JUDGMENT : 1. It is indeed an ironical coincidence that a case involving gruesome murder of an innocent child, aged about two and half months, has landed before us on this day, i.e., 14th November, which the entire country celebrates as ‘Children’s Day’. 2. The case involves allegation of brutal murder of two and half months old child Govind by banging his head against a tree. He was the only male offspring of his parents and the little brother to seven sisters. The appellant herein has been convicted for the said allegation constituting the offence under Section 302 IPC and has been sentenced to imprisonment for life vide the judgment dated 01.02.2016 passed by the learned Additional Sessions Judge, Bhinmal, District Jalore in Sessions Case No.13/2014, which is assailed in this appeal under Section 374(2) CrPC. 3. Be that as it may. We have heard and considered the submissions advanced at bar and shall decide the appeal on its own merits. 4. Briefly stated, facts relevant and essential for disposal of the appeal are noted hereinbelow. 5. The complainant Bhanwara Ram (P.W.2) submitted a written report (Ex.P/5) to the SHO, Police Station Sanchore on 19.10.2013 at 10.35 p.m. alleging inter alia that the incident took place on the same day at about 3 o’clock in the afternoon. His two and half months old child Govind was sleeping in the cradle. His mother Dariya Devi was tending to the child. His nephew Mahendra Kumar S/o Akharam, resident of Panchla, came to their house and snatched the child from the cradle and ran away to some distance and banged the head of the child against the Neem tree standing in their field with the intention of killing him. The complainant and his wife Dariya Devi ran behind the accused in pursuit to save the child, but the accused, after completing the assault, threw the child down and ran away. When the complainant checked on his child, he had passed away. It was also alleged that the incident had been seen by Mohan S/o Jetha Ji. The complainant made a pertinent allegation that the child Govind was born after seven daughters and the accused Mahendra Kumar had indulged in the gruesome murder of Govind with the intention of usurping the land owned by the complainant by eliminating his only male offspring. 6. The complainant made a pertinent allegation that the child Govind was born after seven daughters and the accused Mahendra Kumar had indulged in the gruesome murder of Govind with the intention of usurping the land owned by the complainant by eliminating his only male offspring. 6. On the basis of this report, a formal FIR No.466/2013 came to be registered at the Police Station, Sanchore and investigation was commenced. The usual steps of investigation were undertaken. The child’s dead body was subjected to postmortem by Dr. Omprakash posted at the CHC, Sanchore. The doctor carried out the autopsy and noted that the right frontal, left frontal, left temporal, left parietal and left occipital bones were fractured. The brain membrane on the left side was damaged and haematoma had formed there. The cerebral parts of brain were damaged. Reddish marks were noticed on the neck. A wound admeasuring 8 cm x 3 cm was present on right side of the chest. The injuries were opined to be antemortem in nature. The medical jurist gave categoric opinion that cause of death of the child was shock due to intracranial haemorrhage associated with multiple bone fractures of skull. Postmortem report (Ex.P/32) was issued by the medical jurist. The site inspection was conducted. The accused was arrested. Statements of witnesses were recorded and upon concluding investigation, charge sheet came to be filed against the accused appellant for the offence punishable under Section 302 IPC. The offence being session triable, the case was committed to the Court of the Additional Sessions Judge, Bheenmal, District Jalore, where charge was framed against the appellant for the above offence. He pleaded not guilty and claimed trial. 7. The prosecution examined as many as 13 witnesses and exhibited 39 documents to prove its case. Upon being questioned under Section 313 CrPC and when confronted with the prosecution allegations, the accused denied the same and claimed to be innocent. Two witnesses, namely, Surta Ram (D.W.1) and Talka Ram (D.W.2), were examined in defence. It may be noted that while the accused did not offer any particular explanation for the incident, the two defence witnesses stated on oath that the accused was playing with the child, who slipped from his hands and fell down and received the injuries accidentally. 8. Two witnesses, namely, Surta Ram (D.W.1) and Talka Ram (D.W.2), were examined in defence. It may be noted that while the accused did not offer any particular explanation for the incident, the two defence witnesses stated on oath that the accused was playing with the child, who slipped from his hands and fell down and received the injuries accidentally. 8. After hearing the arguments advanced by learned Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial Court proceeded to convict the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo life imprisonment alongwith a fine of Rs.5000/-and in default of payment of fine, further to undergo six months’ additional simple imprisonment. Hence, this appeal. 9. Learned counsel Ms. R.S. Mertia, representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The accused neither had any motive nor any intention to kill the child. The accused appellant is complainant’s nephew and the child was the accused appellant’s cousin. The accused appellant was casually playing with the child, who suddenly slipped from his hands and fell down on the ground receiving the injuries accidentally. There are grave contradictions in the statements of the material eye-witnesses. As a matter of fact, the first informant could not have seen the incident. She further urged that the allegation levelled by the first informant Bhanwara Ram (P.W.2) and Smt. Dariya Devi (P.W.3) (father and mother respectively of the child) that they saw the appellant snatching the child from the cradle and banging him against the tree is unbelievable because these witnesses were admittedly inside the house when the incident took place and thus, they could not have seen the assault. She further urged that when the medical jurist Dr. Omprakash (P.W.6) conducted postmortem upon the child’s dead body, he did not notice any external marks of injury on the skull. Thus, the allegation of prosecution witnesses that the accused forcefully banged the head of the child against the Neem tree is contradicted by the medical testimony. As per Ms. She further urged that when the medical jurist Dr. Omprakash (P.W.6) conducted postmortem upon the child’s dead body, he did not notice any external marks of injury on the skull. Thus, the allegation of prosecution witnesses that the accused forcefully banged the head of the child against the Neem tree is contradicted by the medical testimony. As per Ms. Mertia, if at all there had been an iota of truth in this allegation, then external injuries were bound to be noticed on the child’s head because the trunk of the Neem tree is very rough and hence, external injuries were bound to occur in the event of the child’s head being collided with the Neem tree. Her alternative submission was that even if the prosecution allegations are to be accepted, the offence as attributed to the accused appellant cannot travel to beyond Section 304 Part II IPC. On these submissions, Ms. Mertia implored the Court to accept the appeal, set aside the impugned judgment and either acquit the accused appellant of the charge or to tone down the offence and direct release of the appellant from the custody as he has already suffered sentence of more than nine years. 10. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant’s counsel. He urged that the accused appellant is the nephew of the first informant Bhanwara Ram. The child victim was the only male offspring of Bhanwara Ram, who already had seven elder daughters. After the child was born, the accused started bearing a malice that he would also stake a claim in the family property and with this motive, he killed the child by brutally banging his head against the Neem tree. Learned Public Prosecutor submitted that the witnesses Bhanwara Ram (P.W.2) and Dariya Devi (P.W.3), being the parents of the deceased, were sitting nearby the cradle, in which the child was sleeping. They themselves saw the accused snatching the child from the cradle and running away towards the field, where he banged the head of the child against the tree in the view of the two witnesses. Despite prolonged cross examination, both the eye-witnesses could not be shaken from their stance. He further urged that the defence did not give any suggestion to medical jurist Dr. Despite prolonged cross examination, both the eye-witnesses could not be shaken from their stance. He further urged that the defence did not give any suggestion to medical jurist Dr. Omprakash (P.W.6) that the injuries noticed on the body of child victim could not be caused in the manner alleged by the prosecution witnesses. Learned Public Prosecutor, thus, submitted that the arguments advanced by the defence counsel regarding contradiction inter se between the ocular and the medical testimony is not tenable. Learned Public Prosecutor further submitted that looking to the grave nature of injuries caused to the innocent child and the cruel manner in which such injuries were inflicted, the accused does not deserve any sympathy and his conviction as recorded by the trial court by the impugned judgment is unimpeachable. He sought dismissal of the appeal on these submissions. 11. We have given our thoughtful consideration to the submissions advanced at bar and have meticulously examined and re-appreciated the evidence available on record. We may note that the incident took place at 3 o’clock in the afternoon and the written report (Ex.P/5) was submitted by Bhanwara Ram (P.W.2), father of the deceased, to the SHO, Police Station Sanchore at the Government Hospital, Sanchore on 19.10.2013 at 10.35 p.m. The place of incident is at a distance of 30 kilometers from the police station. Thus, apparently, the written report was submitted by the complainant without any delay. In this report it was clearly alleged that the informant and his wife both saw the accused appellant snatching their two and half months old child Govind from the cradle and taking him away into the field, where he banged the head of the child against the Neem tree. The complainant and his wife pursued the accused in an attempt to save the child, but before they could reach near him, he completed the assault, threw the child down on the ground and ran away. A most despairing aspect is that the child was born to Bhanwara Ram and Smt. Dariya Devi after seven daughters. The accused appellant killed the only brother to whom the seven sisters were hoping to tie Rakhi and the grief stricken parents were looking forward to groom as the heir of their family. The accused appellant is the nephew of the first informant Bhanwara Ram. The accused appellant killed the only brother to whom the seven sisters were hoping to tie Rakhi and the grief stricken parents were looking forward to groom as the heir of their family. The accused appellant is the nephew of the first informant Bhanwara Ram. Apparently, he had the knowledge that the sole male heir of Bhanwara Ram would grow up to stake a claim in the ancestral property and this precisely was the motive for the accused to indulge in the brutal assault. This fact was emphatically stated by Bhanwara Ram (P.W.2) in his testimony. On going through the evidence of Bhanwara Ram (P.W.2) and Dariya Devi (P.W.3), parents of the deceased child, we are duly satisfied that both the witnesses stood firm on their allegation of having seen the accused-appellant snatching the child from the cradle and running away towards the field. The accused caught hold of the child from his legs and swung and banged him against the tree trunk causing the fatal injuries. Despite prolonged examination, neither of the witnesses could be shaken from the version as alleged by them in the examination-in-chief. 12. Dr. Omprakash (P.W.6) stated that he carried out autopsy upon the dead body of the child and issued the postmortem report (Ex.P/32). We have already taken note of the injuries observed by the doctor while conducting the postmortem. 13. The existence of a wound ad-measuring 8 cm x 3 cm on the back of the child and the total shattering of his skull bones into multiple pieces causing intracranial haemorrhage clearly establishes that the child was banged against a hard surface with great force. In cross-examination, the medical jurist was not given any suggestion whatsoever that the injuries noticed in the postmortem report (Ex.P/32) could not have been caused by banging the head of the child against the tree. The defence, rather gave a suggestion to the doctor in cross-examination that if the child fell down on the ground head first while someone was playing with him, then such injuries could be caused. The doctor categorically stated that such injuries could not be received by a single fall on the ground. The contention of Ms. The defence, rather gave a suggestion to the doctor in cross-examination that if the child fell down on the ground head first while someone was playing with him, then such injuries could be caused. The doctor categorically stated that such injuries could not be received by a single fall on the ground. The contention of Ms. Mertia that no external injury was noticed by the doctor on the head of the deceased and thus, the theory that the head of the child was banged against the tree cannot be believed, does not for a moment convince us to cast any doubt on the testimony of Bhanwara Ram (P.W.2) and Smt. Dariya Devi (P.W.3). It is common knowledge that the skull bones of a child are not fully developed and are soft because nature itself creates a shock absorbing mechanism to prevent the child from harm from accidental falls. Thus, it is not essential that a child must receive external injuries if the head is banged against a hard surface. 14. The evidence of other prosecution witnesses is more or less formal in nature. 15. Investigation of the case was conducted by Chimna Ram, S.I. (P.W.8). The Investigating Officer stated that the distance between the place where the child was sleeping to the place where the accused banged the child against the tree was about to 35-40 feet as per the site inspection plan (Ex.P/1). Thus, there was nothing to prevent the witnesses from having seen the accused banging the child against the tree as the incident definitely would have taken place in their viewing. 16. We have seen the photographs of the child’s dead body (Ex. P/7, P/9, P/11, P/12 and P/13) and are convinced that the child having been banged against the tree is well and truly corroborated. The child’s upper right chest region must have struck the tree at first because there is a distinct mark of bruising at that location and thereafter, the head must have struck the tree trunk, resulting into the fatal injuries. The brutal manner in which the accused swung the child against the tree by catching hold of his legs clearly establishes his intention to kill and eliminate the competitor, who could have staked a claim in the ancestral property. The brutal manner in which the accused swung the child against the tree by catching hold of his legs clearly establishes his intention to kill and eliminate the competitor, who could have staked a claim in the ancestral property. Though the accused, in his statement under Section 313 Cr.P.C. did not give any explanation, but the defence witnesses Surta Ram (D.W.1) and Talka Ram (D.W.2) stated that the accused was carrying the child and was playing with him when the child slipped and fell down. Thus, the fact that the accused was holding the child at the time of the incident is admitted by the defence. However, the explanation for the injuries as offered by the defence witnesses is lame and unacceptable. 17. As a result of discussion made hereinabove, we are of the firm view that the evidence of the material prosecution eyewitnesses Bhanwara Ram (P.W.2), Smt. Dariya Devi (P.W.3) and Dr. Omprakash (P.W.6) is clinching and establishes beyond all manner of doubt that the accused appellant inflicted the fatal injuries to the innocent child, aged two and half months, by banging him against the tree with a motive to eliminate a future co-sharer in the ancestral property. The discussion of evidence as undertaken by the trial court and the conclusion of guilt as recorded in the impugned judgment dated 01.02.2016 is apropos and unimpeachable. 18. We find no merit in the appeal and hence, the same is dismissed. 19. The record be returned to the trial court.