JUDGMENT : Sanjay K. Agrawal, J 1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 26.12.2014 passed by the learned Third Additional Sessions Judge, Bilaspur, Chhattisgarh in Sessions Trial No. 42/2014 by which appellant has been convicted for offences under Sections 302 & 364 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.1000/-; in default of payment of fine additional rigorous imprisonment for three months and sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs.1000/-; in default of payment of fine additional rigorous imprisonment for three months, respectively. Both sentences were directed to run concurrently. 2. Case of the prosecution, in nutshell, is that appellant is the aunt (Mousi) of Pratigya, who was aged about 3 years, and on 16.01.2014 at about 10:00 am, at village Sarwani Arpa Nadi, Police Station Chakarbhatha, District Bilaspur, (C.G.), appellant took minor Pratigya (hereinafter referred to as the deceased), who was aged about 3 years at the time of incident, with her without informing her parents and killed her by drowning and thereby, committed the aforesaid offence. 3. It is further case of the prosecution that on 15.01.2014, appellant came to the house of complainant Panchram Sonwani (PW-16). On the date of offence i.e. 16.01.2014, complainant Panchram Sonwani (PW-16) was not at home as Chherichhera festival was being celebrated on that day and Shashi (PW-15), mother of the deceased, and Meena Bai (PW-1), grandmother of the deceased, were cooking food at home, and Satya Prakash (PW-14), brother of the deceased, was playing outside near cart (thela) along with his sister deceased Pratigya. When Meena Bai (PW-1) called the children to have food, then Satya Prakash (PW 14) replied that appellant took deceased with herself. On search, appellant was found at village Magaruchhla and on being asked about the deceased, she told that she did not take the deceased with her. On 17.01.2014, dead body of the deceased was found in the Arpa river. Uttara Kumar Raj (PW-10) informed about the dead body of the deceased to Police Station Chakarbhatha. Dehati Merg Intimation was registered vide Ex.P/9. FIR was registered vide Ex.P/15. On 17.01.2014, dead body of the deceased was found in the Arpa river. Uttara Kumar Raj (PW-10) informed about the dead body of the deceased to Police Station Chakarbhatha. Dehati Merg Intimation was registered vide Ex.P/9. FIR was registered vide Ex.P/15. During interrogation, it came to the knowledge of Police that when Panchram Sonwani (PW-16) had gone to Gujarat with his wife Shashi (PW-15) and children Satya Prakash (PW-14) and Pratigya (now deceased) to earn livelihood and had also taken appellant with him to look after the deceased, a contractor had given Rs.17,000/- which she took and came back to village. Said contractor in search of the appellant came to village and asked Rs.17,000/- on account of which she became angry and caused the death of the deceased. Appellant was arrested vide Arrest/Court Surrender Memo (Ex.P/4). Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/13) conducted by Dr. S.S. Gupta (PW-13), cause of death was asphyxia due to drowning. 4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant/accused abjured his guilt and entered into defence. 5. In order to bring home the offences, prosecution has examined as many as 20 witnesses and exhibited 16 documents and defence in support of its case has not examined any witness, but exhibited two documents (Exs.D/1 & D/2). 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant/accused for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence. 7. Mr. Vivek Kumar Shrivastava, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and she has been convicted by recording a finding which is perverse to the record. He also submits that the appellant has been convicted only on the basis of surmises and conjectures and there is no legal evidence against the appellant either direct or circumstantial to hold the appellant guilty for the aforesaid offences. He further submits that the appellant is in jail since 19.01.2014. He also submits that the appellant has been convicted only on the basis of surmises and conjectures and there is no legal evidence against the appellant either direct or circumstantial to hold the appellant guilty for the aforesaid offences. He further submits that the appellant is in jail since 19.01.2014. He also submits that Satya Prakash (PW-14) is a child witness and in his cross-examination, he has clearly admitted that as per instructions given by his grand-parents, he gave the statement and motive has also not been found proved by the prosecution and the death of the deceased to be homicidal has also not been established, therefore, the conviction of the appellant is liable to be set aside and the present appeal deserves to be allowed. 8. On the other hand, Mr. Ashish Tiwari, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt. He further submits that appellant and the deceased were last seen together not only by Satya Prakash (PW-14), even Mansharam (PW-5), Raju Kenwat (PW-6) & Kamla Bai (PW-7) had also seen the deceased in the company of the appellant. He also submits that Section 106 of the Evidence Act, 1872 would be applicable in the instant case as deceased was last seen in the company of the appellant and appellant has failed to explain in her statement under Section 313 of the CrPC and, therefore, the instant appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 10. Now, the first question is, whether the death of the deceased was homicidal in nature as it has been challenged on behalf of the appellant that the trial Court did not record a finding that the death of deceased Pratigya was homicidal in nature? 11. It is correct to say that in postmortem report (Ex.P/13), time of death between 12 to 24 hrs has been recorded, but no specific finding has been recorded by Dr. 11. It is correct to say that in postmortem report (Ex.P/13), time of death between 12 to 24 hrs has been recorded, but no specific finding has been recorded by Dr. S. S. Gupta (PW-13) while conducting the postmortem with regard to nature of death and similarly the trial Court has also not recorded any specific finding and only recorded a finding that deceased Pratigya died on account of drowning and it is the appellant who is responsible for that, but no specific finding has been recorded that the death of the deceased was homicidal in nature, which is sine qua non for convicting an accused/appellant for offence under Section 302 of the IPC. 12. At this stage, it would appropriate to consider the medical treaties which refer to the homicidal death in case of child and helpless person. In Medical Jurisprudence and Toxicology, 11th Edition by John Glaister it is observed:- “Although homicidal drowning by pushing the victim into the water may be comparatively easy, it is very uncommon, but occurs occasionally in the case of children or of helpless persons.” 13. In Modi's Text Book of Medical Jurisprudence and Toxicology, 10th Edition by N.J. Modi, similar view has been expressed: “Homicidal drowning is rare, except in the case of a infants and children. It is a common practice to rob children of their ornaments and then to throw them into a well or a tank.” 14. In the light of the aforesaid medical text, if the facts of the instant case are seen, it is quite vivid that minor deceased Pratigya, was aged about 3 years and possibility of her committing suicide is wholly improbable. Since she was admittedly in custody of her aunt (Mousi) i.e. the appellant herein, at the relevant time, as per statement of her brother Satya Prakash (PW-14), it is most unlikely that she has suffered accidental drowning. No such suggestion has been given on behalf of the defence that she died on account of accidental drowning. Theoretical possibility regarding cause of death which is not compatible with the attending facts and circumstances of the case cannot be treated as a reasonable doubt causing dent to the prosecution case. No such suggestion has been given on behalf of the defence that she died on account of accidental drowning. Theoretical possibility regarding cause of death which is not compatible with the attending facts and circumstances of the case cannot be treated as a reasonable doubt causing dent to the prosecution case. Owing to the extreme tender age of the deceased and attending circumstances that she was kidnapped by her aunt (Mousi) on 16.01.2014 and the dead body was found on 17.01.2014 in Arpa river in front of Marghat, the only irresistible conclusion would be that the death of minor deceased Pratigya was homicidal in nature and we hold so accordingly. 15. Now, the question for consideration would be whether the appellant has caused the death of the deceased? 16. Considering the statement of Satya Prakash (PW-14), brother of the deceased, the trial Court reached to the conclusion that it is the appellant who has kidnapped minor deceased Pratigya offering her eatable article and Mansharam (PW-5), Raju Kenwat (PW-6) & Kamla Bai (PW-7) have clearly said that appellant had taken the deceased along with her on 16.01.2014 which was seen by them and on 17.01.2014, dead body was recovered and as per the postmortem report (Ex.P/13) conducted by Dr. S.S. Gupta (PW-13), time of death between 12 to 24 hrs has been recorded, therefore, the trial Court relying upon statements of the aforesaid witnesses that the appellant had abducted the deceased, came to the conclusion that in absence of explanation under Section 313 of the CrPC, the appellant is the author of the crime. 17. The Supreme Court in the matter of Sucha Singh v. State of Punjab, (2001) 4 SCC 375 has held that it is the abductor who can inform as to what happened to the deceased after she was abducted and observed as under:- “The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.” 18. In the instant case, it is only appellant – Urvashi @ Anjali who as per evidence of Satya Prakash (PW-14), Mansharam (PW-5), Raju Kenwat (PW-6) & Kamla Bai (PW-7) had taken the minor deceased, aged about 3 years, along with her (being the aunt (Mousi) of the minor deceased) and appellant had the special knowledge as to what happened to the minor deceased when she parted from her company, but she failed to explain in her statement under Section 313 of the CrPC and the dead body of the deceased was found on 17.01.2014. As such, in absence of explanation, inference has rightly been drawn by the trial Court by virtue of Section 106 of the Evidence Act, 1872 and it has rightly been held by the trial Court that it is the appellant who is the author of the crime. 19. As such, in absence of explanation, inference has rightly been drawn by the trial Court by virtue of Section 106 of the Evidence Act, 1872 and it has rightly been held by the trial Court that it is the appellant who is the author of the crime. 19. Motive of the offence has also been found proved by the trial Court and the trial Court has held as under:- ^^21- vkjksfi;k ds fo}ku vf/koDrk }kjk vius rdZ ds nkSjku ;g O;Dr fd;k x;k gS fd e`frdk dh gR;k djus dk dksbZ gsrqd vfHk;kstu }kjk ugha crk;k x;k gSA izdj.k ds voyksdu ls ;g Li"V gS fd e`frdk 03 o”kZ dh cPph Fkh ,slh fLFkfr es mldh gR;k dk dksbZ gsrqd gksus dk iz'Uk mRiUu ugh gksrk gS ysfdu Loa; vkjksfi;k dh vksj ls izfrijh{k.k esa bl rF; dks mBk;k x;k gS fd e`frdk ds firk us xqtjkr es vkjksfi;k ds }kjk 17]000@& :Œ pqjkdj Hkkxus ds laca/k esa f'kdk;r dh Fkh ftldk leFkZu e`frdk dh ekrk vŒlkŒ 15 k'kh ,oa mlds firk vŒlkŒ 16 iapjke lksuokuh us Hkh vius dFku esa ckn dgk Fkh] bldh tkudkjh mUgs ugh Fkh rFkk ?kVuk ds ,d fnu igys gh og muds ?kj vkbZ FkhA vr% mlds dFku ls gh e`frdk dh gR;k djus dk gsrqd izekf.kr gksrk gSA 22- vk'k;] dk;Z ,ao vkpj.k ls tkuk tk ldrk gSA bl izdj.k esa vkjksfi;k dk dk;Z ,oa vkpj.k ,slk gS ftlls ;g rF; izekf.kr gksrk gS fd vkjksfi;k dk vk'k; e`frdk dh gR;k djus dk Fkk rHkh og fcuk mlds ekrk] firk dh vuqefr ds e`frdk dks vius lkFk ykdj xbZ FkhA^^ 20. As such, it is clearly established that the death of minor deceased Pratigya is homicidal in nature and it is the appellant who has abducted the minor deceased and she has special knowledge as to what happened to minor deceased and as to when she parted from her company, but she failed to explain in her statement under Section 313 of the CrPC and she has motive also to cause the death of the minor deceased, therefore, the trial Court has rightly held the appellant to be the author of the crime for offence under Section 302 of the IPC. 21. The appellant has also been convicted for offence under Section 364 of the IPC. 21. The appellant has also been convicted for offence under Section 364 of the IPC. As we have already held that the appellant is guilty for offence of murder, now the question would be whether the appellant can also be convicted for offence under Section 364 of the IPC? 22. In the matter of State of West Bengal v. Mir Mohammad Omar and Others, (2000) 8 SCC 382 , their Lordships of the Supreme Court have held that if after abduction offence of murder has been committed Section 364 of the IPC would not be attracted and held as under:- “13. Section 364 of the IPC says, whoever abducts any person “in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered” he commits the offence punishable under the section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 of the IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.” 23. In that view of the aforesaid legal position, conviction of the appellant for offence under Section 364 of the IPC is set aside, but she is convicted for offence under Section 363 of IPC. 24. In that view of the aforesaid legal position, conviction of the appellant for offence under Section 364 of the IPC is set aside, but she is convicted for offence under Section 363 of IPC. 24. Coming to the facts of the case, it is quite vivid that the appellant is said to have caused the death of the deceased as she has motive and also as per the statements of Satya Prakash (PW- 14), Mansharam (PW-5), Raju Kenwat (PW-6) & Kamla Bai (PW- 7), the appellant had taken the deceased with her and in view of the decision rendered by the Supreme Court in the matter of Sucha Singh (supra), appellant had the special knowledge as to what happened to the minor deceased and when she parted from her company, but she failed to explain in her statement under Section 313 of the CrPC and therefore, in absence of explanation, Section 106 of the Evidence Act, 1872 would be applicable and she has rightly been convicted for offence under Section 302 of the IPC, As, such, we hereby affirm the conviction of the appellant to the extent for offence under Section 302 of the IPC. However, her conviction for offence under Section 364 of the IPC is set aside and she is acquitted of the said charge, instead thereof, she is convicted for offence under Section 363 of the IPC and sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs.1000/-; in default of payment of fine additional rigorous imprisonment three months. Both sentences will run concurrently. 25. The appeal is partly allowed to the extent indicated hereinabove. 26. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any.