JUDGMENT Raghvendra Kumar, J. 1. Heard Sri Kamal Krishna, Senior Advocate, assisted by Sri B.P. Misra, learned counsel for the appellants and the learned A.G.A. Sri L.D. Rajbhar. 2. Under challenge in the appeal is the judgment and order 25.10.1982 passed by learned Ist Additional Sessions Judge, Banda in S.T. No. 305 of 1980 State v. Nakul Singh and another whereby the accused appellants Nakul Singh and Narendra Singh alias Nandu Singh have been convicted for the offence under section 302 I.P.C. read with 34 I.P.C. and sentenced to undergo imprisonment for life. 3. Being aggrieved by the aforesaid judgment and order dated 25.10.1982, the instant appeal is before this Court. 4. The accused appellant Narendra Singh alias Nandu Singh has died during the proceedings of this Appeal hence the appeal filed on his behalf stands abated vide order dated 30.4.2012. 5. Briefly stated the prosecution case is as follows : “According to the prosecution, the incident is alleged to have taken place on 7/8.5.1980 in the midnight and the FIR of the same was lodged on 8.5.1980 at 6.30 A.M. by Madan Mohan Singh. According to the prosecution version, the brother of the informant Vidya Vishal, his son Puttan and Man Singh alias Lallu Bhatha were sleeping in the Khalihan in the grove of Mahuwa. In midnight on hearing rustling sound of leaves they woke up and saw that Nakul Singh son of Makrand Singh and Nandu Singh son of his brother-in-law (Sadhu),both equipped with axe along with one person equipped with gun came to the khalihan flashing torch upon them. Mansingh alias Lallu deceased was the son of concubine of brother Makrand Singh. Nakul Singh and Nandu Singh started assaulting the deceased Mansingh with an axe. On seeing the incident, an alarm was raised on which the person equipped with gun extended threat for life. After assaulting Mansingh, the accused persons went towards the village. On examination by the informant the deceased Mansingh was found dead having injuries of axe on his neck and back. As the informant reached near the house, he heard cries of Smt. Vijai and her sister Km. Indira and saw that Nakul and Nandu Singh were assaulting Smt. Vijai by an axe. The person equipped with gun was seen standing in front of the house of one Shatrughan near the well. As the informant reached near the house, he heard cries of Smt. Vijai and her sister Km. Indira and saw that Nakul and Nandu Singh were assaulting Smt. Vijai by an axe. The person equipped with gun was seen standing in front of the house of one Shatrughan near the well. When the people exhorted the accused persons, they fled away towards the forest. Smt. Vijai had sustained injuries on her chin, cheek, chest and hands due to assault with axe and she became unconscious. Makrand Singh had brought Smt. Vijai, who was a prostitute and he kept her as his wife since then. But his legally wedded wife was always having inimical terms with Smt. Vijai. Makrand Singh was living separately with Smt. Vijai. Nakul Singh used to quarrel with Smt. Vijai and used to say that no share would be given to her. With this motive Nakul Singh along with his Mausi’s son, namely Nandu Singh and one other person committed the incident. The accused persons were seen by the informant, his brother, sister and daughter of Smt. Vijai committing the assault.” 6. After registration of the FIR, the investigation proceeded in accordance with law. During the course of investigation, the recovery memo of plain and blood stained soil was prepared. The recovery memo of one cot, one carpet, one blouse, one lady dhoti was prepared. The recovery memo of cutting the ban (string) and cot was also prepared and were given in the Supurdgi. The recovery memos of plain and blood stained githura and quilt were also prepared. 7. Inquest proceedings were drawn. Thereafter necessary documentation was made for the purpose of autopsy. The autopsy on the person of the deceased Smt. Vijai and Mansingh was conducted. The site plan was prepared and the statements of the witnesses were recorded under section 161 Cr.P.C. The investigation of the case culminated into filing of police report in the shape of charge sheet. 8. It is noteworthy that the name of alleged 3rd person equipped with torch and gun was dropped during the course of investigation. 9. After taking cognizance and completing the necessary legal formalities, the case was committed to the Court of Sessions and the learned Ist Additional Sessions Judge vide order dated 6.1.1981 framed the charge against the accused appellants Nakul Singh and Narendra Singh alias Nandu Singh. 9. After taking cognizance and completing the necessary legal formalities, the case was committed to the Court of Sessions and the learned Ist Additional Sessions Judge vide order dated 6.1.1981 framed the charge against the accused appellants Nakul Singh and Narendra Singh alias Nandu Singh. The charges were read over and explained to the accused who denied the charges and claimed trial on merits. 10. The accused appellant Nakul Singh has claimed himself to be innocent and has taken plea of false implication due to enmity. 11. To substantiate the charge/guilt against the accused-appellants, the prosecution has examined P.W.1 Madan Mohan, P.W.2 Vidya Vishal and P.W.3 Puttan Singh who are alleged to be the eye witnesses of murder of Mansingh alias Lallu and they have not supported the prosecution case and were declared hostile. 12. P.W.4 Km. Indira is the eye witness of murder of Smt. Vijai. P.W.5 S.I. Abdul Halim has conducted the inquest proceedings and has proved execution thereof. He is a formal witness. P.W.6 Makrand Singh has proved the relationship with the deceased Mansingh and also the factum of keeping Smt. Vijai by Makrand Singh for the last 20 years as his wife. He is not the eye witness. 13. P.W.7 Dr. Vikash Chandra has proved the execution of autopsy examination report of deceased Man Singh and has noted the following ante-mortem injuries : - “1. Incised wound 11 cm x 3 cm x bone deep over back of skull and neck wound horizontally placed 6 cm below the left ear and 2 cm from right ear. Margins sharp cut and inverted. 2. Incised wound 7 cm x 2 cm x bone deep over left lateral aspect of neck 5 cm below the left ear wound obliquely placed. 3. Incised wound 8 cm x 5 cm x bone deep over back of chest 4 cm from injury No. 2. 4. Incised wound 2 cm x 1 cm x muscle deep over right supra clavicular fossa just medial to clavicular joint. 5. Incised wound 2 cm x 1.5 cm x muscle deep over right supra clavicular fossa 2 cm above the injury No. 4. He has also noted that Scalp was cut due to injury No. 1, brain was liquefied, Vertebrae 5th cervical vertebra cut due to injury No. 2, spinal cord was incised due to injury No. 2. 5. Incised wound 2 cm x 1.5 cm x muscle deep over right supra clavicular fossa 2 cm above the injury No. 4. He has also noted that Scalp was cut due to injury No. 1, brain was liquefied, Vertebrae 5th cervical vertebra cut due to injury No. 2, spinal cord was incised due to injury No. 2. All neck vessels, spinal cord, oesophagus incised, only trachea left. Stomach was empty, small intestines were empty. Large intestines contained faecal matter. Cause of death has been assigned due to shock and coma.” 14. The Doctor has also conducted the autopsy examination on the person of Smt. Vijai and has noted 8 ante-mortem injuries. “1. Incised wound 7 cm x 1.5 cm x bone deep over left side of lower part of face and chin just below the angle of mouth. Wound obliquely placed. Margins sharp cut. 2. Incised wound 7 cm x 1 cm x bone deep over lower part of chin. Flap of skin having margins sharp cut. 3. Incised wound 3 cm x.5 cm x muscle deep over anterior and lower part of left side of neck 1 cm above the left sterno clavicular joint. 4. Punctured wound 2.5 cm x 1.5 cm x chest cavity deep over left side of upper part of chest 6 cm medial and below left shoulder. Margin clean cut. 5. Incised wound 12 cm x 6 cm x bone deep obliquely placed over upper part of right forearm just below elbow joint. Both bones of forearm protruding out. 6. Incised wound 3 cm x.5 cm x muscle deep over palmer aspect of right thumb near base. 7. Incised wound 11 cm x 4 cm x bone deep over posterior aspect of left elbow and arm. Flap of skin hanging. 8. Incised wound 10 cm x.5 cm x bone deep over lower part of left forearm and wrist. Left hand amputated at wrist and hand is hanging with a flap of skin. On internal examination, the Doctor has noted that Mandible was cut, due to injury No. 1, wall of chest and pleura was found ruptured. Upper lobe of lung was found punctured. The stomach contained about 200 gm. Semi digested food. Small intestines were empty. Large intestines contained faecal matter. Cause of death has been assigned due to shock and coma. On internal examination, the Doctor has noted that Mandible was cut, due to injury No. 1, wall of chest and pleura was found ruptured. Upper lobe of lung was found punctured. The stomach contained about 200 gm. Semi digested food. Small intestines were empty. Large intestines contained faecal matter. Cause of death has been assigned due to shock and coma. He has also proved the post mortem examination of Smt. Vijai which was exhibited. The time of death has been noted as one day old. The injuries were caused by sharp edged weapon viz. pharsa and axe.” 15. P.W.8 Ramphal Singh is a formal witness, who has proved the Chik FIR and relevant G.D. entries. 16. P.W.9 Sub Inspector Sarnam Singh has conducted investigation and proved the execution of documents executed during the course of investigation and also proved the statement under section 161 Cr.P.C. of the deceased Smt. Vijai recorded prior to her death and prepared the recovery memos, site plan and recorded the statements of the witnesses and proved the execution of document. 17. P.W.10 Dr. P.C. Chandel has also conducted the medico-legal examination and has noted the following injuries on the person of Smt. Vijai prior to her death. “1. Incised wound 7 cm x 1.5 cm x bone deep on left side of lower part of face and chin just below the angle of mouth, margins clean cut wound placed obliquely reaching upto lateral part of neck. Advised X-ray. 2. Incised wound 7 cm x 1 cm x bone deep on lower part of chin and submandibular region. Flap of skin hanging. Margins clean cut. 3. Incised wound 3 cm x.5 cm neck on front of lower part of left side of neck 1 cm above left sterno clavicular joint. Margins clean cut bleeding on piercing. Advised- X-Ray. 4. Punctured wound 2.5 cm x 1.5 cm x chest cavity deep on left side upper part of chest in clavicular region 6 cm medial and below left shoulder margins clean cut. Advised X- ray. 5. Incised wound (extensive) on upper part of right forearm below elbow size 12 cm x 6 cm x bone deep placed obliquely on posterior lateral aspect of forearm. Both bones protruding out. Margins clean cut. Advised X-ray. 6. Incised wound 3 cm x 1.5 cm x muscle deep on palmer aspect of right thumb near base. 7. 5. Incised wound (extensive) on upper part of right forearm below elbow size 12 cm x 6 cm x bone deep placed obliquely on posterior lateral aspect of forearm. Both bones protruding out. Margins clean cut. Advised X-ray. 6. Incised wound 3 cm x 1.5 cm x muscle deep on palmer aspect of right thumb near base. 7. Incised wound 11 cm x 4 cm x bone deep on posterior aspect of left elbow and arm muscles torn and cut. Flap of skin hanging. Advised X-ray. 8. Incised wound 10 cm x 5 cm x muscle to bone deep at lower part of left forearm and wrist. Left hand is amputated at wrist and is hanging with a flap of skin which is attached to the forearm on posterior lateral aspect. Injuries Nos. 1, 3, 4, 5 and 7 were kept under observation. Injury No. 8 is grievous and Injury No. 2 is simple. All injuries caused by sharp edged object. Duration - half a day. Patient’s condition was poor. Admitted in ward.” 18. P.W.11 Dr. K.K. Singhal has been examined as Assistant Medico-legal Expert of U.P. 19. P.W.12 Constable Ishwar Das is a formal witness who had taken the body of Smt. Vijai to the mortuary after inquest proceedings and in sealed condition along with documents. 20. After conclusion of evidence all the incriminating materials/evidence appearing during the course of trial were placed before the accused-appellants extending them an opportunity for rendering appropriate explanation. Nakul Singh has admitted categorically about the child born out of the wedlock of Smt. Vijai with Makrand Singh and he has denied about extending any threat on the pretext of partition and has also denied the factum of assault of Mansingh along with co-appellant Narendra Singh alias Nandu Singh and one more person equipped with gun. The accused has further denied the factum of assault on Smt. Vijai saying all that to be false. The accused appellant Nakul Singh disclaimed knowledge about the FIR and the recovery memos and the medical examination etc. He further stated that because of enmity, the prosecution has been launched and witnesses have deposed against him. He further stated that son of Madan Singh has sold 30 tola gold. He claimed share, when the share was not given then he took over possession of a plot of 8 bighas of land and started tilling it. He further stated that because of enmity, the prosecution has been launched and witnesses have deposed against him. He further stated that son of Madan Singh has sold 30 tola gold. He claimed share, when the share was not given then he took over possession of a plot of 8 bighas of land and started tilling it. Out of this enmity he has been falsely implicated. He also stated that Man Singh and Smt. Vijai were living where chakki and boring were installed and some unknown criminals might have killed them. The statement of Smt. Vijai was recorded at the instance of informant. He refused to state anything else. 21. The co-accused appellant Narendra Singh has also admitted some of the facts and some facts have been denied. He also denied knowledge and also stated enmity being the cause for prosecution. He has also stated that Madan Singh and his Phupha Shripal had quarrel between them and Madan Singh had committed murder of brother of Shripal. He has also replied in the same manner as of co-accused Nakul Singh. 22. The accused persons have examined D.W.1 Phool Chandra and D.W.2 Shiv Darshan. Phool Singh D.W.1 has stated that all the incident has taken place at the Khalihan. D.W.2 has proved Ext. Kha-1 who has proved about the special report received in the office of Collector. 23. It has been submitted on behalf of the accused-appellants that the accused appellants are innocent and have been falsely implicated due to enmity. 24. Further submission is that the trial court has given the benefit of doubt to accused appellants for the murder of Mansingh. 25. Further submission is that the P.W.4 Indira is alleged to be the only eye witness of murder of deceased Smt. Vijai whose statement under section 161 Cr.P.C. was recorded after lapse of one month. The cot was not shown in the site plan on which Smt. Vijai was sleeping. The plain and blood stained soil was not sent for examination to Serologist. The place of occurrence of both the murders have been changed. The incident might have been committed by some unknown assailants in the night and the accused persons have been falsely implicated. 26. The counsel for the accused-appellants submitted that the incident is alleged to have taken place in the night of 7/8 May 1980. The place of occurrence of both the murders have been changed. The incident might have been committed by some unknown assailants in the night and the accused persons have been falsely implicated. 26. The counsel for the accused-appellants submitted that the incident is alleged to have taken place in the night of 7/8 May 1980. The death of Smt. Vijai has taken place on 10.5.1980 at 12.30 P.M. The jaws of Smt. Vijai were fractured and tooth was missing. According to the FIR Smt. Vijai was unconscious and sustaining such serious injuries, it was not possible for the deceased Smt. Vijai to give statement to the I.O. in detail. 27. Learned counsel for the appellants has placed reliance upon 2016 (6) ADJ Page 277 (D.B.) Rafi Ullah and others v. State of U.P. wherein it has been laid down by this Court that it was not possible that the oral FIR dictated by the injured was reliable. 28. Further submission is that the P.W.4 Km. Indira did not sustain any injury in the incident. Moreover, she is a tutored and child witness. Her testimony does not inspire confidence so as to draw any inference. No fard has been produced. The injury in the nature of punctured wound has not been explained. 29. Further submission is that the deceased was lying in an injured condition near the house of Nanha Pandit. No such case was put by the prosecution that Smt. Vijai ran after sustaining the injuries. 30. Due to the delayed examination of P.W.4, the learned counsel for the appellants has placed reliance upon 2005 SCC (Cri) 893, Jagjit Singh alias Jagga v. State of Punjab and submitted that no witness of recovery memo has been produced. 31. Per contra, learned A.G.A. has conceded that no appeal has been preferred against findings of acquittal recorded in favour of the accused-appellants for the murder of Mansingh. 32. Refuting the submission of learned counsel for the appellants it has been submitted that there is no legal impediment for the court in placing reliance upon the testimony of a child witness who has given a very fair description and her testimony is genuine and inspires confidence. 33. 32. Refuting the submission of learned counsel for the appellants it has been submitted that there is no legal impediment for the court in placing reliance upon the testimony of a child witness who has given a very fair description and her testimony is genuine and inspires confidence. 33. Further submission is that since the weapon of assault has not been recovered hence its shape cannot be ascertained as axe of different shapes are prevalent in the society, which are to be used for different purposes. As such, the injuries alleged to be the punctured wound might have been caused by using the weapon in the particular manner. 34. Further submission is that laches on the part of I.O. during the course of investigation, would not extend any benefit to the appellants viz. recording of delayed statement of Km. Indira, not sending the blood stained and ordinary soil for examination to Serologist, not showing the cot in the site plan etc. 35. Further submission is that the place of incident has been shown by I.O. in the site plan as house of Smt. Vijai. Even if, for argument sake it is presumed that the place of incident is near the house of Nanha Pandit, it would not extend any benefit to the appellants. No question was put to the I.O. about the delay in recording the statement of Km. Indira P.W.4 under section 161 Cr.P.C. 36. The evidence of D.W.1 Phool Chandra was considered by the learned Trial Court. 37. It is settled proposition of law that while exercising appellate jurisdiction, the High Court is expected to critically appraise the evidence available on record and to draw an inference independently without being influenced by the findings of conviction recorded by the learned Trial Court, bearing in mind the basic principle of criminal jurisprudence about the innocence of the accused until otherwise is established from cogent evidence available on record.(Ref : Padam Singh v. State of U.P., 2000(1) SCC 621 ; Rama & others v. State of Rajasthan, 2002 (4) SCC 571 ; Majjal v. State of Haryana, 2013 (6) SCC 798 ; Kamlesh Prabhudas Tanna and Anr. v. State of Gujarat, 2014 Cr.LJ 443). 38. Bearing in mind the principle of law as stated above, the evidence is being analysed herein below. 39. v. State of Gujarat, 2014 Cr.LJ 443). 38. Bearing in mind the principle of law as stated above, the evidence is being analysed herein below. 39. The legal proposition has now been crystallized that any omission or irregularity committed by the I.O. during the course of investigation would be of no avail for the defence unless it goes to the root of prosecution case and creates doubt about its veracity or materially prejudices the defence. 40. Mere non-submission of sample of plain and blood stained soil for Seroligist examination would be of no avail. Even the cot, on which the deceased Smt. Vijai was sleeping on the fateful night, is also not of much relevance. The I.O. has explained that on 8.5.1980, the statement of Km. Indira could not be recorded as she was accompanying her mother to Banda Hospital. 41. The I.O. has explained that he did not meet Km. Indira at the place of occurrence and he also stated that there was no reason for not recording her statement under section 161 Cr.P.C. Nothing could be culled out in the cross examination of the I.O. so as to establish that the I.O. has purposefully with some ulterior motive recorded the statement of Km. Indira belatedly. In these circumstances, the delayed examination would not have any adverse bearing. The facts of the proposition of law relied upon by learned counsel for the appellant in 2005 SCC (Cri) 893 (supra) are not identical to the case in hand. Here the witness is a small girl child. We are conscious of the fact that the small girl had suffered great mental trauma, who had witnessed the fatal assault on her mother by the accused-appellants, which cannot be explained in words. More so the delay in recording the statement under section 161 Cr.P.C. was well explained by I.O. specifically stating her non-availability since she accompanied her mother. 42. Submission of the accused appellants that the statement of the deceased Smt. Vijai under section 161 Cr.P.C. was not possible in view of the gravity of the injuries such as her jaws were fractured, the tooth was missing. More so, after sustaining such serious injuries it would not be possible for the deceased Smt. Vijai to give her detailed and coherent statement. As such, her statement cannot be treated as statement made under section 32 (1) of the Evidence Act. 43. More so, after sustaining such serious injuries it would not be possible for the deceased Smt. Vijai to give her detailed and coherent statement. As such, her statement cannot be treated as statement made under section 32 (1) of the Evidence Act. 43. The learned A.G.A. in contrast placed reliance upon testimony of P.W.11 Dr. K.K. Singhal, who is alleged to be the Assistant Medico-Legal expert. 44. Even if the FIR version regarding unconscious condition of deceased Smt. Vijai is taken to be true, no authority has been shown to us by the learned counsel for the accused-appellants so as to substantiate his submission that in the event of fracture of jaws and missing of tooth, it would not be possible for the victim to speak and record such a detailed statement. 45. The position has been clarified by P.W.11 Dr. K.K. Singhal, who is Assistant Medico-Legal Expert of the State. He has categorically stated in his examination-in-chief that on going through the post mortem examination report and injury report of the deceased Smt. Vijai it was evident that her lower jaw was cut as a result of injuries sustained on her body but her tongue or any other organ related to her speech was not cut. He has also admitted that blood must have oozed out from all the injuries as well as shock might have caused. He has further explained that in such a condition the deceased Smt. Vijai might have been able to speak, raise alarm and she might have been able to walk and run even after sustaining aforesaid injuries. He has further clarified that after sustaining injuries losing consciousness for some time of the injured deceased was most probable but regaining consciousness and being able to speak again after some time was also possible for the injured/deceased, although her speaking would not have been as fluent and as normal as compared to a person who had not sustained any injury. The I.O. is alleged to have recorded the statement of the deceased under section 161 Cr.P.C. in discharge of his official duty unless otherwise is established by the direct and cogent evidence, there appears no justification to discard the fact that the statement was not given by the deceased to I.O. under section 161 Cr.P.C. keeping in mind the testimony of the Assistant Medico-legal Expert Dr. K.K. Singhal. 46. K.K. Singhal. 46. The submission of the learned counsel for the appellants is that on the basis of the testimony of P.W.7 Dr. Vikas Chandra the injuries Nos. 4,5,7 and 8 were not caused by (axe) Kulhadi, the State Medico-legal expert explained the position that injury No. 1 to 8 of Smt. Vijai could be caused by an axe. Injury No. 5, 6, 7, 8 appear to have been caused while the deceased tried to catch or snatch the weapon of assault. 47. The injury No. 4 has been explained by State Medico-legal expert who has stated that punctured wound could be caused by Ballam and barchhi. He further explained that injury No. 4 caused to Smt. Vijai could be caused by corner of the axe or ballam. Since ballam has not been assigned to any of the appellants hence the discrepancy appearing in the statement of P.W.7 Dr. Vikash Chandra with respect to punctured wound on the person of the deceased Smt. Vijai stands unexplained in the light of the testimony of P.W.11 Dr. K.K. Singhal, Assistant State Medico-legal Expert. 48. Thus for appreciating the aspect of complicity of the appellants in the murder of Smt. Vijai, we feel it necessary to appreciate the testimony of child witness P.W.4 Km. Indira. 49. The main ground of attack on her testimony is that she is a tutored witness and learned counsel for the appellants has placed reliance upon her statement that she visited the house of Government Advocate prior to her statement before the Court. Whether P.W.4 was competent to depose, the learned trial court has also taken care of this fact. P.W.4 was subjected to various queries by the Court so as to assess whether she would be capable to give statement or not whereafter, the Court has recorded its finding about the competence to testify and oath was administered to her. She has categorically stated that she was living along with her mother, brother and father. On query P.W.4 categorically stated that on the date of incident, she along with her mother was sleeping outside the Chaupal. She narrated that Nakul and Nandu started assaulting her mother by an axe and one unknown person who was equipped with gun, was standing near the house of one Shatrughan. She said that her uncle told about Mansingh in the Khalihan. She narrated that Nakul and Nandu started assaulting her mother by an axe and one unknown person who was equipped with gun, was standing near the house of one Shatrughan. She said that her uncle told about Mansingh in the Khalihan. She further stated that name of Nakul Singh and Nandu Singh were disclosed by her mother to Daroga Ji. She stated that her mother remained alive for 3 days. The witness has been put to a grilling cross-examination, but nothing could be elicited by way of her cross examination so as to discredit her testimony or so as to establish that she was not the eye witness or so as to establish that she was giving false deposition. P.W.4 has deposed her age as 12 years. The witness has fairly admitted that she visited the house of Government Advocate, who told her about the statement. This goes to prove that the witness P.W.4 was honest enough to fairly admit her visit to the house of Government Advocate. She has fairly conceded about the statement. Further she has denied the suggestion that she is not an eye witness and she has given her statement on the basis of tutoring. It appears quite natural that she approached to his counsel prior to the date on which the case was fixed. P.W.4 being the victim it was not an unnatural conduct to meet her counsel prior to the date fixed and to have interaction about her statement, which she has already given to the I.O. under section 161 Cr.P.C.. The plea of tutoring loses its significance because immediately after the question that she went to the house of Govt. Advocate prior to her statement when a suggestion was put to the witness that she was not an eye witness and has deposed on the basis of tutoring, she replied in negative. 50. The matter of appreciation of child witness was considered by the Apex Court from time and again and now the principle for appreciation of the testimony of a child has been crystallized. The Court has to see whether the statement of a child witness appears to be genuine, bonafide, true, inspires confidence and is without element of tutoring. 50. The matter of appreciation of child witness was considered by the Apex Court from time and again and now the principle for appreciation of the testimony of a child has been crystallized. The Court has to see whether the statement of a child witness appears to be genuine, bonafide, true, inspires confidence and is without element of tutoring. In our considered opinion P.W.4, who was aged about 12 years at the time of her statement and was approximately 10 years of age at the time of incident, has fairly replied the queries put to her by way of a lengthy cross-examination. She has maintained symmetry and coherence throughout her statement and nothing could be elicited in her cross-examination, which may be termed as material contradiction and may create doubt upon the veracity of her statement. On an overall assessment, the testimony of P.W.4 (Child witness) appears to be reliable, trustworthy and inspiring confidence. 51. The aspect as to whether the statement of the witness recorded under section 161 Cr.P.C. can be treated as dying declaration, has also been considered by the Hon’ble Apex Court and it has been held that there is no legal impediment in placing reliance upon the statement of the person under section 161 Cr.P.C. as a dying declaration. (Bhagwan v. State of U.P., (2013) 12 SCC 137 , State of Maharashtra v. Pravin Mahadeo Gadekar (2015) 8 SCC 489 , Rafique v. State of U.P. (2013) 12 SCC 121 , Narain Singh v. State of Haryana, 2005 SCC (Cri) 185.). 52. The appreciation of Dying Declaration has also been considered and through a catena of decisions, now it can safely be deciphered that dying declaration can be relied if it is found genuine, voluntarily, bonafide and reliable. If it inspires confidence, there is no legal impediment before the Court in placing reliance upon it and the Court may record the finding of conviction on the basis of dying declaration alone. 53. When the statement of the victim is recorded under section 161 Cr.P.C. as simplicitor the requirement of Rule 115 (D) of Police Regulations would not come into play. No query has been made to the I.O. that he recorded the statement of victim in anticipation of her death. 53. When the statement of the victim is recorded under section 161 Cr.P.C. as simplicitor the requirement of Rule 115 (D) of Police Regulations would not come into play. No query has been made to the I.O. that he recorded the statement of victim in anticipation of her death. As such the statement given by Smt. Vijai would be considered as statement simplicitor under section 161 Cr.P.C. The statement of Smt. Vijai has been given in detail. She has spelled out the reasons, names, date, time of occurrence as well as the name of persons by whom such assault was committed upon her. Her statement under section 161 Cr.P.C. has been proved by the I.O. which has been exhibited and explained. The plea of regaining consciousness or her being capable of recording statement is to be read in the light of the testimony of the statement of P.W.11 Assistant Medico-legal expert, who has specifically explained the circumstances. Her statement under section 161 Cr.P.C. Finds corroboration and is in coherence with the testimony of P.W.4. The facts relied upon in 2016 (6) ADJ 3277 (D.B.) are not identical to the instant case. The case cited above is a case of gun shot injury whereas the case in hand is a case of assault by an axe. More so, the capability of injured/deceased to speak has been explained by the Assistant Medico-legal Expert, hence there appears no justification to doubt the veracity of the statement of the deceased Smt. Vijai recorded under section 161 Cr.P.C. being treated as a dying declaration. 54. The I.O. has drawn two separate site plans disclosing the place of occurrence where alleged two murders have taken place, which prima facie goes to establish that two places of assault were shown to the I.O. whereafter the site plans were drawn. So far as the plea of compliance of 157 Cr.P.C. is concerned, P.W.8 has specifically stated that the special report was sent by Constable Hardeo Singh. No cross-examination has been made so as to discredit the testimony on the point of non-compliance of section 157 Cr.P.C. The plea of 157 Cr.P.C. is to be considered on the basis of the documents prepared during the course of investigation. The matter was immediately reported to Out Post Jaspura, Police Station Pailani, District Banda. No cross-examination has been made so as to discredit the testimony on the point of non-compliance of section 157 Cr.P.C. The plea of 157 Cr.P.C. is to be considered on the basis of the documents prepared during the course of investigation. The matter was immediately reported to Out Post Jaspura, Police Station Pailani, District Banda. The chik FIR of the case crime No. 15 which finds mention on the recovery memo of simple and blood stained soil, recovery memo of carpet and the recovery memo of Girora and recovery memo of this document then executed on 8.5.1980 which goes to reveal the fact of establishment of FIR prior to execution of aforementioned documents. The submission that the FIR was not in existence it was registered afterwards loses its significance. As such from the material available on record, it is not established that the FIR was not in existence and it was registered afterwards. No specific suggestion was given to the I.O. about the failure to comply with Section 157 Cr.P.C. whereas the statement of P.W.8 prima facie goes to prove about the compliance of Section 157 Cr.P.C. through his examination-in-chief and cross-examination. For want of sufficient cross examination, there is no justification to discard his testimony. 55. The plea that P.W.4 did not sustain any injury and she was not present is also belied by the statement of P.W.4 who disclosed the distance of her cot and the cot of her mother. She has even denied that her two sisters were also also not sleeping along with her mother. She has replied categorically that while the accused were committing assault she woke up and remained there hence this plea also does not create a material doubt in the prosecution story. 56. After having a critical scrutiny of the evidence available before us, we are of the opinion that the learned Trial Court has not erred in relying upon the evidence and has appreciated the same in right perspective. The findings of conviction recorded by the learned Trial Court are substantiated from the material available on record. We do not find any justification to interfere with the findings of conviction and the sentence awarded to the accused appellants. 57. The appeal is bereft of merit and is, accordingly, dismissed. 58. The appellant Nakul Singh is on bail. The findings of conviction recorded by the learned Trial Court are substantiated from the material available on record. We do not find any justification to interfere with the findings of conviction and the sentence awarded to the accused appellants. 57. The appeal is bereft of merit and is, accordingly, dismissed. 58. The appellant Nakul Singh is on bail. He is directed to immediately surrender before the Trial Court so as to undergo the sentence awarded to him. 59. Let a copy of this judgment and order of this Court and lower court record be transmitted forthwith to learned Trial Court for information and compliance under intimation to this Court preferably within a period of two months from the date of receipt of a copy of judgment.