^ .c HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma_& Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 138 of 2005 ApDellant (in jail) Vs. Respondent. Smt. Kokaiyabai Yadao w/o. Shri Kashiram Yadao, aged 30 years, r/o. Bhavani Nagar, Labhandi, P.S. Telibandha, Raipur (CG). State of Chhattisgarh. (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. K.K. Sjngh, counsel for the appeilant. Mr. D.K. Gwalre, Deputy Govt. Advocate for the State. ORALJUDGMENT (Deliveredon 16-6-2011) Per T.P.Sharma. J. 1. Challenge in this appeal isto the judgment of conviction andorder of sentence dated 31-12-2004 passed by VIII Additional Sessions Judge, Raipur in Sessions Trial No.338/2004, whereby and whereunder learned Sessions Judge after holding the appetlant guilty for the commission of culpable homicidal death of her own daugher - Deepa, amounting to murder convicted the appellant under Section 302 IPC and sentenced her to undergo life imprisonment and to pay fine of Rs.100/-, in default of payment of fine to undergo further Rl for ten days. '•—"—-" ^ 1 •C Conviction of the appellant is impugned on the ground that without there being any iota ofevidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. The case of the prosecution, in brief, is that the present appellant was residing with her daughter Deepa aged about 4 years and her son Palash aged about two years. On 21-6-2003 at 10.00 a.m,., appellant was present along with her two kids in her house. She assaulted her son and daughter by Gaiti (having two sharp edged weapon used for digging soil) and caused certain injuries to them. When they cried, after hearing the noise Narayan Yadav (PW/3) and Pitambar (PW/4) neighbours of the vicinity immediately rushed to the spot and saw the appellant hoding Gaiti in her hands, her daughter Deepa aged about4years was badly injured and her son Palash agedabout one year was lying on the ground in injured condition. They forcibly snatched Gaiti from the possession of the appellant and took the injured children to hospital. Both were examined by Doctor Sarita Dubey (PW/10) vide Ex.P/10 & P/11. During the courseof treatment Ku. Deepa died and her merg intimation was recorded vide Ex.P/8 & P/14 and first information report was lodged in Police Station vide Ex.P/22. Dahati Nalsi was recorded vide Ex.P/5. After summoning the witnesses inquest over the body of the deceased was prepared vide Ex.P/2. Blood stained clothes were seized vide Ex.P/3. Blood stained soil, plainsoil and Gaiti from the possession ofthe r ./^•"'"^^. ^•^Sss&K^ y % ; ''^M^i^ • ,9 ~%^£^y/ appellant were seized vide Ex.P/15. Dead body of the deceased Ku. Deepa was sent forautopsy to Medical College, Raipur, vide Ex.P/17. PW/7 Dr. UIIas Gonnade conducted postmortem vide Ex.P/7 and found the following injuries; i) an open wound on middle of back of skull at the upper part transverse situated inthe size of 2" x 1" upto bone deep; ii) infected wound just right lateral to it vertical in the size of 2.5 cm x 1 cm; iii) infected bone deep at mid of left clavical 2 cm diameter infected bone deep at and around right side xiphoid process iv) 3" x 2" x coils of intestine were seen; v) stiched lacerated wound at left maxillary in the size of 2 cm at left anterior, superior alias spine 2.5 cm infected, vi) stiched transverse wound 5 cm below xiphoid process all over abdomen in the size of 22 cm. Cause of death was due to cardio respirastory failure as a result of multiple injuries. Seized articles were sent for medical examination to FSL, Raipur vide Ex.P/19. and report thereof is received vide Ex. P/20 After completing the investigation, charge sheet was filed against the appellant in the Court of Addl. Chief Judicial Magistrate, Raipur, who in turn committed the case to the Court of Sessions Judge, Raipur. Learned Sessions Judge,.received the case on transfer, who framed charge under Section 302 of the Indian Penal Code against the appellantwho abjured the guilt. Prosecution in order to establish the charge against the appellant examined seven witnesses in all. Thereafter the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing li.fi....^,,..'. i :ii?'^gs&:j i:7 /^ ^,'. 'v:^^" ':L.. iV 1.' T' against him in the prosecution case and pleaded innocence and false implication. 8. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of the judgment. 9. Mr. K.K. Singh, learned counsel appearing for the appellant vehemently argued that as per prosecution case i.e., Dahati Nalsi Ex.P/5) and statement (Ex.P/6)of Narayan Yadav (PW/3), the appellant was insane and mentallyill. As per allegation of the prosecution, appellant killed her own daughter aged about 4 years and caused injury to her own son aged about two years which does not appear to be normal. It appears that in the state of insanity appellant had committed theaforesaid offence. The evidence adduced on behalfofthe prosecution is not sufficientfor drawing inference that the appellant has committed the aforesaid offence. 10. On the other hand, Mr. D.K. Gwalre, Deputy Govt. Advocate appearing on behalf of the State supported the impugned judgment and submits thatthe court below after considering all the aspects of the case has rightly convicted and sentenced the accused/appellant. He further submits that the evidence of PW/3 Narayan ahd PW/4 Pitambar is sufficient for drawing inference that none else than the appellant hadcommitted the aforesaid offence and defence was unable to prove the exception as required under Section 105ofthe Evidence Act. 'ys^ M^''s%. ~^-.. •fM : '" ''v' "fe' ;v^-—>''. ^ !-^ 11. We have heard leamed counsel for the parties and perused the record of thetrial court as also the impugned judgment 12. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalfofthe prosecution. 13. In the present case, homicidal death of the deceased Ku. Deepa as a result of injujries is not substantially disputed by the appellant. On the other hand, it is established from the postmortem report (Ex.P/7) of Dr. Ullas Gonnade), death of Ku. Deepa was homicidal in nature. As regards complicity of the appellant in the crime in question is concemed, prosecution examined Narayan Yadao (PW/3) and Pitambar (PW/4) who rushed to the spot immediately after hearing noise. Narayan Yadao (PW/3) has deposed that on hearing noise when he and others went to the house of the appellant, he saw the children in injuried condition and the appellant was there holding Gaiti in her hand. Pitambar (PW/4) also deposed that when he entered into house of the appellant, he found that the appellant was inside the house and both her children were injured and they snatched Gaitai from the hands of the appellant and took out the injured children to hospital and lodged FIR in Police Station. The evidence of these two witnesses clearly reveal that at the time of incident only kids along with appeilant were present in the house where offence was committed and in these circumstances appellant was under obligation to offer explanation as to how her children Ku. Deepa and son Palash were injured but the appellant ..^- " ^^^^^^^ ...r':/...^v<'y' 14. 15. has not offered any explanation. It was also incumbent upon the appellant to establsh the factum of exception to believe that she was mentally illor insane in terms ofSection 105of the Evidence Act. In absenceof such proof and without explanation the only inference is possible that it was the appellant who committed homicidal death of herown daughter aged about four years. Although learned counsel for the appellant argued that the offence was committed by the appellant asshe was insane but there is no evidence to suggest such contention. After appreciating the evidence available on record, the Court below has arrived at a finding that the appellant is the person who has caused homicidal death of deceased Deepa. The finding of the Court below is based on credible and clinching evidence sufficient for drawing inference against the appellant. On a close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any intereference. The appeal being devoid of merit is sliable to be dismissed and is hereby dismissed. Raju Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge