JUDGMENT Honble M.K. Mittal, J.—This appeal has been filed by Mohd. Ahmad son of Sekh Jalil, resident of Mohalla Rampur, P.S. Fire 20 Coz, District Arhariya, Bihar at present resident of Care Mustaque Ahmad 12 Ft Road, Mohalla Shyam Nagar, P.S. Lisari Gate, District Meerut against the judgement and order dated 29.6.2006 passed by Sri R.C.Mishra Addl. Sessions Judge, Court No. 7, Merrut in S. T. No. 308 of 2004 whereby he has been found guilty and convicted under Section 304(II) IPC and has been sentenced to undergo rigorous imprisonment for five years. 2. Heard Sri S.S. Shah, learned Counsel for the appellant, Sri S. L. Kesharwani, learned Counsel for the State and perused the trial Court record. 3. Brief facts of the case as unfolded in the first information report Ex-Ka-1 lodged by Smt. Shahnaz are that she was married about five years prior to the incident with the accused appellant Mohd. Ahmad. She also gave birth to a son named Azam who was about two years old at the time of the incident. Accused used to beat his son often. On 1.2.2004 in the morning at about 10 a.m. informant asked her husband for purchasing some clothes for the son on the occasion of Idfestival but it annoyed the accused and he threw him on the ground as a result of which he received injuries. He was taken to private doctor who gave some medicines but same day in the night at about 11 p.m. her son died. She gave information to her father and thereafter getting the report scribed by Sharif Khan lodged the same at P.S. Lisari Gate at 4.45 a.m. 4. On 2.2.2004 constable clerk Rakesh Kumar was posted at police Station and on the basis of the first information report he prepared the check report Ex-ka-4 and registered the case in the general diary at rapat No. 4 at 4.45 p.m. same day. Its copy is Ex-Ka-5. These papers have been proved by Sub Inspector Rajiv Kumar, P.W.-5 who also investigated the case. He came to the place of occurrence and prepared inquest report Ex-ka-2 and other relevant papers. He interrogated the witnesses and inspected the place of occurrence and prepared the site plan Ex-Ka11. After completing the investigation charge sheet was submitted which is Ex-ka-12. 5. These papers have been proved by Sub Inspector Rajiv Kumar, P.W.-5 who also investigated the case. He came to the place of occurrence and prepared inquest report Ex-ka-2 and other relevant papers. He interrogated the witnesses and inspected the place of occurrence and prepared the site plan Ex-Ka11. After completing the investigation charge sheet was submitted which is Ex-ka-12. 5. Doctor M.K.Gulati, P.W.-4 was posted as Medical Officer in District Hospital, Meerut and he conducted the post mortem examination of deceased Azam on 2.2.2004 at 3 p.m. The dead body was brought by constables Mahfooz Ali and Subhash Sharma. At the time of examination, rigour mortis was present all over the body. He found the following anti mortem injuries on his person : (i) contusion (black eye) over right upper eye lid 4 cm X 2 cm; (ii) abraised contusion 2.5 cm X 0.5 cm over right cheek and (iii) Traumatic swelling over top and back of head 20 cm X 10 cm. 6. On internal examination doctor found that the right and left temporal bones were fractured. Occipital bone was also fractured. Membrane of the brain was ruptured and there was clotted blood under the membrane. According to doctor cause of death was shock and haemorrhage as a result of anti mortem injury. Doctor prepared post mortem report at the time of examination and proved it Ex-ka-3. According to Medical Officer injury could have been caused on 1.2.2004 at about 10 a.m. and the death could have been caused at 11 p.m.. He also stated that if deceased was thrown with force on the ground the injuries could have been caused. 7. Case was committed to the Court of Sessions by order dated 22.3.2004 passed by the learned C.J.M., Meerut. Accused was charged on 26.4.2004 under Section 304 IPC. He pleaded not guilty and claimed trial. 8. In support of its case, prosecution led evidence and examined Smt. Shahnaz P.W.-1, Smt. Amnool, P.W.-2, Chand Babu, P.W.-3 besides above noted formal witness. 9. Accused was examined under Section 313 Cr.P.C. and he denied the prosecution case and stated that his son was playing on the roof of the house and he fell down the stair case and received injuries and at that time his wife was not present. He did not kill his son. Accused also examined Smt. Akramnisha as D.W.-1. 10. 9. Accused was examined under Section 313 Cr.P.C. and he denied the prosecution case and stated that his son was playing on the roof of the house and he fell down the stair case and received injuries and at that time his wife was not present. He did not kill his son. Accused also examined Smt. Akramnisha as D.W.-1. 10. Learned Trial Court after considering the evidence on record came to the conclusion that the accused had thrown his son and as a result there of he received injuries and died. But according to learned Trial Court accused had no intention to kill but had knowledge that if some body is thrown on the ground he can die. Consequently he found him guilty and convicted him under Section 304 (II) IPC and sentenced as aforesaid. Feeling aggrieved this appeal has been filed. 11. Learned Counsel for the appellant has contended that the prosecution has not been able to establish its case beyond reasonable doubt and the learned Trial Court has erred in convicting the appellant on the basis of the single testimony of Smt. Shahnaz wife of Mohd. Ahmad, the accused appellant. According to learned Counsel for the appellant Smt. Shahnaz was aggrieved with the accused and has not stated the correct fact. According to him the child fell down from the roof on the stair case and received injuries. He has also contended that the accused has already been in jail for more than three and half years and that in any case he had no intention or knowledge that his act would result in the death of his child. Against it, learned A.G.A. has contended that Smt. Shahnaz, P.W.-1 wife of the accused and mother of the deceased, is wholly reliable witness and there is nothing in her statement to show that she is not speaking the truth. He has also contended that had the child fallen down from stair case, there was no occasion for the wife to implicate her husband in this case. He has also contended that the defense version that the child fell down from the stair case is not correct and is after thought case. A suggestion was given to Smt. Shahnaz that she threw the child on the ground when the accused did not allow her to go to her maika on the occasion of Id and wrongly implicated her husband. 12. A suggestion was given to Smt. Shahnaz that she threw the child on the ground when the accused did not allow her to go to her maika on the occasion of Id and wrongly implicated her husband. 12. It will be relevant to mention here the statement of P.W.-1 Smt. Shahnaz as given by her on oath. She stated that the accused Mohd. Ahmad is her husband. She was married with him about five and half years back and gave birth to a son after about three years of the marriage. He was named as Azam. At the time of the incident she was living in her sasural although the child was born at the house of her father because the accused did not keep her well and her father had taken her about eight days prior to the delivery. After two years of the birth of the child her husband and mother in law had taken her back. One day prior to Id she asked the accused to bring clothes for her son. Earlier there were no talks. Accused threw her son first on the cot and then on the floor and because of this he received injuries in his head and eye. At that time, her mother in law had gone to market but her bua Smt. Amnool was present. After about ten minutes, mother in law also came back and she and her mother in law took the child to doctor who gave some medicines and she returned home. But in the night at about 11 p.m. her son died. Information was sent to her father who came and she narrated the incident and thereafter went to lodge the report. She proved the report Ex-Ka-1. In cross-examination she has stated that when her husband had turned her out of house, she had gone to her maika but no report was lodged at the police station as she was expecting that they could live together. Her husband was working as labourer in Meerut. After marriage her husband had not brought any clothes for her. She was living in a rented house with her husband and mother in law. While dictating the report, she had also stated that her son was first thrown on the cot but if that fact has not been written it must have been missed by the scribe. After marriage her husband had not brought any clothes for her. She was living in a rented house with her husband and mother in law. While dictating the report, she had also stated that her son was first thrown on the cot but if that fact has not been written it must have been missed by the scribe. She had also told this fact to the Investigating Officer but if it is not in the statement she could not explain. Mohd. Ahmad had thrown Azam twice and because of the injuries head had become soft. Police had also come to her house before the report was lodged. Her father also came when he received information. She denied the suggestion that on 1.2.2004 she wanted to go to her maika and was insisting for that and when her husband and mother in law did not agree she threw her son on the paya of the cot. She also denied the suggestion that the accused did not throw her son on the cot and the floor. She also denied the suggestion that she herself threw the child on the cot and then went to the house of her bua. She also denied the suggestion that she wanted to keep her husband at the house of her father and that she in collusion with the police falsely implicated her husband. 13. In this case Smt. Amnool P.W.-2, bua of informant has not supported the prosecution case and has stated that accused did not throw Azam in her presence. 14. Chandbabu P.W.-3 is the father of informant and he has also stated that on the date of the incident it was Bakra Id festival. He did not know if the accused used to beat his son because he lived outside. In the case, report was prepared in his presence. 15. Smt. Amnool and Chandbabu have been cross examined by the prosecution as they did not support the case. However, the statement of informant P.W.-1 as has come on record shows that she has given a positive version that the accused threw her son on the cot and on the floor as a result of which he received injuries. Medical evidence also shows that one injury was on the back of the head whereas two injuries were on the front side of the face and they could have been caused by more than one throw. Medical evidence also shows that one injury was on the back of the head whereas two injuries were on the front side of the face and they could have been caused by more than one throw. 16. Learned Counsel for the appellant has contended that the fact that child was thrown first on the cot has not been mentioned in the first information report and was also not stated by the witness to the investigating officer and that it is a subsequent development and that the incident did not take place in the manner as alleged by the informant. But there is no material improvement in this case as the fact remains that the child was thrown by the accused on the ground as he was annoyed when the informant asked him to bring clothes for the boy on Id festival. It is not disputed that the child died as a result of head injuries. According to defense case as put to the informant it was she who had thrown the child on the cot and the ground. Subsequently the defense version was changed and it was introduced that the child while playing on the roof of the house fell down the staircase and received injuries. This defense case has not been suggested to the informant. Although it is open to the accused to take any defense but the change in the defense version in the circumstances of the present case is material. Moreover the defense case that the child fell down the stair case is also not corroborated by the medical evidence. Doctor Gulati P.W.-4 has stated in cross-examination that if a child falls from the stair case, injuries as caused were not possible. According to him if the child falls on the first steps and then on the last step, the injuries could be caused if the number of steps is large. Injury No. 2 could be caused by first fall and injury No. 3 by the second fall. But it is not probable that the child would fall only on first and last step of the stair case because if on fall one rolls down almost on all the steps in the staircase. Therefore the defense version as taken is not probable and has been rightly disbelieved by the learned Trial Court. 17. But it is not probable that the child would fall only on first and last step of the stair case because if on fall one rolls down almost on all the steps in the staircase. Therefore the defense version as taken is not probable and has been rightly disbelieved by the learned Trial Court. 17. Learned Counsel for the appellant has also contended that the relations between the accused and his wife were not cordial and therefore he has been falsely implicated in this case. It appears that in the initial stage of their married life, relations were not cordial but subsequently the matter appears to have been settled and the informant was taken by the accused and his mother to their place and she was living there. Therefore it cannot be said that the relations between the two were not cordial. Even if for arguments sake, it is found that relations were not very cordial there is no ground for the informant to have falsely implicated her husband for the death of his son, if he had not thrown him as alleged by her. Even the accused gave up the first defense version that she had thrown the child and therefore there could be no reason for his false implication. The statement of the informant is very natural and probable and there is no reason to discredit her testimony. 18. Thus I come to the conclusion that the learned Trial Court has rightly concluded that the accused threw his son on the ground knowing that this act would result in his death. Accused has been rightly convicted under Section 304(II) IPC. 19. Learned Counsel for the appellant has contended that he has already passed three and half years in jail and that he be sentenced with the period already undergone. But the learned Counsel for the State has contended that the accused has killed his two years old son and that the learned Trial Court has already taken a lenient view by sentencing him with five years and that no further leniency is required in this matter. 20. Considering the facts and circumstances of the case, I do not find any ground to interfere in the sentence as awarded. Therefore, this appeal is liable to be dismissed. The conviction and sentence as awarded to the accused is hereby confirmed and the appeal is hereby dismissed. 21. 20. Considering the facts and circumstances of the case, I do not find any ground to interfere in the sentence as awarded. Therefore, this appeal is liable to be dismissed. The conviction and sentence as awarded to the accused is hereby confirmed and the appeal is hereby dismissed. 21. Copy of the order be certified to the learned Trial Court within seven days. ———