JUDGMENT Rajiv Sharma, Judge. Appellant (hereinafter referred to as the “accused”) has instituted this appeal against the judgment dated 29.10.2007 rendered by the Additional Sessions Judge-II, Kangra at Dharamshala in Session Case No. 19-G/VII/2002 whereby accused, who was charged with and tried for offences under sections 304 (ii) and 323 of the Indian Penal Code has been convicted and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 10,000/- under section 304 (ii)) of the Indian Penal Code and in default of payment of fine, he was ordered to further undergo simple imprisonment for one year. He was also sentenced to undergo imprisonment for six months under section 323 of the Indian Penal Code with a fine of Rs. 1,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for one month. Both the sentences were to run concurrently. 2. Case of the prosecution, in a nutshell, is that PW-2 Kusam Lata wife of Surinder Kumar made a statement under section 154 of the Code of Criminal Procedure on 21.9.2000 stating therein that she is resident of the village. She had gone for grazing her cow on the road side. When she was grazing her cow on the road side, accused lifted stones from the road side and pelted over her. The stones hit her and her daughter, who was in her lap. They received injuries. She raised hue and cry, on which Sunil Pal came on the spot. Accused ran away from the spot. Thereafter, she took her daughter to private doctor at Shard Dogri. The doctor advised her to get her medically examined. She came back to her house and in the evening disclosed everything to her husband. She gave local treatment to her daughter. When the daughter did not recover, her husband took her on 19.9.2000 to Dehra Hospital. Raksha Devi died as a result of injuries and her husband brought the dead body of her daughter to the house. She was buried in the evening. Her husband telephonically informed Gaya Prashad resident of Jawalamukhi to inform the police. Police came on the spot and recorded her statement under section 154 of the Code of Criminal Procedure. Thereafter, FIR was registered against the accused. She was buried in the evening. Her husband telephonically informed Gaya Prashad resident of Jawalamukhi to inform the police. Police came on the spot and recorded her statement under section 154 of the Code of Criminal Procedure. Thereafter, FIR was registered against the accused. The matter was investigated by the police and challan was put up in the court for offences punishable under sections 304 (ii) and 323 of the Indian Penal Code. 3. Prosecution examined as many as 13 witnesses in all to prove its case against the accused. Accused was examined under section 313 of the Code of Criminal Procedure. He has denied the prosecution case. According to him, witnesses being inimical have deposed against him. Learned Additional Sessions Judge has convicted and sentenced the accused as stated hereinabove. 4. Mr. Anup Chitkara has vehemently argued that the prosecution has miserably failed to prove its case against the accused. 5. Mr. Shrawan Dogra, learned Advocate General has supported the judgment passed by the learned Additional Sessions Judge. 6. PW-1 Dr. Suman Dhiman has deposed that the police moved an application to S.M.O. Dehra for conducting the post-mortem of Raksha Devi. She was 3½ years old. On 22.9.2000, as per written order from the Sub Divisional Magistrate, Dehra, they reached the village Shard Dogri. The dead body was exhumed from the grave at about 1.45 P.M. in presence of Sh. S.N. Sharma, Naib Tehsildar, Dehra, Pardhan Chand, S.I. Police Station, Jawalamukhi. The dead body was found wrapped in a white cloth. She found neither any external injury nor ligature marks on her body. According to her opinion, deceased died due to head injury with sub dural haematoma. Time between death and injury could not be ascertained. Duration between death and post-mortem was between 2-4 days. Post-mortem report Ex.PW-1/B was issued. She signed the same. On the application presented by the police vide Ex.PW-1/C dated 18.5.2001, both the doctors gave their opinion. They have opined that the injuries were ante-mortem. Inquest report Ex.PW-1/D was also signed by her and Dr. Puran Chand. In her cross-examination, she has admitted that she has not specifically mentioned in Ex.PW-1/B that injury was ante-mortem in nature. This opinion was given to the police in the month of May, 2001. Voluntarily stated that she has given the opinion that deceased died due to head injury with sub dural haematoma. Puran Chand. In her cross-examination, she has admitted that she has not specifically mentioned in Ex.PW-1/B that injury was ante-mortem in nature. This opinion was given to the police in the month of May, 2001. Voluntarily stated that she has given the opinion that deceased died due to head injury with sub dural haematoma. She did not preserve vicera of the deceased for chemical examination to rule out the possibility of death due to some other cause. She reiterated in her cross-examination that she did not found any external injury on the dead body. She has also admitted that bruises, haematoma and post-mortem staining look alike by external appearance. She did not agree that external injury was bound to be caused if hit by blunt object. She has also denied the suggestion that by hitting with the stone there should be external injury on the skull. She has admitted that she was not specialized in forensic medicines. She has also admitted that there was no fracture on the skull. 7. PW-2 Kusam Lata has deposed that she was grazing her cow by the side of road at about 11.00 A.M. She was also carrying her daughter Raksha Devi, who was three years old. In the meantime, accused came on the spot and asked her not to graze her cow by the side of the road. She replied that she was grazing her cow in her own land. Accused picked up the stone and hit her with it. The stone also hit on the chest and head of her daughter. She sustained injury on her head and heap. One Sunil reached on the spot. She has taken her daughter to doctor in village Shard Dagri. He advised her to get her medically examined. She brought her daughter to her house. She narrated the incident to her husband. On 19.9.2000, daughter was taken to Civil Hospital, Dehra. Raksha Devi was declared dead at 1.00 P.M. She was taken to village and was buried. Matter could not be reported to the police since the accused threatened to kill her family members. She reported the matter to the police vide Ex.PW-2/A. On 24.9.2000, police visited the spot and she was associated by the police during investigation. Police took some stones in possession and the same were sealed in a parcel. Seizure memo Ex.PW-2/B was prepared. Matter could not be reported to the police since the accused threatened to kill her family members. She reported the matter to the police vide Ex.PW-2/A. On 24.9.2000, police visited the spot and she was associated by the police during investigation. Police took some stones in possession and the same were sealed in a parcel. Seizure memo Ex.PW-2/B was prepared. She has identified the stones Ex.P-1 to Ex.P-7, which were taken into possession by the police. She was also medically examined. In her cross-examination, she has deposed that police recorded her statement vide Ex.PW-2/A. Her Jeth, namely, Joginder was with her. Police recorded the statement as per statement of Joginder. She has admitted that on one side of the road, there is a Kharetar. Accused had told her not to graze the cow in his Kharetar. Accused pelted 10-15 stones. She had gone towards her house when accused was pelting stones. Blood started oozing out from the head of her daughter. Her clothes and clothes of her daughter were soiled with blood. She did not know whether she disclosed to the police that accused threatened her or not (confronted with her statement Ex.PW-2/A, where it was not so recorded). She has admitted that fields of Sunil are at a considerable distance. Sunil is nephew of her husband. Her fields are uncultivated and are by the side of Kharetar of accused. She has admitted that nothing would be visible or audible from the place of occurrence to a person who was present in the fields of Sunil. She had given Kadu (herbal tea) to her daughter. She has denied the suggestion that she has given the stones from the heap of stones. She has handed over those stones to the police, which were pelted by the accused. 8. PW-3 Dr. Sunita Kundu has issued MLC of PW-2 Kusam Lata vide Ex.PW-3/A. She has noticed the following injuries on her person : 1. Haematoma measuring 6 cmx4cm in right thigh, bluish in colour, painful. 2. Patient complaint of pain on right side of the chest. No external injury seen. 3. Haematoma measuring 3cmx2cm on right side of scalp. 9. She has specifically opined that I.Q. of PW-2 Kusam Lata was below normal, i.e. low I-Q mental retardation. All the injuries were simple in nature caused with blunt weapon. 10. PW-4 Gaya Prashad has deposed that he was running a guest house. No external injury seen. 3. Haematoma measuring 3cmx2cm on right side of scalp. 9. She has specifically opined that I.Q. of PW-2 Kusam Lata was below normal, i.e. low I-Q mental retardation. All the injuries were simple in nature caused with blunt weapon. 10. PW-4 Gaya Prashad has deposed that he was running a guest house. On 21.9.2000, his Sadhu, namely, Satish Kumar telephonically informed him that daughter of his cousin, namely, Surinder Kumar, who was hit with stone by the accused, has died on 19.9.2000 and buried. He informed the police on 21.9.2000. In his cross-examination, he has deposed that he informed the police over telephone. He also visited the Police Station at 12.00 noon. Police had written something on his information. He did not recollect if his signatures were obtained. He has denied the suggestion that neither he received the telephone call nor he informed the police. He has also deposed that relations between Satish Kumar and accused could be strained. He has admitted that Satish Kumar had filed a complaint in the Police Station against accused regarding indecent behaviour with his daughter. 11. PW-5 Ghunghar Ram has deposed that he went to the spot alongwith police and Naib Tehsildar. The girl was taken out from a grave. Memo Ex.PW-5/A was prepared to this effect. Dead body was handed over to Surinder Kumar vide memo Ex.PW-5/B. 12. PW-6 Sunil Pal has deposed that he was cutting the maize crop from his fields on 14.9.2000 at about 12.30 P.M. He heard the cries. When he reached the spot, accused Ramesh Chand was coming back from the spot. He went to Kusam Lata. He asked her what has happened to her daughter. She told that accused beaten her with stones. He saw that there was injury on the head of deceased Raksha Devi. He advised her to take the daughter to home and tell about the incident to family members. He went back to his fields. In his cross-examination, he has deposed that blood was oozing out from the injury, but it was less in quantity. He has denied the suggestion that nothing would be visible from the place of occurrence to a person, who was standing in his fields. It took him about five minutes to reach the spot. Kusam Lata remained on the spot for about 4-5 minutes after he reached there. He has denied the suggestion that nothing would be visible from the place of occurrence to a person, who was standing in his fields. It took him about five minutes to reach the spot. Kusam Lata remained on the spot for about 4-5 minutes after he reached there. He has also admitted that Satish Kumar is related to Surinder Kumar being his nephew. He was aware that Satish Kumar had filed complaint with the police against accused regarding indecent assault on his daughter and regarding giving poison by the accused to his cattle. 13. PW-7 Surinder Kumar has deposed that accused pelted stones on his wife and daughter Raksha Devi. His daughter was hit on head and chest. His wife was hit on hip. She has narrated the incident to him. She has taken his daughter to a doctor, namely, Dalip Singh. Doctor had advised his wife that injured should be shifted to Government Hospital for treatment. She was taken to Government Hospital from where she was referred to Dharamshala and his daughter breathed her last on way to Dharamshala near Ranital. He was alone with the child. He took her back. He buried his daughter in the field. Accused threatened him that he has killed the child and was going to kill his family members. He narrated the incident to his relative Gaya Prashad, President Jawalamukhi. He informed the police over telephone and the police came to his house. In his cross-examination, he has deposed that he was not present on the spot when his wife and daughter were hit by the accused. Voluntarily stated that his brother was present on the spot. His brother had arrived on the spot after hearing cries of his wife and daughter. He was told about the incident by his brother as well as by his wife. His statement was recorded by the police during investigation. He did not narrate to the police about the threats advanced by the accused to him and his family members. He has disclosed this fact for the first time in the Court. He disclosed the incident to his relative Gaya Prashad over telephone. He alongwith Gaya Prashad went to the Police Station and the police registered his report but no such report has been shown to him in the court. He had seen head injury on her daughter. There was slight blood on the injury. He disclosed the incident to his relative Gaya Prashad over telephone. He alongwith Gaya Prashad went to the Police Station and the police registered his report but no such report has been shown to him in the court. He had seen head injury on her daughter. There was slight blood on the injury. It was swollen. He applied local medicine. His daughter was not able to speak anything. He has admitted that Satish Kumar is the son of his maternal uncle. He has also admitted that Satish Kumar had filed a criminal case against the accused before the police about indecent behaviour of accused with the daughter of Satish Kumar as well as poisoning the cattle by him. He has denied the suggestion that Satish Kumar had made a telephone call to Gaya Prashad to register the case with the police. 14. PW-8 Vipan Dogra has taken the photographs Ex.PW-8/A to Ex.PW-8/C. He has proved negatives Ex.PW-8/D to Ex.PW-F. 15. PW-9 Dalip Singh has deposed that he was running a clinic at Shard Dogri. On 14.9.2000 wife of Surinder came to his clinic carrying a child. She disclosed that quarrel had taken place with Ramesh and her daughter sustained injuries. She requested for MLC. He advised that it being a police case, she should go to the Government Hospital. In his cross-examination, he has admitted that wife of Surinder Kumar came to him between 3-4 P.M. He has narrated to the police that she required MLC for the injuries inflicted to her daughter. The witness was confronted with his statement Ex.PW-9/A, where it is not so recorded. He has categorically deposed that neither he examined daughter of Surinder Kumar nor he observed any injury inflicted on her person. 16. PW-10 Satish Kumar has deposed that he has reported the matter to the police against accused about one month back to the date of occurrence as accused had misbehaved with his daughter and for administering poison to his cattle. PW-7 Surinder Kumar was witness in the complaint against the accused. Accused used to threat Surinder Kumar. On 14.9.2000 accused pelted stones on the wife of Surinder Kumar, who was grazing her cattle. Her daughter was also injured. Surinder Kumar’s daughter was taken to the hospital after 2-3 days where she succumbed to the injuries. He had seen the injury on the head of daughter of Surinder Kumar. Accused used to threat Surinder Kumar. On 14.9.2000 accused pelted stones on the wife of Surinder Kumar, who was grazing her cattle. Her daughter was also injured. Surinder Kumar’s daughter was taken to the hospital after 2-3 days where she succumbed to the injuries. He had seen the injury on the head of daughter of Surinder Kumar. During investigation, grave was dug up by him and Joginder at the instance of the police. In his cross-examination, he has deposed that incident did not take place in his presence. He was told by somebody about the incident. According to him, accused has entered into compromise with him in both the cases. He could not produce the record of this compromise. He has also admitted that his house is situated on the higher elevation and the house of accused is on the lower elevation. He has also admitted that after burial of the daughter of Surinder Kumar, he made a telephone call to Gaya Prashad. He has admitted that Joginder Paul is the re al brother of Surinder Kumar. He did not know that Joginder has reported the matter to the police. 17. PW-11 Dr. Kulbhushan Sood has deposed that Raksha Devi daughter of Surinder Kumar aged 2½ years was brought to the hospital. She was admitted in the hospital being serious. The prosecution slip is Ex.PW-11/A. Admission chart of the child is Ex.PW-11/B. The child survived for about 10 minutes after the admission in the hospital. In his cross-examination he has deposed that father of the child did not disclose about any quarrel or injury received by his daughter. He did not observe any injury on the person of child. He was told that child was having respiratory problem. He has opined that the child was suffering from pneumonia with severe respiratory distress. The chest of the child was congested. She was finding it difficult to breathe. 18. PW-12 Suresh Thakur has deposed that ASI Partap Chand has died. He was conversant with his handwriting since he had worked under him. On 21.9.2000, statement of Kusam Lata Ex.PW-2/A was recorded under section 154 of the Code of Criminal Procedure by ASI Partap Chand. FIR Ex.PW-12/A was registered. Statements of Surinder Kumar and Dalip Singh were recorded. Site plan Ex.PW-12/C was prepared. Inquest report Ex.PW-1/D was also prepared. Application Ex.PW-1/A was submitted for post-mortem. On 21.9.2000, statement of Kusam Lata Ex.PW-2/A was recorded under section 154 of the Code of Criminal Procedure by ASI Partap Chand. FIR Ex.PW-12/A was registered. Statements of Surinder Kumar and Dalip Singh were recorded. Site plan Ex.PW-12/C was prepared. Inquest report Ex.PW-1/D was also prepared. Application Ex.PW-1/A was submitted for post-mortem. He has admitted in his cross-examination that handwriting in spot map Ex.PW-12/C and recovery memo of dead body Ex.PW-5/A are different. 19. PW-13 Kishori Lal ASI has made the final report. 20. The incident has taken place on 14.9.2000. Statement of PW-2 Kusam Lata was recorded under section 154 of the Code of Criminal Procedure on 21.9.2000. The delay of seven days has not been explained by the prosecution. According to PW-2 Kusam Lata, the matter was not reported to the police since the accused had threatened to kill her family members. However, she has never stated this fact while making statement Ex.PW-2/A. PW-7 Surinder Kumar has also deposed that he did not report the matter to the police due to the threats advanced by accused that he had killed his daughter and would kill other members as well. He has categorically admitted in his cross-examination that this fact he has disclosed for the first time in the Court. According to PW-2 Kusam Lata, blood started oozing out from the injuries of Raksha Devi. First reaction of the family was to lodge the report with the police immediately. Alleged injury has been caused to Raksha Devi at 11.00 A.M. According to PW-2 Kusam Lata, PW-6 Sunil Pal had also reached the spot. According to PW-7 Surinder Kumar, his brother was also present on the spot when the incident took place. It has come in the statement of PW-3 Dr. Sunita Kundu that I.Q. of PW-2 Kusam Lata was low. However, PW-6 Sunil Pal or brother of PW-7 Surinder Kumar could rush the child to the hospital and report the matter to the police. In case the child was serious, she should have been taken immediately to the hospital instead of taking her to Dr. Dalip Singh. The child for the first time has been taken to hospital on 19.9.2000. 21. There is also no clarity the manner in which the matter was reported to the police. PW-7 Surinder Kumar has deposed that he has narrated the incident to his relative Gaya Prashad, Pradhan. Dalip Singh. The child for the first time has been taken to hospital on 19.9.2000. 21. There is also no clarity the manner in which the matter was reported to the police. PW-7 Surinder Kumar has deposed that he has narrated the incident to his relative Gaya Prashad, Pradhan. He was advised by his relative to inform the police. He informed the police telephonically. PW-4 Gaya Prashad has deposed that he was running a guest house and on 21.9.2000, his Sadhu PW-10 Satish Kumar has informed him over telephone that daughter of his cousin, namely, Surinder Kumar was hit with stones. PW-10 Satish Kumar requested Gaya Prashad to inform the police. PW-4 Gaya Prashad informed the police on 21.9.2000. In his cross-examination, PW-4 Gaya Prashad has deposed that he informed the police telephonically and he also visited the Police Station. According to him, police wrote something on the information. However, he could not produce the copy of the same. PW-7 Satish Kumar has also deposed that he alongwith Gaya Prashad had gone to the Police Station to report the incident. Gaya Prashad, as noticed hereinabove, has deposed that he had gone to Police Station alone after receiving telephone call from PW-10 Satish Kumar. 22. It is settled law that the delay in lodging the FIR is always not fatal to the prosecution case, but in the instant case taking into consideration the circumstances stated hereinabove, the prosecution has not explained the delay in lodging FIR satisfactorily. 23. PW-2 Kusam Lata has admitted in her cross-examination that her statement was recorded by the police on 21.9.2000 vide Ex.PW-2/B. Her Jeth Joginder was with her. Statement was got recorded by Joginder. The police recorded the report as per the statement of Joginder. Statement was to be recorded on the statement of PW-2 Kusam Lata. 24. The presence of PW-6 Sunil Pal on the spot is doubtful. PW-2 Kusam Lata in her cross-examination has admitted that fields of PW-6 Sunil Pal were at a long distance. She has also admitted that nothing was visible or would be audible to a person, who was present in the field of PW-6 Sunil Pal. PW-6 Sunil Pal has stated that it took five minutes to reach the place of occurrence. PW-2 Kusam Lata in her cross-examination has admitted that fields of PW-6 Sunil Pal were at a long distance. She has also admitted that nothing was visible or would be audible to a person, who was present in the field of PW-6 Sunil Pal. PW-6 Sunil Pal has stated that it took five minutes to reach the place of occurrence. Since the distance was considerably far off from the spot where the incident has taken place and the fields of Surinder Kumar, he could not hear the cries of PW-2 Kusam Lata. The incident has taken place on 14.9.2000. However, stones were taken into possession vide Ex.PW-2/B on 21.9.2000. According to PW-2 Kusam Lata, she has picked up seven stones from the heap of stones. The prosecution has not established that these were the same stones with which injuries have been caused to Raksha Devi. 25. According to PW-2 Kusam Lata , her daughter was taken to Civil Hospital, Dehra on 19.9.2000. She was declared dead at 1.00 P.M. Thereafter, she was brought back to village and buried. PW-11 Dr. Kulbhushan Sood has stated that the child was admitted in a serious condition. The child survived for about ten minutes after her admission in the hospital. It is thus evident that the child has died in the Civil Hospital, Dehra. Surprisingly, PW-7 Surinder Kumar, father of Raksha Devi, has deposed that the child was referred for treatment to Dharamshala. His daughter breathed her last on the way to Dharamshala at Ranital. 26. According to PW-2 Kusam Lata, she was grazing the cow with her daughter. Nobody was present on the spot. According to her, when she cried, PW-6 Sunil Pal reached the spot. However, PW-7 Surinder Kumar has deposed that when his wife and daughter were hit with stones, his brother was present on the spot. His brother arrived after hearing cries of his wife and daughter. He was told about the incident by his brother as well as by his wife. PW-2 has deposed that she alone has informed her husband. 27. Now, the Court will advert to the medical reports alongwith statements of doctors. PW-1 Dr. Suman Dhiman has issued post-mortem report Ex.PW-1/B. She has deposed that neither external injury nor ligature marks were present on the person of Raksha Devi. According to her opinion, deceased died due to head injury with sub dural haematoma. 27. Now, the Court will advert to the medical reports alongwith statements of doctors. PW-1 Dr. Suman Dhiman has issued post-mortem report Ex.PW-1/B. She has deposed that neither external injury nor ligature marks were present on the person of Raksha Devi. According to her opinion, deceased died due to head injury with sub dural haematoma. She has admitted in her cross-examination that she has reported the injuries to be ante-mortem when her opinion was sought by the police vide Ex.PW-1/C dated 18.5.2011. She has signed inquest report Ex.PW-1/D. She has also admitted in her cross-examination that she has not specifically mentioned that the injury was ante-mortem in nature. She has not even preserved the viscera for chemical examination to rule out the possibility of death due to some other cause. She has not noticed any external injury on the dead body. In the instant case, when the girl was allegedly hit by the stone, injury was bound to be on her body, more particularly, when according to PW-2 Kusam Lata, blood started oozing out from her injury and her clothes were soaked with blood. PW-1 Dr. Suman Dhiman has also admitted that she was not specialized in forensic medicines. Alleged injury was caused on 14.9.2000. Intriguingly, child was not taken to the Government hospital. She was only taken to PW-9 Dalip Singh, who was running a clinic at Shard Dogri. He has not examined the deceased. He has not observed any injury inflicted over her person when she was examined on 19.9.2000. 28. The investigation in this case was not satisfactory. Police should have sought the opinion immediately after the receipt of Ex.PW-1/B whether the injury was ante-mortem or not. This exercise has been taken after a period of nine months. 29. The matter is required to be considered from another angle. According to PW-3 Dr. Sunita Kundu, PW2 Kusam Lata was mentally retarded. In view of this, statement of PW-2 Kusam Lata has to be read with caution. She could be tutored, more particularly, when it has come in her statement that statement under section 154 of the Code of Criminal Procedure was recorded at the instance of Joginder Paul. It has come on record that there was enmity between PW-10 Satish Kumar and accused. PW-10 Satish Kumar had lodged complaint against the accused with the police. She could be tutored, more particularly, when it has come in her statement that statement under section 154 of the Code of Criminal Procedure was recorded at the instance of Joginder Paul. It has come on record that there was enmity between PW-10 Satish Kumar and accused. PW-10 Satish Kumar had lodged complaint against the accused with the police. The matter was investigated, but no challan was put up against the accused. According to PW-10 Satish Kumar, the matter was compromised but the copy of compromise has not been placed on record. PW-10 Satish Kumar is closely related to PW-7 surinder Kumar. PW-10 has admitted in his cross-examination that after the daughter of Surinder Kumar buried, he gave a telephone call to PW-4 Gaya Prashad. It has also come in the statement of PW-4 Gaya Prashad that on 21.9.2000, PW-10 Satish Kumar telephonically informed him that daughter of his cousin Surinder Kumar was hit with stone. She has died on 19.9.2000. Thereafter, PW-4 Gaya Prashad has visited the police Station. It is, thus, evident that PW-10 Satish Kumar wanted to implicate the accused falsely. Police was to be informed by the parents of girl. PW-4 Gaya Prashad has also admitted that PW-10 Satish Kumar has filed a complaint against the accused. PW-6 Sunil Pal has admitted that Surinder Paul was related to him. PW-6 Sunil Pal has also deposed that Satish Kumar had filed a complaint with the police against the accused. Statement of PW-7 is also to this effect that the matter was voluntarily compromised. PW-10 Satish Kumar has taken keen interest to implicate the accused after the deceased has died due to pneumonia, as per the statement of PW11 Dr. Kulbhushan Sood. Body of Raksha Devi was exhumed; it appears, at the instance of PW-10 Satish Kumar, who informed the police immediately after the burial of the daughter of Surinder Kumar. He got an opportunity to teach a lesson to the accused. 30. Now, the evidence of PW-11 Dr. Kulbhushan sood is most important. According to him, on 19.9.2000, Raksha Devi was brought to the hospital for her treatment. She was admitted being serious. The child died within ten minutes of her admission. Father of the child, i.e. PW-7 Surinder did not disclose about the injury by a stone. He has not observed any injury on the person of child. According to him, on 19.9.2000, Raksha Devi was brought to the hospital for her treatment. She was admitted being serious. The child died within ten minutes of her admission. Father of the child, i.e. PW-7 Surinder did not disclose about the injury by a stone. He has not observed any injury on the person of child. The doctor was only told that the child was having respiratory problem. According to PW-11, child was suffering from pneumonia with severe respiratory distress. Chest was congested. She was finding it difficult to breathe. There is conflict in the opinion of PW-1 Dr. Suman Dhiman and PW-11 Dr. Kulbhushan Sood. According to PW-1, deceased died due to head injury with sub dural haematoma. She has not opined whether the injury was post-mortem or ante-mortem initially. This opinion she has given only on 18.5.2001. Duration between injury and death could also not be ascertained. She has not preserved viscera. However, according to PW11 Dr. Kulbhushan sood, as noticed hereinabove, child has died due to pneumonia. There is grave doubt the manner in which the child has died. In view of this, benefit of doubt has to go to the accused. Behaviour of the parents of the child is also strange. PW-2 has not taken the child to a Government Hospital. She has taken her to a private clinic run by PW-9 Dalip Singh. The child was taken to the hospital in a serious condition on 19.9.2000 when she was suffering from pneumonia and was finding it difficult to breathe. Neither any external nor any ligature marks were seen by PW-1 Dr. Suman Dhiman on the person of Raksha Devi. Even PW-9 Dalip Singh has not seen any injury on the person of Raksha Devi. PW-11 Dr. Kulbhushan Sood has also not observed any injury on the person of child. 31. Accordingly, in view of the analysis and discussion made hereinabove, prosecution has failed to prove the case against accused beyond reasonable doubt. There are major contradictions, infirmities and improvements made by the witnesses. There is variance whether the death was caused due to head injury or due to pneumonia. Relations between PW-10 Satish Kumar and accused were strained. All the material witnesses, i.e. PW-2 Kusam Lata, PW-4 Gaya Prashad, PW-6 Sunil Pal, PW-7 Surinder Kumar and PW-10 Satish Kumar are closely related. 32. Consequently, the appeal is allowed. Judgment dated 29.10.2007 is set aside. Relations between PW-10 Satish Kumar and accused were strained. All the material witnesses, i.e. PW-2 Kusam Lata, PW-4 Gaya Prashad, PW-6 Sunil Pal, PW-7 Surinder Kumar and PW-10 Satish Kumar are closely related. 32. Consequently, the appeal is allowed. Judgment dated 29.10.2007 is set aside. Accused is acquitted of the charges under sections 304 (ii) and 323 of the Indian Penal Code. Fine amount, if already deposited, be released to the accused. Bail bonds are cancelled.