Judgment ( 1. ) These .appeals are interlinked, as preferred against a common judgment dated 3-1-1995 passed by Eighth Additional Sessions Judge, Jabalpur in S.T. No. 274/91 whereby the appellants and the co-accused Preetam, though tried jointly with co-accused Dashrath for the offence punishable under Section 302 read with S. 34 of the IPC, were convicted and sentenced as under:- ( 2. ) The proceedings against co-accused Dashrath had abated consequent to his death during trial and no appeal has been preferred by the co-convict Preetam. For the sake of convenience, the appellants shall be referred to by their respective names only. ( 3. ) The prosecution story, in short, may be narrated thus - (i) At the relevant point of time, the appellants and Santosh Singh (since deceased), a retired Military personnel, were residing in village Paraswada. Their agricultural lands were contiguously situated. The land adjacent to the house of Munna, though owned by Santosh Singh, was being used by Munna for various household purposes. Nearly four months prior to the incident in question, Santosh Singh had converted that land into a barn. This led to animosity between them. (ii) On 12-5-1991, at about 11, Santosh Singh set fire to garbage after collecting the same in his field. Seeing the fire spreading towards his house, appellant Munna raised objection and thereupon Santosh Singh with the assistance of co-villagers extinguished the fire. Thereafter, one Sardar Tari alias Avtar Singh (PW 6) came to the house of Santosh Singh to purchase wheat and paid the price thereof in advance. Santosh Singh came out of the house to see Avtar Singh off. He accompanied Avtar Singh up to the outskirts of the Village. While returning home, his way was obstructed by the appellants and co-accused Dashrath and Preetam. All of them surrounded him and started hurling abuses for his act of setting fire to the garbage. In the course of the quarrel, appellant Athai, co-convict Preetam and Dashrath (since deceased) caused Santosh Singh to fall down and appellant Munna threw down a heavy stone on the head of Santosh. Sustaining head injury, Santosh breathed his last at the spot only. (iii) It was upon the Dehati Nalishi (Ex. P/2) recorded by Head Constable Ashwini Kumar (PW11) that a case in respect of the offences punishable under Sections 294 and 302 read with 34 of the IPC was registered. Sustaining head injury, Santosh breathed his last at the spot only. (iii) It was upon the Dehati Nalishi (Ex. P/2) recorded by Head Constable Ashwini Kumar (PW11) that a case in respect of the offences punishable under Sections 294 and 302 read with 34 of the IPC was registered. After inquest proceedings, the dead body was sent to Medical Hospital, Jabalpur for postmortem. Dr. N. K. Shrivastava (since dead) conducted the autopsy and opined that cause of death was the head injury. During investigation, Head Constable Ashwini Kumar (PW 11) prepared the spot map (Ex. P/4) and seized the following articles therefrom :- (a) a blood stained stone, 16 inches in length and respectively 7, 9, 5, 6 inches in breadth; (b) cash amount of Rs. 2000/-, (c) a key, (d) a yellow coloured Gamchcha (e) a pair of slippers, (f) a pair of plastic shoes, (g) blood stained soil and control earth (h) hair lying on the ground and bloodstained hair that were cut from the scalp of the deceased. (iv) Appellants and the co-accused were apprehended. The seized stone was forwarded to the autopsy surgeon for examination. He opined that the head injury that was found fatal to the deceased could be inflicted by the stone. Seized ordinary and blood stained soil, hair, stone, Gamchcha, and blood stained clothes of the deceased, as preserved by the autopsy surgeon, were sent to FSL, Sagar for forensic examination. ( 4. ) The appellants as well as co-accused Preetam abjured the guilt arid pleaded false implication. In the examination under Section 313 of the Code of Criminal Procedure, they further pleaded that in a drunken condition, Santosh Singh had outraged modesty of Asha, the wife of co-accused Preetam and during scuffle, he had fallen down and had sustained the head injury. Attention was also invited to the fact that on the fateful day, appellant Munna had gone to the Police Station which is situated at a distance of 13 Kms. from the spot to inform that the fire ignited by Santosh Singh had flared up. ( 5. ) To bring home the charge, the prosecution examined as many as 15 witnesses including Paramjeet Singh (PW 2), Munna (PW 3), Rajpal (PW 4), Suraj (PW 5) and Asha Mishra (PW 8) as eye-witnesses to the incident. from the spot to inform that the fire ignited by Santosh Singh had flared up. ( 5. ) To bring home the charge, the prosecution examined as many as 15 witnesses including Paramjeet Singh (PW 2), Munna (PW 3), Rajpal (PW 4), Suraj (PW 5) and Asha Mishra (PW 8) as eye-witnesses to the incident. The defence was sought to be substantiated by producing Asha (DW1) and by referring to the contents of the corresponding report (Ex. P/15). Raj Kumar Awasthy (DW 2), a Constable, said to have taken appellant Munna from Dhanvantari Nagar to Police Station for lodging the report, was also examined. ( 6. ) Upon a critical appraisal of the entire evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, came to the conclusion that none of the accused persons had any intention to cause death of Santosh Singh. She was further of the view that appellant Athai, co-accused Preetam and Dashrath (since dead) had only shared a common intention to cause simple hurt to Santosh Singh. Accordingly, she proceeded to convict, the appellants and the co-accused Preetam for different offences as indicated hereinabove. ( 7. ) Legality and propriety of the convictions have been assailed primarily on the ground of what is termed as mis-appreciation of evidence on record. According to the learned counsel for the appellants, on the one hand, the presence of so-called eye-witnesses at the spot was doubtful and on the other, probability of defence was clearly proved. In response, learned Dy. Advocate General, while inviting attention to the incriminating pieces of evidence, has submitted that the convictions were well founded. ( 8. ) Before adverting to the merits of the rival contentions in a right perspective, it would be necessary to first advert to the medical evidence on record. As pointed out already, the Autopsy Surgeon Dr. N. K. Shrivastava could not be examined consequent to his death. Although, his colleague namely Dr. A. C. Nagpal (PW 15) was able to prove that the post-mortem report (Ex. P/14) was prepared and signed by Dr. N. K. Shrivastava yet, in the cross-examination, he admitted that Santosh Singh was First brought to the hospital and was admitted there. This admission was apparently misconceived in view of the fact, as reflected in the Dehati Nalishi (Ex. P/2), that Santosh Singh had expired at about 2 p.m. on 12-5-1994. P/14) was prepared and signed by Dr. N. K. Shrivastava yet, in the cross-examination, he admitted that Santosh Singh was First brought to the hospital and was admitted there. This admission was apparently misconceived in view of the fact, as reflected in the Dehati Nalishi (Ex. P/2), that Santosh Singh had expired at about 2 p.m. on 12-5-1994. However, the medical expert clearly ruled out the possibility that the head injury could be sustained due to an accidental fall on a stony surface. Thus, from the medical evidence, it was clearly established that the death of Santosh Singh was homicidal in nature. ( 9. ) Coming to the other evidence on record, it may be observed that Paramjeet Singh (PW 2) claimed to have witnessed the occurence along with Rajpal. According to him, only ten minutes after departure of his father Santosh Singh and Sardar Tari alias Avtar Singh (PW 6) from his house. Rajpal had come there to take his tractor on hire basis and as per the request made by Rajpal, both of them proceeded towards the pond to meet Santosh Singh. Rajpal (PW 4) also substantially corroborated the evidence of Paramjeet but their evidence suffered from material inconsistecies. This apart conduct of Paramjeet in fleeing away even after witnessing a joint assault on his 65-years-old father was apparently unnatural and improbable in the light of the following admissions - (a) Aged about 30 years, he was having a well built physique. (b) He was accompanied by Rajpal (PW 4) who was of 35 years of age. (c) He was able to see the appellants and the co-accused hurling filthy abuses at his father; causing him to fall down and Munna alias Pancham enforcing a violent fall of stone at his head. (d) None of the assailants was armed with any deadly weapon. (e) He rushed towards the spot where his father was lying in an injured condition, but was driven off by the appellants and his companions who, while pursuing him, had expressed their intention to kill him also. (f) He was owning a motorcycle and a scooter but he did not prefer to go to the police station or to have recourse to police authorities by sending Rajpal on any of the two wheelers. ( 10. (f) He was owning a motorcycle and a scooter but he did not prefer to go to the police station or to have recourse to police authorities by sending Rajpal on any of the two wheelers. ( 10. ) Although, Munna Singh (PW 3) came forward to support the prosecution version that the appellants and co-accused were involved in a joint assault on Santosh Singh yet, he did not corroborate the assertion made by Paramjeet Singh (PW 2) and supported by Rajpal (PW 4) that it was he who had apprised them of the post-assault situation at the scene. On the contrary, he clearly stated that he had seen Paramjeet and Rajpal proceeding towards the spot. It was also not disputed that all the three were jointly facing prosecution in criminal cases. As such, the material infirmities in the evidence of these apparently interested witnesses were sufficient to suggest that none of them was able to witness the murderous assault on Santosh Singh. ( 11. ) However, the other witness namely Suraj (PW 5) did not spring from a tainted source. He vividly described as to how Santosh Singh was made to fall down by Athai, Dashrath and Preetam and had sustained the head injury due to impact of the stone thrown down at his head by appellant Munna. He was cross-examined at length but nothing could be elicited so as to suggest that he was, in any way, interested in securing conviction of the appellants on absolutely false grounds. Further, no supportive evidence was brought on record to substantiate the suggestion that he had already served as a labourer at the fields of Santosh Singh. He also denied the half-hearted suggestion that Santosh Singh had fallen down while outraging modesty of Asha Singh. The eye-witness account/rendered by him did not suffer from any serious discrepancy. There was nothing inherently, improbable or unnatural to render his presence as grazier of cattle at a distance of nearly 60 paces from the spot, doubtful. It is well settled that conviction can be based on the evidence of a solitary witness, if it is free from all taints. There was nothing inherently, improbable or unnatural to render his presence as grazier of cattle at a distance of nearly 60 paces from the spot, doubtful. It is well settled that conviction can be based on the evidence of a solitary witness, if it is free from all taints. Suffice would be to refer to the celebrated decision of the Apex Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , that has been consistently followed in all subsequent decisions on the point including the one in Namdeo v. State of Maharashtra, AIR 2007 SC (Supp) 100 : (2007 Cri LJ 1819). ( 12. ) Although, Asha Bai (DW 1) made an unsuccessful attempt to fortify the defence that Santosh Singh had misbehaved with her in a drunken condition yet, the post-mortem report indicated absence of any foul smell from the mouth of the deceased. The fact that semen was found coming out from the urethra of the deceased also did not assume any significance. Statement of Asha Mishra (PW 8) that after catching hold of the front position of Ashas body, Santosh had pulled up her Sari, was not in conformity with the testimony of Asha Bai to the effect that Santosh had fallen down while attempting to denude her. This apart, Rajkumar Awasthy (DW2), who had taken Munna to the police station was also not convincing for the following reasons - (i) His presence in the police station as companion of Munna was not recorded in the corresponding Roznamacha. (ii) The contents of the report (Ex. P/10) reflected that the villagers were busy in extinguishing fire that had assumed significant proportions. ( 13. ) To sum up, even after ignoring the corroborative testimony of Paramjeet, Rajpal and Munna, a clear, cogent and reliable evidence of Suraj (PW 5), who was neither a related rior an interested witness, was sufficient to bring home the complicity of appellant Munna in causing death of Santosh Singh whereas the probability of defence was not established. Accordingly, his conviction for the offence of culpable homicide not amounting to murder deserves to be maintained as well-merited. ( 14. ) Adverting to the culpability of appellant Athai, learned counsel for the appellants has strenuously contended that he was entitled to be acquitted in view of the fact that the allegation found proved against him was of a trivial nature. ( 14. ) Adverting to the culpability of appellant Athai, learned counsel for the appellants has strenuously contended that he was entitled to be acquitted in view of the fact that the allegation found proved against him was of a trivial nature. To buttress the contention, reference has been made to the decision of the Supreme Court in Veeda Menezes v. Yusuf Khan Haji Ibrahim Khan, AIR 1966 SC 1773 : (1966 Cri LJ 1489), explaining the ambit and scope of Section 95 of the IPC that reads as under - 95. Act causing slight harm.- Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Accordingly, the provision based on the maxim de minimis non curat lex (the law does not take account of trifles) applies - (a) not only to acts, which are accidental but also to deliberate acts, which cause harm or is intended to cause harm or is known to be likely to cause harm. (b) in cases of actual physical injury also, as the expression "harm" in the section is used in a wide sense. However, as elucidated further,- "Section 95 of IPC is intended to prevent penalisation of negligible wrongs or of offences of trivial character. Whether an act which amounts to an offence is trivial would depend upon the nature of the injury, the position of the parties, relation between them, situation in which they are placed, the knowledge or intention with which the offending act is done and other related circumstances. It cannot be judged solely by the measure of physical or other injury the act causes." ( 15. ) To understand the object of the general exception, the following observations made by authors of the Court may also be usefully quoted - "It is intended to provide for those cases which, though from the imperfections of language, they fall within the letter of the penal law, are yet not within its spirit, and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. As our definitions are framed, it is theft to dip a pen in another mans ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by riding past him hurt to incommode him by pressing against him in getting into a carriage. There are innumerable acts without performing which men cannot live together in society, acts which all men constantly do nd suffer in turn, and which it is desirable that they should do and suffer in turn, yet which differ only in degree from crimes. That these acts ought not to be treated as crimes is evidence and we think it far better expressly to except them from the penal clauses of the Code than to leave it to the Judges to except them in practice." ( 16. ) Applying the principle to the facts of the case, it can easily be concluded that the act attributed to appellant Athai, aged about 39 years, formed part of a joint yet a murderous assault on Santosh Singh, an old man, was not covered by the exception contemplated in Section 95 (supra). In this view of the matter, the fact that he has already more than what could have been the maximum punishment prescribed for the offence under Section 323 of the IPC does not assume any significance. As such, no interference is called for with the conviction of appellant, Athai. ( 17. ) This brings me to the question of sentence awarded to appellant Munna, who has already suffered imprisonment for period 3 years and 2 months. Taking into consideration the social impact of the crime and other relevant facts and circumstances of the case including that a period of more than 18 years has already elapsed after the incident in question, no useful purpose would be served by sending the appellant Munna back to jail. Interests of justice would be met if the term of custodial sentence awarded to him is reduced to the period already undergone. ( 18. ) In the result.- (i) Criminal Appeal No. 77/1995 preferred by appellant Athai stands dismissed. The impugned conviction and the consequent sentence are hereby affirmed. (ii) Criminal Appeal No. 194/1995 filed by appellant Munna is allowed in part. ( 18. ) In the result.- (i) Criminal Appeal No. 77/1995 preferred by appellant Athai stands dismissed. The impugned conviction and the consequent sentence are hereby affirmed. (ii) Criminal Appeal No. 194/1995 filed by appellant Munna is allowed in part. Although, his conviction under Section 304, Part II of the IPC and the fine sentence are hereby maintained yet the term of consequent custodial sentence is reduced to the period already undergone. ( 19. ) The appellants are on bail. Their bail bonds shall stand discharged. ( 20. ) Copy of the judgment be retained in the connected criminal appeal. Order accordingly.