The court held that throwing a tender child from a height, even without the intention to kill, can amount to murder under Section 302 IPC if the person has the knowledge that such an act could result in death.

1. The present appeals arise from order dated 11.04.1984 of the Sessions Judge, Tonk in Sessions Trial 12/1983. The former appeal by the State questions acquittal of the charge under Section 302 IPC while in the latter the Appellant questions her conviction under Section 304 Part II and 452 IPC to five years rigorous imprisonment with fine and default stipulation.

2. According to the police report lodged by PW-2, Ghasi neighbour of PW-1, Bhuri he heard commotion from her house and upon going their saw that the Appellant had forcibly taken away the 1½ years old child Ramlal from the lap of PW-1, Bhuri while the latter was running behind her. The Appellant threw the child from a platform approximately 4 feet in height after which the child was kicked by her children Sunder and Shanti. The post-mortem Exhibit P/6 proved by PW-5, Dr. Shyam Sunder Ojha found bruises and abrasions with fracture of left third rib 1" away from the junction of ribs and sternum, the rib attached to sternum was elevated and rest of fractured rib was depressed causing damage to the left plura at the site of fracture. The cause of death was opined to be injury on the chest wall causing fracture of third left rib damaging the left plura resulting in shock. The doctor also opined that these injures were possible from kicks. Single rib fracture could be caused by kick but the other fractures could be caused by kicking with considerable force. Injury No. 3 bruises on chest wall 1" x 1" at the side of sternum about 2" below the clavicle left side was clearly opined to have been caused by a hard and forcible fall.

3. Learned Counsel for the Appellant submitted that PW-2, Ghasi and PW-4 Khem Kanwar were not eyewitness to the occurrence. PW-1, Bhuri is the sole eyewitness. Enmity between the parties because of land dispute has been admitted by the latter. The possibility of false implication cannot be ruled out as the occurrence took place on 14.01.1983 at about 6-7 P.M. in the evening but the FIR has been lodged on 15.01.1983 at about 11.00 A.M. after about 16 hours without any explanation for the delay. There was no intention and neither can knowledge be attributed to her as the falling of the child during a scuffle was purely an accident. The Appellant is approximately 84 years of age today and therefore her sentence may be altered to the period undergone if the conviction is to be sustained. Reliance was placed on 2010(1) WLC (SC) Criminal (Sau Panchashila Dada Messhram Vs. State of Maharashtra), (2015) 11 SCC 588 (Ravinder Singh Vs. State of Haryana) and 1993 RCC 15 (Rajia v. State of Rajasthan).

4. It was further submitted that 8 to 9 years old child Samodara of PW-1, Bhuri who also came on hearing the screaming has not been examined which raises doubts about the prosecution story. The platform was hardly at 2 feet height according to PW-1, Bhuri in cross-examination.

5. Counsel for the State submitted that it was a cold blooded murder committed by the Appellant with knowledge of the consequences of throwing a 1½ years old tender child from a height of approximately 4 feet. The brutality of the assault is evident from the subsequent kicks given to the child by co-accused. The two others who kicked the child were juveniles and were tried separately. The Appellant was approximately 40 years of age on 28.02.1984 when her statement under Section 313 Cr.P.C. was recorded. The fact that today she may be approximately 72 years of age cannot be sufficient to invoke sympathy as a ground for not imposing appropriate punishment keeping in mind that she remained in custody for approximately three months only before being enlarged on bail. Reliance was placed on 2005 Crl.L.J. 333 (SC) (State of Utter Pradesh Vs. Kishan). If it was cold blooded murder, the conviction deserves to be altered from 304 Part II to Section 302 IPC and the State appeal be allowed. The delay in lodging of the FIR has been fully explained by PW-1 Bhuri during cross-examination.

6. We have con