JUDGMENT : KISHORE KUMAR MANDAL, J. Both the appeals have been preferred by the two appellants against the judgment of conviction dated 20.01.2007 and order of sentence dated 22.01.2007 passed by the Ist Addl. Sessions Judge, Darbhanga in Sessions Trial No. 338 of 2003. Cr. Appeal no. 694 of 2007 was preferred by them from jail wherein Md. Waliur Rahman was appointed as amicus curiae to assist the Court. Subsequently, Cr. Appeal no. 1095 of 2013 was preferred by the two appellants through counsel. Since nobody appeared on call on behalf of the appellants in the said appeal this Court appointed Mr. Niraj Kumar @ Sanidh as amicus curiae. In that view of the matter, the subsequent appeal of the appellants being Cr. Appeal no. 1095 of 2013 has become irrelevant if not completely infructuous and is dismissed as such. 2. Appellant Md. Abid (A/1) and appellant Md. Sakir (A/2) stand charged for the offences punishable under Sections 302/34 of the Indian Penal Code for having committed murder of their father Motirain and step mother Samna Khatoon in the afternoon of 8th July, 2003 at village Katka, P.S. Singhwara in the District of Darbhanga. A/2 was also charged under Section 307 of the Indian Penal Code for attempting to commit murder of his step brother Md. Shahid (PW-7) at the same time and place of occurrence. Both the appellants, on trial, were held guilty under Sections 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life. A/2 has further been held guilty under Section 307 of the Indian Penal Code and sentenced to undergo S.I. for five years. Both the sentences have been directed to run concurrently. 3. Heard learned amicus curiae and the learned APP. 4. The present case arises out of Singhwara P.S. case no. 65 of 2003 registered on 08.07.2003 at 15.30 hours by PW-10 Sudhir Kumar, Sub Inspector of Police Singhwara Police Station on the basis of fardbeyan (Ext.3) made by the Dafadar Arun Kumar Thakur (PW-8) alleging therein that on 8.7.2003 at about 1.30 pm he heard the hue and cry coming from the house of deceased Motirain and run towards that direction. While moving towards the house of the deceased(s) he saw Md. While moving towards the house of the deceased(s) he saw Md. Jahid (not put on trial) A/1 and A/2 (the three full brothers and sons of deceased Motirain from his first wife) escaping towards east from the house with dagger in hand. On way, it was informed by the villagers that above named accused persons after committing murder of their father and step mother had escaped from the house. The informant requested some of them to offer chase and himself went inside the house of the deceased(s) where some villagers including Wasi Ahmad (PW-1) Md. Gani (PW-6) and Ali Imam (not examined) had congregated. He found Motirain and his wife Samna Khatoon lying dead in a pool of blood having received several cut/incised injury on their persons. The informant further alleged that the deceased Motirain from his first wife had these three sons (the accused) and three daughters. Youngest of whom was a handicapped girl who was missing from the house since last 15 days. After the death of his first wife deceased Motirain had solemnized 2nd marriage with the deceased Samna Khatoon from whom he had three sons and one daughter who were all small kids. The accused were annoyed with the second marriage of their father. The deceased Motirain was working as rickshaw puller in Delhi. The three accused persons were also working in Delhi. There was strained relationship between the deceased and his three sons from the first wife on the point of partition as a result whereof the occurrence had been committed. In the process the accused persons also inflicted injury to six year old step brother Sahidul @ Md. Shahid (PW-7) who was removed for medical aid. A formal F.I.R. (Ext.4) was drawn. The inquest report was prepared in respect of the two dead bodies (Exts. 5 and 5/A) and cadavers were sent for autopsy. Dr. P.K. Das (PW-11) held the post mortem on the two dead bodies and submitted the post mortem reports (Exts. 7 and 7/A). The injury report (Ext. 8/1) of PW-7 was also obtained. On conclusion of investigation charge sheet was submitted. On the basis whereof cognizance of the offence was taken on 19.11.2003 and the case was committed to the Court of session on 3.12.2003 for trial. Charges were accordingly framed to which the appellants pleaded not guilty and claimed to be tried. The injury report (Ext. 8/1) of PW-7 was also obtained. On conclusion of investigation charge sheet was submitted. On the basis whereof cognizance of the offence was taken on 19.11.2003 and the case was committed to the Court of session on 3.12.2003 for trial. Charges were accordingly framed to which the appellants pleaded not guilty and claimed to be tried. In their respective statements under Section 313 Cr.P.C. they claimed false implication in the case and denied the charges with which they were confronted. It may be noticed here that during trial co-accused Md. Jahid escaped from the jail custody on 13.7.2004 and, accordingly, his trial was separated. 5. In order to prove the guilt beyond shadow of reasonable doubts the prosecution examined 12 witnesses. The defence also examined one witness in support of their defence. Before we deal with relevant evidence, it is deemed apposite to first consider the evidence of the Doctor who held autopsy on the two dead bodies. The doctor, in his evidence, stated that on 09.07.2003 at 12.00 noon he conducted post mortem examination on the dead body of Motirain and thereafter at about 1.00 P.M. on the dead body of Samna Khatoon. On the person of deceased Motirain he found the following 12 incised ante mortem injuries caused by heavy sharp cutting weapons :- (i) One incised wound 4” x 2” x 1/2” over right side of neck on upper part, underlying soft tissues and muscles right carotid vessels and nerves showed concomitant cuts. (ii) One incised wound 2” x 1/4” x 1/8” over lateral aspect of right eye on the face. (iii) One incised wound 3” x 2” x 1/2” over right forearm in the middle on dorsal aspect and 2” x 1/4” x 1/8” over right hand on dorsal aspect on lower part. (iv) Incised wound 3” x 1/2” x 1/4” over right side of back of head 2” behind right ear. (v) Incised wound 2” x 1” x 1” was found over back of left elbow. Bones and muscles showed concomitant cuts with open joint space. (vi) One incised wound 2-1/2” x 1/2” x 1/2” on medial aspect of right leg in upper part 2” below right knee. (vii) One incised wound 3” x 1” x 1/2” over left side of root of neck by the side of left shoulder. Bones and muscles showed concomitant cuts with open joint space. (vi) One incised wound 2-1/2” x 1/2” x 1/2” on medial aspect of right leg in upper part 2” below right knee. (vii) One incised wound 3” x 1” x 1/2” over left side of root of neck by the side of left shoulder. (viii) One incised wound 2” x 1/2” x 1/2” over left shoulder in upper part. (ix) Three incised wounds measuring 4” x 1/2” x 1/8”, 3” x 1/2” x 1/4” and 2” x 1/2” x 1/4” were found on left scapular region. (x) Two incised wounds 2” x 1/2” x 1/4” each were found on the back in the middle of the vertebral column. (xi) Two incised wound 3” x 1/2” bone deep each were seen over upper part of left side of forehead and on upper part of right side of head. Left fontal and right parietal bones showed concomitant cuts 1/8” deep in 2” length at each place. (xii) One incised wound 4” x 1/4” x 1/8” was found over left side of back of neck and one incised wound 3/4” x 1/4” x 1/8” over right side of the back of the neck. Injury no. (i), (iii), (v) and (xi) were grievous and dangerous to life in ordinary course of nature while others were simple. Death was due to shock and haemorrhage. 6. On the person of Samna Khatoon (another deceased) the doctor found the following 9 ante-mortem incised injuries :- (i) Incised wound 3” x 1/2” x 1” over right side of the back of neck, 2” behind and below the right ear. Soft tissues muscles blood vessels and occipital bone showed concomitant cuts. (ii) Two incised peneterating wounds 1/2” x 1/2” x 2” and 1” x 1/2” x 2” were found over right lower part of chest and upper part of abdomen. The paritice and liver showed concomitant multiple perforations. (iii) Incised wound 3” x 1/2” x 3/4” was found on dorsal of right foot on lateral aspect soft tissues muscles and underlying tarsal and metatarsal showed concomitant cuts. (iv) Incised wounds 3/4” x 1/2” x 1/2” and 1/2” x 1/2” x 1/2” over right lower jaw on right side of chin. Mandible showed cuts. (v) Incised wound 1-1/2” x 1/2” x 1/4” on lateral aspect of right eye. (iv) Incised wounds 3/4” x 1/2” x 1/2” and 1/2” x 1/2” x 1/2” over right lower jaw on right side of chin. Mandible showed cuts. (v) Incised wound 1-1/2” x 1/2” x 1/4” on lateral aspect of right eye. (vi) Incised wound 2” x 1/2” x 1/2” over left side of forehead in upper part. Left frontal bone showed cuts. (vii) Two incised wounds 3/4” x 1/2” x 1/4” and 1/2” x 1/4” x 1/4” were found over left upper part of abdomen. (viii) Incised wound 1/2” x 3/4” x 3/4” over left lower part of chest below the left breast. (ix) Incised wound 1/2” x 1/4” x 1/4” over left foot on dorsal aspect. Injury nos. (i), (ii), (iii) and (iv) were opined to be grievous in nature and dangerous to life in ordinary course of nature which were caused by sharp cutting pointed weapon such as dagger. Death in her case was also due to shock and haemorrhage. 7. Seen thus, the evidence of the doctor unmistakenably proved brutal killing of the two deceaseds by means of sharp cutting and pointed weapon as propounded by the prosecution. 8. The injury report of the ill fated step brother of the appellant has been proved by PW-12 as Ext. 8/1. The writings of Dr. Mritunjay who first treated PW-7 of his injuries have been proved by the same witness as Ext.8. According to the said report PW-7 received multiple stab injuries on his person. He is the solitary eye witness to the horrific incident that took place on the relevant date in side the house of the two deceaseds when they were hurled with dagger blows and on protest by PW-7 he was also given stab injuries. His evidence, therefore, acquire greater significance and close scrutiny keeping in focus his mental maturity. According to his statement before the Court he was taking day meal during the relevant date and time of occurrence with his parents in the inner ‘osara’ (varandah) when the three accused persons suddenly came onto the varandah and assaulted his father with dagger and thereafter to his mother. When he tried to intervene A/2 assaulted him with dagger on his neck arm, leg and chest. He made good his escape therefrom and was later carried to Singhwara hospital by the Maulvi of the village. When he tried to intervene A/2 assaulted him with dagger on his neck arm, leg and chest. He made good his escape therefrom and was later carried to Singhwara hospital by the Maulvi of the village. The motive of the occurrence was that the step brothers (accuseds) had demanded share in the land from his father which was denied. In his cross-examination this witness admitted that his mother deceased Samna Khatoon was second wife of his father. The accuseds had earlier left the house. His step sister was only living in the house who was also few days earlier taken out from the house. At the time of occurrence they were taking meal on Varandah when the assault took place. Blood had fallen there. First of all accused Jahid (not facing trial) assaulted his father whereas A-1 assaulted his mother and A/2 assaulted him. Hulla was raised but no one came forthwith to rescue. He was unable to say as to how many blows were given to the parents. In para 25 this witness stated that his statement was recorded and LTI thereon was obtained by the police. After recovering from the injury he started living with his Nani. This witness denied the suggestion of any dacoity having taken place in the house on the relevant date in which his parent received fatal injuries. 9. The dafadar whose statement was treated as ‘fardbeyan’ examined himself as PW-8. He reiterated the story which was spelt out in the ‘fardbeyan’. On hearing hulla on the relevant date and time of occurrence, he went to the house of deceased Motirain where PWs-1, 6 and 7 along with others were present. PW-7 was found in an injured condition who was later removed to the Singhwara hospital. The witness has proved his signature on fardbeyan (Ext.2) and writings of Sudhir Kumar who drew up the FIR (Ext.3). In his further statement it was stated that one daughter of Motirain had left the house 10-15 days ago. Panchnama over the dead bodies were prepared in his presence. The witnesses and other persons assembled at the scene of the occurrence revealed that the occurrence was committed by the three step sons of Motirain. In his cross-examination, the witness stated that the incident was informed to the officer-in-charge whereafter the police arrived. Panchnama over the dead bodies were prepared in his presence. The witnesses and other persons assembled at the scene of the occurrence revealed that the occurrence was committed by the three step sons of Motirain. In his cross-examination, the witness stated that the incident was informed to the officer-in-charge whereafter the police arrived. The dead body of Motirain was lying near husk room whereas the dead body of Samna Khatoon was lying in the inner gali (lane) of the house. 10. PW-9 Jay Nandan Thakur has given out hearsay account of the occurrence. PWs 1 Wasi Ahmad, PW-3 Shabiban Khatoon, PW-4 Abdul Samad and PW-6 Md. Gani did not support the prosecution case in Court and were declared hostile. However, from their evidence it appears that during investigation, they in their respective statements, had supported the case before the investigating officer. 11. PW-2 Md. Shamse Alam in his evidence has claimed his acquaintance with the informant, accused persons and the deceaseds. When he visited the place of occurrence on hulla he saw marks of injury on the persons of the two deceaseds. At the scene of occurrence he could learn from the persons assembled there that the occurrence was committed by the three sons of the deceased Motirain. PW-5 Abhay Nath Kumar is one of the witnesses of the inquest report. He has identified his signature as Exts. 1/B and 1/C on the inquest report(s) and on the seizure memo. 12. While assailing the judgment and order of conviction, learned amicus curiae, submitted that the place of occurrence and the manner of occurrence have not been established/proved beyond all doubts in the present case. On the point of actual assault PW-7 has been examined who was never examined by the I.O. in course of investigation. According to PW-7 his parents were assaulted at the varandah whereas in the deposition of other witnesses including the PW-10 it has come that Motirain was found lying in the pool of blood near husk room whereas his wife was found lying in a pool of blood in the inner gali of the house. 13. Per contra, learned APP has submitted that the circumstances which appear from the record would show that PW-7 was injured and was soon carried to hospital for treatment and as such he was not in a position to narrate what happened after receiving of assault and retreat of the assailants. 13. Per contra, learned APP has submitted that the circumstances which appear from the record would show that PW-7 was injured and was soon carried to hospital for treatment and as such he was not in a position to narrate what happened after receiving of assault and retreat of the assailants. The boy (PW-7) who admittedly received stab injuries in course of occurrence is the most truthful witness. The evidence of the informant is clear to the effect that three accused persons including the appellants soon after the occurrence were seen escaping from the place of occurrence with dagger in hand. Their cloths were stained with blood. Another contention of the learned amicus curiae to disbelieve the prosecution case is that the injury report of PW-7 should not be looked into since the doctor who medically examined him had not taken to the witness box. Counsel for the State conversely submitted relying on 2001 (2) PLJR 749 (Baleshwar Mahto vs. State of Bihar) that non examination of the doctor would not be fatal to the prosecution case when there is cogent evidence on record to show that the witness or the deceased did receive injuries. 14. We have carefully perused the materials on record in the light of the rival submissions made by the parties. From the deposition of I.O. (in para-8) who prepared the topography of the place of occurrence it appears to us that the first place of assault being ‘osara’ and the two places where the dead bodies were found are close by being inner part of the house. The Doctor (PW-10) found the cloths of the two victims soaked with blood. PW-7 has stated that after receiving assault he tried to flee away from the place of occurrence and later became senseless. He was removed by the Maulvi of the village to Singhwara hospital for treatment of his injuries. PW-10 found the dead body of Samna Khatoon in the inner gali where profuse blood was found and few feet away therefrom one dagger was also found lying. Close thereto near the husk room the dead body of Motirain was found where also huge blood marks were present. Another ‘churra’ was found lying near the dead body of the said deceased. In para 10, in answer to a question, this witness stated that PW-3 Shabiban Khatoon PW-4 Abdul Samad, and PW-6 Md. Close thereto near the husk room the dead body of Motirain was found where also huge blood marks were present. Another ‘churra’ was found lying near the dead body of the said deceased. In para 10, in answer to a question, this witness stated that PW-3 Shabiban Khatoon PW-4 Abdul Samad, and PW-6 Md. Gani in their respective statements made before him had fully supported /corroborated the case as eye-witness. In para 11 of his deposition this witness has stated that after visiting the place of occurrence when he returned to the police station the following morning at about 5 A.M. A.S.I. Bishwanath Ram produced before him the fardbeyan of Sahidul @ Md. Shahid (PW-7) which was copied out in the case diary. The injury report of PW-7 was also made available to him by ASI Bishwanath Ram in course of investigation. From his evidence, it further appear that PW-7 was also shifted to DMCH and the injury report was also received. The statement of PW-7 being the injured witness was perhaps recorded as farbeyan by ASI Bishwanath Ram as he was not aware that PW-10 in the meanwhile had proceeded to the place of occurrence and recorded the statement of PW-8 (village dafadar) which was already treated as farbeyan of the case. This Court, therefore, does not find much substance in the submission of the learned amicus curiae that PW-7 had not made any statement before the police in course of investigation and narrated the incident in the Court for the first time. Non presence of blood stain mark at the varandah of the house stands explained by the evidence of the doctor who found the cloth of the deceaseds soaked with blood. The evidence of PW-7 in the attending facts of the case inspires confidence to prove the guilt of the appellants beyond shadow of reasonable doubts even if there is some minor discrepancies in the evidence. We are not ignorant of the fact that PW-7 was six years old when he was made to witness such ghastly occurrence in which his parents were given multiple stab injuries in his presence by his step brothers. He was 11 years old when deposed in the Court. He is the one who also received stab injuries in the same transaction on diverse parts of his body at the hands of A/2. He was 11 years old when deposed in the Court. He is the one who also received stab injuries in the same transaction on diverse parts of his body at the hands of A/2. The Apex Court in the case of Suresh vs. State of Uttar Pradesh reported in AIR 1981 SC 1122 in the context of a child witness observed as under :- “Shri Gupta made a very plausible case against the acceptance of the evidence of Sunil, the child witness. We must confess that if the case were to rest solely on Sunil’s uncorroborated testimony, we might have found it difficult to sustain the appellant’s conviction. But there are unimpeachable and the most eloquent matters on the record which lend an unfailing assurance that Sunil is a witness of truth, not a witness of imagination as most children of that age generally are. As we have stated earlier, the presence of the appellant is undisputed and is indeed indisputable. The appellant himself received quite a large number of injuries during the incident, which proves his presence in the house at the relevant time beyond the shadow of a doubt………..” 15. A child is free from ordinary human maladies such as tutoring, ill motive and false implication. We are unable to accept as suggested by the learned amicus curiae that this witness narrated the manner of occurrence which is inconsistent with the prosecution case on the ground that the two deceaseds were not found lying on the ‘osara’ having received diverse sharp cutting injuries particularly when PW-7 fairly stated in his deposition that he could not count or say to how many stab injuries were given to his parents by the accused persons and that after sustaining ‘churra’ blows he ran away from the place of occurrence. 16. Another contention of the defence is that as per PW-7 he was taking meal with his parents when the assault took place. The doctor in the post mortem report found in the stomach of the deceased Motirain 100 ML of pasty semi digested food material. This was not possible. The doctor (PW-11) in his cross-examination has clearly opined that it was difficult to say that such injury would cause instantaneous death meaning thereby the chance to have remained alive for some time after receiving the injuries cannot be ruled out. This was not possible. The doctor (PW-11) in his cross-examination has clearly opined that it was difficult to say that such injury would cause instantaneous death meaning thereby the chance to have remained alive for some time after receiving the injuries cannot be ruled out. If the deceased Motirain survived for some time after receiving the injuries presence of semi digested food material with pale gastric and mucosa in the stomach of the deceased Motirain would be palatable to the prosecution case. Normally in our country the husband starts taking meal first served by the wife and thereafter the wife takes the meal. If this normal human conduct is to be accepted then this Court finds from the evidence of the Doctor (PW-11) that the stomach of deceased Samna Khatoon was found empty with pale, gastric, mucosa. The prosecution case as spelt out at the trial, therefore, cannot be suspected. 17. Seen thus, we are satisfied that the prosecution has been able to prove the charges of having committed the murder of the two deceaseds in furtherance of common intention by means of ‘churra’ as a result whereof the two deceaseds received multiple sharp incised injuries on various parts of their bodies to which they succumbed. A/2 in the process also caused injury on the person of PW-7 with intention to kill him but he having received those injuries made good his escape therefrom and saved his life. The conjoint evidence of PW-7 who has given the ocular account of the actual assault at the hands of the appellants and the subsequent event of escaping from the scene as deposed by PW-8 (informant) leaves no manner of doubt to come to the conclusion that the prosecution has been able to prove the case beyond a shadow of reasonable doubt. In consideration of the matter as made above we find no legal flaw in the judgment and order of conviction recorded by the learned trial judge under the impugned judgment. The appeal fails. 18. It is, accordingly, dismissed. The accused shall serve out the remainder period of sentence. Appeal dismissed.