IMPORTANT POINT
The prosecution must prove each circumstance in a case based on circumstantial evidence beyond reasonable doubt, and failure to establish homicidal death warrants acquittal.

JUDGMENT :

Per Ramesh Sinha, Chief Justice

1. The appellant has preferred this Criminal Appeal under Section 374(2) of the Cr.P.C. questioning the impugned judgment dated 29.05.2018 passed by the learned IInd Additional Sessions Judge, Surajpur, District Surajpur, Chhattisgarh in Sessions Case No. 84/2017, whereby the appellant has been convicted for offences punishable under Sections 302 and 201 of the IPC and sentenced to undergo R.I. for life with a fine of Rs. 50/-, in default of payment of fine to further undergo R.I. for 3 months; R.I. for 7 years and fine of Rs. 50/-, in default of payment of fine to further undergo R.I. for 3 months, respectively.

Facts of the Case:

2. The facts of the case relevant for deciding the present appeal are briefly stated as under:-

A. On 27.08.2017, the Complainant/Jawahir (PW/11) who is the husband of the appellant, lodged a report against the appellant/Devmati to the effect that she killed their two children/Son Lokesh aged 4 years and daughter Geeta aged about 15 months by throwing them into the well.

B. After receipt of the information, Police Station-Chandni registered a Morgue Intimation No. 21/2017 and the dead bodies of the children were sent for postmortem.

C. On 01.09.2017, the First Information Report was lodged by the husband of the appellant bearing FIR No. 44/2017 against the appellant for the offence punishable under Sections 302 and 201 of IPC.

D. After investigation, the charge sheet was filed before the Judicial Magistrate Surajpur, thereafter the matter was committed to the Court of Ld. IInd Additional Sessions Judge, Surajpur, and Sessions Case No. 84/2017 was registered for the offence punishable under Sections 302 and 201 of the Indian Penal Code against the appellant.

E. The charges were framed against the appellant by the learned Trial Court and the appellant abjured the charges leveled against her. Thereafter, the trial began to run. The learned trial Court in order to bring home the guilt of the appellant examined 15 prosecution witnesses and exhibited 30 documents whereas 4 documents were exhibited by the defence. After the conclusion of the trial, the Ld. Trial Court convicted the appellant for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced her to the extent as stated above, against which, the present appeal has been preferred.

3. Arguments advanced by the learned counsel for the parties:-

1. Learned Senior counsel appearing for the appellant submitted that the judgment passed by the learned trial Court is bad in law and also not sustainable in the eyes of the law. From the evidence on record, it is clear that there were major contradictions in the statements of the prosecution witnesses and their deposition. He further submitted that the learned trial Court gravely erred in convicting the appellant only on the basis of the seizure of green colour Saree, whereas there is no evidence available on the record to show that the appellant killed her children (Lokesh and Geeta) by throwing them into the well. It has been stated by the appellant in her statement recorded under Section 313 CrPC that the Saree recovered from the spot i.e. Green Saree was not worn by her on that particular day and the statement made against her by Anarkali (PW/1) was given to implicate her in a false case, as she was having an illicit love affair with her husband.

2. It is argued that the present is a case of circumstantial evidence. In the present case, not a single witness has stated that he saw the appellant throwing the deceased children into the well. Neither the postmortem report nor the Doctor who conducted the autopsy stated that the death of the children was homicidal in nature. The diatom test has also not been conducted by the prosecution to rule out accidental drowning. It is further argued that the learned trial Court has not considered the explanation given by the appellant in her statement recorded under Section 313 of the CrPC in its true persp