x m-x a; xx: a G HIGH COURT OF CHHATTISGARH AT BILASPIIR Criminalégpeal No.576/ 1992 APPELLANT Shivkumari Bai w/o Kanhaiyaial (in jail) Kalar, éged 24 years, rfo Village Domaxpur, Thana ’I‘akhatpur Distn'ct Bilaspur M.P.(Now CG) VERSUS “a ‘REsPONDENT State of Madhya Pradesh (Now ChhattisgarhL { . Appearance: ‘ A Shri Suresh Pandey, counsel for the appellant. , Shl‘i Rajendra Tn‘pari, Panei Lawyer for the State. Division Bench:- Hon’ble Shri T.P. Shanna as _ Hon’ble Shri R.L. 'hanwax,JJ SRAL JUDGMENT (05.04201e) Per T.P.Shaxma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 16.3.1992, passed by the Sessions Judge, Bilaspur, in Sessions Trial No. 225/9}, whereby and whereunder, the learned Sessions Judge after holding the appellant guilty for commission of culpable homicide, amounting to murder of her daughter— Revtibai, aged about 2 years and attempted to commit suicide, convicted the appellant under Sections 302 and 309 of the IPC and sentenced to undergo imprisonment for life and S.I. for 1 month respectively. ,::\ 2. The conviction is impugned on the ground that without any iota of evidence, Court below has convicted and sentenced \x E the appellant as aforementioned and thereby committed illegality. 3. 3 The brief case of the prosecution. is that the appellant, mother of deceased- Revtibai, aged about 2 years, wentvnear the well on 3.1.1991, at about 5 to 6 am. in the morning with a View to kill herself and herxdaughter and jumped along with her daughter into the well, where daughter of the appellant died as. i a result of drowning. Some villagers came near the well and f took out the appellant from the well. Shatrughan (PW- 1) went to‘ Police Station and 1odged the RIER. vide Ex. P/1. Investigating Oil‘lcer left for the scene of occurrence and after summoning witnesses vide EX. P/ 2, inquest over the dead body of the deceased was prepared vide EX. P/ 3. The dead body was sent for autopsy to P.H.C., ’l‘akhatpur vide Ex. P/6, where Dr. V.K.Soni (PW-6) conducted autopsy vide EX. P/6~A and found that the death of Revtibai, aged about 2 years was as a result of drowning. Clothes and other articles of the deceased were seized vide EXP] 4. Patwari prepared spot map vide EX. P/8. Police also prepared spot map vide EX. Pf9. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of'Sessions Bilaspur, where the tn'al was conducted. '5. ‘ In order toprove the guilt of the accused/appellant, "’ prosecution has examined as many as 8 witnesses. Accused was examined under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and false implication in crime in question was Claimed. The accused has G examined defsnce witnesses ReL:hamm (DW-l) and Gendram (DW-Q). Rekharam (DWVI) has deposed that husband and mo’rher in law of the appellant have pushed the deceased and the appellant t1 to the Well for causing their death. 6. After aifording opportunity of hearing to the parties, the learned Sessions Judge’ has convicted and sentenced the aplyeilant as afoxementioned. 7.‘ We have heard learned counsel for the parties at length and perused the‘judgment impugned and'tecord of the Court below. 8. Learned counsel for the appellant vehemently argued that the conviction is based on the alleged extra judicial confession made by the appellant before unknown Witness Bajrang Bharati ‘ (PW-2), Whose evidence does not inspire confidence, trustworthy and safe to rely. The appellant has taken speciiic defence that her husband and mother in law, with a View to kill her and her daughter have pushed them into the well and thereby caused death of her daughter. At the instance of the appeHant onence under Section 498~A of the IPC has also been registered. The evidence advanced‘on behalf of the prosecution is dot sumcient g1. for conviction of the appellant. 9. On the other hand, learned counsel for the State submitted that the extra judicial confession made by the appellant to Bajxang Bharati (PW—2) is sutiicient for drawing an inference that the appellant has committed the aforesaid offence . 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. ,vx a 11. In the pms‘ent- case, abnormal death as a resuit of drowning of 2 years ag€d child Revtibai has not been §substantially disputed on behalf of the appellant, on the other hand, it is established by the evidence of Dr V.K. Soni (PW-6) and autopsy report EX. P/6—A which revealed that Revtibai has died as a result of drowning, According to the case of Efo‘secution, appellant has jumped along with Revtibai into the well, which was full of water, with intent to kill herself and her daughter. According to the prosecution, her husband and mower in lawwith a View to kill Revtibai and theappellant have pushed them‘into the well. The arguments and evidence adduced on behalf of both the parties, is suilicie'nt to establish the fact that the death of Revtibai was homicidal in nature. 12. As regards complicity of the accused/appellant in crime in question is concerned, conviction is based on the extra judicial confession made by the appellant to Bajrang Bharti (PW—2). ln the present case, according to the evidence of Shatrughan (PW— 1), Bajrang Eharati (PW~2), Bajarhinbai (PW-3) and Milan (PW-4), dead body of Revtibai was floating in the water inside the well. Appellant Was also found inside the well. She was holding one stone to save herself thenothey took out her from the well. According to Shatrughan (PW- l), Bajrang Bharati (PW-2) has told him that the appellant has jumped in to the well. According to Bajrang Bharati (PW—2), he was told by Sudhram that the appellant has jumped‘into the well. In cross examination, he has deposed that Bajarhinbai (PW-3) told him that the appellant has jumped into the well. Bajrahinbai (PW—3) has stated that'one bread—seller told her that the appellant has jumped into the well. The evidence of Bajarhinbai (PW-3) and Milan (PW-4) shows that nobody has seen the incident that the appellant jumped into the well along with Revtibai, but it is not disputed that the appellant was found inside the well. Bajrang .7, n in“, A I. 1 f l "r; G Bharati (PW-2) has deposcd that when he asked the appellant than she told that on account of quarrel between her and her mofher in law, she along with her daughter— Revtibai jumped into the Well with a View to die. In cross examination, he has repeated the same thing. However, other witnesses who ale residents of same Village have not deposed that the appellant has“ made any extra judicial confession to them. Bajrang Bharati (PW-2) is not a resident of Domanpur, but he is the resident of another village Jogipur. According to para 3 of his cross examinatien, he did not knew the appellant prior to the. incident. It shoWs that the appellant was not having trust or contidence upon him to save her from any Jitigation or conviction Although the extra judicial confession is a weak type of evidence, but if once it is proved, the same could be sumcient for the conviction of the accused. In the present case, other witnesses were also present when the appellant was took out from the well, but they have not supported that the extra judicial confession was made by the appellant before them. Only Bajrang Bharati (PW~2) has deposed that the aellant has made extra judicial confession to him. 13. been corroborated by the other witnesses and thatphe appellant was not having any trust or conddence upon these witnesses to made any extra judicial confession before them, the factum of extra judicial confession does not inspire confidence, especially in the light of specific defence taken by her relating to cruelty and torture and the fact that her husband and mother in law havepushed her‘ and he-ndaughter into the well with a View to kill them, prosecution has not adduced any other evidence. In the absence of such evidence and the statement of Bajrang Bharati (PW—2), which does not inspire confidence, conviction of the appellant is not based on credible and reliable evidence at Considering the contradictory evidence, which has not a W". pp E sustainable under the law. While convicting thc appellant, Court below has not considered the quality of evidence of Bgj1*anj Bhara’ri (PW-2) and thereby committed illegality. 14. On close scrutiny of the evidence, we are of the considered View that the conviction of the appellant is not based on the credible and clinching evidence. Consequently, the app‘ea‘l is allowed. Conviction and sentence of the appellant under Sections 302 and 309 of the IPC is hereby set aside. The appellant is set at liberty at once, if not requiied in any other CaS€. ‘ R;L. Jhanwar Judge 1x Sd/- Sd/- ' T. P. Sharma Judge