As per Hon'ble Shri T.P. Sharma, J. :-

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10.04.2012 passed by 4th Additional Sessions Judge, Durg in Sessions Trial No. 195/2010, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for causing homicidal death of minor child namely Uttam Kumar, aged 13 months, amounting to murder, convicted him under Section 302 of the IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.500/-, in default, to undergo additional simple imprisonment for two months.

2. Conviction is impugned on the ground that without an iota of evidence, court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

3. As per case of the prosecution, mother of unfortunate breast-feeding child Nem-Bai (PW-11), a married woman, developed relation with the appellant. She conceived and gave birth to a male child namely Uttam Kumar. Appellant, deceased Uttam Kumar and Nem Bai were residing in same room. On the fateful day of 25.08.2010, Nem Bai (PW-11) went for her livelihood, at that time the appellant and the deceased were present in the house. At about 8:30 a.m. Nem Bai (PW -11) came back ,to her house, she did not find the appellant and noticed the dead body of her son covered by cloth, she shouted and called neighbours and when she came to house she noticed her husband was going from her house by bicycle. She lodged Dehati Nalishi at Police Station- Newai vide Ex.P-9. Investigating Officer left for scene of occurrence, cloth was recovered from the spot vide EX.P-10. After summoning the witnesses vide Ex.-P/1, inquest of the dead body was prepared vide EX.-P/4. The Dead body was sent for autopsy to District Govt. Hospital, Durg vide EX.-P/20. Finally, First Information Report (FIR) was lodged vide Ex.-P/21.Spot map was prepared vide Ex.-P/16. Doctor Lal Mohammed (PW -10) conducted autopsy on the dead body vide Ex.-P/15 and found following injuries:-

(i) 03 marks found over the right side of neck

(ii) left side of thyroid 1.5cm mark

(iii) one more mark on left side of the thyroid.

Both marks were of contusion. In most of the internal parts, congestion is found as a result of throttling.

4. Two applications (Ex.-P/18 and Ex.-P/19) regarding marriage between the parties produced by Nem Bai (PW-11) were seized vide Ex.-P/5. Statements of the witnesses were recorded under Section 161 Cr.P.C. Appellant absconded after commission of offence and was arrested after three days. After completion of the investigation, charge sheet was filed before Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Sessions, Durg, from where learned Additional Sessions Judge, Durg received the case on transfer for trial.

5. In order to prove guilt of the appellant, the prosecution has examined as well as 12 witnesses. The accused was examined under Section 313 Cr.P.C. wherein he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed.

6. After providing opportunity of hearing to the, parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned.

7. Shri T.K. Tiwari, counsel for the appellant and Shri S.K. Mishra, Panel Lawyer for the State/respondent are heard. Judgment impugned and record of court below perused.

8. Learned counsel for the appellant vehemently argued that in the present case, conviction is substantially based on circumstantial evidences and in case of conviction based on circumstantial evidence, the prosecution is required to satisfy the following circumstances:

i. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

ii. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they sho