JUDGMENT [A.R. Joshi, J.] 1. Heard rival arguments at length on this Criminal Appeal preferred by the appellant/accused challenging the judgment and order of conviction in Sessions Case No.101 of 2006. 2. The present appellant/accused was convicted of the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer RI for six months. This judgment and order is challenged in the present appeal. 3. Prior to discussing the arguments advanced by the learned Advocate Ms. Rebecca Gonsalvez, certain factual position and the case of the prosecution can be narrated as under: Victim – one Sudhakar Chumbalkar has earlier married with one Shrimati and was residing in Laskar area of Solapur city. One son by name Yuvaraj was born out of the said wedlock. Said Shrimati died somewhere in the year 1993-94 due to illness. Yuvraj after having marriageable age married and started residing elsewhere since the year 2000. Victim Sudhakar was serving as a teacher and he retired sometime in the year 1997-98. Sometime in the month of November or December, 2000 victim Sudhakar performed second marriage with one Anjali i.e. present appellant/accused. Apparently when the incident happened, in which Anjali killed her husband Sudhakar and also her daughter Varsha, the victim was more than 60 years of age and Anjali was about 40 years of age. 4. After the marriage in 2000, victim Sudhakar and appellant/accused Anjali stayed together in the house situated at Laskar and one female child by name Varsha was born out of the said wedlock. 5. According to the prosecution the house at Laskar where the victim and his wife appellant/accused Anjali were staying was owned by him and he has given first floor of the house to one tenant by name Chandrakant Khade (PW-5). Sudhakar and Anjali were residing at the ground floor. The house of one Navalchand Rathod (PW-4) was adjacent to the house of victim Sudhakar. It is also the case of prosecution that there used to be frequent quarrels between victim Sudhakar and the appellant/accused Anjali as the victim was doubting the character of his wife and alleging that she had illicit relations with one Shankar Rathod (PW-9), a teacher by profession. 6. One of such quarrels, as mentioned above, occurred on the night of 26.2.2006. 6. One of such quarrels, as mentioned above, occurred on the night of 26.2.2006. That time victim Sudhakar, accused Anjali and their daughter Varsha were present at the house. The actual incident of murder of Sudhakar and small child Varsha occurred at about early hours of 27.2.2006. According to case of prosecution when the victim was asleep, his wife Anjali took grinding stone and hit the victim on his head causing apparently instantaneous death. After assaulting on head of Sudhakar, she took the scissors and injured the private parts of the victim. Said incident of assault was witnessed by the small child of three years i.e. daughter of the couple. Said small child Varsha got up from sleep and saw that her mother was assaulting her father. Apparently the child uttered the words asking her mother not to assault her pappa. According to the case of prosecution, the appellant/accused Anjali was so enraged that she even assaulted the small child with the same grinding-stone and also caused apparently instantaneous death of the child. As such it was a case of double murder occurred on the early hours of 27.2.2006. 7. The incident of double murder, as mentioned above, occurred at the house of the victim Sudhakar & accused Anjali and on that night Anjali was alone in the house with two dead bodies. Thereafter at early hours of 27.2.2006, she came out of the house and knocked the door of tenant Chandrakant Khade who was staying upstairs on the first floor room in the same building. Said Chandrakant Khade noticed blood stains on the person and clothes of Anjali and also heard what Anjali had told him that she had assaulted her husband and had killed him. Anjali asked the said tenant to come down to see as to what had happened. On this, Chandrakant Khade (PW-5) came down stairs and awakened other tenants by name Kshirsagar and Mundhe. Chandrakant Khade went to the house of Anjali and found the dead bodies of Sudhakar and Varsha lying in the room in a pool of blood. According to the prosecution, appellant/accused Anjali asked Chandrakant Khade to inform the said situation over telephone to Yuvaraj, her step son, who was then staying separately. Chandrakant Khade went to the house of Anjali and found the dead bodies of Sudhakar and Varsha lying in the room in a pool of blood. According to the prosecution, appellant/accused Anjali asked Chandrakant Khade to inform the said situation over telephone to Yuvaraj, her step son, who was then staying separately. On this, Chandrakant Khade went to the public call office of Navalchand Rathod (PW-4) and tried to contact Yuvaraj, but, there could not be any telephonic communication and as such he personally went to the house of Yuvaraj and brought him back to the place of incident. Yuvaraj ascertained the situation and found that his father Sudhakar and step-sister Varsha were dead and lying in a pool of blood in the bed-room. He also saw that the appellant/accused Anjali was also present in the house and on enquiry she revealed the entire incident and as such made an extra-judicial confession that she had killed her husband and small child. In the meantime, intimation was given to the police over telephone and the police party rushed to the scene of offence and found the dead bodies. The appellant/accused Anjali was also present on the scene of offence. She was accosted by the police. Her clothes were taken charge of. Yuvaraj lodged his complaint against his step-mother and investigation was started. At the trial, total fourteen prosecution witnesses were examined and two defence witnesses were examined. Finding the case of prosecution as against the appellant/accused Anjali established for the offence punishable under Section 302 of IPC, the appellant/accused was convicted for the offence punishable under Section 302 of IPC and said conviction is challenged in the present appeal. 8. Apparently entire case of the prosecution is based on circumstantial evidence. Firstly, as to finding the appellant/accused in her own house with clothes stained with blood and in the company of dead bodies of her husband Sudhakar and daughter Varsha. The second circumstance being her extra-judicial confessions before various witnesses who are PW-4, PW-5 and PW-6, as detailed above. 9. Again at the cost of repetition, it must be said that initially the appellant/accused went to the house of Chandrakant Khade (PW-5) and narrated the entire incident to him, who in turn went to the house / shop of Navalchand Rathod (PW-4). 9. Again at the cost of repetition, it must be said that initially the appellant/accused went to the house of Chandrakant Khade (PW-5) and narrated the entire incident to him, who in turn went to the house / shop of Navalchand Rathod (PW-4). Chandrakant Khade (PW-5) then visited the house of Yuvaraj (PW-6) and narrated the incident to him and took him to the scene of offence and then Yuvraj enquired with his step mother i.e. present appellant/accused and on this she disclosed all the events and made a sort of extra-judicial confession again before him. As mentioned above, the entire case of prosecution is based on the substantive evidence of PW-4, PW-5, PW-6 and also of PW-7. 10. The evidence regarding postmortem examinations of the dead bodies is not required to be seen with much details as there is no dispute regarding unnatural death of victim Sudhakar and small child Varsha and finding dead bodies in the house of the victim himself. Almost it is an admitted position that the appellant/accused was also found in the said house and her clothes were having blood stains. At this juncture, it must be mentioned that though the CA report is not clinchingly incriminating against the appellant/accused so far as finding of the grouping of blood found on the clothes, the fact remains that the clothes of the appellant/accused were stained with human blood. PW-7 is a witness Atul Chandak who is the neighbouring shopkeeper having his shop opposite the residence of the victim, beyond the road. He deposed as to the earlier incident of assault and ill-treatment meted out by the victim to his wife Anjali. Another important witness is PW-9 one Shankar Rathod. His substantive evidence disclosed that he had sexual relations with the appellant/accused and those relations were at her instance and apparently this was the cause for the dispute between the victim Sudhakar and his wife Anjali. We have gone through the substantive evidence of these prosecution witnesses PW-4, PW-5, PW-6, PW-7 and PW-9 and we have found out that it is in fact a consistent story established by the prosecution by way of circumstances pointing towards the involvement of appellant/accused and none-else in the offence of murder of her own husband of second marriage and her own daughter then aged about three years. During the arguments, learned Advocate Ms. During the arguments, learned Advocate Ms. Rebecca Gonsalvez has conceded to this factual position as to the authorship of two killings resting with the appellant/accused and only point raised during the argument is that at the time of incident, the appellant/accused was not in a position to understand the meaning of her acts and that she was mentally unsound throughout the period she was staying with Sudhakar or at the most on the night of the incident. It is also tried to argue that because of the suspicious nature of the victim Sudhakar, the appellant/accused suffered mental trauma and actually she lost her balance of mind to such an extent that she killed her husband and also killed her small child of three years age. By this argument, it was tried to point out that the present matter cannot be considered as an offence which will attract punishment for Section 302 of IPC but the matter can be taken under exception 4 to Section 300 of IPC. It is further submitted that even at the time of first remand before the Magistrate Court when the appellant/accused was produced after her arrest, it was mentioned before the Magistrate that the accused was of unsound mind. Beyond such bare statement, nothing was brought before the Court even at that stage or even subsequently thereto when the matter was committed to the Court of Sessions in the month of May, 2006 and even when the charge was framed in the month of August, 2006 by the Sessions Court. It is tried to establish by placing copy of the judgment and order in the matrimonial matter between the appellant/accused and her first husband, that the appellant/accused was suffering from schizophrenia way back in the year 1989 or so. By pointing out this, it is tried to submit that the appellant/accused was not in a position to understand the consequences of her acts due to her insanity and as such she cannot be convicted for the offence of murder. Needless to mention that apart from taking such a plea by filing a copy of some order from the Matrimonial Court and that also admittedly the order for divorce granted by mutual consent, hardly it can be said that there was an established proof as to insanity of the appellant/accused during the relevant time. Needless to mention that apart from taking such a plea by filing a copy of some order from the Matrimonial Court and that also admittedly the order for divorce granted by mutual consent, hardly it can be said that there was an established proof as to insanity of the appellant/accused during the relevant time. Moreover it would be far fetched to accept that such insanity or unsound state of mind even for the lucid intervals continued till the year 2006 when the actual incident of assault and murder occurred. Moreover, on careful inspection of the record and proceedings of the matter and after going through the statement of the appellant/accused recorded under Section 313 of Cr.P.C. and her detailed written additional statement given under her signature, it is a factual position that nowhere the ground of insanity has been pleaded. As such, even on preponderance of probabilities such defence, belatedly raised at the time of this appeal, cannot be accepted to dilute the offence of murder to the offence of culpable homicide not amounting to murder. 11. Now coming to the applicability or otherwise of Exception 4 to Section 300 of IPC, it must be said that the said exception cannot be taken shelter of for the simple reason that admittedly the appellant/accused had overstepped the limits which are prescribed in Exception 4 to Section 300 of IPC. Said exception 4 reads thus: “300. Murder : ….... Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner” In the above mentioned Exception-4 the important words are “without the offender having taken undue advantage or acted in a cruel or unusual manner”. Definitely considering the case of the prosecution as established against the accused as to using grinding-stone to hit on the head of her husband and then using the scissors to cut the private parts of the dead body and then again using grinding-stone to cause injury to the small child of three years age and to kill her, these facts definitely can be termed as actions in a cruel and unusual manner. As such, in our considered view, there is no application of any exception, much less Exception 4 to Section 300 of IPC in order to dilute the offence of murder to that of culpable homicide not amounting to murder and then bringing the offence to Section 304 (Part I) or (Part II) of IPC. 12. In the result, there is nothing to entertain the present appeal as the same is devoid of any merit. Present Appeal is accordingly dismissed. 13. Office to communicate this order to the concerned prison Authorities and to the appellant who is in jail.