JUDGMENT : Pritinker Diwaker, J. 1. This appeal arises out of the impugned judgement and order dated 06.11.2008 passed by Sessions Judge, Kushi Nagar in Sessions Trial No. 32 of 2005 (State vs. Bichari Yadav and Others.), convicting the appellants under Section 302/34 of IPC and sentencing them to undergo imprisonment for life and a fine of Rs. 10,000/-each, in failure to pay the fine, additional imprisonment for one year has also been awarded. 2. In the present case, name of deceased is Birju Yadav. The said Birju Yadav was having an old land dispute with the accused appellants and for that reason, he was killed. In the night intervening 27/28.02.2004, when the deceased was in his hutment along with his minor son (PW-1) Jai Prakash, the accused persons gained entry in the hutment carrying sharp cutting weapons. Accused no. 1 Bichari Yadav and accused no. 3 Subhash Yadav caught hold the deceased and then accused no. 2 Rama Nand Yadav gave a blow of Gadasa on the neck of the deceased, resulting instantaneous death of the deceased. Incident has been witnessed by a child witness (PW-1), who was in the hutment of the deceased on the particular date. While (PW-1) Jai Prakash objected, he was threatened by the accused persons and after the murder of his father, he stayed in the hutment throughout the night, but in the early morning, he rushed to his mother, who was residing in a separate house in the village and narrated the entire incident to her. On 28.02.2004, at 8:30 am, an FIR Ex.Ka.4 was lodged by (PW-2) Avtari Devi, wife of the deceased, based on which offence under Section 302 of IPC was registered against all the three accused persons. 3. Inquest on the dead body was conducted vide Ex.Ka.7 on 28.02.2004 and the body was sent for postmortem, which was conducted vide Ex.Ka.2 on 28.02.2004 by (PW-3) Dr. A. N. Singh. 4. As per the postmortem report, following injury was noticed on the body of the deceased: “1. Incised wound of size 8 cm x 4 cm x neck cavity deep on front of Rt. side of neck 4 cm above medial end of Rt. clavicle. Including Hyoid cartilage. Spinal shape margin chin cut.” 5. According to autopsy surgeon, the cause of death of the deceased was due to haemorrhage shock and coma due to anti mortem injuries. 6. side of neck 4 cm above medial end of Rt. clavicle. Including Hyoid cartilage. Spinal shape margin chin cut.” 5. According to autopsy surgeon, the cause of death of the deceased was due to haemorrhage shock and coma due to anti mortem injuries. 6. On the disclosure statement of accused persons, vide Ex.Ka.14, one Daav (sharp edged cutting weapon), sort of Gadasa was seized. However, in the FSL, the blood was found to be disintegrated. 7. While framing charge, the trial Judge has framed charge against the accused persons under Section 302/34 of IPC. 8. So as to hold the accused persons guilty, prosecution has examined five witnesses. Statements of the accused persons were also recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication. 9. By the impugned judgment, the trial Judge has convicted all the three accused persons under Section 302/34 of IPC and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence, this appeal. 10. During pendency of this appeal accuse no. 1 Bichari Yadav has expired, copy of death certificate of this accused has been filed by learned counsel for the appellants. Hence, appeal in his respect, stands abated. 11. Learned counsel for the appellants submits: (i) that there was no motive on the part of accused persons to commit murder of the deceased. (ii) that no documentary evidence has been filed by the prosecution showing any land dispute between accused persons and that of the deceased. (iii) that the conviction of the appellants is based solely on the statement of a child witness (PW-1) Jai Prakash, aged about 10 years, but the testimony of the said witness is not reliable and he appears to be tutored witness. (iv) that there are material contradictions in the statements of (PW1) Jai Prakash and (PW-2) Avtari Devi. (v) that there was no sufficient source of light in the hutment where the incident had occurred and, therefore, the question of identification of accused persons, does not arise. (vi) that a very unnatural story has been put forth by the prosecution, where it is alleged that the incident was witnessed by (PW-1) Jai Prakash but he kept quiet in the house throughout the night and in the early morning, he rushed to his mother and narrated the same to her, who thereafter lodged the FIR. (vi) that a very unnatural story has been put forth by the prosecution, where it is alleged that the incident was witnessed by (PW-1) Jai Prakash but he kept quiet in the house throughout the night and in the early morning, he rushed to his mother and narrated the same to her, who thereafter lodged the FIR. Learned counsel for the appellants submits that the presence of (PW-1) Jai Prakash at the place of occurrence is itself doubtful and, therefore, the benefit ought to have been extended to the accused persons. (vii) that no specific role has been assigned to accused no. 3 Subhash Yadav and thus his conviction under Section 302/34 of IPC is bad in law. (viii) that even if the entire prosecution case is taken as it is, at best, offence under Section 304 Part-I or Part-II of IPC is made out against the accused persons because a single blow was given by accused no. 2 Rama Nand Yadav. (ix) that as accused no. 2 Rama Nand Yadav is in jail since last 14 years and, therefore, he has served enough sentence. (x) that (PW-2) Avtari Devi was having illicit relation with one Shambhu and possibility of deceased being killed by Shambhu and PW-2, cannot be ruled out. Learned counsel submits that Shambhu was detained in the police station but later he was set free. 12. On the other hand, supporting the impugned judgment, it has been argued by the learned State counsel: (i) that (PW-1) Jai Prakash appears to be trustworthy natural witness and his testimony cannot be doubted just because his age was 10 years at the time of incident. (ii) that before recording the statement of (PW-1) Jai Prakash, the trial court has judged the mental capacity of this witness and thereafter had proceeded with the same. Learned counsel submits that the entire statement of this witness would show that he is a competent and capable witness and there is no reason for this Court to disbelieve his statement. (iii) that the case of the accused persons would not fall under any exception of Section 300 of IPC and it is squarely covered by the definition of murder as provided under Section 302 of IPC. (iv) that under no stretch of imagination, the conviction of the accused persons can be altered into either Section 304 Part-I or Part-II of IPC. (iv) that under no stretch of imagination, the conviction of the accused persons can be altered into either Section 304 Part-I or Part-II of IPC. (v) that the conviction of other accused persons, who have helped the main accused no. 2 Rama Nand Yadav, with the aid of Section 34 of IPC is in accordance with law and there is no infirmity in the same. (vi) that though FSL report in respect of the seized weapon is not conclusive but the same can be treated as an additional evidence against the accused persons showing their involvement in commission of the offence. 13. We have heard counsel for the parties and perused the record. 14. (PW-1) Jai Prakash is a minor son of the deceased Birju Yadav and (PW-2) Avtari Devi. At the time of recording his evidence, his age was 10 years. He has stated that on the date of occurrence in between 11-12 in the night, he was in the hutment of his father and was listening stories from him. All the three accused persons gained entry in the hutment, threatened them, and thereafter accused no. 1 caught hold legs of his father whereas accused no. 3 was holding his hands and then accused no. 2 gave a blow of Gadasi on the neck of the deceased. He states that at the time of incident his mother was not there in the hutment and she was in her house in the village, which is about two kilometres away from the place of occurrence. In the cross-examination, this witness was subjected to gruelling cross-examination but nothing which could shake the foundation of prosecution case, was elicited. He was subjected to various questions put forth by the defence but in stead helping the accused persons, he has reiterated as to the manner in which his father was done to death by the accused persons. 15. (PW-2) Avtari Devi is a wife of the deceased and lodger of the FIR. In her opening paragraph, she has stated that there was a dispute between her husband and accused no. 1 Bichari Yadav whereas accused no. 2 Rama Nand Yadav is son of Bichari Yadav and accused no. 3 Subhash Yadav is a son-in-law of accused no. 1 Bichari Yadav. In her opening paragraph, she has stated that there was a dispute between her husband and accused no. 1 Bichari Yadav whereas accused no. 2 Rama Nand Yadav is son of Bichari Yadav and accused no. 3 Subhash Yadav is a son-in-law of accused no. 1 Bichari Yadav. She has stated that her husband used to stay in the hutment to guard the crops and she used to stay in her house in the village. Her son used to stay with his father and also used to attend the school from there only, however, at times, he used to visit her house as well. In her cross-examination she has clarified that there was sufficient light in the hutment as an earthen lamp was burning inside the house. She has further clarified that there was an old dispute between her husband and that of accused persons and accused persons were residing in the same village. This witness was suggested that (PW-1) Jai Prakash was a tutored witness but she remained firm and categorically stated that PW-1 saw the entire incident and in the early morning, he narrated the same to her. Though, there is some discrepancy in respect of time of lodging the FIR but if her over all testimony is seen, it is apparent that she is a rustic villager and minor discrepancy in her statement is required to be ignored. 16. We find no substance in the arguments of the defence that as (PW-2) Avtari Devi did not attend the marriage of her daughter, she is not reliable. It makes no difference whether she attended the marriage of her daughter or not, because only on that basis, it cannot be said that she is not narrating truth in the court. 17. (PW-3) Dr. A.N. Singh conducted the postmortem on the body of the deceased and the cause of death of the deceased was due to haemorrhage shock and coma due to anti mortem injuries. 18. (PW-4) Kanta Yadav has not supported the prosecution case. 19. (PW-5) S.P. Singh is the Investigating Officer. 20. Before we proceed further, we would briefly sketch the submissions of learned counsel on this count advanced across the bar. 18. (PW-4) Kanta Yadav has not supported the prosecution case. 19. (PW-5) S.P. Singh is the Investigating Officer. 20. Before we proceed further, we would briefly sketch the submissions of learned counsel on this count advanced across the bar. Learned counsel for the appellants mounted frontal attack on the finding of the court below in which the court below placed implicit reliance on the testimony of the child witness arguing that the learned Sessions ought not to have believed his testimony which by all reckoning, is a tutored one and he seemed to have been primed before coming to depose in the court. 21. We have given our anxious considerations to the above submissions in juxtaposition of the evidence on record. 22. In connection with the above view of the court below, we feel called to refer to the Indian evidence Act, 1872. The Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender age, extreme old age, disease-whether of mind, or any other cause of the same kind. It is further envisaged that a child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. 23. The principles for appreciating testimony of a child witness is well-enunciated by stream of decisions of the Apex Court. 24. In Suryanarayana v. state of Karnataka, [ (2001) 9 SCC 129 ] page 134, the Apex Court held as under: "The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of P.W. 2 being a child witness would require the court to scrutinize her evidence with care and caution. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of P.W. 2 being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not." 25. The above position finds echo in Ratansinh Dalsukhbhai Nayak Vs. State of Gujrarat, [ (2004) 1 SCC 64 ] (See pp 67-68 paras 6 and 7). "Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease – whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J. in Wheeler v. United States (159 U.S. 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka ( 2001 (1) Supreme 1 ). In Dattu Ramrao Sakhare v. State of Maharashtra, ( 1997 (5) SCC 341 ) it was held as follows: "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored". The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." 26. The position of law relating to the evidence of a child witness has also been dealt with by the Apex Court in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra [ (2008) 12 SCC 565 ] and Golla Yelugu Govindu v. State of Andhra Pradesh [ 2008 (4) SCALE 569 ]. In the case of State of UP vs Krishna Master & Ors. [(2010) 47 OCR (SC) 263], the Hon'ble Apex Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. 27. Bearing in mind the above legal position, we now proceed to scan the testimony of (P.W. 1) Jai Prakash with care and caution and also to see whether the learned Sessions Judge was justified in placing credence on his testimony, which, it brooks no dispute, was recorded for the first time in Court. 28. (PW-1) Jai Prakash was undisputedly in the hutment along with the deceased and was enjoying listening stories from his father, at that moment, accused persons gained entry in the hutment and committed the murder of the deceased. 28. (PW-1) Jai Prakash was undisputedly in the hutment along with the deceased and was enjoying listening stories from his father, at that moment, accused persons gained entry in the hutment and committed the murder of the deceased. Being scared after seeing the incident and being threatened by the accused persons, the witness remained in the hutment through out the night and in the early morning, he rushed to her mother (PW-2) Avtari Devi and narrated the entire incident to her and soon thereafter at 8:30 am, FIR Ex.Ka.4 was lodged by PW-2 (Avtari Devi). 29. We have no reason to doubt the statement of child witness (PW-1), who in the lengthy cross-examination in the court and facing various tricky questions from the lawyers, remained firm and reiterated again and again as to the manner in which his father was brutally done to death by the accused persons. 30. According to us, PW-1 appears to be very natural witness and he inspires the confidence of the court and we have no reason to doubt the credibility of this witness. 31. We find no force in the arguments advanced by the learned counsel for the appellants. 32. Considering all the aspects of the case, we are of the view that the trial court was justified in convicting the accused-appellants under Section 302/34 of IPC. Appeal has no substance and the same is, accordingly, dismissed. Accused-appellant no. 2 Rama Nand Yadav is reported to be in Jail and, therefore, no further order is required in his respect. Accused appellant no.3 Subhash Yadav is on bail, his bail bond stands cancelled and he be taken into custody forthwith to serve the remaining sentence.