JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. A.K. Chaturvedi, learned counsel for the appellant and Mr. Pankaj Kumar Mishra, learned Additional P.P. 2. The instant criminal appeal is directed against the judgment and order dated 19/28.04.2003 passed by learned Additional District & Sessions Judge (Fast Track Court No. II), Civil Court, Gumla in Sessions Trial No. 331 of 1993, whereby and whereunder, the appellant has been held guilty and convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life along with fine of Rs. 2,000/- with default stipulation. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal, as per fardbeyan of Jitiya Singh (P.W.-5) is that on 16.05.1993 at about 10:00 A.M. informant had gone to take bath in a Dandi (small well) situated in the field of Likhan Singh, where he saw Tercha Mahato along with his two sons namely Gandur Mahato (P.W.-7), aged about 10 years and Birbal Mahato, aged about 3 years, who were also present for taking bath. The informant saw that Bahura Mahato after taking bath from the Dandi was standing nearby. It is further alleged that informant was washing his cloths on stone from the water of said Dandi and Tercha Mahato was pulling water from the said Dandi and collecting in a tin container for washing clothes and bath of his children, in the meantime, Bahura Mahato took out baluwa from his clothes and inflicted baluwa blow from sharp side from behind to the Tercha Mahato on his head. Thereafter, 2-3 blows of baluwa were repeatedly inflicted by Bahura upon the body of Tercha Mahato, who fell down into the water and died. On hulla several villagers assembled at the place of occurrence and dead body was taken out from Dandi (small well). It was noticed that Tercha Mahato had sustained cut injuries on his head, right hand, right leg. It is further alleged that Tercha Mahato (deceased) was living as ghardamad at village -Latu Somkana at his father-in-law’s house along with his brother-in-law Gulu Mahato, who was insane. It is further alleged that there was land dispute between deceased and Bahura Mahato. The accused wanted to grab the land of the deceased mother-in-law. Hence, he has committed his murder. It is further alleged that Tercha Mahato (deceased) was living as ghardamad at village -Latu Somkana at his father-in-law’s house along with his brother-in-law Gulu Mahato, who was insane. It is further alleged that there was land dispute between deceased and Bahura Mahato. The accused wanted to grab the land of the deceased mother-in-law. Hence, he has committed his murder. The police arrived at the place of occurrence, where fardbeyan of informant was recorded, which is basis of FIR bearing Raidih P.S. Case No. 37 of 1993 dated 16.05.1993 registered for the offence under Section 302 of I.P.C. 4. Charge of investigation was undertaken by S.I. Vijai Kumar Jha (P.W.-9), who after completion of investigation submitted charge sheet against the above named sole appellant for the offence under Section 302 of the I.P.C. After taking cognizance, the case was committed to the court of Sessions, where S.T. No. 331 of 1993 was registered. The appellant denied the charges and claimed to be tried. After conclusion of trial, impugned judgment and order has been passed, which has been assailed in this appeal. 5. Learned counsel for the appellant has stoutly argued that informant of the case (P.W.-5) has become hostile and not supported the prosecution story at all. Admittedly, the son of the deceased was aged about 10 years on the date of occurrence, who was examined after two years and appears to be a tutored witness. The learned trial court has committed serious error of law in placing reliance upon evidence of child witness (P.W.-7), who happens to be son of the deceased. There is no other reliable evidence on record and no incriminating materials like baluwa used in commission of murder has been recovered from the possession of the appellant. The appellant has been falsely implicated in this case due to land dispute with the deceased, who was wrongfully claiming lands as ghar damad in the family. It is further submitted that mere motive, howsoever strong it may be cannot lead to inference of any guilt unless some positive materials showing involvement of the accused is proved by the prosecution. In the instant case, there is no reliable evidence. Inspite of that the appellant has been held guilty by the trial court and sentenced to imprisonment for life. The appellant has already remained in custody during trial about 10 years without any rhyme and reasons. In the instant case, there is no reliable evidence. Inspite of that the appellant has been held guilty by the trial court and sentenced to imprisonment for life. The appellant has already remained in custody during trial about 10 years without any rhyme and reasons. Therefore, the impugned judgment of conviction and order of sentence of the appellant is liable to be set aside. 6. On the other hand, learned A.P.P. appearing for the State has refuted the aforesaid contentions raised on behalf of the appellant and submitted that inspite of the fact that informant of the case has been declared hostile by the prosecution, but the testimony of child witness Gandur Mahato (P.W.-7), who was aged about 10 years on the date of occurrence and an eye-witness has been found having sufficient intellect to depose before the Court and unerringly proved the place of occurrence, manner of assault and weapon used in commission of murder of his father by the present appellant. His testimony has not been shaken in his cross-examination and there is no reason to disbelieve his un-rebutted testimony simply on the ground that he is child and might have been tutored. P.W-8 Biru Singh has also proved the incident as an eye-witness of the occurrence and has not been contradicted to cast any doubt on his testimony. The evidence of ocular witnesses also found corroboration by P.M. report of the deceased, wherein injuries caused by baluwa, as stated by eye-witnesses, finds corroboration. Therefore, there is no illegality or infirmity in the impugned judgment and order, calling for any interference, by way of this appeal, which is fit to be dismissed. 7. The only point for determination in this appeal is that “as to whether the impugned judgment and order of conviction and sentence of appellant suffers from any error of law, calling for any interference in this appeal or not?” 8. Before imparting our verdict on the above point, we have to take brief resume of the ocular testimony of witnesses examined by the prosecution. 9. It appears that altogether 09 witnesses have been examined by the prosecution. Out of them P.W.-1 Paltu Sao is a formal witness and proved the formal FIR drawn in handwriting of police inspector Satyadev Prasad Sinha of Raidih P.S. as Exhibit-1. 10. 9. It appears that altogether 09 witnesses have been examined by the prosecution. Out of them P.W.-1 Paltu Sao is a formal witness and proved the formal FIR drawn in handwriting of police inspector Satyadev Prasad Sinha of Raidih P.S. as Exhibit-1. 10. P.W.-2 Thupa Kumhar has deposed that he was present at his home and heard hulla about 10-12 hours raised by Jitiya Singh, Gandur Kumhar and Biru Singh. He rushed towards the place of occurrence and saw dead body of Tercha Kumhar lying in the water of Dandi (small well). The dead body was brought out from the Dandi in his presence. Police also arrived at the place of occurrence and collected blood stained soil and seizure list was prepared, over which, he proved the signature of himself and another witness Chonhas Toppo as Exhibit-2 & 2/A. He has also proved his signature on inquest report prepared by the police in his presence and another witness Chonhas Toppo marked Exhibit-2/B & 2/C. In his cross examination, this witness states that there was no enmity between accused and deceased. 11. P.W.-3 Kartik Singh has also deposed in the same line as P.W.-2 that after hearing hulla raised by Jitiya Singh, Biru Singh and Gandur Kumhar went at the place of occurrence and saw the dead body of the deceased lying in a Dandi (small well). Dead body was brought out and he noticed injuries on the dead body over neck, arm and leg. He also states that the deceased was living as ghardamad in the house of his mother-in-law and also doing agriculture work since 10-15 years. There is nothing else in his evidence. 12. P.W.-4 Balram Oraon was also returning from Village – Lodan and reached at the place of occurrence hearing hulla and saw the dead body of the deceased. He has stated nothing else. 13. P.W.-5 Jitiya Singh is the informant, who has been declared hostile by the prosecution. According to his evidence, Tercha Mahato was murdered about 10 months ago on Sunday at about 10:00 AM. He states that he has gone to take bath in the Dandi situated in the field of Lekhan Singh, where Biru, Tercha and his son Gandur were also present. He was washing his cloths and Tercha was pulling water in a tin container. He states that he has gone to take bath in the Dandi situated in the field of Lekhan Singh, where Biru, Tercha and his son Gandur were also present. He was washing his cloths and Tercha was pulling water in a tin container. He heard sound of tin then moved behind and saw that Tercha fell down in the Dandi and died. He has not seen any person assaulting Tercha Mahato. Due to not supporting the contents of his fardbeyan, this witness was declared hostile by the prosecution, wherein he identifies his signature on fardbeyan along with signature of Chonhas Toppo and Biru Singh marked Exhibit-2/D and 2/F, but has denied the other statements of his fardbeyan as drawn by the prosecution. He has denied the suggestion of prosecution that he has joined with the accused. Hence, not disclosing the true fact. 14. P.W.-6 Dr. Mritunjay Sarawgi has conducted autopsy on the dead body of the deceased on 17.05.1992 at about 3:30 PM and found following ante-mortem injuries:- (i) Incised wound over right occipital region extending from the mid line laterally and obliquely 5” x ½” x 1.1/2” deep with incised fracture of the underline bone, laceration of the right occipital lobe of the brain with subdural hematoma. (ii) Incised wound over lateral aspect of right upper arm 5” x 1 ½” x 1.1/2” x deep with incised muscles and fracture of the shoft of the upper humorous bone. (iii) Incised wound over anterior aspect of lower right thigh 5” x ½” x ½” deep. All the injuries were caused by sharp cutting weapon like Baluwa. The injury no. (i) and (ii) were grievous in nature and injury no. (iii) was simple. The cause of death is opined to be shock and hemorrhage, due to above injuries and it is also opined that injury no. (i) was sufficient in the ordinary course of nature to cause death. Time elapsed since death was within 24 to 36 hours. P.M. report marked as Exhibit-3. 15. P.W.-7 Gandur Mahato is the star witness-cum-son of the deceased. This witness has been interrogated with some questions by the court in order to ascertain his competency and found to be intelligent. Thereafter, his testimony was recorded. Time elapsed since death was within 24 to 36 hours. P.M. report marked as Exhibit-3. 15. P.W.-7 Gandur Mahato is the star witness-cum-son of the deceased. This witness has been interrogated with some questions by the court in order to ascertain his competency and found to be intelligent. Thereafter, his testimony was recorded. According to his evidence, about 2½ years ago, it was Sunday at about 10:00 AM, this witness along with his father and younger son went to Dandi for taking bath, where Jitiya Singh (P.W.-5), Biru Singh and Bahura Mahato were also present. He has further deposed that his father was pulling out water from Dandi, meanwhile, Bahura Mahato inflicted baluwa blow from behind, due to which his father fell down in Dandi, which was swallow and again twice-thrice baluwa blow was given by accused to his father, causing injuries on right arm and leg, due to which his father died, then he returned back to home and narrated the above incident to his mother and other villagers. There is nothing in his cross-examination to rebut his aforesaid testimony or cast any doubt on his evidence. 16. P.W.-8 Biru Singh is another eye-witness of the occurrence. He has also deposed that about 2½ years ago on Sunday at about 10:00 AM, he was taking bath in the Dandi situated in the field of Likhan Singh, Jitiya Singh (P.W.-5), Tercha Mahato (deceased), Gandur Mahato (P.W.-7) and Birbal Mahato were also present for taking bath. The accused Bahura Mahato after taking bath was standing. He has further deposed that Tercha was collecting water in a container from the Dandi, meanwhile, Bahura Mahato (appellant) gave a baluwa blow from behind on head of Tercha, who fell down in the Dandi, then again Bahura gave baluwa blow on his arm and leg. This witness with the help of Jitiya brought out the injured Tercha from the Dandi, who was appearing to be unconscious, but later on died. Several villagers and wife of Tercha also arrived at the place of occurrence. In his cross-examination also, this witness has remained intact and nothing has been elicited in his cross-examination to cast any doubt in his evidence. 17. P.W.-9 Vijai Kumar Jha is the Investigating Officer of this case. According to his evidence on 16.05.1993, he was Officer-in-Charge of Raidih Police Station. In his cross-examination also, this witness has remained intact and nothing has been elicited in his cross-examination to cast any doubt in his evidence. 17. P.W.-9 Vijai Kumar Jha is the Investigating Officer of this case. According to his evidence on 16.05.1993, he was Officer-in-Charge of Raidih Police Station. He received message through rumour that a person has been murdered in Village – Latu Samkona. He went at the place of occurrence and recorded fardbeyan of the informant Jitiya Singh, which is proved as Exhibit-4. He also inspected the place of occurrence, which is a Dandi situated in the field of Likhan Singh, which is about 6 ft. depth and in the 4 ft. radius and containing 3 ft. water, which was used by the local villagers for taking water for the purpose of bathing, drinking and washing clothes. It was told by villagers that from this Dandi, the deceased was taking water and informant was also washing his clothes, meanwhile, accused Bahura Mahato gave balua blow from behind to the deceased, due to which he died. He also found the water of Dandi was red in colour. Dead body was already pulled out by the villagers and kept nearby the Dandi. He also noticed mark of blood and blood stained near the place of occurrence. He prepared inquest report at the place of occurrence in presence of witness marked as Exhibit-5 and also seized blood stained soil in presence of witnesses (Exhibit-6) and contents of the case diary as Exhibit- 7. After finding sufficient evidence against the accused, he submitted charge sheet for the offence under Section 302 of I.P.C. In his cross-examination, this witness admits that he has not seized the water of the Dandi nor blood stained soil was sent to FSL for chemical examination, rather it was kept in malkhana of the police station. There is nothing else in his evidence. 18. On the other hand, no oral or documentary evidence has been adduced by the defence. The accused has pleaded innocence and false implication. 19. We have given thoughtful consideration to the ocular testimony of the witnesses examined by the prosecution. There is nothing else in his evidence. 18. On the other hand, no oral or documentary evidence has been adduced by the defence. The accused has pleaded innocence and false implication. 19. We have given thoughtful consideration to the ocular testimony of the witnesses examined by the prosecution. From the aforesaid discussion, it is crystal clear that although informant Jitiya Singh (P.W.-5) has been declared hostile by the prosecution, but the testimony of P.W.-7 & 8 namely, Gandur Mahato and Biru Singh, who were eye-witnesses of the occurrence have well proved the prosecution story. P.W.-7 Gandur Mahato is the son of the deceased. Learned counsel for the appellant has laid much emphasis upon the testimony of P.W.-7 branding him to be tutored witness, but we do not find any material in the evidence of P.W.-7 to cast any doubt on his evidence, rather he has depicted the whole truth and manner of assault given to his father by the appellant, the weapon used for commission of crime, which also finds corroboration from independent witnesses P.W.-8 Biru Singh as well as P.W.-6 Dr. Mritunjay Sarawgi, who conducted autopsy on the dead body of the deceased. Therefore, we have no hesitation to conclude that the learned trail court has very wisely and aptly considered the testimony of ocular witnesses and other corroborative evidence available on record leading conclusion towards guilt of the appellant. Merely because the informant has been declared hostile, does not make any adverse effect on the prosecution case. Therefore, we do not find any legal substance in the points of argument raised on behalf of the appellant and no merits in this appeal, which stands dismissed . The conviction and sentence of appellant passed by the learned trial court is upheld and confirmed. 20. Appellant is on bail. He is directed to surrender before the concerned trial court for serving the sentence awarded to him by learned trial court within two months from the date of this judgment, failing which the learned trial court shall take all coercive steps to secure arrest and send him to jail under appropriate warrant to sustain the sentence awarded to appellant. 21. Pending I.A., if any, stand disposed of. 22. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.