Cl^ HIGH COURT OF CHHATTISGARH. BILASPUR Crimmal Appeal No.920 of 2009 APPELLANT: (In Jail) RESPONDENT: Smt. Apuchha Bai, W/o Bhokalo, aged about 35 years, R/o Dhaurabhantha, Police Station Tamnar, Distt. Raigarh (C.G.) Versus State of Chhattisgarh, Through Station House Officer, Tamnar, Distt. Raigarh (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. N.K. Chatterjee, counsel forthe appellant. Mr. Ashish Shukla, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. N.K. Aaarwal. JJ ORAL JUDGMENT (26-3-2010) T.P. Sharma.J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 2-2-2002 passed by the 3 Additional Sessions Judge (Fast Track Court), Raigarh in S.T.No.224/2001, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of her 13 months' aged chifd Ghasiaram and attempt to commit suicide, convicted the appellant under Sections 302 & 309 of the I.P.C. and sentenced her to undergo imprisonment for life & to undergo S.l. for six months, respectively. 2. Conviction is impugned on the ground that without any credible & clinching evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful day of 15-9-2001 at about 4 p.m. the appellant thrown her 13 months' aged male child Ghasiaram (since deceased) and another female child in the well with intent to kill them and she herself also jumped in the well. Villagers came and took out the appellant and the dead body of Ghasiaram from the well. Merg was recorded vide Ex.P-1. F.I.R. was recorded vide Ex.P-2. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex. P-3, inquest over the dead body of male child Ghasiaram was prepared vide Ex.P-4. Spot map was prepared by the Investigating Officer vide Ex.P-5. Dead body was sent for autopsy to Primary Health Centre, Tamnar. Dr. Savitri Tigga (PW-6) conducted autopsy vide Ex.P-7 and found that cause of death of deceased Ghasiaram was asphyxia as a result of drowning and death was homicidal in nature. 4. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Gharghoda, who in turn, committed the case to the Court of Sessions, Raigarh from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as nine witnesses. The accused was examined under Section 313 of the Cr.P.C. in which she denied the circumstances appearing against her, pleaded innocence and false implication. 6. We have heard learned counsel for the parties, perusedthe judgment and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that in the present case, conviction of the appellant is based on assumption, surmises & conjectures on the ground that dead body of deceased Ghasiaram was found inside the well where the appellant was also present. But in the present case, conviction is not based on any credible & clinching evidence sufficient for drawing inference that the appellant has committed culpable homicide amounting to murder of her son or has attempted to commit suicide and in absence of such evidence, conviction ofthe appellant is not sustainable under the law. 8. On the other hand, learned State counsel opposed the appeal and submitted that the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant is the person who has caused culpable homicide amounting to murder of her 13 months' aged child and she herself has jumped into the well with intent to commit suicide. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 10.1n the present case, unnatural death of 13 months' aged child Ghasiaram as a result of drowning has not been substantially disputed, otherwise also it has been established by the evidence of Dr. Savitri Tigga (PW-6) and autopsy report Ex. P-7. 11.As regards complicity of the appellant in the crime in question, evidence of Bhoklo (PW-1) - husband of the appellant, Sonaphulo Pradhan (PW- 2) & Gajraj Singh Thakur (PW-3) are sufficient for drawing inference that Sonaphulo Pradhan (PW-2) & Gajraj Singh Thakur (PW-3) heard the sound which came out from the well on which they reached to the spot where they saw that the appellant was inside the well with her child. Sonaphulo Pradhan (PW-2) went inside the well and took out one female child from the well, he tried to took out the appellant also, but the appetlant was not ready on which with the help of other persons, he '^, finally took out the appellant from the well. Cross-examination of ^Qn^phyl? Pradh^n ^PW-2^ rev^^l^ that when hQ came near the WQII, the appellant was inside the well, sne was riolding the hairs of her daughter and finally lier daughter has been saved, but live body or dead body of the male child i.e. Ghasiaram (since deceased) was not visible. Evidence of Sonaphulo Pradhan (PW-2) & Gajraj Singh Thakur (PW-3) are sufficient to establish the fact that the appellant was not ready to come out from the well and even she was not ready to save herself. But the fact remains that the appellant herself has thrown her two children in the well with intent to commit culpable homicide amounting to their murder. 12.Bhoklo (PW-1) - husband of the appellant has admitted in his cross- examination that the appellant was trying to save her children. Likewise, cross-examination of Sonaphulo Pradhan (PW-2) shows that the appellant was inside the well and was holding the hairs of her daughter who was finally saved with the help of Sonaphulo Pradhan (PW-2) & Gajraj Singh Thakur (PW-3) which is sufficient for drawing inference that the appellant was trying to save her daughter by holding her hairs. 13.The prosecution has not adduced any other evidence to prove the fact that the appellant has thrown her children inside the well. If the appellant would have thrown her children in the well, there was no occasion for her to jump inside the well or to hold the hairs of her female child and even when the persons took out her female child, the appellant was not ready to save herself due to the reason that another child of the appellant was still inside the water who was finally found dead. No injury on vital part orany other part of the deceased was found. Both the children were in the custody of the appellant. Even otherwise, there was no occasion for the appellant to kill her own child. Soma 14. In absence of any credible & clinching evidence, it is difficult to hold that the appellanthas committed culpable homicide amounting to murder of her 13 months' child Ghasiaram by throwing him into the well and the appellant herself has tried to commit suicide. While convicting the appellant, the trial Court has not considered this material aspect and thereby committed illegality. 15.For the foregoing reasons, we are ofthe considered view that conviction & sentences of the appellant under Sections 302 & 309 of the I.P.C. are not based on credible & clinching evidence. Consequently, the appeal is allowed. Conviction & sentences of the appellant under Sections 302 & 309 of the I.P.C. are hereby set aside and she is acquitted of the said charges. She be set at liberty at once, if not required in any other case. , Sd/- l-H Sharma Judge Sd/- N.K. Agarwal Judge !