ORDER : 1. The accused-appellant has been convicted for the offences under Section 302, 376 (2)(f) and 377 of the Indian Penal Code (for short, 'the IPC'). For the offence under Section 302 IPC, the accused-appellant has been sentenced to death whereas for the other offences, he has been sentenced to rigorous imprisonment for life. 2. We have heard the learned counsels for the parties. 3. The prosecution case in short is that the victim, a minor girl aged about seven years, was the daughter of one Param Singh (PW-6), who is related to the appellant. As the appellant and his wife were issueless, the appellant had requested Param Singh (PW-6) to hand-over the custody of his daughter so that he could bring her up as his own daughter. According to the prosecution while there were no problems with the upbringing of the child initially, soon, the child was treated with cruelty and subjected to beating and harassment which often led to the child weeping and crying aloud which could be heard by the neighbours. According to the prosecution, whenever the neighbours (who were examined in the case) used to ask the appellant and his wife the cause for the child crying, they were given vague and evasive answers. According to the prosecution on 26.09.2012, one Balram Rathore (PW-2), a neighbour of the accused-appellant, had lodged a report with the police that about 10.00 p.m. on that date he had met the appellant carrying the child in his arms and on being asked what had happened to the child, he was told by the appellant that the child has died. On the basis of the aforesaid report police had registered a case and after investigation thereof charge-sheeted the accused and sent him for trial where he was convicted as aforesaid. 4. Though several witnesses have been examined in the case, we find from a scrutiny of records that it is the post-mortem report (Ex.P-12), DNA Report (Ex.P-23) and the evidence of Dr. A.K. Rastogi (PW-15), who had conducted the post-mortem, which primarily would be relevant. The relevant part of the post-mortem report is extracted herein below : “Injuries 1. After shaving scalp hair scalp contusion of size 3.0x1.0cm present over right parietal region. 2. After shaving scalp hair scalp contusion of size 3.0x2.0cm present over left parietal region. 3. Contusion of size 3.0x2.0cm present over right frontal region. 4. The relevant part of the post-mortem report is extracted herein below : “Injuries 1. After shaving scalp hair scalp contusion of size 3.0x1.0cm present over right parietal region. 2. After shaving scalp hair scalp contusion of size 3.0x2.0cm present over left parietal region. 3. Contusion of size 3.0x2.0cm present over right frontal region. 4. Contusion of size 3.0x3.0 cm present over left frontal region. 5. Contusion of size 2.0x1.0 cm present on right cheek. 6. Contusion of size 2.0x1.0 cm present on chin which is more right to midline. 7. Contusion of size 3.0x2.0 cm present on left cheek. 8. Multiple small contusion area covered 20x10 cm present over the chest. 9. Old healed scar mark of size 2.0x1.0 cm present just above umbilicus. 10. Old healed scar mark of size 3.0x1.0cm present on left iliac region. 11. Contusion of size 12x10 cm present on back side of chest. 12. Contusion of size 20.0x12.0 cm present over the antero lateral aspect of chest, on dissection intercostals muscles of ribs ecchymosed. 13. Contusion of size 3.2x2.0 cm present on right iliac. 14. Contusion of size 14x4.0 cm present on left arm postero lateral aspect. 15. Contusion of size 7.0x5.0 cm present on left forearm anteriorly. 16. Contusion of size 4.0x2.0 cm present on right forearm anteriorly. 17. Contusion of size 2.5x1.0 cm present on right arm posteriorly. 18. Contusion of size 3.0x1.0 cm present on right forearm anteriorly. 19. Scar mark of size 1.0x0.5 cm present on right forearm anteriorly. 20. Contusion of size 1.0 x 0.75 cm present on anterior aspect of the base of middle finger in right hand. 21. Contusion of size 1.0x1.0 cm present on right hand's index finger. 22. Contusion of size 1.0x1.0 cm present on right thumb. 23. Superficial Burn injury in healing phase of size 2.0.x1.0 present over upper and lateral part of right arm with intervening heating area 0.5 cm area wide. 24. Multiple contusion of size 8.0x6.0 cm over Lt Buttock. 25. Multiple contusion of size 14x6.0 cm present on antero lateral aspect of right thigh. 26. Contusion of size 4.0x1.0 cm present just below right knee joint. 27. Multiple contusion of size 6.0x3.0 cm present over right knee joint. 28. Multiple contusion of size 3.0x2.0 cm present over medial aspect of left knee. 29. Contusion of size 16x3.0 cm present antero lateral aspect of left thigh. 30. 26. Contusion of size 4.0x1.0 cm present just below right knee joint. 27. Multiple contusion of size 6.0x3.0 cm present over right knee joint. 28. Multiple contusion of size 3.0x2.0 cm present over medial aspect of left knee. 29. Contusion of size 16x3.0 cm present antero lateral aspect of left thigh. 30. Contusion of size 4.5x1.0 cm present on antero medial aspect of left thigh. 31. Contusion of size 6.0x2.0 cm present on posterior aspect of ankle joint. Note (1) Injury no. 1, 2, 3, 5, 6, 20, 21 and 22 bluish in colour duration of injury few hrs. since death. (2) Injury no. 4, 7, 12, 14, 15 and 25 bluish purple in colour duration of injury about 02 days since death. (3) Injury no.11, 16, 17, 18, 28, 30, 31 bluish black in colour duration of injury about 3 days since death. (4) Injury no. 8, 24, 26, 27 and 29 brown in colour duration of injury about 4 to 5 days since death. (5) Injury no. 13 greenish in colour duration of injury about 5 to 7 days since death. (6) Injury no. 9, 10 and 19 were scars, so exact duration of injury could not be ascertained. (7) Injury no. 23 caused by heated object. Anal Finding:- Faecal matter soiling over buttocks coming out through anal opening, which after cleaning showing widely dilated anal opening with easily admitting two fingers, surrounding area showing darkening with old healed scaring of old healed tear at 1,2 and 11'o clock position placed radially similarly radially placed mucosal tear at 2 and 3'o clock position with reddish discolouration internally anal canal showing some yellowish white deposition along with faecal matter, finding suggestive of repeated sexual assault. On separation of thighs and labia majora, labia minora showing reddish black discolouration and white thick deposition in inter labial fold. Vaginal opening showing old torn hymen, easily admits one finger with yellowish white deposition in cannal, Reddish contusion present on 5 to 7'o clock position. Finding suggestive of repeated sexual assault. Opinion :- . Death was due to asphyxia as a result of aspiration of gastric content in the air passage. . Evidence of multiple injuries of various duration over the body present caused by hard and blunt object, suggests a case of battered child. . Radiological examination done. . Evidence of sexual assault both natural and unnatural present. . Opinion :- . Death was due to asphyxia as a result of aspiration of gastric content in the air passage. . Evidence of multiple injuries of various duration over the body present caused by hard and blunt object, suggests a case of battered child. . Radiological examination done. . Evidence of sexual assault both natural and unnatural present. . Evidence of pathology present. . Time since death was 18 to 36 hrs since post mortem examination.” 5. Insofar as the oral evidence of Dr. A.K. Rastogi (PW-15) is concerned, as the said witness in his deposition had mainly proved the contents of the post-mortem report it will not be necessary to set out in details the evidence of the said witness except the questions which were put to him by the Court and the answers thereto. This is because the said answers appear to be the core basis on which the conviction of the accused-appellant under Section 302 IPC had been made by the learned trial Court. The questions put by the Court and the answers of the witness to the same is as follows :- “Q. You have mentioned in your report that she died due to blockage in breathing and stomach's liquid went in wind pipe then how is it possible that assaulting while eating or by any other reason, is death possible or not by common effect of wounds ? A. Obstruction in breathing has happened in this case is not possible while eating, but if she has been beaten while eating then it is possible. This is true that looking to the age of child her death can be occur due to common effect of all wounds. Q. Can a person die due to a general thaska lagna while eating ? Ans. No.” 6. To deal with the offences under Section 376 (2)(f) and 377 IPC in the first instance we have read the post mortem report (Ex.P-12), D.N.A. profile (Ex.P-23) and the evidence of Dr. A.K. Rastogi (PW-15). The details mentioned in the Post-Mortem report have already been set out. Ex.P-23, on due consideration, conclusively establishes commission of natural and unnatural sexual acts on the deceased by the accused. The result of DNA profiles obtained from the two sources (accused and deceased) are found to have matched. A.K. Rastogi (PW-15). The details mentioned in the Post-Mortem report have already been set out. Ex.P-23, on due consideration, conclusively establishes commission of natural and unnatural sexual acts on the deceased by the accused. The result of DNA profiles obtained from the two sources (accused and deceased) are found to have matched. We are, therefore, left with no doubt that the prosecution has succeeded in bringing home the aforesaid offences as alleged. The findings of post-mortem and D.N.A. profile wholly substantiate the aforesaid conclusion. Having regard to the circumstances in which the said offences had been committed, particularly, as the victim happened to be in the care and custody of the appellant and the fact that the offences were committed over a period of time, we are of the view that the learned trial Court and the High Court were perfectly justified in imposing on the appellant the maximum punishment awardable under the aforesaid Sections of the Penal Code i.e. life imprisonment. We, therefore, will have no occasion to cause any alteration or modification either of the conviction recorded or the sentences imposed on the aforesaid score. 7. This will bring the Court to a consideration of the culpability of the accused-appellant for the offence under Section 302 for which he has been sentenced to death. 8. As we have already observed the foundation of the conviction for the said offence and the sentence imposed is the statement/reply of Dr. A.K. Rastogi (PW-15) to the queries put by the Court, both of which have been extracted above. Even if we are to accept the answers of the witness in respect of the second question (which we do not) what must be noticed is that the prosecution case was not what the learned trial Court eventually held against the accused. It was nowhere alleged by the prosecution, at any point of time, that death of the victim had occurred in the manner in which it has been found by the learned trial Judge and the High Court, namely, that on account of beating of the victim by the accused the gastric juices from the stomach had came up and chocked the wind pipe of the victim. While the decision of this Court in “Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250 ” has been cited on behalf of the appellant to persuade us to disapprove the conduct of the trial by the learned trial Judge in putting the aforesaid questions to the witness we refrain from addressing the said issue, as in our opinion, the liability of the accused is capable of being decided otherwise. Even assuming the reply given by Dr. A.K. Rastogi (PW-15) to the first query posed by the Court to be correct, the accused can be held liable on the basis of the said opinion only if the same can be substantiated by the evidence brought by the prosecution. 9. In this regard we must take note of the description of the injuries given in the Post Mortem report proved by Dr. A.K. Rastogi (PW-15),extracted above. Out of the several injuries mentioned in the said report only injuries 1, 3, 5, 6, 20, 21 and 22 were fresh injuries that were found to have been caused on the date of the incident. The other injuries were several days old. None of the injuries have been caused on any part of the body of the victim which could reasonably lead the Court to conclude that the said injuries could have caused “asphyxia as a result of aspiration of gastric content in the air passage” or as deposed to by Dr. A.K. Rastogi (PW-15), namely, “asphyxia (obstruction in breathing) reason for which is aspiration of liquid from stomach into windpipe”. The injuries which were caused by the accused on the day of the incident were either on the skull or the hand or the thumb and therefore could not have been the reason for which death had occurred as testified by Dr. A.K. Rastogi (PW-15). In such a situation the liability of the accused for the commission of the offence under Section 302 IPC would remain in serious doubt, the benefit of which must go in favour of the accused. We, therefore, are of the view that having regard to the evidence on record and the injuries caused, the accused should be held liable for the offence under Section 325 IPC. We order accordingly and award the sentence of seven years rigorous imprisonment to the accused for the said offence. 10. We, therefore, are of the view that having regard to the evidence on record and the injuries caused, the accused should be held liable for the offence under Section 325 IPC. We order accordingly and award the sentence of seven years rigorous imprisonment to the accused for the said offence. 10. In the result, we partially allow these appeals and while maintaining the conviction and sentences awarded under Section 376 (2)(f) and 377 IPC, we alter the conviction under Section 302 IPC to one under Section 325 IPC. Accordingly, we set aside the death penalty and impose the punishment of rigorous imprisonment for seven years. We further direct that both the sentences awarded shall run concurrently.