JUDGMENT

H. C. P. Tripathi, J - Smt. Juraiya has filed this appeal against her conviction under Section 304, I.P.C. recorded by the learned Sessions Judge of Hamirpur.

2. On September 2, 1961 at about noon Jamuna, a five year old son of Smt. Sumitrani, plucked a pumpkin plant growing in the appellants courtyard and ran towards his house. The house of the appellant and Smt. Sumitrani face each other. Appellant followed Jamuna to his house and complained to his mother Sumitrani about his mischief and asked her to keep her son under her control. Smt. Sumitrani instead of scolding her son asked the appellant to keep the door of her courtyard closed in order to avoid such an incident. Appellant retorted that she could not do so on which Sumitrani said that then her son would continue to pluck her pumpkins. This enraged the appellant who gave a kick to the boy in his chest and abdomen, caught him by arms and threw him on the ground. The boy shrieked and became unconscious. The persons who were near about the scene witnessed the occurrence.

3. Injured Jamuna was taken for treatment to a Vaid in village Bihumi by his parents but he could not regain his consciousness and died in the early hours of the following morning. A report of the incident was lodged on September 4, 1961 by Ram Charan, father of the boy, at police station Jaria at 5-30 am. in which he gave the substance of the prosecution story on the basis of which a case was registered and investigation followed.

4. Dr. S. S. Bist (P.W. 3) performed post mortem examination on the dead body of Jamuna on September 6, 1961 at .9 a.m. and found the following ante mortem injury on it :-

Contusion 5"x4" on left side of head. There was lot of extra vasation of blood under the scalp on the left" side of head. The left parietal bone underneath was cracked.

5. On internal examination a cracked fracture of left middle cranial fossa was found and in the opinion of the doctor death was due to shock and haemorrhage due to head injury.

6. At the trial the appellant pleaded not guilty to the charge and asserted that as she had seen Sumitrani, the mother of the deceased, in a compromising position with Baijnath Baba in a lonely house and had called a panchayat of the biradari which had resulted in excommunication of Sumitrani from the biradari she implicated her falsely in the case. The appellant however, produced no evidence in defence.

7. In support of its accusations against the appellant the prosecution has examined Smt. Sumitrani, the mother of the boy, Pratap, Govind Dass, and Jagannath as eye-witnesses of the occurrence. Ram Charan, father of the boy, proved the first information report which he lodged at the police station on hearing about the occurrence from his wife. The other evidence produced in the case is only of a formal character.

8. Smt. Sumitrani, the mother of the deceased boy, has described the incident in its details. She says that her son had plucked a pumpkin from the inner court-yard of the appellant, that the appellant came to her chasing and abusing him and asked her to control son on which she replied that she would keep her doors closed but the appellant said that she will not do so on which the witness retorted that her son will continue plucking the pumpkins. According to the witness the appellant got excited, gave a kick to the boy in his chest on which he fell down but got up again and then the appellant caught hold of his arms, raised him up and threw him down with force. The boy shrieked and became unconscious. She denied the allegation that the appellant had ever seen her in a compromising position with some Baijnath Baba or that she had been excommunicated on that account.

9. Testimony of Smt. Sumitrani has been corroborated in all its essential particulars by the other eye-witnesses who are all natural and independent witnesses being residents of the same village. Their presence at the scene of occurrence is highly probable. Nothing has been pointed out as to w