JUDGMENT Hon’ble Shamsher Bahadur Singh, J.—This criminal appeal calls in question the judgment and order dated 11.11.1982 passed by the 5th Additional Sessions Judge, Fatehpur in S.T. No. 428 of 1980 arising out of Case Crime No. 200 of 1980, under Section 304 IPC, P.S. Kotwali, District Fatehpur, whereby the accused-appellants namely Sheolal, Bachchi Lal, Prahlad and Chandra Pal have been convicted and sentenced to undergo imprisonment for life for having committed the offence of murder of Chhatarpal Singh punishable under Section 302 read with Section 34 IPC. 2. Heard Sri Sarvesh assisted by Smt. Usha Srivastava, learned counsel for the appellants and Sri Chandra Jeet Yadav, learned AGA for the State. 3. The brief facts leading to prosecution of appellants are as follows; On 11.5.1980 at about 5.30 p.m., the deceased Chhatrapal Singh son of Sheo Narain Singh, resident of village Muchuwapur, P.S. Kotwali, District Fatehpur accompanied by his son Suresh was going towards village ‘Dhamia’ for purchasing kerosene oil from a Government shop. On the way, when they arrived near the ‘Garhai’ (small pond) in front of the house of accused Chandra Pal and Prahlad, all the four accused namely Sheolal son of Mahangu Pasi, Bachchi Lal son of Nathu Pasi, Prahlad son of Lala Chamar and Chandrapal son of Murli Chamar, all residents of Village Muchuwapur, P.S. Kotwali, District Fatehpur armed with ‘lathies’, surrounded the deceased Chhatrapal Singh and started assaulting him while remarking that they are giving the reward for removing ‘palanquin’ (Palki) from the marriage procession which had arrived at the house of Murli Chamar, father of co-accused Chandrapal on 10.5.1980. Seeing the assault on his father, the informant Suresh raised an alarm. On hearing the alarm Ram Sajiwan, Ram Sagar, Ganga Sagar, Ram Ratan, Thakurdeen and Musammat Shivpyari reached the spot. Seeing the villagers the accused persons left the deceased and flew away. The deceased became unconscious because of the injuries sustained by him and was taken to the hospital with assistance of the villagers. The FIR of the incident was lodged with the police on the same day at about 22.30 hours by Suresh and a case was registered under Section 308 IPC. On the following day, i.e. 12.5.1980 at about 11.30 a.m., Chhatarpal Singh succumbed to the injuries in Civil Hospital, Fatehpur. 4. After registration of the case, the I.O. proceeded with the investigation in accordance with law. On the following day, i.e. 12.5.1980 at about 11.30 a.m., Chhatarpal Singh succumbed to the injuries in Civil Hospital, Fatehpur. 4. After registration of the case, the I.O. proceeded with the investigation in accordance with law. The necessary formalities of inquest were completed by S.I., Pyarey Lal Sharma and he sent the dead body of the deceased for post mortem with necessary papers connected therewith. The post mortem of the deceased was conducted by PW 1, Dr. Anand Swaroop on 13.5.1980 at about 4 p.m. and he had noted the following ante mortem injuries on the person of the deceased: 1. Stitched wound 4'’ long on right side of scalp, 3'’ above right ear. 2. Stitched wound 2'’ long on right side scalp, 2'’ above right ear. 3. Stitched wound 3'’ long on top of head just adjacent to No. 1. 4. Stitched wound 2'’ on the top of head. 5. Stitched wound 2 ½ ‘’ long 4'’ above left ear. 6. Stitched wound 1'’ long 2'’ above the left ear. 7. Stitched wound 2'’ on the back of head. 8. Stitched wound 2 ½’’ long just near to injury No. 7. 9. Contusion 2'’ x 1'’ on right lower eyelid. 10. Stitched wound ½ ‘’ x ½’’ above left eyebrow. 11. Contusion 2'’ x 1'’ on left lower eyelid. 12. Stitched wound 1.5'’ long on left cheek. 13. Lacerated wound 8/10'’ x ½’’ on left half of upper lip. 14. Stitched wound ¾’’ just right to the nose. 15. Stitched wound 1'’ on the chin ½’’ below the lower lip. 16. Stitched wound 1'’ x ½’’ below injury No. 15. 17. Teeth - 15/14 and the corresponding sockets filled with clotted blood and gum margins lacerated. 18. Lacerated wound 2/10'’ x 1/10'’ on the back of left hand. 19. Abrasion 1'’ x ½’’ on back of right index finger. 20. Contusions in an area of 3.5'’ x 2'’ on the top of right shoulder. 21. Contusion in an area of 3.5'’ x 1.5'’ on the front of left shoulder. 5. On internal examination, the head membranes were found congested and blood had clotted beneath them. The brain on the left side was found lacerated. Middle cronial fossae were found fractured. The stomach, large and small intestines were found empty. 6. Dr. 21. Contusion in an area of 3.5'’ x 1.5'’ on the front of left shoulder. 5. On internal examination, the head membranes were found congested and blood had clotted beneath them. The brain on the left side was found lacerated. Middle cronial fossae were found fractured. The stomach, large and small intestines were found empty. 6. Dr. Anand Swaroop opined the cause of death due to shock and haemorrhage as a consequence of the aforesaid injuries. The injuries were found sufficient to cause death in the ordinary course. 7. P.W. 5, Shanman Singh, Investigating Officer, after inspecting the spot and recording the statements of witnesses had submitted the charge-sheet under Section 304 IPC against all accused on 17.6.1980. 8. The charge was initially framed against the appellants for the offence punishable under Section 304 IPC. Subsequently, the charge was altered for the offence under Section 302 read with Section 34 IPC. Denying both the charges, appellants claimed their false implication on account of enmity. 9. The prosecution has examined PW 1, Dr. Anand Swaroop who has conducted post mortem and proved the post mortem examination report Ext. Ka-1. PW 2 Suresh, son of deceased, has proved the execution of written report Ext. Ka-4 and supported the prosecution version. PW 3 Ganga Sagar, alleged to be an eye-witness has not supported the prosecution version and he has been declared hostile. The learned counsel for the State was permitted to cross-examine the witness. PW 4, S.I. Pyarey Lal Sharma has conducted the inquest examination and proved the execution of the inquest report Ext. Ka-5. He also prepared the documents i.e. photo lash, challan lash and letter etc. as Ext. Ka-6, 7, 8 respectively. PW 5, Shanman Singh (I.O.) proved the site plan and Charge-sheet Ext Ka-12 and 13 respectively. PW 6, Constable Premchandra Thakur has proved the registration of the FIR and the relevant entry of G.D. as Ext. Ka-14 and Ka-15 respectively. CW 1, Dr. B.K. Srivastava has conducted medical examination of injured on 11.5.1980 at 9.10 p.m. at Civil Hospital, Fatehpur and prepared the medico legal report. He had noticed 22 injuries on the person of the deceased Chhatrapal Singh 10. After conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. All the incriminating circumstances and materials brought on record during the course of trial were put to the accused to render explanation, if any. He had noticed 22 injuries on the person of the deceased Chhatrapal Singh 10. After conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. All the incriminating circumstances and materials brought on record during the course of trial were put to the accused to render explanation, if any. All the accused have taken a plea that the prosecution was a result of enmity and the witnesses have deposed under the pressure of the police. The accused Prahlad in the statement has categorically stated that after restoration of the ‘palanquin’ a compromise was arrived at between the parties with the intervention of police and the enmity had come to an end. He has made a statement that Chhatrapal Singh was assaulted somewhere else in the night by some unknown persons and they have been falsely implicated showing the place of occurrence in the village. 11. After appreciating the evidence available on record, the Court below has recorded the conviction against the accused and sentenced them to imprisonment for life. 12. Accused Prahlad has died during the pendency of this appeal and so far as the appeal relates to him it has been abated vide order dated 16th May, 2012. 13. It has been submitted on behalf of the appellants that PWs 1, 4, 5, 6 and CW 1 are the formal witnesses. PW 2 who is alleged to be an eye-witness is a child, tutored and relative witness and being son of the deceased is highly interested person and his testimony does not inspire confidence. It has further been argued that the I.O., who inspected the spot has not shown the direction of coming or fleeing away of the accused in the site plan and it clearly indicates that he did not even visit the spot and drew the site plan as per his own whim at the police station. Remaining all the four independent alleged eye-witnesses have not been examined. It is contended that they have been purposely withheld by the prosecution. Lastly, it has been submitted that the deceased was not assaulted by the accused and instead he was assaulted by the ‘baraties’, who were approximately more than 300 in number, as has been admitted by PW 2 that ‘baraties’ were saying ‘maro maro’. 14. It is contended that they have been purposely withheld by the prosecution. Lastly, it has been submitted that the deceased was not assaulted by the accused and instead he was assaulted by the ‘baraties’, who were approximately more than 300 in number, as has been admitted by PW 2 that ‘baraties’ were saying ‘maro maro’. 14. The learned AGA repelling the arguments of the learned counsel for the appellants submitted that role of the formal witnesses is confined to the documents which are alleged to have been prepared by them. There is no impediment in law to rely on the testimony of a relative and child witness. It has been further submitted that it is not necessary to examine all the witnesses named in the charge-sheet. PW 3, even after having been declared hostile by the Court at the request of the prosecution, has supported the date, time and place of occurrence. The prosecution has successfully proved its case beyond shadow of reasonable doubt and the learned Court below has rightly recorded the conviction against the accused appellants. 15. It is the settled proposition of law that High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and has not to be guided by the finding of acquittal or conviction recorded by the learned Court below, bearing in mind the basic principle of criminal law regarding innocence of the accused. 16. Before proceeding with the discussion, it is essential to discuss the legal proposition regarding the appreciation of the evidence of a child, tutored and relative witness. 17. The position has now been settled that the testimony of a witness in criminal trial cannot be discarded merely because the witness is a relative or family member of the victim. In such a case, the Court has to adopt a careful approach in analyzing the evidence of such witnesses and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness. In such a case, the Court has to adopt a careful approach in analyzing the evidence of such witnesses and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness. The above ratio of law has been laid down by the Hon’ble Apex Court in cases of Dhari and others v. State of U.P., AIR 2013 SC 308 , Shyam Babu v. State of U.P., AIR 2012 SC 3311 and Shyamal Ghosh v. State of WB, AIR 2012 SC 3539 . 18. So far as the appreciation of evidence of a child witness is concerned, this aspect has been considered by the Apex Court from time to time and on the basis of law laid down by the Supreme Court, the principle of appreciation of evidence has now been made clear that a child witness is competent to testify under Section 118 of the Evidence Act. Tutoring cannot be a ground to reject his evidence. A child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. Trial Judge may resort to any mode of examination of a child witness to test his capacity and intelligence as well as his understanding of the obligation of an oath. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no obstacle in the way of accepting the same and recording conviction of the accused on the basis of his testimony as held by the Hon’ble Apex Court in the cases of K. Venkateshwarlu v. State of A.P., AIR 2012 SC 2955 and State of U.P. v. Krishna Master, AIR 2010 SC 3071 . 19. Now in the light of the laws referred to above, the evidence of a child witness is appreciated by us. PW 2 Suresh has categorically stated that Bachchi Lal and Sheo Lal both are of ‘passi’ community, whereas Chandrapal and Prahlad both are of ‘chamar’ community and were friends. On 11.5.1980 while he alongwith his deceased father was going to take kerosene oil from ‘Dhamia’ village and reached in front of the house of Chandrapal and Prahlad near a ‘Garhai’ (small pond) all accused equipped with ‘lathies’ and ‘small lathies’ appeared before us and all the four started assaulting my father. On 11.5.1980 while he alongwith his deceased father was going to take kerosene oil from ‘Dhamia’ village and reached in front of the house of Chandrapal and Prahlad near a ‘Garhai’ (small pond) all accused equipped with ‘lathies’ and ‘small lathies’ appeared before us and all the four started assaulting my father. During the course of assault my father fell into ‘Garhai’ having mud and water. Raising an alarm he rushed towards the village and on hearing his cries, the villagers Ganga Sagar, Ram Sagar, Sukhlal, Ram Sajiwan and Ram Ratan rushed towards the place of incident barehanded and some other people also collected on the spot. Seeing this, accused appellants flew away toward south of the village. The deceased was badly injured and in an unconscious state fell into ‘Garhai’. After being lifted out from the ‘Garhai’, the injured was taken to the Government Hospital, Fatehpur in a bullock cart, where he was hospitalized. This witness has been cross-examined continuously from 27.8.1981 to 29.8.1981 in pre and post lunch hours of the Court. He has been subjected to lengthy cross-examination running about in 32 pages but nothing has come out to help the defence. 20. The ground of challenge of the evidence of the witness by the appellants is that he is a child, tutored and related witness. So far as the witness being a child and related witness, this does not suffer from any legal bar. So far as the tutoring part is concerned that has lost its value since the witness has been put to a lengthy cross-examination and there is nothing to discredit him. The witness is a child and relative witness, mere on this score, in view of the law cited above his testimony cannot be discarded rather it is expected of the Court to scrutinize such evidence carefully and cautiously. 21. The witness has specifically named the accused appellants and has assigned the weapons to all of them. He has disclosed the date, time, place and manner of assault. Even after putting the witness to a lengthy cross-examination nothing could be extracted which may be termed as material contradiction and may form basis of discard. So far as the minor discrepancy in the number of injuries on different parts of the body of the deceased is concerned, it is not material. Even after putting the witness to a lengthy cross-examination nothing could be extracted which may be termed as material contradiction and may form basis of discard. So far as the minor discrepancy in the number of injuries on different parts of the body of the deceased is concerned, it is not material. In such circumstances, where the assault is being made jointly by all accused appellants, it is not expected that he should disclose as to how many blows were inflicted by all accused appellants and that too on what part of the body. Such omission, if any, assumed for the sake of argument, is not of any avail to the accused appellants. 22. During the course of arguments before this Court, a case has been built up by the appellants that the deceased was assaulted by ‘baraties’ who were more than 300 in number and such a great number of injuries were caused by them. The same question was put to the witness during cross-examination before the trial Court and the witness denied the commission of any assault by ‘baraties’. More so, this case which has been built up at appellate stage by way of argument finding support from the defence which has been taken by the appellants either by way of suggestion to the witness or by way of their statements during examination under Section 313 Cr.P.C. is not acceptable to us. On a critical examination of the testimony of PW 2 Suresh, this Court finds complete coherence and unanimity in his examination-in-chief and cross-examination with respect to the date, time, place, manner of assault and the weapons used in the assault. The testimony of PW 2 who is a child and related witness is in estimation of the Court completely credible and trustworthy and wholly reliable and it can be safely relied on for drawing conclusion against the accused appellants. 23. Further submission of the learned counsel for the appellants is that the prosecution has willfully not examined the other eye-witnesses who are alleged to have reached the spot after hearing the alarm by PW 2. The law on this point is quite clear that non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. The law on this point is quite clear that non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of an eye-witness cannot be pressed into service like the ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict the accused on statement of the sole eye-witness even if he is relative of the deceased and non-examination of an independent witness would not be fatal to the case of the prosecution. Above ratio of law has been laid down by the Hon’ble Apex Court in the cases of Kripal Singh v. State of Haryana, AIR 2013 SC 286 , Sandeep v. State of U.P., (2012) 6 SCC 107 and Mano Dutt and another v. State of U.P., 2012 (77) ACC 209 (SC). 24. The next submission is that PW 3 who is alleged to be an eye-witness of the incident has not supported the prosecution version. Although he has not supported the factum of assault by the accused appellants, but he has categorically supported the date, time and place of occurrence. The law for appreciation of evidence of a hostile witness is very clear and merely because a witness has been declared hostile his entire testimony cannot be discarded. In such circumstances, a heavy duty is cast upon the Court to extract the truth from the testimony of the witness which appears reliable in the estimation of the Court and the Court would be competent to place reliance on the particular part of the testimony. So far as the approximate date, time and place of occurrence are concerned, the witness has corroborated the testimony of PW 2. The act of assault by accused is also based on information, which he gathered on spot soon after the occurrence. Hence, this part of the statement of the witness is found to be credible and can be safely relied in accordance with law. 25. It has been vehemently argued that the investigation has been conducted in a defective manner and the I.O. has not visited the spot and omitted the material fact in the site plan. Hence, this part of the statement of the witness is found to be credible and can be safely relied in accordance with law. 25. It has been vehemently argued that the investigation has been conducted in a defective manner and the I.O. has not visited the spot and omitted the material fact in the site plan. The law on this point of defective investigation has been considered by the Supreme Court from time to time and it has been categorically laid down by the Supreme Court that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of the prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent as held in cases of State of Karnataka v. Suvarnamma, (2015) 1 SCC 323 , Hema v. State, 2013 (81) ACC 1 (SC) (Three Judge Bench) and C. Muniappan v. State of TN, 2010 (6) SCJ 822 . 26. Even if this point is considered for the sake of argument, it is to be appreciated in the light of evidence available on record. We have already found the testimony of PW 2 credible and wholly reliable as such in view of the proposition cited above, this argument has lost its importance. 27. Now, it is to be seen whether the description given by PW 2 about the assault finds support from any other materials available on record or not. It is noteworthy that PW 2 has categorically mentioned that accused appellants have ruthlessly assaulted the deceased Chhatrapal Singh and caused multiple injuries. The fact that the accused appellants assaulted the deceased by ‘lathies’ and ‘small lathies’ finds support from the medical evidence. The PW 1 and CW 1 have categorically mentioned injuries in the nature of lacerated wounds and contusions. In the ante mortem injuries, there are injuries shown to be stitch wounds. All these injuries can be caused with weapons assigned to the appellants. 28. No other point was highlighted before us nor mentioned during the course of argument. 29. Being the Court of first appeal, we have carefully scrutinized the case from every angle. The Court below has rightly appreciated the evidence available on record and rightly recorded the finding of conviction against the accused appellants. 28. No other point was highlighted before us nor mentioned during the course of argument. 29. Being the Court of first appeal, we have carefully scrutinized the case from every angle. The Court below has rightly appreciated the evidence available on record and rightly recorded the finding of conviction against the accused appellants. We do not find any justification for interference in the impugned judgment and sentence and the same deserves to be confirmed. 30. The appeal is devoid of merit and accordingly dismissed. The conviction and sentence awarded by trial Court against the accused Sheo Lal, Bachchi Lal and Chandrapal is confirmed. 31. So far as accused Prahlad is concerned, his appeal has already been abated due to his death. 32. The accused appellants are directed to surrender before the appellate Court and serve out the sentence awarded by the Trial Court. 33. The copy of the Judgment and entire record be transmitted back to the learned trial Court for compliance. ———————