JUDGMENT : [Mayank Kumar Jain, J.] 1. Feeling aggrieved with the judgment dated 12.02.1988 passed by Sri Udai Pratap Singh Kushwaha, the then Special Sessions Judge (Essential Commodities Act) Hamirpur, in Sessions Trial No. 3 of 1987 (State Vs Kishori) arising out of Crime No. 110 of 1985, registered at police station Khanna, District Hamirpur, under section 308 IPC whereby the learned Special Session Judge convicted the appellant under Sections 308 of I.P.C. and sentenced him to undergo rigorous imprisonment for three years, the present criminal appeal has been preferred. 2. Brief facts of the case are that the informant Ram Asrey submitted a written report (Ex.Ka-1) to police Station Khanna, Sub Division Mohraha, District Hamirpur on 28.06.1985, stating therein that his brother Ram Sanehi was going with animals across the pond at around 8:45 AM. When he reached opposite the house of Tirra, accused Kishori was present there having a spear in his hand. Upon seeing the brother of the informant he said you are against me a lot. He hit his brother on the right side of the stomach with the spear. Sidhdha S/o Baiju, the informant himself and his relative Mahipal S/o Bhagirath rushed and saved Ram Sanehi. 3. On the basis of the aforesaid written report, case crime no. 110 of 1985 was registered against the appellant-accused under section 324 IPC. 4. The investigation was set to motion and it was entrusted to S.I. Pradeep Kumar Singh and thereafter to A.S.I. Ram Milan Dubey, who after completing preliminary formalities, sent injured Ram Sanehi for a medical examination. He recorded the statements of the informant, Ram Sanehi, the injured, witnesses Sidhdha, Mahipal and others. He inspected the place of occurrence and prepared the site plan. After the conclusion of the investigation, he submitted the charge sheet against the applicant-accused under section 327/307 IPC. 5. The case was committed to the Court of Sessions. It was registered as Session Trial No. 3/87 (State Vs Kishori). 6. Charge under section 307 I.P.C. was framed against the accused-appellant which he denied and claimed to be tried. 7. In order to prove its case, the prosecution produced two witnesses of the fact as P.W. 1 Ram Asrey, the complainant and P.W.-2 Ram Sanehi, the injured, formal witnesses P.W.-3 Dr. P.K. Bhadaura, P.W-4 H.C. Narvada Prasad., P.W.-5, S.I. Ram Milan Dubey, Investigating Officer and P.W.-6 Dr. K.C. Gupta. 8. 7. In order to prove its case, the prosecution produced two witnesses of the fact as P.W. 1 Ram Asrey, the complainant and P.W.-2 Ram Sanehi, the injured, formal witnesses P.W.-3 Dr. P.K. Bhadaura, P.W-4 H.C. Narvada Prasad., P.W.-5, S.I. Ram Milan Dubey, Investigating Officer and P.W.-6 Dr. K.C. Gupta. 8. After the close of the prosecution witness, the statement of the appellant-accused Kishori was recorded under section 313 Cr. P.C. He denied the prosecution story and also denied that he caused any injury to Ram Saheni with the spear. He further stated that the charge sheet has been filed against him on the basis of false and unfair investigation. The case was registred against him due to enmity The witnesses Ram Asray and Ram Sanehi are inimical to him. He submitted that Ram Rati is the cousin of the informant Ram Asrey. Ram Kripal the father-in-law of Ram Rati was murdered before this incident. Bankey Lal and others were arrayed as accused who were convicted by the High Court. Under the orders of the State Government, Banekey Lal was released on parole. The brother of the appellant Ram Charan stood as surety for Bankey Lal before the present incident. He did not permit Ram Sanehi and Ram Asrey to keep their crops in his field. For this reason, he has falsely been implicated in this case. 9. DW-1 Rameshwar Prasad Pandey was produced by the accused-appellant in his defence. 10. I have heard Sri V.S. Singh, learned counsel for the appellant and Sri. M.P. Singh Gaur, leaned A.G.A. for the State. I have perused the record and re-appreciated the evidence available on record. 11. It is submitted by the Learned counsel for the appellant that the learned trial Court has not appreciated the evidence available on record in a rightful manner and has wrongly convicted the appellant. The complainant in the FIR stated that he was present on the spot when the accused-appellant hit his brother Ram Sanehi with the spear. He claimed to be the eyewitness of the incident but he is not the eyewitness of the incident. He came to know about the incident only when Ram Sanehi told him about the incident. Thus, it is clear that he has not seen the incident. The motive of the incident is not proved. He claimed to be the eyewitness of the incident but he is not the eyewitness of the incident. He came to know about the incident only when Ram Sanehi told him about the incident. Thus, it is clear that he has not seen the incident. The motive of the incident is not proved. Important witnesses Tirra and Sidhdha, before whom the incident is said to have happened, have not been produced by the prosecution. It has come in the evidence of the injured that the complainant asked him to depose against the appellant in the Court and pursuant to this, the injured deposed against the appellant while no such incident had taken place. The Investigating Officer did not investigate the matter fairly and he submitted the chargesheet against the appellant in a casual manner. There are material contradictions in the testimony of the complainant PW-1 Ram Asrey and the injured PW-2 Ram Sanehi. The medical report is not in consonance with the ocular evidence. The seat of injury as described by the complainant is not corroborated by the injured in his evidence. It is further submitted that the learned trial Court has wrongly convicted the accused. The appellant in his defence produced DW-1 Rameshwar Prasad Pandey, to corroborate the enmity of the complainant with the appellant. As a result, the appellant had been falsely implicated in this case. The appeal deserves to be allowed. 12. Per-contra, the learned AGA submitted that the complainant and the injured have corroborated the incident by their evidence There are no contradictions in the ocular and medical evidence. The prosecution has proved the motive behind the commission of the offence by the appellant. It is further submitted that the appellant has rightly been convicted by the trial Court and the trial Court has appreciated the evidence available on record in a rightful manner. The appeal is liable to be dismissed and the judgment of the trial Court is liable to be affirmed. 13. In the present case, it is to be determined as to whether on 28.06.1985, the appellant-accused Kishori hit injured Ram Sanehi with the spear and caused injury to his stomach. 14. PW-1 Ram Asray is the informant of the case. He stated in his examination-in-chief that on the day of the incident at around 8:45 AM, he was present opposite the house of Tirra. Sidhdha and Mahipal were already sitting there. 14. PW-1 Ram Asray is the informant of the case. He stated in his examination-in-chief that on the day of the incident at around 8:45 AM, he was present opposite the house of Tirra. Sidhdha and Mahipal were already sitting there. When his brother reached along with his animals opposite the house of Tirra, the appellant, Kishori, who was having a spear in his hand said that he was against him a lot. The appellant-accused threatened him to kill. Kishori hit Ram Sanehi with the spear and injured him on the left side of his abdomen. The spear was hit towards the stomach which went through the body and came out a little towards the back. Ram Sanehi was saved by them. The accused Kishori ran away from there. This witness has proved the written report as Ext. Ka-1. 15. P.W. -2 Ram Sanehi is the injured witness. He stated in his examination-in-chief that he knows the accused/appellant. At the time of the incident, he was taking his animals across the pond. When he reached opposite the house of Tirra near the pond, accused Kishori met him having a heavy spear with him. He said that this witness was against him a lot, and he would kill him. Saying this, the accused Kishori hit him with the spear on the right side of the back which went through his body and came out a little. Ram Asrey, Mahipal and Giddha came there and saved him. The accused-appellant dislodged the spear from his body and ran away along with the spear. His brother took him to the police station Khanna. His injury was seen by police personnel. He was medically examined at Maudaha hospital. From there he went to Hamirpur where his x-ray was done. 16. P.W.-3 Dr. P.K. Bhadaura stated in his examination-in-chief that on 28.06.1985 at 10.00 A.M. in the capacity of the medical officer, PHC Maudaha, he examined Ram Sanehi. The following injuries were found on his body;- 1. Semi circular shaped wound 1.5 Cm. X 1 Cm. on posterial lateral surface of Rt. Side of back of abdomen just below the posterial floating rib margins are inverted. Muscles are protruding out continuous bleeding from the wound. 2. ½ cm semi circular wound over abdomen 4 cm. Above & the right lateral to the umbilical. Margin are inverted fresh blood oozed . X-ray was advised. 17. on posterial lateral surface of Rt. Side of back of abdomen just below the posterial floating rib margins are inverted. Muscles are protruding out continuous bleeding from the wound. 2. ½ cm semi circular wound over abdomen 4 cm. Above & the right lateral to the umbilical. Margin are inverted fresh blood oozed . X-ray was advised. 17. In his opinion the condition of the patient was poor. The patient was kept under observation. The above injuries were possibly caused by some pointed object as the spear. Injury no. 1 was the penetration wound of the weapon and injury no. 2 was the exit wound. The duration was fresh. Both injuries were likely caused on 23.06.1985 at 8.45 am. The witness has proved the medical report as Ext-Ka-3. 18. PW-4 H.C. Narvada Awasthi stated in his examination-in-chief that on 28.06.1985 he prepared the chik FIR on the basis of the written report submitted by the informant Ram Asray. Its endorsement was entered in G.D. vide report no. 14 at 9:30 A.M. on 28.06.1985. This witness proved the FIR as Ex. Ka-3 and G.D. as Ex. Ka-4. He had seen the injuries of Ram Sanehi. He was sent for a medical examination to the government hospital in Maudaha. 19. P.W.-5 S.I. Ram Milan Dubey is the investigating officer of this case. He stated in his examination-in-chief that the case was registered in his presence since the first investigating officer was on leave therefore, he was entrusted with the investigation. He completed preliminary formalities and reached the place of occurrence and recorded the statements of the informant, Siddha, Mahipal and others. He inspected the place of occurrence and prepared the site plan which is proved by him as Ex-Ka-5. He converted the case from section 324 I.PC. to 307 I.P.C. He recorded the statement of the injured. He submitted the charge sheet against the appellant-accused Kishori, which he proved as Ex-Ka-6. 20. PW-6 Dr. K.C. Gupta stated in his examination-in-chief that on 06.07.1985 he was posted as Radiologist in the District Hospital. X-Ray of the stomach and chest of injured Ram Sanehi was done under his supervision and he prepared the X-Ray report. On the basis of the X-ray plate, he found a fracture on the last corner of the right ribs. The witness has proved the X-Ray report as Ext-Ka-7 and the X-ray plate as MEx. 1. 21. X-Ray of the stomach and chest of injured Ram Sanehi was done under his supervision and he prepared the X-Ray report. On the basis of the X-ray plate, he found a fracture on the last corner of the right ribs. The witness has proved the X-Ray report as Ext-Ka-7 and the X-ray plate as MEx. 1. 21. DW1 Rameshwar Prasad Pandey was deposed in Court on the basis of record pertaining to Bankey Lal. The entry made at serial no. 72 relates to the bonds of Bankey Lal. Ram Charan S/O Ganesha stood surety for Bankey Lal which was accepted by the Probation officer on 25.08.1984. He identified the signatures of the officer concerned. He proved the copy of the surety bond as Ex. Kha-1 22. Section 308 IPC provides;- Attempt to commit culpable homicide - “Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” 23. During their deposition before the court PW-1 Ram Asrey, the informant and PW2 Ram Sanehi, the injured witness corroborated the prosecution version that on the day of the incident at about 8:45 am when Ram Asray was heading towards the pond, he met the accused-appellant Kishori. Kishori, who was having a spear in his hand said that he was against him a lot and threatened him to kill. Kishori hit Ram Sanehi with the spear and injured him on the left side of his abdomen. The spear was hit towards the stomach which went through his body and came out a little towards the back. The injured witness stated that the accused dislodged the spear from his body and ran away with the spear. xxx xxx 26. Learned counsel for the appellant drew the attention of the court to a contradiction that occurred in the testimony of the informant and injured witness about the seat of injury. The injured witness stated that the accused dislodged the spear from his body and ran away with the spear. xxx xxx 26. Learned counsel for the appellant drew the attention of the court to a contradiction that occurred in the testimony of the informant and injured witness about the seat of injury. He submitted that the informant in his FIR stated that his brother Ram Sanehi was hit by the accused on the right side of the stomach but in his deposition in the court, he stated that the accused hit his brother by a spear on the left side of the stomach. The injured witness stated that he was hit on the right side of the stomach. There are contradictions between the ocular evidence and medical evidence which falsify the entire prosecution version. 27. Considering this argument, it is pertinent to mention here that the seat of injury described in the FIR and by the injured witness is the same. Moreover, PW3 Dr. P.K. Bhadura found injuries No. 1 and 2 on the right side over and back of the abdomen. Injury no. 1 was the penetration wound of the weapon and injury no. 2 was the exit wound. Both the injuries were fresh and likely to have been caused on 23.06.1985 at 8.45 am. Further PW6 Dr. K.C. Gupta, the Radiologist, recorded a fracture in the last corner of the right ribs. Therefore, the seat of injury situated on the right side of the stomach of the injured is corroborated by the oral evidence of the injured witness as well the medical evidence. In view of the above appreciation, it is observed that oral evidence is consistent with medical evidence. 28. Learned counsel for the appellant vehemently argued that the complainant in his FIR stated that he was present at the spot when the accused hit his brother Ram Sanehi with a spear. He claimed himself to be the eyewitness of the incident but he is not the eyewitness of the incident. He came to know about the incident only when Ram Sanehi told him. He has not seen the incident. The alleged eye witness Sidhdha was not produced by the prosecution. Thus there is no independent witness of the incident. 29. He claimed himself to be the eyewitness of the incident but he is not the eyewitness of the incident. He came to know about the incident only when Ram Sanehi told him. He has not seen the incident. The alleged eye witness Sidhdha was not produced by the prosecution. Thus there is no independent witness of the incident. 29. Suffice to mention here that PW2 Ram Sanehi, the injured witness has stated that the witness of this case Sidhdha colluded with the accused and was not ready to depose before the Court against him. Under these circumstances, a proper explanation is offered by the prosecution for not producing a witness who was won over by the accused and was not ready to support the case of the prosecution in Court. So far as the argument that the informant is not the eye witness is concerned, it is pertinent to mention here that in the First Information Report, the informant mentioned that at the time of the incident, he along with Sidhdha and Mahipal was present on the spot. In his evidence, he corroborated the version of the First Information Report about his presence at the place of occurrence and corroborated that the incident happened before him. A minor contradiction occurred in the cross-examination of the informant when injured Ram Sanehi raised an alarm they rushed towards him. His brother told him that he was hit with a spear by the accused Kishori. But at the same moment PW1, the informant stated that he had seen the incident himself. During his cross examination specific question was asked from this witness “when you had seen the incident then why did you ask?” to which he replied “I did not ask about who hit my brother, I only asked where he was hit with the spear” 30. Conclusion can very well be drawn in favor of the prosecution since the aforesaid evidence indicates that the query was made to his brother by the informant confined to the extent only as to know about the seat of injury, not about the accused Kishori. Therefore, it is proved that the informant was present at the place of occurrence at the time of the incident. 31. In Rakesh Vs. Therefore, it is proved that the informant was present at the place of occurrence at the time of the incident. 31. In Rakesh Vs. State of U.P., 2021(3)SCC(Cri)149,The Hon’ble Apex Court observed that the evidence of a witness is to be considered as a whole:- “One is required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defence in the cross-examination cannot be considered stand alone. Even otherwise it is to be noted that what is stated by the Doctor/Medical officer can at the most be said to be his opinion. He is not the eyewitness to the incident. PW1 & PW2 have categorically stated that the other accused inflicted the blows by knives.” 32. In the present case also PW-1 informant Ram Asrey and PW-2 injured Ram Sanehi have consistently stated that the accused Kishori inflicted the injury to injured Ram Sanehi. On reading the evidence of PW-1 and PW-2 as a whole, it inspires confidence and has a ring of truth. 33. The Hon’ble Apex Court in Sachin Kumar Singhraha Vs. State of M.P. (2019) 3 SCC Cri 575, observed that if there are minor discrepancies or minor contradictions in the testimony of the witness which does not adversely affect the case of the prosecution then it should not be taken into consideration. The Hon’ble Apex held that:- “The Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.” 34. The Hon’ble Apex Court in Jai Prakash Vs. State of U.P. , (2021) 3 SCC Cri. 306 distinguished material discrepancies in evidence of witnesses from minor discrepancies. The Hon’ble Court held that:- “The witnesses who have deposed in the court after considerable lapse of time of course, cannot be expected to have photographic memory of the case. The Hon’ble Apex Court in Jai Prakash Vs. State of U.P. , (2021) 3 SCC Cri. 306 distinguished material discrepancies in evidence of witnesses from minor discrepancies. The Hon’ble Court held that:- “The witnesses who have deposed in the court after considerable lapse of time of course, cannot be expected to have photographic memory of the case. We are conscious of the well settled position that the minor discrepancies not touching upon the core of the prosecution case, would not affect the credibility of the witnesses or the prosecution case.” 35. In view of the above observation made by Hon’ble Apex Court, in the present case on reading the evidence of PW-1 and PW-2 as a whole, it inspires the confidence and has ring of truth. The evidence of PW-1 Ram Asrey does not contain any material contradiction, which can adversely affect the case of prosecution. In his statement, the informant has proved that the accused-appellant attacked his brother with a spear and caused injuries. The evidence of P.W.-2 Ram Sanehi corroborates the prosecution version and does not suffer from any material contradiction which may create doubt over the prosecution story. 36. Learned counsel for the appellant argued that DW-1 Rameshwar Prasad Pandey has proved on the basis of the record that Ramcharan stood as surety for Bankeylal. Ram Rati was the cousin of the informant Ram Asrey. Ramkripal, the father-in-law of Ram Rati was murdered before this incident in which Bankeylal and others were convicted by the High Court. Bankeylal was released on parole by the State Government. Ramcharan, the brother of the accused stood surety for Bankelal so informant Ram Asrey was inimical to the accused Kishori. For this reason, accused Kishori has been falsely implicated in this case. 37. Considering the aforesaid argument, PW-1 Ram Asrey, although admitted the fact that Bankelal and others were convicted for the murder of Ram Kripal, Ram Charan stood surety for Bankelal is not within his knowledge. This witness has categorically denied that for this reason, he was inimical to the accused Kishori. Further, considering the evidence of injured witness PW-2 Ram Sanehi, PW-1 Ram Asrey in the capacity of the informant as well as the eyewitness, and the medical evidence available on record the evidence produced in defence by accused Kishori does not create any doubt about the prosecution version. 38. Further, considering the evidence of injured witness PW-2 Ram Sanehi, PW-1 Ram Asrey in the capacity of the informant as well as the eyewitness, and the medical evidence available on record the evidence produced in defence by accused Kishori does not create any doubt about the prosecution version. 38. Learned counsel for the appellant lastly submitted that PW-2 Ram Sanehi, was compelled to give evidence against the accused-appellant by his brother P.W.-1 Ram Asrey. PW-1 Ram Asrey stated in his evidence that he told his brother Ram Sanehi that he had lodged a report with the police station against Ram Sanehi with regard to the incident of causing injury to him by a spear. He also asked his brother Ram Sanehi to depose against accused Kishori in the Court. Ram Sanehi accepted it. 39. Considering the aforesaid argument advanced by the learned counsel for the appellant, it is to be noted that PW-2 Ram Sanehi, the injured, in his evidence has stated that his brother Ram Asray accompanied him to the police station concerned after he sustained injuries in the incident and his brother informed him that he had submitted a report with regard to the incident against the accused Kishori, This information was given to him at the time of lodging of the FIR. On the basis of aforesaid evidence and keeping in view the facts and circumstances of the case I am of the opinion that it cannot be concluded that PW-2, the injured witness, deposed against the accused Kishori only on the direction given by his brother because PW-2 Ram Sanehi has corroborated the prosecution version by his cogent evidence and also the manner of assault and about the injury sustained by him, therefore, it cannot be opined that PW-2 deposed before the court only on the instigation of the informant PW-1 Ram Asrey. 40. The learned trial Court while appreciating the evidence available on record under the facts and circumstances of the case has rightly convicted the appellant under Section 308 IPC. The learned trial Court after thoughtful consideration of each aspect of the case and keeping in view the evidence adduced by the prosecution as well as by the defence has passed the impugned judgment and order of sentence. Order 41. The criminal appeal is accordingly dismissed. The judgment and order dated 07.11.2017 passed by learned trial Court is hereby affirmed. 42. Order 41. The criminal appeal is accordingly dismissed. The judgment and order dated 07.11.2017 passed by learned trial Court is hereby affirmed. 42. The appellant was on bail during Appeal. He be taken into custody and be sent to jail to serve out the sentence. 43. Let the copy of the judgment be transmitted to learned trial court to ensure the compliance. 44. let the lower court record be transmitted to the court concerned forthwith.