Judgment B.N.P.Singh, J. 1. Appellants along with one Kumari were charged for the offence under Secs. 323, 447 and 304 of the Indian Penal Code (IPC). However, trial Court on appreciation of evidences placed on record, while acquitted Kumari of all the charges, acquitted Shankar Sahni and Reshmi of the charges under Sec. 304. IPC. The trial Court found Jaddu Sahni guilty under Secs. 304, 323 and 447. IPC for which he was sentenced to suffer Rigorous Imprisonment for four years under Sec. 304, IPC. As for conviction under Sec. 323, IPC, he was sentenced to suffer imprisonment for 15 days and for his conviction under Sec. 447. IPC, no sentence was imposed on him. Along with Jaddu Sahni. Shankar Sahni and Reshmi also suffered conviction under Secs. 323 and 447, IPC. However, trial Court instead of sentencing Shankar Sahni and Reshmi to any substantive Imprisonment, released them on admonition under Sec. 3 of the Probation of Offenders Act. In case of Jaddu Sahni, both the sentences were directed to run concurrently. 2. Shorn of details, prosecution case was that at about 10 a.m. on 26th July. 1988, while Bujhawan Baitha (PW 6) was sleeping with Sheela a minor girl aged about 2-1/2 years, on a machan, appellants came along with Kumari and did assault him suspecting him to be a witchcraft. It was alleged that while wife of Jaddu Sahni caught hold of him. Kumari dealt blows with wooden substance. Accusations attributed to Jaddu Sahni was that he pulled down him holding his legs from the machan, pursuant to which both Shankar Sahni and Jaddu Sahni assaulted him with fists and slaps and in that process Sheela got pressed. Alarm raised by him attracted villagers and while Sheela was being taken for medical aid. She breathed her last and on strength of statement of Bujhawan Baitha. First Information Report was drawn up at Sahiyara Police Station, pursuant to which investigation commenced. Alarm raised by him attracted villagers and while Sheela was being taken for medical aid. She breathed her last and on strength of statement of Bujhawan Baitha. First Information Report was drawn up at Sahiyara Police Station, pursuant to which investigation commenced. In the process of collection of evidences Police visited place of occurrence, prepared inquest report over the dead-body of Sheela in presence of Ram Prasad Baitha and Sitaram Baitha, sent the dead-body for post-mortem examination and on receipt of post mortem report and on conclusion of investigation laid charge sheet before the court and applicants along with Kumari on their committal to the Court of Session were put on trial a the trial Court on consideration of evidence placed on record while acquitted Kumari of all the charges, rendered verdict of guilt against the appellants and sentenced them in the manner stated above, which is being assailed in this appeal. 3. For making meticulous appreciation of the findings recorded by the trial Court, it is apt to delve upon the testimony of witnesses rendered by them at trial, and one would find Bujhawan Baitha (PW 6) reiterating his early version with some variations which he rendered before the Police to set it in motion, about the appellants and Kumari assaulting him when Sheela got pressed and before any medical aid could be made available to her, she succumbed to the pressure sustained by her. Ram Prasad Baitha (PW 1) stated to have learnt about the incident from Makodhan Devi (PW 2) and the latter too stated to have noticed her father-in-law lying injured in the house who was pulled down and assaulted by the appellants and one Kumari, Narrations in similar terms about the incident were rendered by Sitaram (PW 3) also. Since Panwa Devi (PW 4) and Mahendra Ram (PW 5) were tendered by the prosecution, there was nothing material in their evidences to merit consideration. Dr. Satish Chandra Sinha (PW 8) stated to have clinically examined Bujhawan Baitha and noticed bruises 1" x 1" on left eye brow caused by hard and blunt substance. The injury in estimation of the doctor was simple in nature and was also superficial. Dr. Luxman Jha (PW 7) stated to have held autopsy over the dead-body of Sheela, a minor girl aged about 2-1/2 years. The injury in estimation of the doctor was simple in nature and was also superficial. Dr. Luxman Jha (PW 7) stated to have held autopsy over the dead-body of Sheela, a minor girl aged about 2-1/2 years. Positive finding of the doctor was that there was no evidence of any external injury on her body nor there was any evidence of pressure mark on the face or neck, nor any string mark around the neck. The whole body looked ill-nourished, dehydrated and emaciated. The examination of lungs revealed evidence of pool of tuberculosis at multiple sites specially the upper lobes. There was a definite cavity in the lung on the right side and in the opinion of the doctor, the diseases must have been there for quite some time, and the cause of death in the opinion of the doctor was exhaustion as a result of various disease process, she was suffering from before. This is all the evidence that has been adduced on behalf of the State to bring home charges against the appellants. 4. Findings recorded by the trial Court are sought to be assailed by the learned counsel for the appellants, who appeared as amicus curiae, primarily on two premises. It is sought to be urged that though Jaddu Sahni suffered conviction under Sec. 304, IPC on the solitary testimony of Bujhawan Baitha, who claimed to be ocular witness, as he was being shown as stamped witness, narrations made by said Bujhawan Baitha at trial suffered major discrepancy, if his statement rendered before the Police at the earliest opportunity was taken into consideration, and in quick succession, it is urged that while in his early version, said Bujhawan Baitha, without making any explicit accusation against appellant Jaddu, stated that Sheela died on getting pressure, at trial some embellishments were sought to be introduced making Jaddu Sahni answerable for the death of the deceased, as it is stated in the evidence, that Sheela got pressed under the leg of the appellant Jaddu Sahni, and on these premises it is urged that the solitary testimony of Bujhawan Baitha deserves rejection. The next limb of argument canvassed on behalf of the appellant was that taking the prosecution version to be true about Sheela having died due to some sort of pressure during the incident, the findings recorded by the doctor was quite otherwise, as in most uncertain terms, the doctor would state before the Court that there was evidence of the minor baby having suffered fatal disease like tuberculosis, there being cavity in lung in the right side, and the disease, in the opinion of the doctor, must have been for quite some time. Learned counsel would urge that to crown all, cause of death in the opinion of the doctor was not due to any pressure on the body of the deceased but it was due to exhaustion and as a result of various disease-processes, she was suffering from before. Contentions were raised that due regard being had to the evidences placed on record and also the positive finding recorded by the doctor, appellant Jaddu could not have been credited either with the intention or knowledge that the death was the consequent result though it was not directed to the minor baby, of the over tact allegedly committed by him. 5. Without going into much of details and regard being had to the nature of discrepant statement of Bujhawan Baitha, ostensibly to make Jaddu Sahni answerable for death of minor baby and also positive findings recorded by the doctor, one cannot be persuaded to come to a conclusion that over tact attributed to appellant Jaddu Sahni was clothed either with intention or knowledge that by such act either death was the consequence, or such bodily injury, which might have resulted in death. If the findings recorded by the doctor was given due consideration, death of the minor baby was due to various diseases from which she was suffering from before and in that view of the matter, the finding recorded by the trial Court finding appellant Jaddu Sahni guilty under Sec. 304, IPC could not be sustained in law, as he cannot be made answerable for the death of the deceased. The findings recorded by the trial Court against appellant Jaddu Sahni finding him guilty under Sec. 304, IPC is accordingly set aside and he is acquitted of the charges. The findings recorded by the trial Court against appellant Jaddu Sahni finding him guilty under Sec. 304, IPC is accordingly set aside and he is acquitted of the charges. As for conviction of the appellants under Sections 323 and 447, IPC, appellants were sentenced to suffer imprisonment for 15 days under Sec. 323, IPC imposing no sentence under Sec. 447, IPC. Learned counsel would urge that appellant Jaddu Sahni, against the sentence of 15 days imposed by the trial Court under Sec. 323, IPC, remained in custody for 16 days and in that view of the matter while upholding the conviction of the appellants under Secs. 323 and 447. IPC, appellant Jaddu Sahni is sentenced to the period already undergone by him and with these modifications, this appeal is allowed in part. Appellant Jaddu Sahni is discharged from the liability of bail bonds.