The court affirmed that the extensive injuries inflicted upon the victim eliminated the possibility of accidental death, establishing intent to kill and confirming the conviction under Section 302 IPC.

JUDGMENT :

K.S.MUDAGAL, J.

Challenging the impugned judgment and order of conviction and sentence passed against them, accused Nos.1 and 2 in Spl.C.C.No.452/2016 on the file of 50^th Additional City Civil and Sessions Judge, Bengaluru, have preferred this appeal.

2. By the impugned judgment and order, the trial Court has convicted the appellants/accused for the charge for the offence punishable under Section 302 read with Section 34 of IPC and sentenced them to imprisonment for life and fine of Rs.10,000/- each, in default to pay fine amount, to undergo rigorous imprisonment for 6 months.

3. Appellants were accused Nos.1 and 2 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

4. The charge against the accused was that accused No.1 was married to one Dinesh Mandal, had two daughters in the said marriage. She developed illicit relationship with accused No.2. It was further alleged that due to such relationship, leaving behind her husband/Dinesh Mandal and the first daughter Karim Mandal, accused No.1 eloped with accused No.2 taking her second daughter Babli Mandal and they came down to Bengaluru and lived in Bengaluru like husband and wife. It was further alleged that victim child Babli Mandal, used to wake up during the nights, cry and go out of the house. Accused No.2 was complaining that he is not able to live happily because of her child. On 26.06.2016 at 12:00 midnight, victim child went outside and did not come back. Accused No.1 had to search her and bring her back. Being enraged by that, accused Nos. 1 and 2 assaulted the victim by their hands. Accused No.1 assaulted the victim with MO.1/wooden reaper and thrashed her head against the wall.

The victim succumbed to the injuries.

5. Peenya Police on registering the complaint/Ex.P2 filed by Prakash/PW1, conducted the investigation and filed charge sheet against the accused. The trial Court on conducting the trial, based on the evidence of eyewitnesses and other materials on record, has convicted the appellants/accused and sentenced them to life imprisonment as aforesaid. The said judgment is challenged in the above appeal.

6. Heard both side.

Submissions of Sri Arvind.N, for Sri Mohan Kumar D, learned Counsel for appellants/accused:

7. PWs.8,11 to 15 and 22 were not the eyewitnesses to the incident. They have not seen what happened inside the house of the accused. PWs.3 to 7/material witnesses did not support the prosecution case. The evidence on record shows that the child was in the habit of going outside during the night hours. During the night of the incident, similarly child had gone outside and fallen into a drain, suffered the injuries and died. The evidence on record shows that accused Nos.1 and 2, soon after the incident, narrated to the witnesses that victim died due to accidental injuries. The trial Court committed error in not accepting the defence of the victim in that regard. Even otherwise, the evidence on record itself shows that the child was a problematic child, used to go out of the house during night hours and being fed up by that, accused No.1 hit her leading to her death. Therefore, at the most only the first accused has to be convicted for the offence under Section 304 IPC as there was no intention on her part also to kill the child. So far as accused No.2, evidence on record shows that he narrated to the witnesses that accused No.1 has assaulted. Therefore, the judgment and order of conviction and sentence against accused No.2 is liable to be set aside.

8. In support of his submissions, learned Counsel for