HIGH COURT OF CHHATTISGARH.BILASPUR Criminal Appeal No.565 of 2004 APPELLANT: (In Jail) Urmila Bai, W/o Pran Sai, age 30 years, R/o Sonpur, Police Station Surajpur, Distt. Surguja (C.G.) Versus RESPONDENT: State of Chhattisgarh {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon'ble IVIr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, JJ ORALJUDGMENT (16-3-2010) T.P.Sharma. J: - 1. hleard on I.A.No.2, application for urgent final hearing of the appeal. 2. On due consideration, I.A.No.2 is allowed. 3. Both the parties are ready to argue the case finally. With the consent of both the parties, the case is heard finally. 4. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21-6-2004 passed by the 2 Additional Sessions Judge (F.T.C.), Surajpur in Sessions Trial No.34/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of her two years aged child Bhulo @ Pramila, convicted the appellant under Section 302 of the I.P.C. and sentenced her to undergo imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo R.t. for three months. ^-s 5. Judgment is impugned on the ground that while convicting the appellant, the trial Court has not considered the mental status of the appellant and thereby committed illegality. 6. Case of the prosecution, in brief, is that appellant Urmila - sister of Bhaiyalal (PW-2), was residing in the house of Bhaiyalal along with her two years aged daughter Bhulo (since deceased). On the fateful night of 25-10-2003 the appellant was present in the house of Bhaiyalal, but second day morning, she was not found in the house of Bhaiyalal, she was absent along with her two years aged daughter Bhulo and her articles. Bhaiyalal & others made search and finally the dea.d body of Bhulo was found in one temporary well (dhodhi). Merg was recorded vide Ex.P-9, dehati nalsi was recorded vide Ex.P-12 and on the basis of merg & dehati nalsi, F.1.R. was lodged vide Ex.P-18. The Investigating Officer left for the scene of occurrence vide Ex.P-1 and inquest over the dead body of Bhulo after taking out from the well was prepared vide Ex. P-2. Dead body was sent for autopsy and autopsy was conducted by Dr. R.S. Singh (PW-8) vide Ex.P-17 who opined that death was due to asphyxia as a result of drowning. Clothes were seized from the spot vide Ex.P-3. Chappal & sari were seized from the spot vide Ex.P-4. One steel box was seized from the spot vide Ex. P-5. The accused/appellant was taken into custody, she made discloser statement of suit case vide Ex. P-8 and the same was recovered at the instance of the appellant vide Ex.P-6. Sealed clothes of the deceased were seized vide Ex.P-7. Spot map was prepared vide Ex.P-10. 7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Surajpur, who in turn, committed the case to the Court of Sessions, Ambikapur, from where the 2nd Additional Sessions Judge (F.T.C.), Surajpurreceived the case on transfer for trial. 8. In order to prove the guilt of the appellant, the prosecution has examined as many as nine witnesses. The accused/appellant was examined under Section 313 of the Cr.P.C. in which she denied the circumstances appearing against her, pleaded innocence and falseimplication. 9. After affording opportunityof hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 10. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 11.Learned counsel for the appellant vehemently argued that all the witnesses have specifically deposed that mental condition of the appellant was not normal since her birth. On the date of incident, the appellant left the house of Bhaiyalal along with her articles & daughter, her daughter was found dead in the well and her articles were also found near the well, she was moving as vagabond without any articles which shows that at the time of commission of offence, the appellant was insane and was not able to understand good or bad, right or wrong about the act she may have committed. Learned counsel further argued that the appellant is in custody since 29-10-2003. In absence of any motive of causing the death of the deceased, her act may, even if proved, fall underthe category ofSection 304 Part-11 ofthe I.P.C. 12.0n the other hand, learned State counsel opposed the appeal and submittedthat the appellant was mother of the deceased, she was under obligation to take care of her two years aged child, but instead of taking care and saving her, the appellant herself has killed her daughter, there was no occasion for the appellant to kill her daughter or throwing her into the well, and therefore, the act of the appellant squarely falls under the category ofculpable homicide amounting to murder. The trial Courthas rightly convicted & sentenced the appellant. 13.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 14.1n the present case, death ofthe deceased as a result of asphyxia due to drowning has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. R.S. Singh (PW-8) & autopsy report Ex.P-17 which reveal that death of the deceased was unnatural and two years aged child (the deceased) died due to drowning. 15.As regards complicity of the appellant in the crime in question, the case is substantially based on the circumstantial evidence of last seen together. 16.Bhaiyalal (PW-2) - brother of the appellant has deposed that the appellant was residing in his house along with her daughter, on the date of jncident, she was present in his house along with her daughter, but on second day morning she was not present, her daughter was also not present and the appellant left the house along with her articles, he made search of her sister and finally he found the dead body of the child & other articles in a temporary well (dhodhi) on which he went to the Police Station and lodged report (merg) Ex.P-9. Smt. Samet (PW-6) - wife of Bhaiyalal (PW-2), has corroborated the evidence of Bhaiyalal (PW-2). 17.1n her examination under Section 313 of the Cr.P.C., the appellant herself has admitted that she was residing in the house of her brother Bhaiyalal along with her daughter and she left the house of Bhaiyalal along with her daughter. 18-Jagdish Chandra Prasad Singh (PW-1), Vishnu Kumar Singh (PW-3), Rama Ram (PW-4)& SomarSai (PW-5) have specifically deposed that the dead body of the deceased was found in the well of Jagdish. Somar Sai (PW-5) has deposed that they searched for the appellant and she was found in Gopipur forest. 19.Evidence of the aforesaid witnesses clearly estabtishes that on the date of incident at night the appellant was present in the house of Bhaiyalal with her daughter, thereafter, she left the house of Bhaiyalal and on second day dead bodyofthe deceased aged about 2 years was found in the well of Jagdish. Other articles of the appellant were also found near the well. This establishes the fact that the appellant was also present near the well. The appellant has not offered any explanation that how her daughter died. Daughter of the appellant (the deceased) was in the custody of the appellant. In absence of any explanation on behalf of the appellant, only inference that the appellant was the person who had thrown her daughter into the well and her daughter died as a result of drowning, would be possible. 20.The aforesaid witnesses have admitted that the appellant was not mentally sound. Bhaiyalal (PW-2) has admitted in para 8 of his evidence that the appellant was tike lunatic and she was not able to understand right or wrong. He has also admitted in para 1 1 that the intervening night was dark night and there was no boundary well to the wett. The appellant has taken the defence of Section 84 of the I.P.C. which reads as follows: - "84. Act of a person of unsound mind.—Nothingis an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to taw." ^. 1.1n case of defence under Section 84 of the I.P.C., the accused is required to prove the fact that at the timeof commission of offence he/ she was incapabte of knowing the nature of the act by reason of unsoundness of mind. In the matter of State v. Ahmadulla (AIR 1961 SC 998), the Apex Court has held that burden to prove the fact that at the time of commission of incident the accused was insane, is on the accused. 22.1n the present case, although the witnesses have deposed that the appellant was not normal and she was mentally abnormal, but the fact remains that the appellant was married having two years aged child and she was residing separately in the house of Bhaiyatal with her two years aged daughter. In case of insanity of the appellant it was not possible for Bhaiyalal and other persons to allow the appellant to live along with her two years aged child. This shows that at the time of commission of offence, the appellant was not of unsound mind unable to know the nature of the act. In these circumstances, it is difficult to hold that the appellant was of unsound mind and has committed the offence or act during her insanity. The appellant herself has left the house of her brother along with her two years aged daughter. Duty of care of her daughter was much upon the appellant, but instead of taking proper care and caution of her two years aged daughter, the appellant has thrown her daughter into the well which shows her intentionalact. 23.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner and has negated the theory of insanity of the appellant. On close scrutiny of evidence, we do not find any deviation from the finding of the trial Court. . '^ •'^^"^ ;4.Consequently, the appeal is devoid of merit, same is liableto be dismissed and it is hereby dismissed. _-_- Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge