JUDGMENT : Ahmad, C.J. - The Appellant Raju Das, aged about 27 years, has been convicted u/s 302, Indian Penal Code and sentenced to undergo rigorous imprisonment for life for having throttled his daughter Basanti aged about 11/2 years, to death. This occurrence took place on 10-3-1964 at about 5 p.m. in his own house in village Kharida within the jurisdiction of Police Station Hinjili which is at a distance of about a mile from the village. On that day, the inmates of the house were only three: viz, (1) the Appellant Raju Das, (2) his wife Kanaka (p.w.1) aged about 25 years and (3) his father Jure Das (p.w.9) aged about 60 years apart from the deceased child Basanti. P.w.1 is the second wife of the Appellant. His first wife is said to have deserted him sometime back. The second marriage of the Appellant with p.w.1 is said to have taken place only about three years ago; p.w.1 also was said to have, by that time, lost her first husband Nania Panigrahi. According to the prosecution the Appellant had the suspicion that the deceased child Basanti was an illegitimate child and this was said to be the motive which led the Appellant to throttle the child to death, At the time of the occurrence it is said that p.w.9 was taking rest in the front verandah of the house while the Appellant was lying in his bedroom, on the backside, along with the child who was then sleeping and p.w.1 was busy in fetching water from a well village. When she returned home with the pitcher filled with water she found to her surprise, that the Appellant was throttling the child with his left hand and striking at the back of the child with his right hand. The mouth of the child had been gagged with a piece of cloth (M.O. II). At that she exclaimed that her husband was throttling her daughter to death and ran to the front verandah of her house to report the matter to her father-in-law Jure Das (p.w.9). P.w.9 having heard her exclaiming came inside the house along with p.w.1 and the two together took the child from there to the backside verandah of the house and tried to bring the child who was then unconscious back to her senses. Their attempt however proved of no avail. P.w.9 having heard her exclaiming came inside the house along with p.w.1 and the two together took the child from there to the backside verandah of the house and tried to bring the child who was then unconscious back to her senses. Their attempt however proved of no avail. In the meantime, the two neighbours p.ws.2 and 3 who were then sitting in front of the house having heard p.w.1 exclaiming rushed towards the house but the Appellant shut the door from within. Thereupon they along with others went to the bari from the backside and saw the child there lying in a pitiable condition. Finally when p.w.1 found that the condition of the child was getting precarious she removed the child to the hospital at Hinjilikot but the child expired on the way. So from there instead of going to the hospital she with the dead child in her hand went to the police station in Hinjili. At the police station the Investigating Officer (p.w.10) recorded the first information report on her statement at 7 p.m.. 2. The defence suggested at the trial was that the Appellant at the time of occurrence bad been out to case himself When he returned home he found his wife p.w.1 closeted with another male inside his house. That male fled away from the house on finding the Appellant approaching him. The Appellant found the child getting restless on his bed. Then he challenged p.w.1 as to who that male was and as to why the child was getting restless. In substance therefore according to the defence the child was throttled not by the Appellant but by some third person. 3. The learned Sessions Judge, on an elaborate discussion of the entire evidence on the record has held that the charge u/s 302, Indian Penal Code is proved against this accused Raju Das beyond all reasonable doubt. Accordingly as already stated, the Appellant has been convicted under that section and sentenced to imprisonment for life. 4. 3. The learned Sessions Judge, on an elaborate discussion of the entire evidence on the record has held that the charge u/s 302, Indian Penal Code is proved against this accused Raju Das beyond all reasonable doubt. Accordingly as already stated, the Appellant has been convicted under that section and sentenced to imprisonment for life. 4. The conclusion arrived at by the learned Sessions Judge is based mainly on-(i) the evidence of the doctor (p.w.4); (ii) the oral testimony of the solitary eye-witness p.w.1 and that of other three neigh hours p.ws.2, 3 and 5 who happened to arrive there immediately after the occurrence; and (iii) the conduct of the Appellant and his wife (p.w.1) as found in the course of that transaction, or immediately thereafter. 5. P.w.4 in evidence has deposed that "on 11-3-1964 at about noon I conducted the post mortem examination and found the following external injuries on the dead child. No. 1. One crescentic scar mark 1" long on the right side of the neck below the mandible. No. 2. Three his scratch marks crescentic in shape on the left side on the middle third of the neck, size 1/2" in length. No. 3. Three crescentic scratch marks on the left side of the back of the neck on the lower part, half an inch long. No. 4. One linear scratch 4" in length on the right side of the cheek and in front of the ear, direction vertical. Further he added that on dissection he found the following internal injuries: 1. Underneath external injuries Nos. 1, 2 and 3, there was extravasation of blood in the subcutaneous tissue. Both the lungs were congested, dark fluid blood was coming out on cut section when I cut the lungs. On the lung surface emphysematous matters bullae (bubble like shapes) were found. Right side was full with blood, the left side was empty. The spleen kidneys and liver were congested. The eyes were open, pupils were dilated. Conjunctive was congested. The face was cyanosed (blue). The bands were clenched. All the injuries, both external and internal, were ante mortem in nature. Lastly he reported that: External injuries 1, 2 and 3 appeared to have been caused with finger nails. External injury No. 4 might have been caused by coming in contact with some rough substance. The internal injuries under external injuries Nos. 1. The bands were clenched. All the injuries, both external and internal, were ante mortem in nature. Lastly he reported that: External injuries 1, 2 and 3 appeared to have been caused with finger nails. External injury No. 4 might have been caused by coming in contact with some rough substance. The internal injuries under external injuries Nos. 1. 2 and 3 were caused by the same action as external injuries Nos. 1, 2 and 3". According to the doctor "death was due to asphyxia as a result of throttling and that by human hand and not otherwise". In his opinion "Throttling took place from the front side of the neck with the help of the right hand of the assailant" and that "external injury No. 3 might have been caused by the assailant again applying his fingers". 6. The aforesaid evidence given by the doctor (P.W.4) substantially gives support to what P.W.1 in her evidence stated at the trial about the manner in which the child was throttled to death by the Appellant. 7. Mr. ra, learned Counsel appearing for the Appellant, however has very strongly contended that the injuries as found by the doctor on the neck of the child could not possibly have been caused by the Appellant in the mode or manner as claimed by P.W.1. P.W.1 in cross-examination admitted to have stated in the F.I.R. that "when I saw the incident the accused was lying down on his left side and was pressing the neck of the child with his left hand and striking on the back of the child with his right hand". The doctor (P.W.4) however has deposed firstly that "having regard to the nature of he injuries I am of opinion that the throttling took place from the front side of the neck with the help of the right hand" and secondly that "I am of opinion that more pressure was required on the back of the neck to cause sufficient pressure on the trachea resulting in suffocation and death, if throttling was done from the back side". It has therefore been submitted on behalf of the Appellant that the neck of the child could not have been pressed by the Appellant with his left hand from the lying position as originally stated by P.W.1 ; accordingly it is contended that thereafter at the trial P.W.1, in order to make her evidence consistent with the opinion of the doctor, changed her original statement made in the F.I.R. and there stated that "When I saw the incident at first I found that the accused was sitting near the child and pressing the neck of the child with his right hand". 8. In my opinion, there is no substance in this contention. We do not exactly know what was the actual position of the Appellant at the time of occurrence, i.e., whether he was then sitting or lying or half stretching vis-a-vis the deceased child. Secondly, a pointed out by the learned Sessions Judge, the injuries 2 and 3 clearly suggest that the throttling of the neck was attempted more than once. Therefore it seems that the entire at of throttling was not seen by P.W.1 and what she actually saw was only the last act and not the other attempts made earlier thereto. Thirdly, it has to be remembered that P.W.1 must have been then in a very afflicted condition and therefore to expect from her that she in that state of mind observed everything carefully and minutely is not at all reasonable. Doubtless the statement made in the F.I.R. was made immediately after the occurrence without any delay. Therefore it cannot be said that it was the result of any tutoring by any third party. Therein at least the substance of the allegation is clearly stated. Therefore the mere fact that there is some contradiction in her statements made at two stages as to some minor details cannot be a ground for holding that her statement is false. On the contrary the mode and manner of her statement coupled with her conduct at the time of occurrence leaves no room of doubt that what she has stated is all true. 9. The aforesaid minor contradictions pointed out by Mr. ra cannot take away the force of the hard fact that at the time of occurrence there was nobody else present inside the house except (i) P.W.1, (ii) the Appellant, and (iii) his father (P.W.), besides the child. 9. The aforesaid minor contradictions pointed out by Mr. ra cannot take away the force of the hard fact that at the time of occurrence there was nobody else present inside the house except (i) P.W.1, (ii) the Appellant, and (iii) his father (P.W.), besides the child. P.W. was then taking rest in the outer verandah. Therefore if in fact as claimed by the Appellant there was any other male person also present in the house at that time and if in fact thereafter he fled away at the sight of the Appellant, there must have been a good row over the affair not only between the Appellant and his wife (P.W.1) but also in the locality, and in any case the persons sitting near about the house must have heard something about it. Unfortunately the materials on record lend no support to such a case. 10. In my opinion, therefore, the defence as suggested on behalf of the Appellant is all faked and not at all worthy of credence. 11. Next Mr. ra also drew our attention to some other contradictions and omissions which are found to have been a by P.W.1 in her statement made in Court as compared with what she stated in the F.I.R. or before the police. It appears that in her earlier statements made in the F.I.R. and before the police she asserted that the lower lip of the child had turned blue, when she picked her up and there was a depression on the front part of her neck. But at the trial, she did not make any such statement. Likewise, there are some facts which are found to have been stated by her at the trial but they are not mentioned in her earlier statements made before the police or in the F.I.R.. For example at the trial she stated that (i) the accused was laughing when I was trying to give milk and water to the injured child. (ii) the accused was often assaulting me and ill treating me. (iii) the accused was torturing the child by biting its cheek, twisting the thighs and burning the buttocks of the child with a fire. (ii) the accused was often assaulting me and ill treating me. (iii) the accused was torturing the child by biting its cheek, twisting the thighs and burning the buttocks of the child with a fire. (iv) the accused was often demanding money from me and when I could not supply him with money he was assaulting me.In the F.I.R. no doubt they are not mentioned; but obviously they relate to facts which have nothing to do with the main part of the occurrence. So it may be that they were not uppermost, in her memory at the time when she made the statement in the F. I R. and before the police or that at that time they were not considered by her necessary to be referred to. In any case what must have been uppermost in her mind at the time when the F.I.R. was recorded or when she made her statements before the police was the main transaction which immediately preceded the death of the child and not the detail or the history of what had happened before. These so-called variations or omissions are in fact so minor and trivial that they by themselves can hardly take away the force of the main broad facts that are now found established by the evidence on the record. The claim of P.W.1 is that since the time she came to the house of the Appellant after the birth of the deceased child, the Appellant had been persistently alleging that the child was illegitimate and therefore he had been for that reason not only indifferent but positively hostile both to the child and to her. l2. This motive as given by P.W.1 is not only supported by the spontaneous statement made by her in the F.I.R. but also by the surrounding circumstances that are on the record and not less by the way in which the Appellant and his father (P.W.9) behaved themselves at the time of the occurrence in not taking the least interest in the matter of setting medical relief from the doctor or the hospital. In the normal course one would have expected that if, in fact, the child had been throttled by a third person or even by P.W.1 herself, both the Appellant and his father should have taken active steps and been up and doing firstly to get relief for the child and then to bring the person or persons responsible for the occurrence to book. But we find is that neither the pieplant nor his father (P.W.9) took any trouble in personally taking the child to the hospital or in taking any assistance from the police to get the persons responsible for that crime to book. The Appellant, after the incident, did not the least stir out from the house and left P.W.1 alone to go along with the child to the hospital and to the police station. Likewise his father (P.W.9) also did not behave any better. Even on his own claim all that he did was that for a short distance he proceeded for the hospital but immediately thereafter returned home as he had fever and left his nephew, who met him on the way to look after the child in the hospital. This was the only child which the Appellant had. Can it be believed that if the Appellant was not responsible for the throttling he and his father would have ignored the incident in the manner in which they did? I think not. On the contrary, this circumstance goes a long way to suggest that the motive for the crime as given by P.W.j is true and for that reason no interest was taken in the child either by the Appellant or his father. It is true that in the F.I.R. the motive given is not only that the Appellant had the suspicion that the child was illegitimate, but also that she (P.W.1) had been instrumental in getting some of the lands transferred by her father-in-law to the sister of the Appellant. That may be so, but that does not belie the other motive. That may have at best been an aggravating factor and added fuel to the fire. Therefore this slight addition is of no consequence. 13. Then there was also some faint suggestion made in the course of the cross-examination of this woman (P.W.1) that it was P.W.5 who was instrumental in getting a false case lodged against the Appellant. That may have at best been an aggravating factor and added fuel to the fire. Therefore this slight addition is of no consequence. 13. Then there was also some faint suggestion made in the course of the cross-examination of this woman (P.W.1) that it was P.W.5 who was instrumental in getting a false case lodged against the Appellant. P.W.5 is admittedly a co-villager of the Appellant. The claim made by P.W.5 is that- At the time I was cutting wood in my bari. At that time Kanaka (P.W.1) shouted out in the bari of the accused stating that the accused had throttled the child of P.W.1. Then I went to the bari of the accused, and I found that P.W.1 was holding her child on her leg. Jure Das the father of the accused and p. ws. 3 and 4 and some others were present there. We have carefully read his evidence and there is no ground for holding that he got this case falsely concocted or that he had any hand in the murder of the child. 14. The suggestion made against this witness on behalf of the Appellant is that he was on inimical terms with him and that the Appellant had financed one Hannu Telli in a criminal case brought by him against this witness and P.W.2. In answer thereto he stated that "it is not a act that I have fallen out with the accused for the last 6 to 7 years". Further though he admitted that- Gopi Sahu of my village brought a criminal case against me about ten years ago in which I was convicted. This is the case in which Rannu Telli was also the complainant. Kashinath Sahu (P.W.2) was tried in that case along with me but was acquitted But at the same time made it clear that- It is false to say that accused Raju Das and his father Jure Das were helping the prosecution in that case And on the record there is no evidence or circumstance to give support to any of these suggestions, barring what has been stated in that connection by P.W.9, the father of the Appellant. It is obvious that P.W.9 being the father of the Appellant must have been ultimately made to depose in favour of the defence. It is obvious that P.W.9 being the father of the Appellant must have been ultimately made to depose in favour of the defence. This is so is clear from the fact that at the trial he went back to all what he had stated before the police in support of the prosecution case, with the result that he had to be ultimately died hostile. In that view of the matter the solitary statement made by an interested witness like P.W.9 cannot be seriously taken into consideration. As against his evidence the statement of P.W.5 finds full support from what was deposed to by the other two witnesses (p. ws. 2 and 3). It is true that p. ws. 2 and 3 are the agnates of P.W.5, but that such accidental fact by itself cannot be any ground for holding that in deposing what they did they concocted a false case. It may be that these witnesses being agnates were then that evening relaxing themselves at some place which per chance happened to be close to the house of the Appellant. There is no material in the evidence of p. ws. 2 and 3 to suggest that they had any malice to depose falsely in this case. All these witnesses not only deposed on the question of motive and asserted that there had been a strained relationship between the husband and wife since some time back and that they had been always quarrelling between themselves for the reason that there was constant and persistent allegation de by the Appellant that the deceased was an illegitimate child. Further they have also deposed that at the time of occurrence they heard P.W.1, the wife of the Appellant shouting that it was the Appellant who had throttled the child to death. All these statements made by these witnesses go a long way to corroborate the evidence of the eye-witness P.W.1 in asserting what she claims to have seen at the time of occurrence. In these circumstances therefore the evidence of the eye-witness p.w.1 apart from being true and trustworthy on its own merit finds full corroboration from the conduct of the Appellant and his father as already discussed above and not less from the circumstances and materials brought on the record by p. ws. 2, ;) and 5. 15. In these circumstances therefore the evidence of the eye-witness p.w.1 apart from being true and trustworthy on its own merit finds full corroboration from the conduct of the Appellant and his father as already discussed above and not less from the circumstances and materials brought on the record by p. ws. 2, ;) and 5. 15. In the result, therefore, there is no escape from the conclusion as found by the learned Sessions Judge that the charge against the Appellant has been fully proved beyond reasonable doubt. Accordingly I hold that the appeal is without substance and is dismissed. Misra, J. 16. I agree. Appeal dismissed. Final Result : Dismissed