A.M. Kapadia, J. - (1.) Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 15.05.1987 rendered in Sessions Case No.31 of 1986 by the learned Sessions Judge, Banswara, by which the sole appellant Smt. Shankeri ('accused', for short) has been convicted for commission of the offence punishable under Sections 302 and 307 of the Indian Penal Code ('IPC', for short) and sentenced to imprisonment for life with fine of Rs. 50, in default of payment of fine to undergo further undergo rigorous imprisonment for 7 days for the offence under Section 302 IPC, and rigorous imprisonment for two years and fine of Rs. 50, in default of payment of fine to undergo further imprisonment for 7 days for the offence under Section 307 IPC. It is also ordered that both the sentences shall run concurrently.
(2.) The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 1 On 05.03.1986 at 3:20 PM, Bhuriya s/o Onkar lodged First Information Report at Police Station Banswara, wherein inter-alia it was stated that on that day he accompanied by Narji and Lalu was proceeding towards their village after making certain purchases from Banswara and in the afternoon at about 2 PM when they reached near Bheempura canal bridge, they saw an Adivasi lady sitting with a child in her lap covered by a cloth. Two children named Nanu and Lassi were also sitting. Some other persons named Hurmal, Kanti s/o Thavra, Kanti s/o Bheriya were also sitting. Kanti s/o Bheriya disclosed that sometime back while they were taking bath, they saw a child floating in the canal to whom he took out. The child was dead and he put the child under a tree. He saw that near the bridge, two men, one lady and two children were standing. He took the deadbody towards them and the girl standing there named Lassi identified the dead body to be of her younger brother Prabhu. On inquiring, the lady disclosed her name as Shankeri and stated that she was ill-treated by her father-in-law Dhulji and husband Gautam, who turned her alongwith her children out of house after beating. She further stated that they were hungry and as she was fade up with life, she decided to commit suicide and had pushed the children in the canal. 2 On the basis of aforesaid report, a case under Section 304 IPC bearing FIR No.112/1986 was registered at Police Station Sadar, Banswara and investigation started. During the course of investigation, inquest on the dead body of deceased Prabhu Ram was held and thereafter it was sent for autopsy. Panchnama of the scene of occurrence was prepared and the statements of witnesses were recorded. 3 On completion of investigation, as sufficient incriminating evidence was found against accused Shankeri, she was chargesheeted for the offence under Section 304 and 307 IPC in the Court of Chief Judicial Magistrate, Banswara. 2.4 As the offence punishable under Sections 304 and 307 IPC is exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Sessions Court, Banswara. 5 The learned Sessions Judge, Banswara (trial Court, for short), who conducted the trial, framed charge against the accused for commission of offence punishable under Sections 302 and 307 IPC. The charge was read over and explained to the accused, who pleaded innocence and claimed to be tried therefore she was put to trial. 6 To prove the culpability of the accused, the prosecution examined as many as 8 witnesses and relied on their oral testimony. The prosecution also produced in all 9 documents which were exhibited to prove the charge levelled against the accused and were relied upon. 7 The trial Court, thereafter, recorded statement of accused under Section 313 of the Code, wherein she denied the case of prosecution and stated that a false case involving her has been made out by the police and further stated that she is innocent . In her further statement she stated that while she was serving drinking water from canal to her three children, they fell down in the canal. 8 On appreciation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that accused had thrown her three children into canal on the basis of extra-judicial confession of accused before PW2 Hurmal & PW3 Hurta, and out of the three children thrown in the canal, two survived and one died, therefore, the prosecution has successfully established that the accused has committed offence of murder of her child Prabhu and attempted to commit murder her two other children and on the basis of that finding the trial Court has found the accused guilty for the offence under Section 302 IPC & 307 IPC and accordingly convicted and sentenced her, to which the reference has been made in earlier paragraph of this judgment.
(3.) Mr. Sanjay Mathur, learned counsel for the accused appellant submitted that there is absolutely no evidence on record to show that who took out the body of Prabhu from canal and in what circumstances. It is also emphatically submitted by the learned counsel that the sole eye witness is PW8 Lassi, the daughter of the accused, who is projected as eye witness but she has not supported the prosecution case. She has not been declared hostile nor has been cross examined, therefore, if her evidence is taken on its face value, then no case is made out against the accused. It is also pointed out by the learned counsel that PW1 Kanti & PW2 Hurmal are projected as witnesses of alleged extra-judicial confession made by the accused but infact there is no evidence to that effect. They have not stated anything before the Court that the accused made confession before them, however, the trial Court has misread their evidence and convicted the accused. On the aforesaid premise, according to the learned counsel, there is no evidence worth name to connect the accused with the crime, therefore, the prosecution has miserably failed to prove the charge levelled against the accused. He, therefore, submitted that the conviction and sentence recorded against the accused appellant deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which she was charged.;