M. L. SHRIMAL, J. - (1.) ACCUSED Lal Singh was tried by learned Sessions Judge, Ajmer for offences under Secs. 304 and 323 I. P. C. In the course of the occurrence having taken place at 5 p. m. on October 22, 1972, Ratan Singh, a child of six months, is alleged to have sustained injuries at the hands of Lal Singh, as a result thereof he died. His mother Mst. Rami also sustained some injuries in the same occurrence. The defence case is that Mst. Rami was carrying her child, Ratan Singh, on her shoulder. While coming out of the house Mst. Rami struck against the threshold of the door of her dwelling house and fell on the steps as a result whereof Ratan Singh and Mst. Rami both sustained injuries. Learned Sessions Judge, Ajmer by her judgment dated October 30, 1973, held that the injuries received by Mst. Rami and Ratan Singh were not by the result of a fall on the steps, but they were tragically linked with lathi blows, inflicted by accused Lal Singh and consequently Ratan Singh succumbed to the injuries later on. The trial court accordingly convicted the accused-appellant under Sec. 304 Part II, I. P. C. and sentenced him to two years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of which to further undergo six months' rigorous imprisonment. He was also convicted under Sec. 323, I. P. C. and sentenced to three months' rigorous imprisonment and to pay a fine of Rs. 50/-, in default of payment of which to further suffer one month's rigorous imprisonment. Both the substantive sentences were directed to run concurrently. Out of the amount of fine imposed, an amount of Rs. 150/-was ordered to be awarded to Mst. Rami by way of compensation.
(2.) THE prosecution story in brief as revealed during the trial is that accused Lal Singh and PW 5 Mal Singh are brothers. Lal Singh was employed in the army. On October 20, 1972, Lal Singh caught hold of Mal Singh and gave beating to him. On Mal Singh's raising a cry, his mother Mst. Bhoori and Dhanna's wife Mst. Phephi came to his rescue. Lal Singh's mother shut Mal Singh and his wife into a room. In the evening of the aforesaid date at about 5 p. m. Mst. Rami PW 1, wife of Mal Singh with her child Ratan Singh, aged about 6 months, came out of her house. Accused Lal Singh, armed with lathi, followed her and inflicted some blows, which fell on the child's head and also on the shoulder of Mst. Rami. PW 4 Babu Singh, Panna Singh and others intervened. Ratan Singh (since deceased) was taken to the hospital at Jawaja, where the child passed away. First information report of the occurrence was lodged with the Police Station, Jawaja. PW 11 Manak Lal prepared an inquest memo Ex. P9. On October 22, 1972, Dr. Dayal Gidwani PW 10 clinically examined Mst. Rami. He found two injuries on her person. Her injury report is Ex. P/7. THE same Doctor noticed two external injuries on the person of Ratan Singh. On October 23, 1972, autopsy of the dead body of Ratan Singh was performed. Two fractures in the right parietal region and three external injuries were noticed on his person. On October 24, 1972, accused Lal Singh was arrested vide arrest memo Ex. P/ll. At the instance of the accused a bamboo-stick was recovered from his house. THE information was reduced into writing and is marked Ex. P/l. THE lathi, recovered in consequence of the information, is Ex. 1. Its recovery memo is Ex. P/6. THE police, after normal investigation, submitted a challan. against the accused in the court of learned Munsif-Magistrate, Beawar, who after taking proceedings in accordance with the provisions of Sec. 207-A Cr. P. C. committed the accused to the Court of Sessions Judge, Ajmer for trial under Secs. 304 and 323, I. P. C. The accused pleaded not guilty to the charges. The prosecution, in support of its case, examined 11 witnesses, of whom Mst. Rami (PW 1) is the mother of the deceased and is an eye-witness of the occurrence. PW 2 Mst. Dhapu, PW 3 Mst. Phephi. PW 4 Babu Singh, PW 5 Mal Singh and PW 9 Nathu Singh were the eye-witnesses. PW 2 Mst. Dhapu and PW 3 Mst. Phephi were, however, declared hostile to the prosecution. The trial court has not placed any reliance on their statements. PW 5 Mal Singh was on his well at the time of the incident and as such has been not termed as an eye-witness. PW 6 Rod Singh and PW 7 Devi Singh are Panchnama witnesses. PW 10 Dr. Dayal Gidwani, clinically examined Mst. Rami and performed postmortem examination of the dead body of Ratan Singh. PW 11 Manak Lal is the investigating officer. Accused Lal Singh, in his statement recorded under Section 342, Cr. P. C denied the guilt. He admitted that Rs. 600/- were due to him from Mal Singh. When he demanded the amount, his wife got infuriated and stated that she would go somewhere and get the money. In haste and hurry; while going out she struck against the threshold of the house door and fell down with her child There were five steps on the outer house door, on which Mst. Rami with her child fell down. The accused rushed to the scene, took Mst. Rami and her child to the hospital. In the evening Mst. Rami narrated the same story regarding her fall, but Dhanna Singh instigated her to concoct the details of the occurrence, as he was also a debtor of the accused. In support of his plea he examined two witnesses, of whom DW 1 Mst. Hansi is the mother of both Mal Singh and Lal Singh and DW 2 Neem Singh is their brother. Learned Sessions Judge held that Mst. Rami and Ratan Singh sustained lathi blows at the hands of accused Lal Singh and the injuries sustained by Mst. Rami were not the result of a fall on the staircase. With the above finding, the learned Judge held the accussd-appellant guilty of the offences punishable under section 304 (Part II) and section 323, I. P. C. and sentenced him as aforesaid. Aggrieved by the above judgment, the accused-appellant has taken this appeal and challenged his conviction and sentence. It cannot be disputed and has rightly not been disputed that Ratan Singh and Mst. Rami sustained certain injuries at the time and the place mentioned by the prosecution. It is also not disputed that Ratan Singh succumbed to his injuries. Nonetheless it has been hotly contested by the appellant that both these persons got injuries not as suggested by the prosecution, but by a fall on the steps.
(3.) IN his ably marshalled argument, learned counsel for the appellant has urged that it is not clear what moved the accused to cause injuries to Ratan Singh, who was but a small child of hardly six months of age. The first information report was sent to the Magistrate on October 25,1972, though the occurrence is alleged to have taken place on October 22,1972. The delay in sending the first information report to the Magistrate provides a legitimate clus to suspect that it was recorded after the investigating officer had returned to the police station after recording the statements of the witnesses and the time in between was utilised to invent a concocted story. He further urged that the entire prosecution case was sought to be proved by the testimony of interested witnesses. There is considerable doubt, the defence counsel adds, about the truthfulness of the testimony of witnesses in regard to the initiation of the quarrel. The two inmates of the. house, equally related to the complainant and the accused, were not examined by the prosecution. It was the accused who has examined them in his defence. Their presence on the scene of the occurrence was but natural. The trial Court has ignored the significance of cartain admissions made by PW 10 Dr. Dayal Gidwani, who, in his cross-examination as well as in re-examination, admitted that if a child falls on a step and then rolls down on other steps, there could be the possibility of the type of skull-fracture, found on the person of the deceased. The prosecution has also not examined any independent witness of the locality. Mr. Mathur, learned Public Prosecutor, has supported the judgment of the trial Court. The position of law stands well settled on the point that the burden always rests on the prosecution to establish its case beyond reasonable doubt. Lord Sankey, L. C. has aptly observed in Woolningloz vs. Director of Public Prosecutions (1) as follows: - "no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner and no attempt to whittle it down can be entertained. " The burden is neither neutralised nor shifted, because the accused takes a particular plea. The law is further clear that the accused is not required to prove his plea as strictly as the prosecution has to. The evidence though insufficient to establish the plea taken by the accused may be sufficient to negative the factum of the commission of the crime. It may be enough to cause a reasonable doubt in the prosecution case. The burden which rests on the accused to prove his case is not of the same character as the burden of the prosecution to prove charge beyond reasonable doubt. There is consensus of judicial opinion in favour of the view that where the burden of an issue lies on an accused he is not required to discharge the burden by leading evidence to prove his case beyond a reasonable doubt. In the words of his Lordship Gajendra Gadkar C. J. in H. Singh vs. State of Punjab (2) it has been laid down as under : "law treats the onus as discharged if the accused succeed in proving a preponderance of probability. " It is thus the bounden duty of the Court to judge whether the accused here has been able to substantiate by reasonable possibility the plea raised by him or whether the evidence led by him throws a cloud of doubt on the prosecution version. It cannot be gainsaid that Ratan Singh sustained injuries at the time and place, alleged by the prosecution, as a result whereof he breathed his last during the same night. ;