JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10.04.2012 passed by 4th Additional Sessions Judge, Durg in Sessions Trial No. 195/2010, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for causing homicidal death of minor child namely Uttam Kumar, aged 13 months, amounting to murder, convicted him under Section 302 of the IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.500/-, in default, to undergo additional simple imprisonment for two months. 2. Conviction is impugned on the ground that without an iota of evidence, court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, mother of unfortunate breast-feeding child Nem-Bai (PW-11), a married woman, developed relation with the appellant. She conceived and gave birth to a male child namely Uttam Kumar. Appellant, deceased Uttam Kumar and Nem Bai were residing in same room. On the fateful day of 25.08.2010, Nem Bai (PW-11) went for her livelihood, at that time the appellant and the deceased were present in the house. At about 8:30 a.m. Nem Bai (PW -11) came back ,to her house, she did not find the appellant and noticed the dead body of her son covered by cloth, she shouted and called neighbours and when she came to house she noticed her husband was going from her house by bicycle. She lodged Dehati Nalishi at Police Station- Newai vide Ex.P-9. Investigating Officer left for scene of occurrence, cloth was recovered from the spot vide EX.P-10. After summoning the witnesses vide Ex.-P/1, inquest of the dead body was prepared vide EX.-P/4. The Dead body was sent for autopsy to District Govt. Hospital, Durg vide EX.-P/20. Finally, First Information Report (FIR) was lodged vide Ex.-P/21.Spot map was prepared vide Ex.-P/16. Doctor Lal Mohammed (PW -10) conducted autopsy on the dead body vide Ex.-P/15 and found following injuries:- (i) 03 marks found over the right side of neck (ii) left side of thyroid 1.5cm mark (iii) one more mark on left side of the thyroid. Both marks were of contusion. In most of the internal parts, congestion is found as a result of throttling. 4. Two applications (Ex.-P/18 and Ex.-P/19) regarding marriage between the parties produced by Nem Bai (PW-11) were seized vide Ex.-P/5. Both marks were of contusion. In most of the internal parts, congestion is found as a result of throttling. 4. Two applications (Ex.-P/18 and Ex.-P/19) regarding marriage between the parties produced by Nem Bai (PW-11) were seized vide Ex.-P/5. Statements of the witnesses were recorded under Section 161 Cr.P.C. Appellant absconded after commission of offence and was arrested after three days. After completion of the investigation, charge sheet was filed before Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Sessions, Durg, from where learned Additional Sessions Judge, Durg received the case on transfer for trial. 5. In order to prove guilt of the appellant, the prosecution has examined as well as 12 witnesses. The accused was examined under Section 313 Cr.P.C. wherein he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. 6. After providing opportunity of hearing to the, parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Shri T.K. Tiwari, counsel for the appellant and Shri S.K. Mishra, Panel Lawyer for the State/respondent are heard. Judgment impugned and record of court below perused. 8. Learned counsel for the appellant vehemently argued that in the present case, conviction is substantially based on circumstantial evidences and in case of conviction based on circumstantial evidence, the prosecution is required to satisfy the following circumstances: i. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; ii. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. the circumstances should be of a conclusive nature and tendency; IV. they should exclude every possible hypothesis except the one to be proved; and v. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 9. Learned counsel for the appellant further argued that in the present case, prosecution has utterly failed to satisfy the aforesaid circumstances. 9. Learned counsel for the appellant further argued that in the present case, prosecution has utterly failed to satisfy the aforesaid circumstances. In case of conviction based on circumstantial evidences motive plays 'a great significance. In the present case the deceased was a 13 months aged small kid of the appellant. There was no motive for causing homicidal death of his own child and medical evidences did not satisfy the death by throttling. Dr.Lal Mohammed (PW -10) has not noticed the symptom compulsory to be found in case of throttling. Suspicion howsoever grave cannot take the place of legal evidence. Learned counsel placed reliance in the matter of Gangaram Satnami (Joshi) Vs. State of C. G. 2010 (1) CGLJ 395 in which a coordinate Division Bench of this Court has held that in case of death by throttling the prosecution is under obligation to establish the symptoms of death by throttling. Learned counsel also argued that prosecution has utterly failed to connect the appellant in crime in question. 10. On the offer hand, learned State counsel vehemently opposed the appeal and submitted that the appellant along with a small child was present in the room at that time and except two persons no other person was present and the child died in the house of appellant. The appellant run away from the spot and was absconding for more than 3 days after the incident. 11. Evidence of Dr. Lal Mohammed (PW-10) is sufficient to prove the fact that child died as a result of throttling. Offence was committed-in secrecy and the appellant was under obligation to offer an explanation relating to cause of death and the person who has caused death in terms of Section 106 of the Evidence Act, but the applicant has failed to offer any explanation. In absence of such explanation and circumstances adduced on behalf of the prosecution, the only inference would be possible that the appellant was author of the crime and except the appellant none was the author of the crime. It also excludes the possibility of innocence of the appellant. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined evidences adduced on behalf of the prosecution. 13. It also excludes the possibility of innocence of the appellant. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined evidences adduced on behalf of the prosecution. 13. In the present case, the appellant has not admitted the homicidal death of the deceased but has not disputed death of 13 months aged child namely Uttam Kumar on 25.08.20]0. Dr. Lal Mohammed (PW-10) has conducted the autopsy and noticed aforesaid injuries i.e. 3 contusions over the neck on right side of thyroid, 1 contusion on left side of thyroid over the heck and one contusion on internal vital organs (Ex.-P/15). In para 8 of his cross-examination, he has admitted that he has not noticed that tongue was protruded and there was abrasion over ankle, otherwise he would have written the same in his autopsy report. In para 9, he has denied the suggestion that marks found over neck may have caused by roping with ropes of cot. He has specifically denied the suggestion that symptoms found over the body of the deceased were different from the symptoms which may occur in case of throttling. While dealing with symptoms found in case of throttling by taking note of Modi's Medical Jurisprudence and Toxicology (22nd Edition), a coordinate Division Beneh of this Court in the matter of Gangaram (supra) has observed in para 17 as follows: "17. In Modi's Medical Jurisprudence & Toxicology (22nd Edition) at Page No. 270 while dealing with differences between 'hanging' and 'strangulation' it has been observed that in the cases of strangulation face is congested and marked with petechiae. External signs of asphyxia, very well marked (minimal of death due to vasovagal and carotid sinus effect). Bleeding from the nose, mouth and ears may be found. Ligature mark horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. Abrasions and ecchymoses round about the edges of the ligature mark, common. Subcutaneous tissues under the mark-Ecchymosed. Injury to the muscles of the neck-common. Carotid arteries, internal coats ordinarily ruptured. Fracture of larynx and trachea often found also hyoid bone. Scratches, abrasions, fingernail marks and bruises on the fate, neck and other part of the body usually present. Emphysematous bullae on the surface of the lungs may be present." 14. Subcutaneous tissues under the mark-Ecchymosed. Injury to the muscles of the neck-common. Carotid arteries, internal coats ordinarily ruptured. Fracture of larynx and trachea often found also hyoid bone. Scratches, abrasions, fingernail marks and bruises on the fate, neck and other part of the body usually present. Emphysematous bullae on the surface of the lungs may be present." 14. Presentation of symptoms incase of death by strangulation/throttling differ from person to person. Age of the deceased and body constitution of the deceased are substantial determining factors in making resistance to meet out the pressure created upon the neck. In case of a matured person or a person having sufficient resistance power, symptoms of strangulation would be more prominent and noticeable, but in case of persons of low resistance power like infants, teenager children up to 4 years of age, badly ill persons and unconsdous persons, symptoms of strangulation would not be so prominent and noticeable. Degree of prominence of symptoms also depends upon degree of resistance and time period/length of strangulation/throttling and the force used. Force used will in turn, depend on the physique of the assailant. In case of small child of 1 or 2 years or below 2 years of age, low force on neck for few seconds would be sufficient for causing death of such child. Therefore, some of the symptoms may be visible on the body of infant and other symptoms of low degree may not be noticeable. In case of matured person having sufficient degree of resistance and struggle more impact would be required, matured person will offer resistance of high degree than that by a child and time would also be longer than that of a child. Thus giving straight-jacket formula for inferring strangulation/throttling to be or not to be cause of death in case where there is absence of some of general symptoms would not be possible. 15. In the present case, age of the deceased was only 13 months. It can be safely presumed that resistance which a child of 13 months may have offered to meet the force of impact used upon his neck would be very low and time for making such resistance would also be very short. Even it would not be possible for an infant of 13 months' age to make resistance by hands and legs. Therefore, all symptoms would not be noticeable in case of child or infant. Even it would not be possible for an infant of 13 months' age to make resistance by hands and legs. Therefore, all symptoms would not be noticeable in case of child or infant. Even symptoms of low degree would also not be noticeable at the time of autopsy. 16. In the present case, age of the deceased was only 13 months, he was a breast feeding child. Infant would not be in a position to make bodily resistance by hands & legs in case of throttling and pressure of low degree used upon his neck by fingers for few seconds would be sufficient for stopping his breath. Therefore, all symptoms which may occur in case of throttling of a matured person would not be possible to be noticed in the present case, but only on the ground that the doctor has not noticed all symptoms, evidence of the doctor who has examined the dead body as expert, cannot be rejected, inter alia, his evidence is sufficient for drawing inference that death of infant deceased was homicidal in nature. 17. In case of throttling of child aged about 13 months not having much resisting power, time required for throttling of small child was also very short. The child was not sleeping upon rough surface and the mark found over the neck where no mark made by any abrasion. But three injuries in shape of contusion that too over the neck in case of death of child of aged about 13 months i.e. small child the aforesaid three contusion which are sufficient for causing his death. In light of evidence of Dr. Lal Mohammcd (PW-10) and autopsy report EX.P-15 coupled with different circumstances, we have no hesitation to infer that death of deceased Uttam Kumar aged 13 months was homicidal in nature. 18. As regards complicity of the appellant in the crime in question, conviction is based on circumstantial evidence. Nem Bai (PW-11) alleged wife/woman having illicit relationship with the appellant has deposed that she along with child Uttam Kumar were residing with appellant in the same room. She went from her house for her work. At that time the appellant and deceased Uttam Kumar were present in the house, when she came back at about 8:30 AM, she saw that the appellant was going out from the house by Bicycle. Thereafter he did not come back. She went from her house for her work. At that time the appellant and deceased Uttam Kumar were present in the house, when she came back at about 8:30 AM, she saw that the appellant was going out from the house by Bicycle. Thereafter he did not come back. She entered inside the room where she found dead body of his son. 19. As per para 1 of the evidence of Nem Bai (PW -11), mother of infant, at the time of leaving her room at morning, the appellant & the deceased, only two persons, were present, when she came back, at that time, the appellant went out from her room by cycle and dead body of infant was found inside the room i.e. only two persons namely the appellant & the deceased were present in the room, no third person was present in the room and the appellant left the room which she has noticed and she has also noticed the dead body, of her child and that death of her child was homicidal in nature. Defence has cross-examined this witness at length. There are certain contradictions, omissions and exaggerations, but there is no ambiguity in her evidence to show that the appellant & the deceased, only two persons, were not present in the room at the time of homicidal death of the deceased. Even by answering question No.4 in his examination under Section 313 of the CrPC, the appellant has not explained whether only two persons were present in the house or not, but while answering question Nos.50, 54 & 170, he has admitted that at about 8 a.m., he left the room i.e. from early morning to 8 a.m. only two persons namely, the appellant & the deceased were present in the room. 20. Offence was committed in secrecy in presence of the deceased & the appellant. Death of the deceased was homicidal. The appellant left the room, but did not come back on same day and he was arrested after three days i.e. he was absconding. The appellant was under obligation to offer explanation in terms of Section 106 of the Evidence Act that who has caused homicidal death of the deceased but, he has not offered any explanation. 21. While dealing with the requirement of plausible explanation in case of offence committed in secrecy in terms of Section 106 of the Evidence. The appellant was under obligation to offer explanation in terms of Section 106 of the Evidence Act that who has caused homicidal death of the deceased but, he has not offered any explanation. 21. While dealing with the requirement of plausible explanation in case of offence committed in secrecy in terms of Section 106 of the Evidence. Act, the Supreme Court in the matter of Dhananjoy Chatterjee alias Dhana Vs. State of W.B. (1994) 2 SCC 220 has held that in absence of plausible explanation by the accused in case of offence committed in secrecy where only two persons were present and out of two, one died, the only inference would be possible that the person alive and not offered plausible explanation is only the author of crime. 22. In the present case, the appellant has also failed to offer any explanation in terms of Section 106 of the Evidence Act. In absence of such explanation, only inference would be possible that only the appellant has caused homicidal death of deceased Uttam Kumar with an intent to cause his death amounting to murder and except the appellant no other persons has caused such homicidal death. After appreciating the evidence available on record, considering the circumstances and totality, the Court below has convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not find any illegality and infirmity in the judgment impugned. 23. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Appeal Dismissed.