JUDGEMENT (PER : S.P.KUKDAY,J.) Appellant Murlidhar Sitaram Dongardive is convicted by 1st Ad-hoc Additional Sessions Judge; Jalgao for having throttled Soni, daughter from his mistress Vatsalabai and for causing hurt to Vatsalabai. He is sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default to suffer R.I. for two months for first offence punishable under section 302 of IPC. For the second offence punishable under Section 323 IPC, he is sentenced to suffer R.I. for one month and to pay fine of Rs.500/- in default to suffer R.I. for ten days. This order of conviction and sentence is impugned in the present appeal. 2. We may notice few relevant facts. Pralhad Birhade, an employee of the Ordnance Factory was living with his wife Vatsalabai (P.W.3) and son Deepak in the quarter allotted to him at Varangao. Murlidhar (appellant) who was also living in the same campus developed illicit intimacy with Vatsalabai. After retirement Pralhad deserted his wife and shifted to Jalgao with his son. Vatsalabai (first informant) continued to live with the appellant in rented premises at Gopal Market area of Varangao and gave birth to Soni. About two to four months prior to the incident appellant fell sick and started living with his brother Damu and brother in law Laxman Salve but continued to visit Vatsalabai. 3. On 7th March, 2004 at about 3.00 to 3.30 p.m. Vatsalabai bathed two and half month old Soni at the water tap in Ordnance factory area, washed clothes and was returning to the house at about 5.00 to 5.30 p.m. On her way back, appellant met her near Consumer Society shop. Vatsalabai told him that she desires to undergo vasectomy as she does not wish to bear children. Appellant approved the suggestion and took her to an isolated place in the forest behind the Ordnance Factory. Both of them sat under a mango tree. Appellant played with Soni for some time and suddenly started pressing her neck and rubbing her face in the soil for smothering her. When the first informant tried to snatch the weeping child, appellant pushed and hit her on the back but continued to throttle the child. The child was dead by the time first informant succeeded in snatching her from the appellant. The appellant left the place when first informant ran with the dead body of the child towards Sushilnagar. When the first informant tried to snatch the weeping child, appellant pushed and hit her on the back but continued to throttle the child. The child was dead by the time first informant succeeded in snatching her from the appellant. The appellant left the place when first informant ran with the dead body of the child towards Sushilnagar. On her way, the first informant met two three women from the hutment. She informed them and some persons who were standing near the temple, of what had happened. They advised her to approach the police. The first informant then went to the police station and narrated the incident. API Sanjay Sangle (P.W.6) recorded FIR (Ex.31) and registered offence under section 302 of the Penal Code against the appellant. He then held inquest (Ex.12) on the dead body of the child and sent it for postmortem. On the next day the investigating officer prepared panchanama of the scene of offence (Ex.11) and arrested the appellant. On completion of the investigation the appellant was charge sheeted. 4. At the trial the appellant denied his relationship with the first informant and paternity of the child. Appellant adopted defence of total denial, claiming that he was at the house of his brother at the time of the incident. 5. In support of its case, the prosecution examined six witnesses. Ganesh Patil (P.W.1) has proved Spot Panchanama (Ex.11). Neither blood nor marks of rubbing were found at the scene of occurrence pointed out by the first informant. Narayan Mahajan (P.W.2) stated that he does not know whether Vatsalabai lived with the appellant at any time but he knew that she used to sleep on the raised platform of the houses of different persons after she was deserted by her husband. He further stated that on the day of incident at about 6.30 p.m. about 50 to 60 persons had gathered at the bridge near Vatsalabai, as she was shouting that the appellant had committed murder of her daughter. Hemant Naik (P.W.5) stated that on 6.3.2004 at the bridge Vatsalabai was accusing the appellant of having committed murder of her daughter. 6. Vatsalabai (P.W.3) testified to her relationship with the appellant and stated that on the day of the incident the appellant took her to the forest behind the Ordnance factory. After gossiping for some time, appellant asked her to come towards the grave yard. 6. Vatsalabai (P.W.3) testified to her relationship with the appellant and stated that on the day of the incident the appellant took her to the forest behind the Ordnance factory. After gossiping for some time, appellant asked her to come towards the grave yard. While they were walking, the appellant pushed her. As a result she fell down. The appellant sat on her chest and started pressing her face with one hand. He was strangulating the child with other hand and was rubbing its face in the soil. She was shouting and resisting the appellant but he did not relent. After the death of the child, appellant suggested that they should bury dead body of the child under the bridge near the cemetery. She agreed but asked the appellant to come to this place by a different route to avoid wrath of the inhabitants. She then went to the bridge by different road. After reaching the bridge she narrated the incident to the ladies who met her there and on their advice lodged report (Ex.31) with Varangao Police. During the cross-examination variance in the story narrated by the first informant in court with the version of the incident found in the FIR is brought on record by the defence. The first informant further admitted that the appellant was sick prior to the incident and had left her company. 7. Dr.Naik of Rural Hospital, Varangao conducted autopsy. The medical officer is not examined as a witness as the defence has admitted postmortem report (Ex.33). Apart from multiple abrasions and contusion on the face of two year old child, the autopsy surgeon found haematoma over left occipital region, fracture of left occipital bone and intracranial hemorrhage at left side of the brain. On the basis of this data the autopsy surgeon opined that the death is caused due to head injury which was responsible for intracranial hemorrhage leading to cardio respiratory arrest. 8. API Sanjay Sangle (P.W.6) narrated the steps taken during the investigation. 9. On appreciation of evidence, the trial Judge found that evidence of Narayan (P.W.2) in a way corroborates testimony of the first informant. 8. API Sanjay Sangle (P.W.6) narrated the steps taken during the investigation. 9. On appreciation of evidence, the trial Judge found that evidence of Narayan (P.W.2) in a way corroborates testimony of the first informant. He further found that the first informant has explained omission to mention all the details of the incident in the F.I.R. Placing implicit reliance on the testimony of first informant, the trial Judge found appellant guilty of committing murder of the child and sentenced him as stated earlier. 10. In support of the appeal, learned counsel Smt. S.S. Jadhav would argue that the appellant had deserted the first informant about two months prior to the incident. Except bare word of the first informant there is no evidence to connect the appellant with the commission of the offence. At the trial, the first informant has made material improvements in the version of the incident. The trial Judge has committed an error in brushing aside material omissions and contradictions in her evidence of the first informant and placing implicit reliance on her evidence to convict the appellant. 11. Per contra, learned APP Shri N.H.Borade has supported the order of conviction and sentence passed by the trial Judge on the premise that no fault can be found with the appreciation of evidence of the partisan witness by the trial Judge. 12. We have carefully scrutinized the entire record with the assistance of both the parties. Main plank of the argument of learned counsel for the appellant is that the trial Judge has not properly appreciated sole testimony of the first informant. Testimony of the first informant has to be appreciated on the background of her admission that the appellant had started living with his brother about two months prior to the incident. She did claim that the appellant was in the house since three days prior to the incident. In the context of the evidence of Narayan (P.W.2) that the first informant was not living in the house but was sleeping outside the house of different people, her testimony that she was living in a rented house with the appellant can not be accepted as gospel truth in the absence of corroboration. Apart from this the first informant has introduced radical change in the version of the incident at the trial. Apart from this the first informant has introduced radical change in the version of the incident at the trial. In the FIR she mentioned that near a thorny bush appellant started throttling her daughter and rubbing face of the child in the soil. When she resisted, appellant pushed and beat her on the back. She raised alarm but no one responded. After the child died she snatched it from the appellant and ran towards Sushilnagar and then filed report on the - 8 - advice of the ladies who met her on the way. Story made out at the trial that, the appellant sat on her chest, started pressing her face and simultaneously strangulated the child. She introduced another change over the original version by stating that she was afraid of the wrath of the inhabitants of the locality for killing the child, thus she suggested to the appellant that both of them should go to the bridge near the cemetery by different route and bury the child there. The variations introduced by the first informant in the version of the incident changes the tenor of the story altogether. As per the original version after death of the child she snatched it, ran towards Sushilnagar, accused the appellant of the murder of the child and then filed complaint on the advice given by the people. At the trial attempt is to show that both of them decided to bury the child but were to take precaution to ensure that the inhabitants did not suspect them of killing the child. The shift in narration of the incident assumes importance as the persons who could have done away with the child are the appellant and the first informant herself. 13. Principles governing appreciation of evidence of a partisan witness are by now well settled. Conviction can be founded on the sole testimony of an eye witness even in the absence of corroboration if the evidence is of a sterling quality and inspires confidence. Minor contradictions in the evidence of witness do not corrode his testimony. The discrepancies which appear because of the errors of observation, capacity of the witness to perceive, memorise, recall and reproduce past events can be termed as normal discrepancies. These discrepancies do not adversely affect probative value of the testimony of a witness. However, the infirmities which radically change original version require serious consideration. The discrepancies which appear because of the errors of observation, capacity of the witness to perceive, memorise, recall and reproduce past events can be termed as normal discrepancies. These discrepancies do not adversely affect probative value of the testimony of a witness. However, the infirmities which radically change original version require serious consideration. In such a case it would be prudent to look for corroboration before relying on such tainted evidence. In the present case the trial Judge has accepted evidence of the first informant that she was living with the appellant at the time of incident, ignoring the evidence of Narayan and absence of corroboration from the neighbours or the landlord. For condoning the improvement regarding the manner of the occurrence the trial judge observed in para 10 of the Judgment that the FIR is not an encyclopedia, thus, certain omissions can be condoned. The principle adverted to is not correctly stated. Facts stated for the first time in the court are not regarded as discrepancies if they are in the nature of elaboration and do not affect basic features of the original version. The variation which affects the basic features of the prosecution version can not be treated as an elaboration. The trial Judge has not addressed himself to this basic difference between the discrepancies and elaboration. According to us, this faulty approach has led to an error in condoning material omission on the premise that it is an elaboration of the original version. 14. We have noticed another infirmity in the appreciation of evidence in respect of the immediate conduct of the first informant. As per original version she snatched the child; ran to the bridge and started shouting that the appellant has committed murder of their daughter. This version does not accord with the narration before the court that both of them agreed to bury the child but were taking precaution to avoid suspicion by going to the cemetery by different routes. If the story made out at the trial is correct then the conduct of the first informant in raising alarm and accusing the paramour in public was not necessary. If the story made out at the trial is correct then the conduct of the first informant in raising alarm and accusing the paramour in public was not necessary. Learned Counsel for the appellant has rightly contended that these material discrepancies can not be lightly brushed aside in view of the defence of false implication and the possibility that the mother left with no means to take care of the child, could have done away with illegitimate chid herself. We have also noticed conflict between ocular evidence of the first informant and the medical evidence. The story set up by the first informant that the death took place on account of throttling is falsified by the medical evidence which discloses that a blow must have been given on the head of the child resulting in fracture of occipital bone and intracranial hemorrhage which caused death. The fact that the death is not due to an asphyxia should have put the trial judge on guard, indicating necessity for careful analysis of the evidence. In the light of these facts, we can not approve of the manner of appreciation of the evidence which appear to be influenced by moral convictions of an individual. We deem it necessary to emphasize that a judge should not allow nature of the crime to cloud his judgment. The analysis should be pragmatic and dispassionate. In the present case, in our considered opinion, the trial Judge has ignored vital contradictions and improvements on the specious premise that these are inconsequential and has committed an error by totally ignoring the medical evidence which falsifies the version of the incident given by the first informant. In the light of this, we can not sustain finding recorded by the trial Judge regarding guilt of the appellant. In view of the infirmities noticed in the sole testimony of the first informant and the fact that the medical evidence falsifies the version of the incident propounded by the prosecution, we are inclined to accept contention of Mrs. Jadhav, learned counsel for the appellant, that in the present case conviction can not be based on unreliable testimony of the sole eye witness. In the light of this, the appeal deserves to be allowed. Thus, Criminal Appeal No. 736 of 2005 is allowed. Jadhav, learned counsel for the appellant, that in the present case conviction can not be based on unreliable testimony of the sole eye witness. In the light of this, the appeal deserves to be allowed. Thus, Criminal Appeal No. 736 of 2005 is allowed. Conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine if paid by the appellant, be refunded to him. The appellant be released forthwith, if not required in any other case.