JUDGMENT : Indrajit Chatterjee, J. This appeal has been filed from the order of conviction and sentence passed by the Additional Sessions Judge, Second Court Malda in Sessions Case No.33 of 2002 (Sessions Trial no.30 of 2003) arising out of Gazole Police Station Case no.100/1999 dated 05.07.1999 (G.R. Case no.103/1999 of the SDJM, Malda). As per the order dated 20.12.2003 the accused appellant (hereinafter referred to as the appellant) was found guilty by the Trial Court for the offence punishable under Section 302 of the Indian Penal Code (hereinafter called as the Code) and as per order dated 22.12.2003 the appellant was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- in default to suffer rigorous imprisonment for six months. 2. The case of the prosecution before the Trial Court can be stated in brief thus; that the de facto complainant of this case one Chotka Soren, a resident of village Batali, P.S. Gazole reported to Gazole police station at about 21:10 hours on 05.07.1999 as to the murder of his mother (Sumi Hansda). The FIR revealed that on the date of the incident the de facto complainant and his wife went to his in-laws house and returned at about 6 p.m. only to find the dead body of his mother lying with injury on her head. He suspected that it was the act of Navin Hansda, the appellant before us, with whom there was enmity between the parties. It was the suspicion of the de facto complainant that the appellant had killed the victim by a sharp cutting weapon. On receipt of the FIR, Gazole P.S Case no.100/1999 dated 05.07.1999 under Section 302 of the IPC was started. The matter was investigated by the police. During the course of investigation there was inquest made on the body of the victim, some articles were seized but not the weapon of offence, sketch map was drawn, statements of the witnesses were recorded, post-mortem was conducted and PM report collected. The Investigating Officer of the case after investigation submitted charge sheet against the appellant for the offence punishable under Section 302 of the Code. 3. The Investigating Officer of the case after investigation submitted charge sheet against the appellant for the offence punishable under Section 302 of the Code. 3. The case was committed to the court of sessions and Sessions Case no.33 of 2002 was registered and charge was framed against the appellant for the offence punishable under Section 302 of the Code to which the accused pleaded not guilty and claimed to be tried and as such the trial started. It may be noted that the appellant did not abscond from the village and he was arrested by the I.O (PW-6) on 10.07.1999 and was forwarded to the court on the next day with a prayer to record his confession statement but the accused declined. The defence did not take any specific plea but pleaded innocence. 4. Thus in this case we are to consider whether the Trial Court was justified in convicting accused appellant and sentencing him under Section 302 of the Code, to rigorous imprisonment for life. 5. We are not unmindful of the decision of the Apex Court as reported in (2002) 4 SCC 57 (Rama Vs. State of Rajasthan) wherein the Apex Court held that it is well settled that in a criminal appeal duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of the evidence by the trial court alone specially when the appeal has been admitted and placed for final hearing. The Apex Court reiterated that upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under the law. The same principle was also reiterated in a recent decision of the Apex Court as reported in (2012) 11 SCC 312 corresponding to (2012) 4 AICLR (S.C.) 724 (Iqbal Abdul Samiya Malek Vs. State of Gujarat). Thus, we are to reappraise the evidence given before the learned trial court. 6. Before the Trial Court the prosecution examined in all eight witnesses and proved some documents. The accused was examined under Section 313 Cr.P.C and he pleaded innocence. No D.W was examined and no document was marked as exhibit by the defence. State of Gujarat). Thus, we are to reappraise the evidence given before the learned trial court. 6. Before the Trial Court the prosecution examined in all eight witnesses and proved some documents. The accused was examined under Section 313 Cr.P.C and he pleaded innocence. No D.W was examined and no document was marked as exhibit by the defence. During the trial it revealed that the said murder was committed in the presence of Mithun, (PW-3) the son of the de facto complainant who was alone in the house with his grandmother, the victim. He was 14 years on 24th July, 2003 and as such in 1999, he was about 10 years of age and was enough to comprehend the events. It further revealed at the time of trial that Mithun after seeing the ghastly incident which he described in his evidence, as “the accused Navin Hansda has assaulted my grandmother with an axe” and thereafter he started running to the house of Bishu (PW-2) and the de facto complainant took the boy from Bishu’s house. A story developed at the time of trial and investigation that the appellant suspected that the victim was a witch as a year ago his son had died after prolonged suffering. 7. At the time of hearing Mr. Sandipan Ganguly, Counsel appearing on behalf of the appellant, engaged by the State as per order of the Court submitted that it is not a fullproof case. He submitted to consider the following circumstances: (1) that in the FIR there is no mention that PW-1 and his wife went to the in-laws house of PW-1 keeping PW-3 in the house to take care of his grand-mother, (2) in the FIR there is nothing that PW-1 heard of the incident from his son PW-3 and thereafter he went to register the FIR, (3) why no neighbour of the victim came forward to depose directly implicating the appellant, (4) that the story of witch (Daini) was not disclosed in the FIR and that in the FIR it was only written that there was some “gandagol” in between Nabin and the de facto complainant. The evidence of PW-4, another son of the victim is that once accused Nabin made an attempt to kill the victim but failed due to the resistance of that witness. The evidence of PW-4, another son of the victim is that once accused Nabin made an attempt to kill the victim but failed due to the resistance of that witness. This did not figure in the evidence of PW-1 who is the full brother of PW-4, (5) that the weapon of offence was not recovered, by all these points he tried to convince the Court that the appellant ought not to have been convicted and the order of conviction and such the sentence cannot be supported. 8. In counter to all these Mr. Manjit Singh, the Public Prosecutor appearing on behalf of the State submitted that the case is solely based on the direct evidence of PW-3. He submitted that it is doubtful as to whether FIR was lodged prior to meeting of the son and the father and if the FIR was lodged before meeting the son then the FIR can be believed and the name of PW-3 ought not to have appeared in the FIR. He submitted that omission in the FIR may be there but the Court will consider the evidence on record in total and will come to a just decision and in the instant case if the evidence is scrutinised then only one irresistable conclusion will follow that this appellant had murdered the victim. 9. As regards the motive it was the submission of Mr. Singh that when there is direct evidence the motive is only academic. He relied on the decision of the Apex Court as reported in 1996 (4) SCC 362 (Malu & Ors. Vs. State of Haryana) (a three judge bench decision). Regarding the omission in the FIR as regards the name of PW-3 he cited the decision of the Apex Court as reported in 2004 (13) SCC 308 (State of Madhya Pradesh vs. Dharkole @ Govinda Singh) where it was held by the Apex Court that it is not required for the FIR maker to name all the witnesses in the FIR. He also submitted by taking us to Section 34 of the Evidence Act to show that conviction can be based on the sole testimony of one witness if his evidence is trustworthy. He also submitted by taking us to Section 34 of the Evidence Act to show that conviction can be based on the sole testimony of one witness if his evidence is trustworthy. As regards the value of the child witness he cited the decision of the Apex Court as reported in 2013 (5) SCC 705 (Shivasharanappa vs. State of Karnataka) wherein the Apex Court held that the testimony of a child witness can form the basis of the conviction if the same is credible, truthful and corroborated by other evidence brought on record and it was further held that corroboration is not a must to record a conviction but as a rule of prudence, it is desirable to seek corroboration from other reliable evidence placed on record. 10. He also cited another decision of the Apex Court as reported in (2011) 4SCC 786 (State of Madhya Pradesh vs. Ramesh and Another) wherein the Apex Court held that if the evidence of the doctor and the eye witness tallies then it is enough to convict the accused. 11. In reply Mr. Ganguly submitted that the evidence of a child witness may be relied upon with caution and he reiterated that in the instant case, PW 3, Mithun cannot be treated as a reliable eye witness. 12. Let us now see what is there in the evidence on record. PW-1 is the de facto complainant, admittedly he did not see the incident. PW 2 is Bishu Rai in whose house Mithun (PW 3) took shelter after seeing the incident. PW 3 is Mithun, the child witness, in whose presence allegedly the incident took place. PW 4, Bodh Rai is the brother of PW 1, but this witness did not see the incident. PW 5 is a formal witness, the Home guard, who carried the dead body and is also a seizure list witness regarding seizure of wearing apparels etc. PW 6 is the IO of the case. PW 4, Bodh Rai is the brother of PW 1, but this witness did not see the incident. PW 5 is a formal witness, the Home guard, who carried the dead body and is also a seizure list witness regarding seizure of wearing apparels etc. PW 6 is the IO of the case. PW 7 is the doctor, who deposed that the victim sustained two injuries (1) – 5” X 3” lacerated injury over the right temporal region with fracture of skull bone and (2) – 1” X 1” lacerated injury over the right upper chest and as per the opinion of the doctor the cause of death was anti-mortem and homicidal in nature, caused by one heavy blunt weapon like iron rod or bamboo or back portion of axe and PW 8 is the scribe of the FIR. 13. We have gone through the evidence on record both oral and documentary. 14. It is true that in the FIR the name of PW 3 was not mentioned and it is also silent that the incident took place in his presence. It may also be noted that in the inquest report also there is no mention of the name of PW 3 as the witness to the incident. It is true that it was a great omission on the part of the de facto complainant not to give instruction to the scribe to write the name of his son who witnessed the crime. It may be noted that the de facto complainant belongs to a tribal community and the FIR was written by PW-8 and the scope of omission may not be ruled out. If the FIR part is not believed and so also the inquest then the evidence of PW-3 is to be judged with caution. 15. In his evidence on oath PW 1 candidly deposed that on the date of the incident he with his wife and youngest son went to his in laws house keeping his eldest son Mithun with his grandmother and Mithun stated as to the incident of murder of his grand-mother the victim, by Nabin Hansda, that is the appellant. PW 1 found his mother in the court yard on his return back from his father in law’s house. PW 1 found his mother in the court yard on his return back from his father in law’s house. PW-1 was examined by the I.O on 05.07.1999 and in his 161 statement he duly stated to the I.O that he heard of the incident from PW-3 and Bishu that it was the appellant who committed the murder of his mother in presence of PW-3. This may be taken to be a guard as against subsequent embellishment and may be considered as corroboration. There is little omission in the evidence of PW-1 that he took his son from the house of Bishu as claimed by PW-3 in his evidence. The Omission may not be treated as contradiction. We are not unmindful of the cross-examination of this witness wherein he stated in clear terms “I did not state to the police and also in the complaint that my son Mithun was present at the time of giving axe blow on the head of my mother by the accused”. Unfortunately the defence did not take this contradiction when the IO of this case was cross-examined and as such this contradiction cannot help the defence. 16. Thus, the vital witness is PW-3 who deposed that Sumi Hansda was his grand-mother and the appellant whom he identified gave one axe blow on her head and at that time this witness was present. He also deposed that the incident took place in the ‘Varanda’ of their house. He further deposed that after seeing the incident he fled away and went to the house of Bishu (PW-2) and told him that the appellant had assaulted his grandmother with one axe. He also deposed that his father came to the house of Bishu and took him back therefrom. 17. It is apparent from his examination that there were 10 or 12 houses near the house of PW-1 and the question raised by the defence as to why this witness took shelter in the house of Bishu, who is not his blood relation and whose house was intervened by several houses of other villagers. 17. It is apparent from his examination that there were 10 or 12 houses near the house of PW-1 and the question raised by the defence as to why this witness took shelter in the house of Bishu, who is not his blood relation and whose house was intervened by several houses of other villagers. On this point our answer is that conduct of such a boy who was either 8 or 10 years old at that point of time cannot be assessed in that manner to get an answer as to why he did not go to his relations house like the house of PW4 or to any other’s house. What he thought wise he did and as such his act cannot be questioned to nullify the prosecution case. It is also true that it is apparent from his cross-examination that he saw several villagers on his way to Bishu’s house but he did not say anything to them and voluntarily stated on oath “Kheyal Korini” (which means he did not notice). Thus, we are of the view that this witness cannot be disbelieved. As per this witness the victim was hit by one axe but as per the evidence of the doctor the appellant was hit by one heavy blunt weapon like iron rod or bamboo or back portion of axe. Thus, there is no contradiction in between the expert evidence and evidence of eye witness. This witness did not depose that the victim was hit by the sharp portion of the axe. Thus, the evidence of this witness is of great value and can be relied upon. 18. Let us now examine the evidence of Bishu (PW-2) who deposed that he heard about the incident from Mithun PW 3, the son of Chotka Soren (PW-1) that the victim was murdered about 4 years back in her house by the appellant no.1 giving an axe blow on her head. He found the dead body lying on the ‘Varanda’ of her dwelling house. This witness put his LTI on the inquest report and also put his LTI on the seizure list regarding the seizure of blood stained earth. He found the dead body lying on the ‘Varanda’ of her dwelling house. This witness put his LTI on the inquest report and also put his LTI on the seizure list regarding the seizure of blood stained earth. We have gone through the cross-examination of this witness wherefrom it appears that he came to know as to the incident about 6:30 to 7 p.m. It is true that PW-3 did not state as to at what time the incident took place but we can fix the time to be just before the evening of the date of the incident in view of the evidence of PW-2. 19. The evidence of PW-7 is of some importance, he being the post-mortem doctor, who deposed that he found two lacerated injury on the body of the victim and he also deposed that the death was anti mortem and homicidal in nature which was caused by a heavy blunt weapon like iron rod, bamboo or back portion of axe. 20. This is also clear from his cross-examination when he deposed that he did not see any incised injury. Thus to sum up we are convinced that the evidence of PW-3 is to be relied upon. It is true that his evidence is not that vivid but that can be ignored considering his age. He had no axe to grind against the appellant. The evidence of PW-1 is in corroboration to the evidence of his son. The statement of PW-1 was recorded by the I.O on the very date of lodging of the FIR. The matching evidence of the doctor is in further corroboration and enables reliance to be placed on PW-3. 20. In this regard we can rely upon the judgment of the Apex Court in Ramesh and Another (supra). It is needless to mention that a person may be convicted in respect of the charge relying on the basis of the sole witness if his evidence is trustworthy and that is the prescription of the legislature while enacting Section 134 of the Evidence Act. It is only a rule of prudence that the evidence of a child witness is to be corroborated and in the instant case before us considering the evidence on record we are satisfied that it was the accused who committed the murder. It is only a rule of prudence that the evidence of a child witness is to be corroborated and in the instant case before us considering the evidence on record we are satisfied that it was the accused who committed the murder. As regards the motive we have the evidence of PW-4 who deposed regarding branding the victim as a “Daini” due to the death of the son of the appellant, the appellant had grudge on the victim. It is also there in the inquest report. We are not unmindful of the fact that in a case of direct evidence the motive is academic but when motive has been attributed without any denial on the part of the defence we can safely act on it. 21. Thus, the argument of the defence that as the name of the accused convict was not mentioned in the FIR will be enough to acquit him cannot be accepted by this Court in view of the evidence of PW 1, his statement recorded under Section 161 Cr.P.C and the direct evidence of PW-3. 22. It is true in this case no neighbour came forward to depose but we can say that in these days it is the tendency of the public not to entangle themselves in such matters and particularly in Court affairs. This reluctance of the public has been accepted by the Apex Court in several decisions. Thus simply because no neighbor of the PW 1 was examined it cannot belie the prosecution case in the light of other convincing evidence. The story of witch ‘daini’ is very much there in the inquest report and also has come out through the mouth of PW-4 on which there was no cross-examination. 23. It is true that the weapon of offence could not be recovered by the investigating agency but that can be attributed to defective investigation which cannot take out the air from the sail of the prosecution boat. 24. Thus, we are satisfied that the learned trial Court rightly convicted the present appellant before us and we are not inclined to interfere with the said judgment and order of conviction. 25. The findings and order of conviction are hereby affirmed. 26. Let a copy of this order be forwarded to the learned trial court being the Additional District and Sessions Judge, Second Court at Malda along with the LCR for necessary action. 25. The findings and order of conviction are hereby affirmed. 26. Let a copy of this order be forwarded to the learned trial court being the Additional District and Sessions Judge, Second Court at Malda along with the LCR for necessary action. Urgent certified copies be supplied to the parties as per rules. Nadira Patherya, J. : I agree.