JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused No. 1 to challenge the judgment of the learned Additional Sessions Judge, Vadodara, dated 26.02.2008 passed in Sessions Case No. 73 of 2007. By the said judgment, the learned Judge convicted the present appellant for offences punishable under sections 302 and 504 of the Indian Penal Code and section 135 of the Bombay Police Act. He was sentenced to life imprisonment in addition to lesser punishments imposed by the trial Court. 2. Briefly stated, the prosecution version was that Ramsing Rathwa-accused No. 1 and his brother Bhavsing Rathwa-accused No. 2 suspected that one Bhangdiben, wife of the complainant was a witch. It was because of her witchcraft that the members of their family were falling sick. At about 4'O clock in the afternoon of 15th of August 2007, the two accused intercepted Bhangdiben near the water-pump of the village. Accused No. 1, instigated and encouraged by accused No. 2, gave several blows to Bhangdiben on the head, on the neck on the face and other parts of the body with a 'paliya' (we are informed it is an agricultural instrument with a curved sharp metal blade attached to a short wooden handle used for cutting small branches of the trees) which he was carrying. Bhangdiben died instantaneously. A charge at Exh. 4 was therefore framed against both the accused for having committed offences punishable under sections 302 and 504 read with section 114 IPC and section 135 of the Bombay Police Act. 3. Nayakda Rathwa, PW-2, Exh. 12, the husband of deceased was also the first informant. He claimed to be an eyewitness. He deposed that the incident happened on 15th August at about 4'O clock in the afternoon near the hand-pump next to the bore-well. The accused No. 1 had given two blows on the legs, two on the back, two on the head and the neck. On the face also he had given a blow with the 'paliya'. His wife fell down and died. When accused No. 1 was assaulting her, accused No. 2 Bhavsing was instigating him. At that time he was standing near his wife. He identified the accused and the murder weapon before the Court. In the cross-examination, certain improvements were brought on record which are, however, not very significant. His wife fell down and died. When accused No. 1 was assaulting her, accused No. 2 Bhavsing was instigating him. At that time he was standing near his wife. He identified the accused and the murder weapon before the Court. In the cross-examination, certain improvements were brought on record which are, however, not very significant. His case was that he was present at the scene of incident because he was grazing his bullocks in the field next to the hand-pump. About his two sons Desing and Ramesh he stated that they were both doing the work of the driving the truck and on the date of the incident, they were called by making a phone call after the incident was over. The distance between the hand-pump and his house was about 200 meters. He denied that he was not present at the scene of incident. 4. In the FIR Exh. 13, he has given substantially similar version, only difference being that he had not stated that he was standing right next to his wife when the attack took place. 5. Kailashbhai Karsanbhai, PW-3, Exh. 14, the grandson of deceased was a child witness aged about seven years. After gathering his ability to give answers to the questions put to him, the Court proceeded to record his evidence. This witness claimed to be present when the incident took place. However, in the cross-examination, he agreed that on the date of the incident, he had gone to the school and the school time was 11 in the morning and he had returned from the school at about 5'O clock and that his grandmother was lying near the hand-pump when he returned home from school. 6. Rameshbhai Nayakdabhai, PW-4, Exh. 15, the son of the deceased also claimed to be an eye-witness and narrated the incident. In the cross-examination, he denied that on the date of the incident, he had gone for driving the truck. 7. Dr. Virendrasinh Charansinh, PW-8, Exh. 25, had carried out the postmortem. In the P.M. note, Exh. 28, he had recorded following injuries. "Head- # of Lt. side parietal and temporal bone with muscle-cut and crush brains matter with blood. Face-deep incised wound 40cm x 10cm x 5cm start below Lt. ear lobe and finished at Lt. eye and runry at Lt. mandible and lower jaw and upper liprana finished at Lt. In the P.M. note, Exh. 28, he had recorded following injuries. "Head- # of Lt. side parietal and temporal bone with muscle-cut and crush brains matter with blood. Face-deep incised wound 40cm x 10cm x 5cm start below Lt. ear lobe and finished at Lt. eye and runry at Lt. mandible and lower jaw and upper liprana finished at Lt. eye and cut whole muscle and blood vestage and # of mandible and lower jaw of face. Neck- Front only slightly at muscle attachment on both side of clavicle bone Back of neck- (1) Round deep inciseel wound is start from lower part of occipital bone and runny above back of neck (whole) and finished at middle part of both (illegible) (2) whole muscle and cervical bone and blood vessels cut and (illegible) of vocal cut pharynx trachea Tongue - cut in two part which in mouth Nose- Half of nosal Lt.side is cut (illegible) Rt. Hand- deep sharp incised wound 10cm x 5cm x 3cm start from tib of head of humerus and finished at mid arm of Rt. Hand and cut whole muscle of midarm and # of Rt. Head of Humorous Rt.Hand-mid part of deep incised wound 10cm x 2cm x 2cm start from middle part of deltoid muscle and finished at lower and humorous with # of lower end of humorous bone. Back of chest- Rt. Side deep incised wound 40cm x 10cm x 10cm start from mi area of Rt. hypochondry and rnny above 12,11,10,8,9th rib of back side of chest and finished at back of Rt.side of rib and whole muscle cut and injur all vital organ like lung, liver, kidney and intestine and # of 12th, 10th, 5th rib. Back of chest- Lt. Side deep incised wound 10cm x10cmx5cm start from mid area of lt. hypochondry and runny above whole rib of lt.side. And seen all vital organ like kidney, stomach, spleen and lung and whole rubtal and # of 12, 10 and 7, 8, 9 ribs. Rt.Leg- Back of Thigh- deep incised wound 15 cm x 15 cm x 5 cm start from mid area of thigh and finished at mid area of knee joint and # of lower end of fumer and # of patila and (illegible) knee joint bone Back Lt.Leg- (1)deep incised wound 10cm x 5cm x 5cm at hip area and show Hip bone and whole muscle cut. (2) deep incised wound 15cm x 5cm x 5cm in mid area of thigh to lower evely of femis with # of lower and patila bone" 8. Corresponding to such injuries, he had also recorded serious internal damage which included fractures on the scalp, injuries to the brain, fractures of several ribs, severing of the wind pipe and the food pipe, rupture of the lungs etc. The cause of death was due to hemorrhagic shock due to several multiple deep injuries and injuries to vital organs of the body. 9. The murder weapon 'paliya' and the clothes of the accused recovered under panchnama Exh. 22. The various articles collected during the course of investigation were sent for forensic analysis. The forensic science laboratory report read with serological report, Exh. 31, would show that the deceased had blood group-A where the accused No. 1 had blood group-B. It was blood of the group of the deceased which was found not only from the clothes of the deceased but also from the clothes of the accused and the murder weapon. 10. This, in the nutshell, is the evidence on record. On the basis of such evidence, the trial Court convicted the accused No. 1 but, acquitted accused No. 2. The said convicted accused has therefore filed the present appeal. From the evidence on record, we may at the outset, discard the testimony of PW-3 Kailashbhai Karsanbhai and PW-4 Rameshbhai Nayakdabhai. They both claimed to be eyewitnesses. In case of Kailash, he was barely seven years old when his deposition was recorded. In the examination-in-chief, he claimed to be present at the scene of incident. However, in the cross-examination, he agreed that on the date of incident he had gone to the school at about 11'O clock and returned at about 5'O clock. When he returned, the dead-body of his grandmother was lying next to the hand-pump. This does not appear to be entirely accurate since the incident took place on 15th August and therefore, no school would be working for full day. However, this only means that it was easily possible for the child witness to be confused. In the present case, perhaps he was confused when the defense counsel in the cross-examination asked him about his school timings. Whatever be the reason, testimony of this witness would not be reliable. However, this only means that it was easily possible for the child witness to be confused. In the present case, perhaps he was confused when the defense counsel in the cross-examination asked him about his school timings. Whatever be the reason, testimony of this witness would not be reliable. Out of sheer innocence and immaturity of age, this witness would be open to tutoring. 11. In case of Rameshbhai Nayakdabhai, his deposition does not inspire confidence principally for two reasons. One is that when he claimed to be present at the scene of incident when the assault took place, his name was not referred by the complainant Nayakdabhai Rathwa. Second reason is that in fact, according to the complainant, both his sons were away on their truck driving duty when the incident took place and they had to be called back by making calls. The claim of this witness therefore that he was present when the assault took place is clearly conflicting with the deposition of his own father. 12. That leaves us the sole eyewitness PW-2. His evidence cannot be discarded lightly. Firstly, the incident took place barely about 200 meters from his house. Secondly his claim that he was grazing his bullocks in his field in the later afternoon was also eminently acceptable. Thirdly, the FIR was lodged without any delay. In the FIR also, he had given the same version and more importantly, described different parts of the body where the blows were given. His evidence was consistent with the medical opinion in the form of postmortem where on several parts of the body, injuries were found which could be caused by such instrument as 'paliya'. The murder weapon also showed presence of blood of the group belonging to the deceased. The clothes of the accused also carried same blood. There are no major contradictions in the version of this witness. Mere omission to state in the FIR that he was standing near his wife would not be fatal to the prosecution since in the FIR he had stated that he was close to the hand-pump grazing his cattle in the field. 13. The motive was also established. The accused No. 1 suspected the deceased to be a witch and believed that it was her witchcraft which made the members of his family fall sick. 14. In the result, Criminal Appeal is dismissed. 13. The motive was also established. The accused No. 1 suspected the deceased to be a witch and believed that it was her witchcraft which made the members of his family fall sick. 14. In the result, Criminal Appeal is dismissed. R & P to be transmitted back to the concerned Trial Court. Appeal Dismissed