JUDGMENT: Saroj Bala, Subhash Chandra Agarwal, J. Saroj Bala., J. This Jail appeal is directed against the judgment and order dated 7.12.2006 passed by the Additional Sessions Judge, Court No. 9, Saharanpur in S.T.No. 357 of 2004 whereby convicting the appellant Kashmira for the offence under Section 302 I.P.C. and sentencing him to rigorous imprisonment for life with fine of Rs. 1000/- and in default to undergo one month's imprisonment. 2. The facts leading to this appeal sans redundant details are these: On 18.4.2004 Mohit (victim), five year old son of the complainant Karm Singh (P.W.1) was playing alongwith his brother Rohit (P.W.3) in the verandah where their fodder cutting machine was installed. At about 11.15 A.M. the appellant who nursed a grudge against the complainant and was residing for the last about six years in Punjab, all of a sudden came in the varandah where complainant's children were playing. The appellant gave Rs.10/- to Rohit for purchasing eatables and sent him off. Thereafter the appellant caught hold of Mohit and subjected him to assault by striking different parts of his body against the Gandasa ( a cutting instrument) fixed in the fodder cutting machine. On hearing the outcries of the victim the complainant and his wife came out of the room and witnesses Subodh Kumar (P.W.4), Surendra Kumar (P.W.2) and Lokesh reached at the spot and saw the appellant tearing the chest of the victim with the sickle. The appellant was overpowered and captured after giving thrashing and was taken to the police station. The victim succumbed to the injuries at the spot. The complainant got scribed the written report of the incident (Ext. Ka-1) by Subodh Kumar and laid it at police station Nakur the same day at 12.30 noon. On the basis of written report chick F.I.R. (Ext. Ka-2) was prepared by C/c Amresh Pratap Singh (P.W.5) and the crime was registered under Section 302 I.P.C. in the General Diary at serial No. 21 (Ext. Ka-3) on 18.4.2004 at 12.30 noon. The special report was sent to the higher officers through CP. Raj Kumar the same day and entry was made in the General diary at serial No. 25 (Ext. Ka-4) at 4 P.M. Inspector Hari Prakash (P.W.7) then posted at police station Nakur took the responsibility to investigate the case. The crime was registered at the police station in his presence. Raj Kumar the same day and entry was made in the General diary at serial No. 25 (Ext. Ka-4) at 4 P.M. Inspector Hari Prakash (P.W.7) then posted at police station Nakur took the responsibility to investigate the case. The crime was registered at the police station in his presence. The accused appellant was taken into police custody and sent for medical examination through constables. Thereafter, he went to the spot alongwith police force and complainant and others. The inquest on the dead body of Mohit was conducted and inquest memo (Ext. Ka-6) was prepared by H.CP. Rajvir Singh under his supervision and instructions. During the course of inquest letters to R.I. and C.M.O., challan-lash, photo-lash (Exts. Ka-7 to Ka. 10) were prepared. The dead body was sealed and handed over to CP. Dharam Singh and CP. Indrapal alongwith papers for transportation to mortuary for post-mortem. The Investigating Officer prepared the site plan of the place of offence (Ext. Ka-11). He took into custody the blood stained Gandasa (Ext-4) after getting it removed from the fodder cutting machine, blood stained sickle (Ext.-3), blood stained and plain earth (Exts. 1 & 2) from the spot, under the memo (Ext. Ka-12). The appellant was medically examined by the Medical officer, C.H.C., Nakur on 18.4.2004 at 1.50 P.M. and following injuries were noticed on his body as per medical report (Ext. Ka-15): (1) L.W. 4 cm x 4 cm x scalp deep 1 cm above, left ear bleeding. (2) L.W. 5 cm x .5 cm x scalp deep on left side back of head 10 cm above, left ear bleeding. (3) L.W. 3 c x .5cm x scalp deep left side, .5 cm behind, left pinna bleeding. The injuries were caused by some hard and blunt object and were of simple nature. 3. The autopsy on the dead body of Mohit was conducted on 19.4.2004 at 3 P.M. by Dr. R.R.Gahlot (P.W.6) and following ante-mortem injuries were found on his body according to the post-mortem report (Ext. Ka- 5): (1) Incised wound of size 1 cm x 1/2 cm x scalp deep on right side forehead 1/2 cm above left eye brow. (2) Incised wound of size 1/2 cm x 1/4 cm x skin deep on left side forehead 2 /1/2 cm above left eyebrow. Margin cut clear. Ka- 5): (1) Incised wound of size 1 cm x 1/2 cm x scalp deep on right side forehead 1/2 cm above left eye brow. (2) Incised wound of size 1/2 cm x 1/4 cm x skin deep on left side forehead 2 /1/2 cm above left eyebrow. Margin cut clear. (3) Incised wound of size 1 /1/2 cm x 1 cm x scalp deep on right side head near midline, 6 cm above right eyebrow. Margin cut clear. (4) Incised wound of size 4 cm x 1 /1/2 cm x muscle deep on right side face, 2 cm infront of right ear. Trans oblique. Margin cut clear. (5) Incised wound of size 6 cm x 1 /1/2 cm x muscle deep on right side face 2 cm infront- below right ear lobule, extending upto right angle of mouth. Margin cut clear. (6) Multiple incised wound on chin and face right side in an area of 5 cm x 6 cm size varying 4 cm x 1/2 cm x muscle deep to 1 /1/2 cm x 1/2 cm x muscle deep. (7) Incised wound of size 4 cm x 3 cm x neck tissues deep on right side neck lateral surface, oblique, 3 cm left ear lobule. On exploration of wound neck vessels found cut and clotted blood present in tissues. Margins cut clear. (8) Incised wound of size 1 cm x 1/2 cm x muscle deep on left side head just left ear pinna. (9) Incised wound of size 6 cm x 3 /1/2 cm x neck tissue deep on front and left side neck upper part just below angle of mandible. Margins cut clear. On exploration trachea found cut. Clotted blood present. (10) Incised wound of size 20 cm x 7 /1/2 cm x neck and chest cavity deep, extending from front of neck right side near midline to chest left side obliquely 10 cm above umbilicus at 1 O'clock point. Margins cut clear, left side lung and heart lying outside the wound and exposed. On exploration underneath injury trachea, olrophogus, colludriece, stem body and ribs left Ist to 5th found cut. Heart with left lung lacerated. (11) Abraded contusion 8 Cm x 1 cm on right side chest, 4 cm below right nipple. (12) Abrasion 2 cm x 1 cm on back of right elbow. On exploration underneath injury trachea, olrophogus, colludriece, stem body and ribs left Ist to 5th found cut. Heart with left lung lacerated. (11) Abraded contusion 8 Cm x 1 cm on right side chest, 4 cm below right nipple. (12) Abrasion 2 cm x 1 cm on back of right elbow. (13) Multiple liner abrasions on front inner surface of left forearm in an area of 10 cm x 4 cm size varying 1 cm to 4 cm long. 4. Rigor mortis was passing from upper extremities and was present in lower extremities. There was no decomposition. Green grass particles were present on the body at places. Duration of death was about one day. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. 5. The sealed bundles containing Gandasa, sickle and blood stained and plain earth were sent to Forensic Science Laboratory, Agra through constable Ram Prakash. The Investigating officer (P.W.7) interrogated the witnesses and after completing the necessary formalities he submitted the charge-sheet (Ext. Ka-14) against the accused appellant for the offence under Section 302 I.P.C. The committal proceedings were conducted by the Chief Judicial Magistrate, Saharanpur who by the order dated 2.8.2004 committed the accused-appellant to the Court of Sessions for standing trial for the offence under Section 302 I.P.C. The accused appellant was charged for the offence under Section 302 I.P.C. to which he pleaded not guilty and claimed to be tried. At the trial the prosecution examined Karm Singh (P.W.1), Surendra Kumar (P.W.2), Rohit (P.W.3) and Subodh Kumar (P.W. 4) as witnesses of fact. The rest of the evidence was of formal nature about which reference has been made earlier. The trial court on close scrutiny and appraisal of prosecution evidence found the testimony of the witnesses (P.W.1), (P.W.2), (P.W.3) and (P.W.4) truthful and reliable and acted upon it by recording the finding of conviction against appellant. Heard Sri Syed Ali Murtaza, learned Amicus Curiae appointed to assist the Court and to represent the case of the appellant, learned A.G.A. for State and have gone through the trial court record. 6. Heard Sri Syed Ali Murtaza, learned Amicus Curiae appointed to assist the Court and to represent the case of the appellant, learned A.G.A. for State and have gone through the trial court record. 6. The learned Amicus Curiae challenged the findings of conviction on the grounds: (i) the First information report was ante-timed and ante-dated; (ii) the witnesses being relatives are interested persons and there are material contradiction in their testimony; (iii) injuries on the body of the appellant not explained; (iv) the withholding of witness Husna Kali, mother of the deceased creates a doubt as to the veracity of the prosecution case with regard to the motive. The incident took place at 11.15 A.M. on 18.4.2004. The first information report was lodged by Karm Singh (P.W.1), father of the deceased at 12.30 P.M. the same day. The witness (P.W. 1) stated that Subodh Kumar scribed the written report (Ext. Ka. 1) at his dictation and he had put his thumb impression over the report after it was read over to him. The witness Subodh Kumar (P.W.4) deposed that accused Kashmira was captured at the spot by them and was taken to the police station Nakur. The witness C/c Amresh Pratap Singh (P.W.5) deposed that the Chick F.I.R. (Ext. Ka-2) was prepared by him at 12.30 P.M. on the basis of written report (Ext. Ka.1) lodged by Karm Singh and the crime was registered in the G.D. at the Police station Nakur at serial No. 21 at 12.30 P.M. on 18.4.2004. According to him the special report was sent to the higher authorities the same day through constable Raj Kumar and entry was made at serial no. 25 of the G.D. of Police station Nukur at 4 P.M. (Ext. Ka. 4). The accused-appellant was intercepted by the witnesses and villagers and was taken to the police station Nakur. He was sent to P.H.C., Nakur for medical examination through constables Kailash Chandra and Sannever and was medically examined on 18.4.2004 at 1.50 P.M. The medical examination of the accused appellant at 1.50 P.M. on 18.4.2004 indicates that the F.I.R. came into existence prior to 1.50 P.M.. The inquest on the dead body began at 1.38 P.M. and was completed at 2.30 P.M. The accused-appellant in his statement under Section 313 Cr.P.C. admitted that he was captured by the witnesses and villagers after beating and was taken to the police station. The inquest on the dead body began at 1.38 P.M. and was completed at 2.30 P.M. The accused-appellant in his statement under Section 313 Cr.P.C. admitted that he was captured by the witnesses and villagers after beating and was taken to the police station. He was taken into police custody by Inspector Hari Prakash (P.W.7) and was sent for medical examination and an entry was made in the G.D. of the police station Nakur at serial no. 21 at 12.30 P.M. The handing over of accused-appellant by the witnesses to police custody at 12.30 P.M. on 18.4.2004 and his medical examination at 1.50 P.M. the same day show that the F.I.R. was not ante-timed and ante-dated. 7. The eye witness Karam Singh (P.W.1), father of the deceased categorically stated that about one year and three months before at about 11-11.15 A.M. he was having his meals in the room and his wife was serving meals to him. His children Rohit and Mohit were playing in the verandah near the fodder cutting machine. At the same time accused Kashmira came in the Verandah where the children were playing and asked his son Rohit to go away after giving Rs. 10/- for purchasing eatables. Thereafter the accused lifted Mohit and subjected him to assault by striking his body against the Gandasa fitted in the fodder cutting machine. On hearing the outcries of Mohit he alongwith his wife and witnesses Subodh and Surendra reached at the spot and saw the accused tearing the chest of Mohit with sickle. The accused was intercepted at the spot after giving thrashing and was taken to the police station and handed over to the police. His son died at the spot. In the cross-examination the witness stated that the door of the room in which he was having his meals was towards southern direction and fodder cutting machine existed in the Verandah situated towards southern side of the room. The distance between the room and the fodder cutting machine was about 10-15 paces. He further testified that he came out of the room on hearing the outcries of Mohit and saw the accused standing at a distance of one pace from the fodder cutting machine and Mohit was lying in a pool of blood. He refuted the suggestion that his son sustained injuries by coming under the belt of running fodder cutting machine. 8. He refuted the suggestion that his son sustained injuries by coming under the belt of running fodder cutting machine. 8. The witness Surendra Kumar (P.W.2) deposed that he went to drink water at the tap of Karam Singh situated in the passage of his house and saw the accused Kashmira subjecting Mohit to assault by striking his body against the Gandasa of fodder cutting machine. On hearing the cries of Mohit, his father Karm Singh and mother Husna Kali came out. Suddenly the accused pressing the child tore his chest with the sickle. Mohit son of Karam Singh died at the spot due to injuries. Accused Kashmira was captured after being beaten. The witness supported the prosecution case in his cross-examination on 6.9.2005. The cross-examination was not completed on 6.9.2005 and the case was adjourned to 29.11.2005. The witness (P.W.2) turned hostile during his cross-examination on 29.11.2005 and stated that the previous statements in examination-in-chief and cross-examination were given by him at the behest of Karam Singh. A complaint under section 193 Cr.P.C. was made by the trial judge to the C.J.M. on 30.11.2005 against the witness Surendra (P.W.2). 9. The child witness Rohit (P.W.3), real brother of the deceased was playing with him in the verandah when the appellant came there. He testified the fact that Rs. 10/- was given to him by the accused for purchasing bidi bundle and eatables and he ran away to purchase all those things. He heard the outcries of Lokesh on the way to the shop and reached at the spot and saw the accused in the verandah. His brother had died. The accused was taken to the police station Nakur by his father and witnesses Surendra and Subodh and later on police came on the spot. It is spelt out from his testimony that when he came back he saw his father catching hold of accused Kashmira and a number of persons were present there. The Gandasa and sickle were taken away by the police from the spot. He refuted the suggestion that his brother accidentally sustained cut injuries by coming under the belt of fodder cutting machine. 10. The witness Subodh Kumar (P.W.4) reached the spot on hearing the outcries of the victim and saw the accused striking the body of victim against the Gandasa of fodder cutting machine installed in the verandah of Karm Singh. He refuted the suggestion that his brother accidentally sustained cut injuries by coming under the belt of fodder cutting machine. 10. The witness Subodh Kumar (P.W.4) reached the spot on hearing the outcries of the victim and saw the accused striking the body of victim against the Gandasa of fodder cutting machine installed in the verandah of Karm Singh. The accused Kashmira lifted the sickle and teared the chest of victim Mohit. Mohit died at the spot due to injuries and accused was captured by them. It is there in in his testimony that constable had taken away the sickle and Gandasa from the village. It was further testified by him in the cross-examination that sickle was in the right hand of Kashmira who was sitting there and sickle fell down when he intercepted the accused. He denied the suggestion that the victim died on sustaining injuries by coming under the belt of fodder cutting machine. 11. Much stress was laid by the learned Amicus curiae on the point of non-presence of eye witnesses as the major portion of their evidence is deficient. The evidence of the witnesses has to be sifted with care as one hardly comes across a witness whose evidence does not contain exaggerations, embroidery or embellishments. The rule of appraisal of evidence is that the Court has to separate the truth from the falsehood. Where it is not feasible to separate the truth from falsehood because they are so mixed up that in the process of separation a new case has to be reconstructed, in that case prosecution evidence is to be discarded. The court has to give due weight to normal discrepancies appearing due to normal error of observation and normal error of memory due to lapse of time. 12. On testing the evidence of witnesses (P.W.1), (P.W.2) and (P.W.4) with the yardstick of principles governing appraisal of evidence and on the anvil of probability factor we find it without blemish. The eye witnesses (P.W.1), (P.W.2) and (P.W.4) have stated without mincing words that it was the accused appellant who caused injuries to the victim by striking his different body parts against the Gandasa of fodder cutting machine and tearing his chest with a sickle. The accused-appellant was arrested at the spot. The eye witnesses (P.W.1), (P.W.2) and (P.W.4) have stated without mincing words that it was the accused appellant who caused injuries to the victim by striking his different body parts against the Gandasa of fodder cutting machine and tearing his chest with a sickle. The accused-appellant was arrested at the spot. The discrepancies in the testimony of the eye witnesses are normal discrepancies occurring due to lapse of time and their testimony cannot be discarded on this score. 13. The learned Amicus curiae assailing the impugned judgment submitted that the injuries found on the body of the appellant were not explained. The argument of learned counsel is not tenable as in the F.I.R. itself it finds mention that accused Kashmira was overpowered and captured at the spot after giving thrashing. Three lacerated wounds of simple nature were found on the body of the appellant at the time of medical examination. The witness Karam Singh (P.W.1) supporting the F.I.R. version testified that the accused appellant was captured at the spot after giving thrashing. According to him he was assaulted with stick and fists by his wife. The witness Subodh Kumar (P.W.4) deposed that the mother of the deceased had assaulted accused Kashmira by giving 3 or 4 Phawari blows. The simple injuries found on the body of the accused appellant were satisfactorily explained at the initial stage. 14. It was vehemently submitted that Husna Kali, mother of victim having not been examined, the motive behind the incident was not established. The motive behind the incident was that the accused-appellant was admonished by the complainant for keeping a lecherous eye over his wife. In the F.I.R. the complainant Karam Singh (P.W.1) mentioned that the accused Kashmira bore old animus against him. The incident took place in broad day light and there being direct evidence the proof of motive was not necessary. The non-examination of witness Husna Kali had no adverse effect on the credibility of prosecution case. 15. It was suggested to the witness Subodh Kumar (P.W.4) that the accused appellant killed the victim in a fit of insanity. The burden of proving the existence of circumstances bringing the case within the exception of Section 84 of the Indian Penal Code lies upon the accused under Section 105 of the Indian Evidence Act. 15. It was suggested to the witness Subodh Kumar (P.W.4) that the accused appellant killed the victim in a fit of insanity. The burden of proving the existence of circumstances bringing the case within the exception of Section 84 of the Indian Penal Code lies upon the accused under Section 105 of the Indian Evidence Act. The accused appellant never claimed the benefit of exception under Section 84 of the Indian Penal Code at the time of commencement or pendency of the proceedings before the trial court. There is no report of jail authorities on the record about the unsoundness of mind or erratic behaviour of accused-appellant. The accused-appellant in his statement under Section 313 Cr.P.C. did not raise the plea of insanity. In these circumstances the plea of insanity raised for the first time during the arguments of appeal on the basis of suggestion to witness Subodh Kumar (P.W.4) is malafide and afterthought. 16. To sum up, the testimony of eye witnesses is found creditworthy. The ocular account is in consonance with medical evidence. The accused appellant was captured at the spot and was taken to police station. The injuries of the accused appellant were satisfactorily explained. For these reasons the trial court committed no illegality by placing implicit reliance on the testimony of the witnesses (P.W.1), (P.W.2), (P.W.3) and (P.W.4) and recording the finding of conviction. In view of the above discussion the appeal fails and is dismissed. The impugned judgment and order is affirmed. Certify the judgment to the lower court within a week. The record of the case be transmitted to the court below immediately.