HIGH COURT OF CHHATTISGARHI BILASPUR CriminaIAppeal No.394 of 199‘0 APPELLANT: (In Jan) Ayati Bai wife of Sonuram Gond, aged 35 years, resident of village Madle, P.S. Pankhajur, Distt. Bastar M.P. (now C.G.) Versus The State of Madhya Pradesh (now Chhattisgarh). {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} RESPONDENT: Present Mr Vinod Kumar Sharma counsel for the appellant Mr. RaJendra Tripathi, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Han'bie Mr. R.L. Jhanwar‘ JJ ORAL JUDGMENT (13-4-2010) . T.P. Sharma! J: — 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-3-1990 paSsed by the Additional Sessions Judge, Bastar at Kanker in Sessions Trial No.114/87, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of'culpable homicide amounting to murder of her one year old son Vide Singh @ Jai Singh and concealing the evidence of criminal Icase, convicted the appellant under Sections 302 & 201 of the I.P.C. and sentenced her to undergo imprisonment for life & to undergo R.I. for seven years, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prOSecution, in b‘rief, is that in the intervening night of 12th &‘13t“ November, 1986,’Vide Singh (since deceased), .aged about one year — son of the accused/appellant was sleeping in her» house the appellant throttled the neck of Vide Singh and caused his death Thereafter With a View to conceal the ewdence of criminal 'j case, she buried the dead body in a pit of manure. On second day morning when members of the family of the appellant woke up and asked about Vide Singh, the appellant gave false explanation, but thereafter she confessed guilt before the witnesses. Faguram (PW— 2) went to the Police Station and lodged merg vide Ex.P-1S & F.I.R. vide Ex.P—14. The Investigating Officer left for the scene of occurrence and after summoning the witnesses prepared inquest over the dead body of Vide Singh vide Ex.P-l. After recovery of dead body fromthe pit vide Panchnama Ex.P-2, dead body was sent for autopsy to Primary Health Centre, Bhanupratappur vide Ex.P-3. Cloth, blood stained soil & plain soil were recovered from the spot _ vide Ex.P-4; Blood stained piece of addled pot were recovered from the spot vide Ex.P—S. Blood stained clothes were seized from the spot vide Ex.P-6. Dr. R.S. Thakur (PW-1) conducted autopsy vide Ex.P—ll and confirmed sign of throttling on the neck of the deceased and opined that the death was as a result of asphyxia. Spot map was prepared vide Ex.P-7 by the Patwari. Seized articles were sent’ for chemical examination vide Ex.P-9. . Statements of the witnesses were recorded under Section 161 of the 'Cr.P.C..and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Bhanupratappur who in turn, committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. . . In order to prove the guilt of the appellant, the prosecution has examined as many as seven 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. .After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. .We hai/e heard learned counsel for the parties, perused the judgment and record of the trial, Court. . Learned counsel for the appellant vehemently argued that although mui'der of son of the appellanthas been committed, but conviction cannot be based on the basis of conjectures & surmises, the prosecution is required to prove the case beyond all reasonabie doubts. In the present case, the deceased was not in exclusive custody of the appellant and the prosecution has not adduced any evidence to connect the appellant with the crime in question. 9. On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellant is based on circumstantial evidence and evidence of extra judicial confession made .by the accused before the witnesses which are sufficient for conviction of the appellant. 10.In order to appreciate the arguments advanced on behalf of the parties, we/have examined the material available on record. 11.In the present case, homicidal death of the deceased as a result of throttling has not been substantially disputed, otherwise also established by the evidence of Dr. R.S. Thakur (PW-1) and autopsy report Ex.P-11 which reveal that the death of deceased Vide Singh was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction is based on the following circumstances: — (1)On the date of incident at night deceased Vide. Singh was sleeping with the appellant and on second day morning the deceased was not present with the appellant. (2)Age of the deceased was about one y'ear. (3)0n being asked, the appellant has offered false explanation that the child was missing. (4)The appellant has made extra judicial confession before Faguram (PW-2), Meseram (PW-3), Jholu (PW-4) & Sonuram (PW-5) — husband of the appellant. (5)The appellant has shown the pit where the dead body of the deceased was buried. (6)The dead body of the deceased was exhumed at the instance of the appellant. ” 13.Sonuram (PW-5) - husband of the appellant has *deposed in his evidence that on the date of incident he was sleeping on the fl00r in l his house, his wife (the appellant herein) was sleeping on the cot along with children including the deceased child and on second day ‘\ \ i m \ \ morning, deceased Vide Singh was missing on which he searched, but he could not find Vide Singh. He asked his wife but she did not answer satisfactorily whereupon he narrated the incident to Panch Patel, they asked the appellant on which she made extra judiciai confession that she has kiiied the child and buried the dead body in a pit. 14.Faguram (PW—2) has deposed in his evidence that on being told by husband of the appellant Sonuram, they made query to the appellant on which she made extra judicial confession that after throttling the neck of the child she had buried the child and she also took them near the pit where she had buried the child. One finger of the child was visible, then he went to the Police Station and lodged report. 15.Meseram (PW—3) & Jholu (PW-4) have substantially corroborated the evidence of Faguram (PW-2) & Sonuram (PW—5). Defence has cross- examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony“. Evidence of these witnesses are sufficient to establish that on the date of incident deceased Vide Singh, who was aged about one year, was sleeping with the appellant at night and in the morning time he was missing. The appellant made false explanation of missing of the child and when she was asked by the villagers, Panch 8L Kotwar, she made extra judicial confession that she has throttled the neck of the deceased and has buried the dead body of the deceased under a pit of manure. The dead body of the deceased has been recovered at the instance of the appellant. If these circumstances are considered l together, the only hypothesis that only the appellant has committed the murder of her son aged about one year and except the appellant, nobody has committed the murder of her son and has concealed the evidence of criminal case, would be possible. 16.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. 4 17.0n close scrutiny of evidence, we are of the View that conviction of the appellant is based on credible, clinching and legal evidence sustainable under the law and the trial Court has not committed any illegality in convicting & sentencing the appellant. wa f . 18.Consequently, the appealr is devoid of merit, same is liable to be S°ma i dismissed and it is hereby dismissed. Sd/_ ‘ R.L. Jhanwar Sd/— i 'T.P. Sharma ‘i i Judge V Judge i i""?_