The prosecution must prove guilt beyond reasonable doubt; mere suspicion and circumstantial evidence without corroboration are insufficient for conviction.

Judgment :

(Sanjay S. Agrawal, J.)

1) Both these appeals arise out of the common judgment of conviction and order of sentence dated 17.11.2015 passed by the learned 7^th Additional Sessions Judge, Durg (CG) in Sessions Trial No.81/2015, whereby they have been convicted for murder of their niece- Bhuneshwari and nephew-Mohan under Section 302 (two counts) of IPC and each of them have been sentenced for the rigorous imprisonment for life and fine of Rs.500/-, in default, they have to undergo additional rigorous imprisonment for one month, they are being disposed of by this common judgment.

2) Briefly stated the case of the prosecution is that one Ghanshyam Ojha lodged the merg intimations (Ex.P-1 & P-2) on 11.05.2015 at 14.50 hours before the Police Station-Utai (Machandur), District Durg, alleging, inter alia, that on the said date, around 7 AM, he had gone to Mines along with Jagnu Dhimar and Gurudayal for doing labour work and his wife-Renu and mother- Gangotri Ojha had also gone for their labour work, while his two children, namely, Ku. Bhuneshwari and Mohan, aged about 6 years and 3 years, respectively, were at home along with his younger brother-Domendra Ojha and daughter-in-law (younger brother’s wife) Smt. Malti Bai, who used to take care of his children. It is alleged further that at around 1.30 PM, he received a telephonic call from one Netram Ojha that his children are not well at home and upon knowing the said information, he returned home along with said Jagnu and Gurudayal, where he found both of his children ablazed in the room, while cot of his daughter-in-law was being burnt and, came to know that she (Malti Bai) was taken by his brother- Domendra to the hospital. In the said report, he has raised a doubt upon his daughter-in-law (Malti Bai) that she might have killed them by pouring kerosene oil as she often not only used to complain about his children, but used to assault them also. On the basis of the alleged merg intimations, an FIR (Ex.P/3) was registered on 11.05.2015 at 15.10 hrs. in connection with Crime No.114/2015 against said Malti Bai for the offence punishable under Sections 302, 436 and 450 of IPC and, during investigation, inquests of the dead bodies were prepared vide Exs.P/6 and P/7, where, a ‘Dabba’ filled with kerosene oil, match sticks and broken bangles in green colour were found on the spot on 11.05.2015 at 13 hours. Dead bodies were sent for autopsy, which were conducted by Dr. R.K. Nayak (PW-16) and cause of death was opined to be shock due to extensive burn injuries and accordingly, death was opined to be homicidal in nature vide reports Exs.P-36 and P-37. The appellants were arrested on 12.05.2015 and based upon the disclosure statement (Ex.P-15) of Malti Bai, a plastic jerrycan filled with 1½ litre of kerosene oil and broken bangles in green colour were recovered vide seizure memo (Ex.P-18), while match sticks and two pieces of burnt match sticks were recovered from the appellant– Domendra vide seizure memo (Ex.P-17) based upon his disclosure statement (Ex.P-16) and after completion of usual investigation, the charge-sheet was submitted before the Judicial Magistrate First Class, Durg against the appellants for the offence punishable under Sections 302, 436 read with Section 34 IPC and after committal, charges were framed by the learned trial Court on 13.08.2015 under Sections 302 (two counts) of IPC , which were denied by them and claimed to be tried.

3) The prosecution has examined as many as 16 witnesses and exhibited 37 documents in order to bring home the guilt of the accused/appellants, while none was examined by the appellants in their defence.

4) The trial Court, after considering the evidence led by the prosecution arrived at a conclusion that since both the appellants were with the deceased children at the time of occurrence of the alleged incident at home and, as they failed to explain as to how they died as per the provisions prescribed under Section 106 of the Indian Evidence Ac