- (1.) THE appellant was placed on trial in Sessions Case No. 37/2001, before learned Additional Sessions Judge (Fast Track) Gangapur City, District Sawai Madhopur, who convicted and sentenced him under Section 302 IPC to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer six months simple imprisonment.
(2.) THE prosecution case is as under:- On September 16, 1999 at 2. 30 AM informant Kamal Singh (Pw. 4) submitted a written report (Ex. P-7) at Police Station Gangapur City stating therein that in the intervening night of September 15 and 16, 1999 while he was sleeping on the roof of his house along with his cousin Bhoor Singh (now deceased), Prahlad (appellant) came armed with axe to the roof around 1 AM and started inflicting blows with axe on the neck and hands of Bhoor Singh. When the informant raised alarm the appellant fled away. Bhoor Singh died on the spot and his dead body was lying on the roof. On that report a case under Section 302 IPC was registered and investigation commenced. Dead body was subjected to post mortem, statements of witnesses were recorded, accused was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Gangapur City. Charge under Section 302 IPC was framed. THE appellant denied the charge and claimed trial. THE prosecution in support of its case examined as many as 13 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. One witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have given our anxious consideration to the submissions advanced before us and carefully scrutinised the record. Death of deceased Bhoor Singh was indisputably homicidal in nature. As per postmortem report (Ex. P-11) following antemortem injuries were found on the dead body:- 1. Incised wound 7 x 3 cm spiral shaped bone deep on lower right scapular region. 2. Incised wound 8 x 4 cm bone deep, spiral shaped on middle right scapular region. 3. Incised wound 10 x 4cm muscle deep spiral shaped on right upper scapular region. 4. Incised wound 8 x 2 cm bone deep Extending from middle of right ear to right side of neck. 5.Incised wound 15 x 5 cm horizontal on post occipital region (bone deep with brain matter come out ). 6.Incised wound 5 x 4 cm beveled margin muscle deep on right deltoid region. 7.Incised wound 10 x 2 cm bone deep oblique extending from left maxillary region (1cm lateral to left alainasic) upto upper aspect of right eye on forehead. In the opinion of Dr. Shiv Singh (Pw. 9) the cause of death was hemorrhagic shock due to head injury. Super structure of prosecution case is founded on the testimony of informant Kamal Singh (Pw. 4) who was the only eyewitness of the incident. Kamal Singh (Pw. 4) in his deposition stated that on the date of incident he and his cousin Bhoor Singh were sleeping on the roof of his house on a cot. Around 1 AM on hearing the cries of Bhoor Singh when he woke up he found Prahlad standing near the cot having axe in his hand and Bhoor Singh was lying on the cot in an injured condition. Prahlad gave axe blow on the left shoulder of Bhoor Singh after he (Kamal Singh) woke up and thereafter Prahlad ran away through the staircases. In the cross examination Kamal Singh admitted that Prahlad had suspicion about his wife's relation with him (Kamal Singh) but by mistake he had killed Bhoor Singh. Learned counsel for the appellant canvassed that Kamal Singh was not a reliable witness and conviction could not have been based on his testimony. Learned counsel pointed out following infirmities in the testimony of Kamal Singh:- (i) In the FIR (Ex. P7) and in the statement under section 161 Cr. P. C. (Ex. D-3) Kamal Singh stated that Prahlad inflicted three injuries with axe whereas in his deposition at the trial he said that after he woke up he saw Prahlad inflicting one axe blow. (ii) In his cross examination Kamal Singh stated that his clothes got stained with blood but the clothes were not seized. (iii) Kamal Singh admitted that it was a dark night, and assailant could not have been identified in the darkness. (iv) Conduct of Kamal Singh in not catching hold of Prahlad was unnatural.
(3.) HAVING carefully tested the statement of Kamal Singh from the point of view of trustworthiness, we do not see any material discrepancy in it. Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest a truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category into which a discrepancy may be categorized. While normal discrepancies do not erode the credibility of witness, material discrepancies do. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance, if any, is not of any consequence. Their Lordships of Supreme Court in Krishnan vs. State (2003) 7 SCC 56 indicated that witnesses are the eyes and ears of justice. Eye witnesses account would require a careful independent assessment and evaluation for its credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the credit of the witnesses, their performance in the witness box; their power of observation etc. From the cross examination of Kamal Singh nothing infirm could be elicited to caste a doubt on his testimony. Kamal Singh categorically deposed that there was sufficient light and he had seen the appellant inflicting blow with axe on the person of Bhoor Singh. We see no ground to discard the testimony of Kamal Singh. ;