The main legal point established in the judgment is the reliance on circumstantial evidence and the admissibility of the evidence of a hostile witness to the extent it supports the case of the prosecution.

Sunita Gupta, J.

1. Challenge in this appeal is to the judgment dated 02.08.2011 and order on sentence dated 05.08.2011 passed by learned Additional Sessions Judge-3, South East District, New Delhi in Sessions Case No.55/10 arising out of FIR No.57/10 Police Station Jaitpur, Delhi under Section 304 IPC whereby appellant was convicted for offence under S. 304(ii) IPC and was sentenced to undergo rigorous imprisonment for a period of 3 years and fine of Rs. 2000; in default to undergo simple imprisonment for a term of 15 days.

2. Police machinery swung into action on 17.03.2010 on receipt of DD No.18-A regarding killing of a child aged about 8/9 months by her father by throttling her neck. On receipt of this DD, Sub Inspector Dara Singh alongwith Head Constable Isha Khan reached the spot i.e. A2/1324, JJ Colony, Madanpur Khadar, New Delhi at second floor where Sonia gave her statement alleging inter alia that her in-laws are residing at the ground floor whereas she alongwith her family members is residing on the second floor. On 16.03.2010 her husband – Sonu came after consuming alcohol and after quarrelling with her slept. He woke up at about 10 am and inquired about his mobile whereupon she informed him that the same is not at the house and he may have left it somewhere else. Then he started beating her. In the meantime, her daughter – Komal aged about 6 months woke up and started weeping. Her husband – Sonu got irritated by saying that “she weeps too much”. Thereafter, after pressing her neck threw her on the floor. When she raised alarm, her neighbours Vijay Chakrobarty, his son Pratap and Jagdish Pradhan came and took Komal to Prabhakar Nursing Home where she was declared brought dead. This statement resulted in registration of an FIR under Section 304 IPC. During the course of investigation, statements of witnesses were recorded; post-mortem of the child was got conducted. The statement of complainant under Section 164 Cr.PC was recorded. After completing investigation, charge-sheet was submitted against the appellant.

3. In order to substantiate its case, prosecution examined 10 witnesses. In his statement under Section 313 Cr.PC, the appellant took the plea that on the fateful day, when he was playing with his child, she fell down and sustained injuries. The death of the child was a result of an accident. He did not prefer to lead any defence evidence. Vide the impugned judgment, the appellant was convicted and sentenced as mentioned hereinbefore. Feeling aggrieved, the appellant has approached this Court by filing the appeal under Section 374 of the Code of Criminal Procedure, 1973.

4. Assailing the correctness and illegality of the judgment, learned counsel for the appellant submits that all the material prosecution witnesses, including the complainant, have not supported the case of prosecution. As regards medical evidence, although in the initial complaint, the complainant has stated that the appellant had throttled the neck of the child, however, the post-mortem report does not support the version of prosecution as according to post-mortem report the death was due to head injuries and smothering. Further, although the Investigating Officer of the case has deposed that the photographs of the spot were taken, however, those photographs were not placed on record. Under the circumstances, it is submitted that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt as such the appellant was entitled for benefit of doubt. In any case, since two views are forthcoming as such benefit of doubt has to be given to the appellant and the impugned judgment be set aside and the appellant be acquitted of the offences.

5. Per contra, learned Additional Public Prosecutor for the State submits that the impugned judgment does not suffer from any infirmity. In the initial statement made by the complainant she has levelled allegations of commission of murder of his daughter – Komal by giving her s