1. Appellant Mst. Surjali Stands convicted for the offence under sections 302 and 309 I.P.C. and has been sentenced to imprisonment for life on the first count and simple imprisonment for one year on the second count. Both the sentences have been ordered to run concurrently by the learned Sessions Judge, Merta by his judgment dated January 7, 1976.
2. In a nut shell the prosecution case is that the accused Mst. Surjali was married to one Laxman P.W.3. She was married some 12 years ago. There were two off springs out of the wedlock, one daughter Bhanudi aged about 6 years and a son Jhuman aged about one year. On June 27, 1975 when Laxman returned to his house, he found his son Jhuman weeping. There upon he asked his wife as to why his son is weeping, she started abusing him. He inflicted two or three blows on her. On the next morning he awakened Her at about 6 am. and asked her to take care of the children but she did not care. There after breakfast was given by him to the children and he along with his mother went away leaving the appellant and the two children at the house. He had gone to the house of Surajkumar for work and his mother had gone to the house of Harak Chand. At about 12.30 or 1 in the day, his mother came to him and informed that Surajali had gone away with the children and she is not at home. He learnt that Surajali is sitting at the 'Deola ki Pyao.' When he reached there, there were other persons present on the spot. He asked his wife as to where the children are. Thereupon she stated that she jumped into the well alongwith the children, and tie children are in the well. Then he went to the well and he found that the dead bodies of both Bhanudi and Jhuman are in the well It may be stated that Raghunath P.W. 1 on hearing that someone had fallen in the well went to the well and saw Mst. Surajali in the well There upon rope was put in the well and Surajali caught hold of that rope and she was taken out of the well. Laxman then went to lodge the report at the police station Ladnu. On his report, a case under sections 302 and 309 I.P.C was registered After investigation a charge sheet was presented against the appellant and she was ultimately triel by the learned Sessions Judge Merta The learned Sessions Judge entered conviction of the appellant for the offences under Section 302 and 309 I.P.C. on the basis of the statements of Raghunath P.W. I, Sravan P.W.2 and Laxman P.W.3. The appellant has preferred this appeal through jail against the aforesaid judgment.
3. We have heard the learned Counsel for the appellant and the learned public prosecutor for State On behalf of the appellant it is urged from the evidence on record it is borne out that the appellant was insane and was not in a fit state of mind and was incapable of knowing the consequences of her acts and so she cannot be held guilty for the offence under Section 302 and 309 I.P.C. From the conduct of the appellant an attempt was made that it should be found by this Court that the appellant was of an unsound mind and this fact was known to all including the husband of the appellant, It may be stated that the plea of insanity as such was not taken anywhere during the trial and in the statement under section 313 Cr.P.C. the appellant did not answer any question and she simply expressed the sign of negation by raising her hand. On application being filed by the learned Counsel, she was medically examined and the doctor reported that the refrains from giving replies deliberately and she is not suffering from any mental disease, and is not of unsound mind. We have also been carried through the statements of the prosecution witnesses and also the statement of D.W. 1 Kana, who is the elder brother of the appellant. On perusal of the statements, in our opinion it is not made out that the appellant was of unsound mind and was incapable of knowing the consequences of her act It is note worthy that when rope was put in the well, the appellant caught hold of the rope and with the help of that rope she came out of the well and she also said to Bholaram P.W. 5 when she was asked as to why she fell into the well, that her husband does not provide food to her and beats her so she fell into the well. Her conduct in coming out of the well arid her statement to Bholaram go to suggest that she was not insane and she knew the consequences of her act. Thus the plea of insanity is not borne out.
4. Coming to the merits of the case, we are of the opinion that both the offences have been clearly brought home, against the appellant by the statements of Raghunath P.W. 1, Sravan P.W. 2 and Laxman P.W.3. When she was asired by Laxman as to where the children are, she categorically replied that she jumped into the well alongwith the children. All these three witnesses have given out this version. The truthfulness of, this version gets corroboration from the circumstance that the appellant was taken out from the well and that her two children were found dead, in the well In her confessional statement made to Laxman, she categorically confesses that she jumped alongwith her children in the well. This act of her was imminently dangerous to the life of the two children. This act on the part of the appellant clearly falls within the clause Fourthly of Section 300 LP C wttch1 provides that if the person committing the act knows th,at it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing- death of such injury as aforesaid Thus both the offences under sections 302 and 309 I.P.C. are brought home against the appellant and she has been rightly convicted and sentenced by the learned Sessions Judge.
5. In our opinion this appeal has no merit and the same is here by dismissed.
6. Before parting with the case, we would like to advert to the recommendation made by the Sessions Judge, Merta to the Government for commuting the sentence of imprisonment for life to a sentence of five years having regard to the mental faculties of the appellant. The learned public prosecutor stated that it appears that no action has been taken by the Government in view of the recommendation made by the learned Sessions udge. he conviction was recorded as back as January 7, 1976. More than six years have already elapsed. Having regard to the mental state of the appellant and having regard to the circumstances in which the offence has been committed, we strongly recommend to the Government to commute the sentence of the appellant to the sentence already undergone. Let a copy of this judgment be sent to the State Government and we also direct the public prosecutor to bring it to the notice of the State Government that in view of the recommendation made by this Court, the sentence of the appellant may be commuted.