JUDGMENT 1. - The appellant has been convicted Under section 302 Indian Penal Code for the murder of his own daughter aged 9 years whom he suspected of having committed theft of his own money. He has been sentenced to life imprisonment with Rs. 100/- as fine. This is the appeal against the conviction and the sentence. 2. On 11.5.1990 at about 7.30 a.m. an information was received at the Police Station Chunawat District Ganganagar that on 10.5.1990 at about 1.00 p.m. accused Kherayat Singh had killed his daughter Veeri by putting a wooden pole on her throat while she was lying on the floor and pressing the pole against her throat by putting both of his feet over the pole. The first information was lodged by one Mahendra Singh S/o Nihal Singh, Sarpanch of Gram Panchayat Dhalewala who had gone to the spot after having received information from Mangal Singh S/o Gurcharan Singh at about 6.30 p.m. It was also stated in the FIR that when Mahendra Singh went to the spot many villagers had gathered there. He saw that accused Kherayat's daughter Veeri was lying down on the floor of the house. On being asked Kherayat's daughter Veena told him that Kherayat Singh had killed her by putting a wooden pole on her throat and pressing it by means of his feet. 3. At the trial the prosecution examined PW 5 Veena, daughter of accused Kherayat Singh, aged 14 years as the star eye-witness. According to her at the time of incident, she herself, her sister deceased Veeri and both of her brothers Sukhvindra Singh and Baljindra Singh were in the house. At about 1.00 p.m. their father Kherayat Singh (accused) came home. He caught Veeri by her hair and took her inside the house. He put a rope around her neck and hanged her by the ceiling. The rope slipped away and Veeri fell down. Then the accused made her lye flat on the floor, put a wooden pole (Balli) on her throat and pressed that by both of his feet Veeri's throat was crushed and she died. The accused then threatened his children that if they disclosed this to anyone they shall also be killed. He also told them that if anyone asked they should say Veeri has gone to her maternal grand mother's place. The accused then threatened his children that if they disclosed this to anyone they shall also be killed. He also told them that if anyone asked they should say Veeri has gone to her maternal grand mother's place. She also stated that when the rope slipped and Veeri fell down she had cried and asked for water, but the accused did not give her water. She further deposed that when she had gone out at about 5.00 p.m. to fetch water from the tap she told Mangal Singh, Channa Singh and others that her father had killed Veeri. Many people had come to their place, amongst whom Mangal Singh, Mahendra Singh were also there, and she had told Mahendra Singh Sarpanch also about the incident. She further deposed that two days prior to her death Veeri had taken 20 rupees, spent 2 rupees and returned 18 rupees to her father, on which accused Kherayat the father charged her with having stolen 100 rupees more. She denied that she had taken Rs. 100/-. But the accused entertained a suspicion that she had stolen Rs. 100/-. PW 5 Veena further deposed that sometime before the incident her mother was driven out of her house. She also deposed that the accused had slapped the deceased a day prior to the incident on the suspicion of theft and because of that suspicion alone he had killed Veeri. In her cross-examination, it was brought out that she was living in a Gurudwara at Dhalewala alongwith her mother after the incident. After the incident she had gone to her maternal grand-father's place in Dhalewala and after two days her mother took her away from there. In her cross-examination she was not shaken on the main incident. She was asked about the omissions in her statements Under section 161 Criminal Procedure Code about presence of Baljindra Singh on the spot and about Veeri having taken 20 rupees and returned 18 rupees to her father. She replied that because she was not asked she did not tell the police about that. There were other minor omissions and contradictions pointed out which had no serious bearing on the main incident or the veracity of this witness and her overall statement is reliable and trustworthy. 4. She replied that because she was not asked she did not tell the police about that. There were other minor omissions and contradictions pointed out which had no serious bearing on the main incident or the veracity of this witness and her overall statement is reliable and trustworthy. 4. Sukhvindra Singh PW 6 is the son of the deceased and according to PW 5 Veena was also present at the spot and was, therefore, an eye-witness to the incident. He was 11 years old and the Court noted that he is not able to distinguish between truth and falsehood and, therefore, he was not given oath. In his statement he stated that his father's money was stolen three months back and his sister Veeri had also died three months back. When she died he was in the house, his father was in the house and his sister Veena was also there but had gone to fetch water. When she did not come home the witness went out to look for her. When he returned many people had collected there and were saying that Kherayat Singh, his father had killed Veeri. He said that he did not know why Veeri was killed. He also did not know whether his father had killed Veeri or not. He further stated that his father had not assaulted Veeri in his presence. This witness was declared hostile and was cross-examined by the prosecution. When confronted with his statement Under section 161 Criminal Procedure Code the witness denied to have given such statements to the police. It is clear from the statement of this witness that he is not prepared to state anything against his father. He was residing with his father's sister and it appears that because of that he was not ready to speak the truth. He had admitted that he was living with his father's sister and had come to the Court with her a day prior and he and his father's sister had met his father. In any case he admits that when immediately after the incident he come there people were alleging that Kherayat Singh had killed Veeri. 5. Baljindra Singh has not been examined by the prosecution and it appears that he was also a child witness. 6. In any case he admits that when immediately after the incident he come there people were alleging that Kherayat Singh had killed Veeri. 5. Baljindra Singh has not been examined by the prosecution and it appears that he was also a child witness. 6. PW 1 Mangal Singh S/o Labh Singh, PW 2 Mangal Singh S/o Gurcharan Singh, PW 3 Gurcharan Singh, PW 4 Mahendra Singh are the witnesses who had reached the spot immediately after the incident. PW 8 Mani Ram is the Investigating Officer. PW 9 Dr. K.N. Markande is the medical expert. All of them have supported the prosecution case. 7. Accused Kherayat Singh took a defence of false implication by his wife's family. He had no explanation about how Veeri had died and pleaded that he had gone to his field in the morning and when he returned at about 4-5.00 p.m. Mahendra Singh, Gurcharan Singh, Mangal Singh and the brother-in-law of Sarpanch were standing in front of his house. When he asked the Sarpanch what was the matter he alleged that the accused had killed his daughter on which the accused denied that he had killed his daughter, but they caught him and handed over to the police. He also took a plea that Veena used to live with her mother and not with him. 8. The learned counsel for the appellant contended that the entire case was concocted and even the FIR was lodged after pre-meditation. He submitted that when the incident is said to have taken place at 1.00 p.m., the FIR was lodged at 7.30 a.m. the next morning when the Police Station was only 6 kilometers away. The contention is without force. In a matter like this when the offence is committed by the father, his young children cannot be expected to rush to the police themselves immediately. Since they were threatened, at about 5.00 p.m. only Veena could disclose the fact to the neighbours and thereafter if the Sarpanch pleads that he was pre-occupied therefore, he did not report the matter in the night, the complainant party cannot be blamed and it cannot be said that the delay is unexplainable. Since they were threatened, at about 5.00 p.m. only Veena could disclose the fact to the neighbours and thereafter if the Sarpanch pleads that he was pre-occupied therefore, he did not report the matter in the night, the complainant party cannot be blamed and it cannot be said that the delay is unexplainable. It was also contended that the FIR was lodged after investigation had started and reliance was placed on the statements of PW 1 Mangal Singh, PW 2 Mangal Singh, PW 3 Gurcharan Singh who had stated that the police had reached the spot at the night of the day of the incident itself. It is true that the aforesaid three witnesses had stated that police had reached the spot on the day of the incident when PW 4 Mahendra Singh Sarpanch had stated that though he had reached the Police Station at 8.00 p.m. he did not find the SHO there or his deputy. He stayed in the Police Station itself and in the morning at 8 O'clock the SHO met him and he lodged the report. PW 4 Mahendra Singh was also contradicted on his statement about his staying over night in the Police Station as in the FIR he had stated that he could not come to the Police Station during the night because there was no conveyance. He stated to have made the statement through inadvertence. All these things point out slackness on the part of the investigation, but it cannot be said that the entire case has been concocted against the accused. Though the accused has alleged that these witnesses were enemical towards him, but there is no evidence of any such bad blood between the parties that these three witnesses and the daughter of the accused himself would be prepared to implicate him in a false case of murder. There is no reason for atleast PW 5 Veena to falsely implicate her father in the murder of her own sister. There was no explanation as to who could have been interested in killing a child of 9 years and with what motive. It was further contended that there was no medical evidence about strangulation and that part is not there in the FIR also. There was no explanation as to who could have been interested in killing a child of 9 years and with what motive. It was further contended that there was no medical evidence about strangulation and that part is not there in the FIR also. When we read the evidence carefully the allegation is not that the girl was strangulated, she was only hanged by her neck and she fell down because the rope slipped. Medical evidence is clear that the injury could have been caused in the manner in which it was alleged to have been caused by the prosecution. 9. In the result we find no reason to disbelieve the testimony of PW 5 Veena. The entire evidence read as a whole supports the conclusion that the accused was guilty and we find that he was responsible for the death of his daughter. 10. The question which was vehemently argued in this case was whether the offence committed by the appellant would fall Under section 302 Indian Penal Court or Under section 304(2) of the Indian Penal Court. When we reconstruct the scene before our eyes what we find is that the accused was over exercised by the theft of money and he suspected the deceased to have committed the same. It is not clear as to whether he was more worried about the loss of money caused to him or about his daughter getting bad habits. He, however, tried to extract a confession from her. It appears that for this purpose he first hanged her on the ceiling and beat her. It is also clear that that hanging could not have been with the intention to kill her because the rope was tied in such a fashion that it slipped. He did not try to hang her again, but while she was lying down on the floor he pressed a wooden pole against her throat. This may be a inhuman method of torture, but given the background in which the accused seems to have been brought up, even this could not have been said to be done with the intention to kill. This may be a inhuman method of torture, but given the background in which the accused seems to have been brought up, even this could not have been said to be done with the intention to kill. It appears to be clear that the accused never intended to cause death of his daughter nor did he have any intention to cause such bodily injury as was likely to cause death of the deceased or which was sufficient in the ordinary course of nature to cause death. The question now remains as to whether the accused could be said to have known that the act which he was committing was so eminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The medical evidence in the case shows that the death was caused by injury No. 5 which was a contusion four inches by three inches on the throat and which had caused internal injuries of haemorrhage in throat muscels and fracture of hyoid bone. How much force was used for causing injury is not known from the medical evidence. It is also possible that without intending to press the wooden pole with much force accidently it got pressed to the extent of causing death. In such circumstances, looking to the overall situation, the case may fall Under section 304(2) of the Indian Penal Code as certainly the accused had knowledge that pressing a wooden pole against the throat of a young girl was likely to cause her death. 11. We, therefore, partly allow the appeal. Alter the conviction to Section 304(2) of the Indian Penal Code and impose the sentence of five years rigorous imprisonment. If the appellant has already undergone that he shall be released forthwith if his detention is not required in any other case.Appeal Partly Allowed. *******