW.14 on 03.12.2011, the boy was admitted by his relatives and it was informed that the mother of the boy and her employer beat the boy. PW.14 found the following injuries on different parts of the boy. 12. The boy was examined in the hospital by PW.14 who was working in Niloufer hospital. According to PW.14 on 03.12.2011, the boy was admitted by his relatives and it was informed that the mother of the boy and her employer beat the boy. PW.14 found the following injuries on different parts of the boy. i) Scab formation ii) Swelling of both upper limbs and left lower limb. iii) Discharge of pus from a deep wound on left upper limb with underlying fracture and protrusion of bone. iv) Abdomen was distended with enlargement of both liver and spleen v) Child was diagnosed based on the history and clinical examination as battered baby with fracture left humerus with osteomyelitis and septicaemia. vi) X-ray chest and both limbs revealed compelte fracture of the middle of left humerus with osteomyelitis. 13. During the course of treatment the child’s health deteriorated and died on account of multiple injuries that were caused due to beating with instruments such as M.O.3 and M.O.4 according to PW.14. Thereafter, the body was sent for post-mortem examination. 14. Post-mortem doctor-PW.12 found the following injuries on the body of the child; 1) Healed Hypopigmentated abrasion 2.5x2 cms. over both buttocks neonatal cleft. 2) Abrasion of 1 cm. left loin black scab 3) Contusion with swelling 7x6 cms over upper 1/3 outer aspect left leg redis brown 4) Contusion 4x 3 cms midshin front of left leg redish black. 5) Contusion 3x3 cms mid inner aspect left leg blusish. 6) Contusion of both upper and lower limbs redish with raring of frenulum of upper limb covered with red blood cloth. 7) Multiple abrasions 0.5x1 cms. size over face, nose, with redish brown scabs and hyphopigmenttion. 8) Multiple discrit contusions 3x5 cms. size kover frontal loght parietal temporal and occipital areas scall red to redish black. 9) Multiple healed abrasions 0.5 to 1 cms size with hypo pigmentation over both legs and dorsum of both feet. 10) Multiple healed abrasions with hypopigmentation 0.5 to 1 cms size front of chest. 11) Infected lacerated wound 3.5 to 3 cms. over upper one yard left arm with fracture shaft of left humerus (compound fracture) 12) Infected wound 3.5 to 3 cms. x 0.5 cms. for back of right elbow with fracture dislocation of right elbow joined and surrounding erehema 6x 5 cms. 13) Sub cupatanus infection of chest wall 7x6 cms. 11) Infected lacerated wound 3.5 to 3 cms. over upper one yard left arm with fracture shaft of left humerus (compound fracture) 12) Infected wound 3.5 to 3 cms. x 0.5 cms. for back of right elbow with fracture dislocation of right elbow joined and surrounding erehema 6x 5 cms. 13) Sub cupatanus infection of chest wall 7x6 cms. over left side of chest 14) Contusion of both atria of heart with adjacent great vessels (resuncipion) 15) Contusion of brain 5 x 4 cms. over right parital. 15. From the evidence of PW.2 who is the house owner, A1 was staying in his premises. According to PWs.3 and 4, A1 and A2 were staying together. PW.2 though turned hostile to the prosecution, stated that A1 stayed in his premises for some time. PW.5 who is the scribe of the complaint also stated that A2 informed about A1 beating the boy with iron pipe and causing injuries. PW.6 and 7 who are independent witnesses did not state about A1 and A2 living together, and turned hostile to the prosecution case. The fact that A1 and A2 started living together along with the deceased child is evident from the version given by PWs.3, 4 and 5 and partly corroborated by PW.2 who is the house owner who states that A1 had stayed in his premises, which is the scene of offence. 16. PW.8 is the panch for scene of offence proceedings marked as Ex.P5. PW.9 is the witness to confession of A1 and A2 and the consequent seizure of M.Os.3 and 4 which are iron pipe and stick, respectively. The said MOs.3 and 4 were seized from the residence where A1 and A2 were living, which is the house owned by PW.2. The seizure was effected at the instance of A1 & A2. 17. It is proved by the prosecution that A1 and A2 were living together along with the deceased child. Burden is on the appellant to prove under what circumstances the boy received the injuries, when the boy was in their custody. Mere denial that he is no way concerned with the injuries cannot be accepted, since the prosecution had proved the factum of the deceased boy living with A1 and A2. According to PW.14 as already extracted, the boy had severe injuries and according to PW.14 the injuries were caused due to beating. Mere denial that he is no way concerned with the injuries cannot be accepted, since the prosecution had proved the factum of the deceased boy living with A1 and A2. According to PW.14 as already extracted, the boy had severe injuries and according to PW.14 the injuries were caused due to beating. Apparently, the injuries were inflicted and the injuries were ante-mortem in nature. The cause of death was multiple injuries (battered child) according to PW.12. 18. Under Section 106 of the Indian Evidence Act, since the incident had taken place within four corners of the house, the burden is on the appellant to explain the injuries on the deceased boy. 19. The Honourable Supreme Court in Balvir Singh v. State of Uttarakhand, 2023 SCC Online SC 1261. “34. Section 106 of the Evidence Act referred to above provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are preeminently or exceptionally within the knowledge of the accused. The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in Section 106 of the Evidence Act. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”. 36. The aforesaid decision of Shambhu Nath (supra) has been referred to and relied upon in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 , wherein this Court observed as under: “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused. 38. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [[1944] A.C. 315 : [1944] 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [ (2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 22. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. … 20. The burden that is shifted on to the accused/appellant was not discharged. Merely denying the offence, it cannot be said that the burden that has been shifted on to the accused under Section 106 of the Indian Evidence Act, has been discharged. As already discussed the evidence of PWs.3, 4 & 5 and also partly supported by PW.2-owner of the house, the prosecution proved that A1 & A2 were living together along with the deceased child. 21. Accordingly, the appeal stands dismissed. However, the sentence of imprisonment of the appellant/A1 under Section 326 of the Indian Penal Code, is reduced to 7 years. 22. Since the appellant is on bail, the trial Court is directed to cause appearance of the appellant/A1 and send him to prison to serve out the remaining part of sentence.