JUDGMENT : B.B. Mangalmurti, J. This appeal is directed against the judgment of conviction dated 25th September, 2006 and order of sentence dated 27th September, 2006 passed by Sessions Judge, Seraikella Kharasawan in Sessions Trial No. 23 of 2004 wherein appellant Kapil Yadav @ Kapildeo Yadav has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The prosecution case in short is that fardbeyan of Champa Devi wife of deceased Lal Babu Sao was recorded by S.I. Adityapur Police Station on 23.11.2003 at 23:45 hours that her husband was doing the work of a mason having two wives first being informant Champa Devi and another named Pawan Devi. Both were living in two separate houses. The further case is that accused was also doing the work of mason and belongs to the same village that led to friendship between the deceased and accused. After return from the work place both used to eat and drink together. Accused Kapildeo Yadav by establishing relationship of bhabhi with second wife of deceased sometime used to joke with her. This relationship between the accused and Pawan Devi was not being approved by the deceased. One day, when he returned in the evening he found that accused was already in his house having conversation with Pawan Devi. He objected to it saying that in his absence behaviour of accused could not be taken in good taste and after some utterance he drove out the accused from his house. Because of this, the accused developed grudge against the accused. On the fateful day at around 21.05 p.m., accused came in his house where the deceased, informant, his son, son-in-law and sautan Pawan Devi were sitting and called the deceased on the pretext of doing some urgent conversation and took him to the side of railway line. Initially her husband was not reply to accompany and refused to go but when accused insisted him then he accompanied him near the railway line which was situated 100 yards towards the south side. Informant, having suspicion in her mind, along with her son Munna Sao, Roshan Sao and son-in-law Manoj Sao also followed them towards that side. Initially her husband was not reply to accompany and refused to go but when accused insisted him then he accompanied him near the railway line which was situated 100 yards towards the south side. Informant, having suspicion in her mind, along with her son Munna Sao, Roshan Sao and son-in-law Manoj Sao also followed them towards that side. After five minutes she heard the cry of her husband and then all went towards the railway line and saw in the light of three cell torch which was being held by her son-in-law that Kapildeo Yadav was assaulting the deceased with a tangi and after seeing them, flew towards the South side. When informant reached there, she found blood oozing from the head of her husband and there were several injuries on his person. He died on the spot. Her son and son-in-law tried to chase accused Kapildeo Yadav but he escaped due to darkness as also concealed himself in the bushes. When her son raised alarm then neighbours assembled there and saw the deceased lying on the side of the railway line. Informant claimed that Kapildeo Yadav murdered Lal Balm Sao using axe on the head causing multiple injuries. Accordingly, formal FIR was registered being Adityapur P.S. Case No. 275 of 2003 dated 23.11.2003. After investigation, charge-sheet was submitted against sole accused under Section 302 of the Indian Penal Code. 3. After commitment of case, charge was framed under the aforesaid section. The prosecution altogether examined 9 witnesses whereas defence has not examined any witness. The Court held because of non-examination of the Investigating Officer, whole case of the prosecution cannot be thrown out and finding cumulative effect of all the evidences on behalf of prosecution witnesses, relied on the evidences of PW 1, PW 2, PW 3, PW 4, PW 5 and PW 9 and held that the accused has committed murder of the deceased Lal Babu Sao and held the accused Kapil Deo Yadav guilty under Section 302 of the Indian Penal Code and sentenced him to undergo RI for life with the set of clause. 4. Learned counsel for the appellant submitted that the Court below has come to erroneous finding based on a wrong angle of analysis. He further submitted that all the witnesses are related and very much interested whereas some of them are hearsay, therefore, the finding is perverse. 4. Learned counsel for the appellant submitted that the Court below has come to erroneous finding based on a wrong angle of analysis. He further submitted that all the witnesses are related and very much interested whereas some of them are hearsay, therefore, the finding is perverse. He also submitted that admittedly the occurrence took place in a dark night but the informant and her family members saw the appellant assaulting the deceased from a distance of about 25 yards in a torch light, therefore, the identity of accused is not perfectly established. PW 1 Champa Devi, who is wife of the deceased and informant of this case, claimed herself to be the eye-witness whereas PW 2 Pawan Devi being second wife of deceased has deposed that she saw her deceased husband lying at the place of occurrence in injured condition. PW 3 Rosan Sao is son of the deceased who has proved his signature as well as signature of Manoj Sao (son-in-law) on inquest report which has been marked as Exts. 1 and 1/1. PW 4 Ram Pravesh Sao, who is the younger brother of deceased and PW 7 Subodh Kumar both could be termed as hearsay witnesses. PW 5 Mannu Sao, who is the son of the deceased, has proved his signature on fardbeyan and has also claimed to be the eye-witness. PW 6 Manik Chandra and PW 8 Rabindra Modak both are formal witnesses. PW 6 has proved his signature on seizure list Exts. 1/3, 1/4, 1/5 and 1/6 whereas PW 8 has proved fardbeyan marked as Ext. 2 and formal FIR marked as Ext. 3. PW 9 Dr. Akhilesh Kumar Choudhary is the doctor who has conducted postmortem examination upon the deceased and opined that injuries were antemortem in nature that was caused by heavy sharp cutting weapon such as tangi and these injuries were sufficient to cause death in ordinary course of nature. 5. Learned counsel for the appellant further submitted that there are contradictions and discrepancies in the oral evidence of prosecution. The Investigating Officer of this case has not been examined which creates doubt in the prosecution version. 5. Learned counsel for the appellant further submitted that there are contradictions and discrepancies in the oral evidence of prosecution. The Investigating Officer of this case has not been examined which creates doubt in the prosecution version. The time of occurrence has been stated by PW 1 Champa Devi as 5.30 p.m. and during cross-examination she stated that it was around 7.30 p.m. whereas PW 2 Pawan Devi narrated the time between 8.00 p.m. to 8.30 p.m. and the time recorded in the FIR is around 9.30 p.m. so the prosecution witnesses were very much confused about the time mentioned in the FIR and in their oral evidences. Non-examination of the IO is fatal to the case. He relied on the decisions in the case of Mohmed Inayatullah v. The State of Maharashtra, reported in AIR 1976 SC 483 and Om Prakash v. State of Haryana, reported in AIR 2011 SC 2682 (para 9). Lastly, learned counsel for the appellant submitted that since both wives were living separately so the murder might have been committed by some other person or the son of first wife. 6. Relying to the above contention, learned APP submitted that it is not the case of the prosecution that the relationship between the family of first and second wife were estranged or inimical nor any occasion was shown that they were having some grievances against the deceased. Learned APP appearing on behalf of State submitted that evidence of PW 1 and PW 5, the eye-witnesses of the case, have narrated and proved the prosecution case which are supported with the medical evidence. The injuries caused to the deceased which ultimately led to his death have been well corroborated. He further submitted that minor discrepancies occurring in the time is not very material. He also submitted that the motive is clear as the accused was having grudge towards the deceased after he ordered him to go out of the house. When accused called the deceased on the pretext of some talk, the deceased was initially not inclined to accompany the accused but later on agreed and accompanied which was seen by the family members as all were present at that time in the house. He also submitted that the tangi used in the commission of crime was also recovered in this case. He also submitted that the tangi used in the commission of crime was also recovered in this case. Therefore, conviction is based on sound reasoning and the Court below has rightly came to the finding of committing murder of deceased Lal Babu Sao by accused Kapil Yadav @ Kapildeo Yadav. 7. Considering the above pleadings of the parties as well as on scrutiny of oral and documentary evidences brought on record by the prosecution, it appears that the defence has suggested to PW 1 Champa Devi that they wanted to grab the house of accused, therefore, accused was implicated in this false case. This witness was confronted with the suggestion that since her husband was of bad character so some other person might have committed the murder. PW 1 has denied both the above suggestions but the defence merely suggested the above two propositions but no such oral or documentary evidence were brought on record from the side of defence in support of the these suggestions. The counsel for the appellant had submitted that since both wives were living separately so the murder might have been committed by some other persons or by the son of first wife. This point has been raised for the first time at the appellate stage as this point was never the line of cross-examination adopted and confronted with the prosecution witness. From the evidences of PW 1 and PW 2, it would appear that there was complete harmony between two wives of deceased and not a single occasion has been brought before the Court against the harmonious relationship. 8. Counsel for the appellant has gave emphasis of the time of occurrence mentioned by PW 1 and PW 2 and the time recorded in FIR which are not matching with each other. Since the witnesses are rustic villagers and not in habit of very particular about the time so the difference in mentioning the time might have occurred but all the witnesses have stated that occurrence took place in dark night. Therefore, the minor discrepancy relating to the time is immaterial. Counsel for the appellant has referred the case of Mohmed Inayatullah (supra) which is not applicable in this case as it relates to presumption under Section 114(9) which deals the discovery of fact, in consequence of information received from a person accused of an offence. Therefore, the minor discrepancy relating to the time is immaterial. Counsel for the appellant has referred the case of Mohmed Inayatullah (supra) which is not applicable in this case as it relates to presumption under Section 114(9) which deals the discovery of fact, in consequence of information received from a person accused of an offence. Another case cited herein of Om Prakash (supra) the Paragraph 9 of the judgment is quoted hereunder :- “9. The learned counsel appearing for the appellant has hardly been able to bring to our notice any material contradiction in the statements of the prosecution witnesses. Every small discrepancy or minor contradiction which may erupt in the statements of a witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be treated as fatal to the case of the prosecution. The Court must examine the statement in its entirety, correct perspective and in light of the attendant circumstances brought on record by the prosecution.” It is amply clear that this decision is very much in support of the prosecution as some discrepancy arose in mentioning the time of assault which was not matching with each other. The decision of Om Prakash (supra) clearly held that some small discrepancy or minor contradiction which may erupt in the statements of witness, cannot be treated as fatal to the case of prosecution. The Court must examine the statement in its entirety. Therefore, this decision is favourable to the prosecution rather than to the appellant. The motive has been amply proved by the prosecution as the appellant has developed grudge after he was asked to leave the house where the second wife of deceased was residing. The occurrence has taken place after this incident which clearly points out that the accused has committed the offence in a planned manner. Accused called the deceased from house and together went near the railway line which is around 100 yards from that place. Due to suspicion over accused, informant accompanied by other family members followed them towards railway line and there they could see in the light of torch that accused was assaulting with tangi that caused severe injury on the head of deceased. This version has been amply corroborated with the medical evidence which opined that injury were ante mortem and was caused by heavy sharp cutting weapon such as tangi. This version has been amply corroborated with the medical evidence which opined that injury were ante mortem and was caused by heavy sharp cutting weapon such as tangi. These injuries were sufficient to cause death in ordinary course of nature. PW 2 in her cross-examination has replied that the police arrested the accused in the same night and blood-stains were seen on his hands. The statement of accused given before the police after arrest accepting his guilt and disclosed the place of concealment of tangi (axe). This statement led to recovery of tangi near the railway over bridge Vidyutnagar and the bloodstained axe was handed over to the police. This statement was recorded before the witness Manoj Sao and Manik Chandra. Signatures of both the witnesses have been marked as Exts.1/7 and 1/8 over the statement of accused. Therefore, the prosecution has able to prove that part of statement of appellant which led to recovery of axe used in committing the murder by appellant-Kapil Yadav after recording of statement of appellant by police before Manoj Sao and Manik Chandra. The prosecution witnesses have also stated about the use of axe (tangi) for committing the murder so this part is amply corroborated from the evidences and the statement of accused before the police. The immediate cause and motive of committing murder were amply proved by the prosecution witnesses. The prosecution has explained that Investigating Officer of this case could not be examined due to bifurcation of State and now posted in another State. 9. Upon close scrutiny of the evidences adduced on behalf of the prosecution it can be held that the prosecution has been able to prove its case barring some minor discrepancies which have no effective bearing on this case. The prosecution witnesses have been found credible and trustworthy. The doctor has found that the injuries on the dead-body were caused by sharp cutting weapon. The post-mortem report also established that ante-mortem injuries are sufficient to cause death. No occasion arises to interfere in the findings of the Court below. 10. In the result this appeal is dismissed. 11. IA No. 2813 of 2017 filed for early hearing of this case stands closed. Aparesh Kumar Singh. J. - I agree. Appeal dismissed.