MANOJ Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is an appeal by the convict appellant challenging his conviction under Section 304 Part -II IPC, whereby, he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5000/ - and in default thereof to further undergo rigorous imprisonment for one year which findings were passed by the Court of learned Additional Sessions Judge, Faridabad through impugned judgment order of sentence dated 7.5.2003.

(2.) HEARD at length learned counsel for the parties and perused the records of the case with the invaluable assistance of the counsel for both the sides. As the story and the allegations of the prosecution goes it is alleged that on 31.3.2000 around 12.30 a.m. after receipt of medical ruqa Ex.PD along with copy of MLR of complainant Poppy Ex.PE, ASI Mahender Singh PW8 went to General Hospital, Ballabgarh and met complainant Poppy and recorded his statement Ex.PH, wherein, the complainant stated that he was a labourer, resident of village Chandawali and that on that very day around 6 p.m. his brother PW 7 Rameshwar had come to him and at that point of time accused Manoj came to the house of the complainant and abused Rameshwar and at that time while accused was hitting Rameshwar with his belt, Rameshwar who was holding complainant's three years old male child Rohit in his lap fell down on the ground upon which accused ran away. Injured Rameshwar was also medically examined by way of Ex.PF and intimation Ex.PC was sent regarding death of the child, who was brought dead and his post mortem examination by way of Ex.PA was conducted on police request Ex.PB/1 along with inquest proceedings Ex.PB. The Investigating Officer got recorded FIR Ex.PH/2 and after necessary formalities prepared rough site plan of place Ex.PK with scaled site plan Ex.PG. On arrest of the accused through memo Ex.PI/1 the accused was taken into police custody. Upon completion of investigations, the accused was charged under Sections 304 Part -II, 323 IPC to which he denied and claimed trial.

(3.) THE first leg of submissions that has been invoked by the appellant's counsel revolves around the very improbability of the occurrence due to contradiction in the ocular version and the medical evidence. Though, on behalf of the State Mr. Munish Sharma has sought to rake up the immaterial consistencies and, thus, appreciating the same the very testimony of PW1 Dr. Manu Kishore, who conducted the post mortem examination of the dead body of the child has established the fact that it was a dead body of a well built male child aged around three years and the body was wearing white and red frock and nothing on the lower limbs. The most important observation that has come in his examination -in -chief is that the doctor has remarked "no external injury mark was seen over the body" and has further illustrated that on dissection of the scalp there was linear fracture over right parietal region and clotted blood was seen under the skin. Thus, is in itself suggestive of the fact that no injury has been caused to the deceased by any weapon including belt in question. Scrutinising the fact as per the own allegations of the complainant PW6, father, Poppy and eye -witness PW7 Rameshwar, brother of the complainant shows that Rameshwar was holding the child in his lap and, therefore, in view of the literal meaning of term "lap" it can be easily construed to be the flat area between the waist and knees of a seated person. Even PW9 Rajwati alleged eye -witness and mother of the deceased child accepts that the floor where the child was fallen is a katcha one. Assuming it to be so, as it is stated by the witness then had the child fallen from a lap firstly there ought to be some sort of external injury on the body including the head, the portion which as per the allegations has struck the ground but the own testimony of the doctor belies this as there is no mark of external injury. Further, it does not convinces a prudent mind by such a fall there would be a linear fracture of the skull leading to instantaneous death and it is accepted that by fall on a hard surface a blunt injury ought to be there and, therefore, question of a linear fracture is certainly raising doubts over the version that has been put forth.