CALLA, J. - (1.) THESE three jail appeals are directed against the conviction and sentence awarded to the three appellants namely; Anda, Dhanna & Deva in Sessions Case No. 45/84 passed by District and Sessions Judge, Udaipur whereby the accused-appellant; Dhanna has been convicted u/s. 302 IPC and the rest of the two appellants i. e. Anda and Deva have been convicted u/s. 302 read with Section 34 and Section 452 IPC and all the three above named appellants have also been convicted u/s. 452 IPC. All the accused-appellants have been sentenced to Life Imprisonment and a fine of Rs. 250/- and in default of payment of fine to undergo further 3 years R. I. for conviction u/s. 302 IPC, each of the three appellants has been sentenced to 2 years R. I. with a fine of Rs. 200/- and in default of payment of fine each of the three appellants to undergo further three months R. I. , the sentences to run concurrently.
(2.) THE prosecution case is that in the alleged incident which took place on the night intervening 14. 11. 84-15. 11. 84 a two years' old child namely Kusha son of Kala was killed to death by the three accused-appellants. With regard to this incident the First Information Report was lodged at about 1. 00 p. m. of 15. 11. 84 at Police Station Bekaria in District Udaipur. THE FIR Exh. P-5 was lodged by Kala i. e. the father of the deceased-child Kusha narrating that on 14. 11. 84 in the afternoon at about 2. 00 p. m. while his father Mana was at home, Deva son of Roda, Dhanna Son of Galla, Anda son of Bhikha and Choga Son of Dhanna came to his house armed with arrows and swords, hurled abuses and said that Kala come out of the house, we will kill you today. Kala did not come out and Dhanna said that how long you will remain hidden in the house- in the night I will kill you to death. In the evening at 5-6 p. m. Kala, his father Mana and his brother Lala all the three went to jungle out of fear. His mother-Meera and wife-Shanti and deceased-Kusha remained at home. It has been further narrated that he came back to his house at about 8. 00 a. m. in the morning and found his wife and mother weeping. When asked as to why they, were weeping, his wife disclosed to him that in the midnight at about 12 O' Clock Deva, Dhanna and Anda all the three entered the house and Dhanna said that where is Kala? THEreupon, his wife Shanti said that she doesn't know but Dhanna pressed the nose and mouth of the two years' old child Kushia (Kusha) and killed him to death. According to Shanti her mother- in-law Smt. Meera raised an alarm and all the three miscreants ran away. She also says that she attempted for the movements of the child, but he was not breathing. On disclosure of this information Kala went to the police station while two years child was still lying dead at home. Upon this report the investigation was made by the Investigating Agency. THE corpse of the child was subjected to post-mortem on 15. 11. 84 itself and after the completion of the investigation the challan was filed and the three appellants faced the trial for the charges u/ss. 302 and 452 IPC. THE statements of the witnesses were recorded by the Court. THE statements of the accused persons were recorded u/s. 313, Cr. P. C, no defence evidence was led and the learned Sessions Judge, Udaipur vide his judgment & order dated 9. 4. 86 convicted the three appellants and sentenced them as stated hereinabove. Against this judgment and order dated 9. 4. 86 convicting and sentencing them, these three jail appeals were filed. Shri A. K. Acharya, learned counsel for the appellants has submitted that in the instant case the only eye-witness is the mother of the deceased namely-Shanti who has been examined as PW- 2. She has clearly deposed in her statement that she was in her house and her son Kusha with her mother-in-law was sleeping in Varandah, Dhanna had pressed the mouth of the deceased-child while Anda was standing by side and was telling that kill him. Dhanna had caught hold of the legs of the child and placed his hands on the mouth of the child and also pressed the nose. The three accused persons remained there for a duration of smoking one 'bidi'. She further stated that out of fear she took shelter amongst the goats in the same house and she herself watched the closing of the mouth of the child and his killing by the three appellants and that her husband, father-in-law and 'devar' had already ran away to the jungle and when her husband came in the morning she disclosed the whole story to him and thereafter he made a report. In the cross-examination she has stated that her mother-in-law had ran away from the house when the accused-appellants came while she was asleep. She has further stated in the cross-examination that Dhanna had pressed the neck of Kusha by his right hand and went on pressing the neck for a duration equal to the smoking of one 'bidi' and she watched it while hidden amongst Goats. Mouth was also closed by Dhanna for a duration of smoking of one 'bidi'. She has further stated that her mother-in-law also did not raise an alarm, she called nobody and her mother-in-law had left the house prior to the pressing of the neck of the child. She has also stated that there was a dispute between them and the accused-appellants in relation to the land and in the cross-examination also she has stated that the dispute was going on and the accused-appellants had not allowed water into the fields of Kala even at the time of the present dispute. The grand-mother of the deceased i. e. Meera has been examined as PW-3. She herself admits that she had ran away from the house when the accused-appellants came, but she had recognized them by their voice as they were asking about Kala. She came back to the house in the next morning and thus she was not present at the time of the actual incident and she has given the version of the incident as was narrated and disclosed to her by Shanti; PW-2. Kishore Singh who is the scriber of the First Information Report has been examined as PW-4. Moli who is a witness of the Inquest Report has been examined as PW-5 and he has said that Panchnama bears his thumb impression, but the same was not read over to him. He has also disclosed all the contents of Panchnama and has said that the neck of the deceased was not broken as has been mentioned in the "panchnama. The Public Prosecutor who conducted the trial had sought permission of the Court to put such question to this witness as are asked in the cross-examination. In the cross-examination this witness has said that it was not the opinion of the Panchas that the child had died on account of throatling of his neck. His thumb impression was obtained by the police people under duress. This witness has also stated that the deceased child was sick for last two months and the child has died at 10. 00 a. m. and Kala i. e. the father of the deceased had called him and thereafter, went to village Malviya and at 5. 00 a. m. he came back with the police and before calling the police, Kala had actually called him by telling that the child had died and therefore all should come. The Doctor who has conducted the post-mortem of the deceased has been examined as PW-6 who was the Medical Officer at Government Hospital, Gogunda at the relevant time. Certain portion of the disclosure of the case made by this Doctor is reproduced as under: ******* In the cross-examination he has stated as under: *** Pw-7, Rala brother of Kala has narrated the incident about the first visit of the accused-appellants to their house and that the incident was narrated to them when he came back in the next morning. SHO, Surendra Singh i. e. the Investigation Officer has been examined as Pw-8. It was submitted on behalf of the appellants that it is a case in which the only eye-witness Dhanna has been examined as Pw-2 and his version has not been corroborated by the medical evidence. The version as has been given by the prosecution witnesses is not at all natural and the conduct of Pw-2 and Pw-3 keeping in view the manner in which the incident took place is unbelievable. It is also submitted that it was a case in which the child was sick and he has died natural death and it is only on account of the dispute in between the parties that the case has been foisted against the accused-appellants. It is also submitted that the facts with regard to the sickness of the child also find corroboration from the statements of Moti, Pw-5 as also the statements of Pw-6 i. e. Dr. Omprakash. The accused-appellants have also disclosed in the statements recorded u/s. 313, Cr. P. C. that there was a dispute with regard to the way of 'nahar' and the witnesses had foisted this case against them and they all belong to the same family. The learned Additional Public Prosecutor has submitted that the accused-appellants had first visited the house of the complainant-party on 14. 11. 84 in the day and they had called Kala and when. Kala did not come out they threatened to come again in the night in order to kill him, they again came to the house or Kala and while Kala was not there they entered the house and killed the child. The learned Addl. Public Prosecutor has also submitted that the Doctor has not ruled out the possibility of the death in the manner it is alleged to have taken place and he has also invited our attention to the statements made by Pw-2 and Pw-3 and has submitted that there is no evidence with regard to the sickness of the child except the bald statement made by Moti, Pw-5.
(3.) WE have heard the learned counsel for the accused-appellants and the learned Addl. PP and have also gone through the record. Having considered the statements of the sole eye-witness i. e. PW- 2 Shanti we find that in the entire examination-in-chief she did not give the version with regard to the closing of the mouth and pressing of the nose of the child while in the cross-examination she has stated that the neck of the deceased was pressed by Dhanna and this statement when considered in the light of the medical evidence of PW-6, Dr. Omprakash, we find that it is not corroborated inasmuch as PW-6 has categorically stated that no any mark of strangulation etc. was there on the neck of the child and he has categorically stated that the neck was not pressed. He has also stated that there was no mark of any injury on the neck and cause of the death was the chowking of the breath and this has happened on account of the closing of the mouth and pressing of the nose, but the neck was not pressed. He also stated that there were some particles in the breathing pipe. In the cross- examination he has stated that the spleen of the deceased was shrinked and in the right portion there was shortage of blood and in the pericardium there was pink coloured fluid and therefore the child was suffering from anemia. He has also stated that the eating material particles which had come in the breathing pipe may also be a cause for chowking of the breathing pipe and this may also result into death. He has also stated that if the nose and the mouth of the child is closed and if he vomits then also food material shall come in the breathing pipe. He has said that the child did not die as a result of the injuries mentioned in Exh. P-7 and these injuries were ante mortem in nature. He has also stated that death occurred prior to 18-24 hours from the time of the post-mortem. Thus we find that positive case with which the prosecution had come, does not find any corroboration with the medical evidence and the statements of the Doctor PW-6 does not support the positive case of the prosecution. The evidence which has come on record in the facts of this case coupled with the factum with regard to the dispute between the parties for the land and the evidence to the effect that the child was sick prior to the incident is sufficient to create a reasonable doubt more particularly when PW-6, has stated that the spleen of the child was shrinked and there was shortage of blood in the right side of the heart and there was a pink coloured fluid in the pericardium and the child was suffering from anemia. The accused-appellants have also stated in the disclosure u/s. 313, Cr. P. C. that they had been implicated on account of the dispute with regard to the land and thus the contention of the learned counsel for the appellants with reference to the availability of the evidence that the child's death was on account of the sickness and that accused-appellants have been implicated falsely in the instant case because of the dispute in between the parties with regard to the land, is sufficient to create a doubt against the prosecution story. It has also been submitted with reference to Exh. 5 that in the FIR while mentioning the date as 15. 11. 84 initially the same was later on made 14. 11. 84 and marked as C to D in Exh. P-5. On this question none of the witnesses has owned the responsibility as to who made this over writing. However, we need not go into this question because the evidence available in this case even otherwise does not prove the offence to the hilt rather it is confusing and is sufficient to create suspicion against the prosecution story. In our considered opinion it appears to be a fit case for giving the benefit of doubt to the accused-appellants. All the three accused-appellants are therefore acquitted. Accused-Dhanna is acquitted of the offences under Section 302 and 452 IPC and rest of the accused-appellants namely; Deva and Anda are acquitted of the offences under Sections 302 read with Section 34 and Section 452 IPC and their conviction and sentence as ordered by the trial Court is hereby set-aside. All these three criminal jail appeals are allowed and it is directed that all the three above mentioned accused-appellants shall be released forthwith if not required in any other case. Record be sent back. 1995 RLW 1 . ;