JUDGMENT : 1. Heard learned counsel Mrs. Alpana Verma, appointed by JHALSA to represent the appellant and learned Additional Public Prosecutor Mr. Azeemuddin, representing the State. 2. In this appeal, the sole appellant before us is suffering rigorous imprisonment for life on account of his conviction for the charge under section 302 of the Indian Penal Code by the impugned judgment dated 27.09.2013 and order of sentence dated 30.09.2013 passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa. An amount of fine of Rs. 2,000/- has also been imposed upon him, in default thereof, he has been directed to suffer further simple imprisonment for six months. 3. The case of the prosecution, as unfolded through the fardbeyan of the informant Budesh Hansda (P.W.2) recorded at 14.00 hrs. in the courtyard of his house at village Durita on 01.10.2009 by the Sub Inspector Ram Chandra Paswan of Tonto P.S. inter-alia contains the following allegations: That the informant along with his brother Amit Hansda aged 08 years had gone to see his vegetables in the field where ladyfinger was planted which is at a distance of ½ km from his village on 01.10.2009 at 11.00 am. They found that Ox of Lakhan Hansda (accused), son of late Mukru Hansda was grazing in his field where ladyfinger was planted. On this, they ran back to their house and informed their grandfather Sukhdeo Hansda about it. His grandfather along with these two brothers went to that plot where the vegetables were planted and his grandfather chased the Ox and cow up to Somai Nala (rivulet). Then Lakhan Hansda came running from behind with a lathi in his hand and started assaulting the informant’s grandfather Sukhdeo Hansda on his head and arms. On getting scared, both these brothers ran away crying towards their home and on reaching there, started shouting that Lakhan Hansda has assaulted his grandfather. On hearing brawl, villagers went towards Somai Nala. By then, Lakhan Hansda after killing his grandfather at the paddy field of the informant near Somai Nala, had fled away. The villagers brought his grandfather in dead condition to his house. On these allegations, informant asserted that Lakhan Hansda had killed his grandfather Sukhdeo Hansda by assaulting him with lathi on his head, arms and body. By then, Lakhan Hansda after killing his grandfather at the paddy field of the informant near Somai Nala, had fled away. The villagers brought his grandfather in dead condition to his house. On these allegations, informant asserted that Lakhan Hansda had killed his grandfather Sukhdeo Hansda by assaulting him with lathi on his head, arms and body. His fardbeyan was recorded in presence of his uncle Bukru Laguri and it was read over to him which he understood and inscribed his signature in presence of his uncle and his brother. 4. Tonto P.S. Case No. 17/2009 dated 01.10.2009 under section 302 of the Indian Penal Code was registered at 17.30 hrs. against the sole accused Lakhan Hansda, who is the appellant before us. On finding the case true during investigation, charge sheet bearing no. 19/2009 dated 31.12.2009 under section 302 of the Indian Penal Code was submitted against the sole accused Lakhan Hansda. Learned CJM took cognizance of the offence on 21.01.2010 against the accused Lakhan Hansda and committed the case to the Court of Sessions on 15.02.2010. Thereafter, on transfer, case came before the learned Additional Sessions Judge-I, West Singhbhum, Chaibasa where charges were framed under section 302 of the Indian Penal Code on 09.09.2010 against the sole accused, which were read over to him and explained in Hindi to which he denied and claimed to be tried. Since the accused denied the charge, trial commenced. The prosecution in support of its case adduced eight prosecution witnesses as under: PW-1: Dr. Santosh Kumar Srivastava PW-2: Budesh Hansda PW-3: Amit Hansda PW-4: Pappu Hansda PW-5: Arjun Hansda PW-6: Ram Chandra Paswan PW-7: Lalendra Hansda PW-8: Harish Hansda It also adduced certain documentary evidence up to Ext.-4 as under: Ext.1: Postmortem Report proved by PW-1 Ext.2: PW-2 Budesh Hansda proved his signature on the fardbeyan Ext.2/1: Fardbeyan, proved by PW-6 Ext.2/2: Endorsement on the fardbeyan proved by PW-6 Ext.3: Inquest Report proved by PW-6 Ext.4: FIR proved by PW-6 All exhibits were proved without objection. 5. After closure of the prosecution evidence, statement of the accused was recorded under section 313 of the Cr.PC where he stated that all evidence are false. He also pleaded innocence. 6. 5. After closure of the prosecution evidence, statement of the accused was recorded under section 313 of the Cr.PC where he stated that all evidence are false. He also pleaded innocence. 6. Learned Trial Court on being satisfied that the prosecution has been able to prove its case beyond shadow of all reasonable doubt, convicted the sole accused for the charge under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life with fine. 7. Learned counsel Mrs. Alpana Verma representing the appellant on behalf of JHALSA, has in support of the challenge, urged the following grounds: It is submitted that the case of the prosecution, at best, is based upon the sole testimony of PW-2, the informant Budesh Hansda. PW-3, his brother Amit Hansda who had allegedly accompanied the informant and his grandfather to the place of occurrence, has not been found to be competent witness by the Court and was only aged 10 years at the time of deposition. PW-2 himself was less than 9 years of age at the time of occurrence and about 11 years on the date of his deposition i.e. 15.12.2011. His evidence read in entirety, shows major contradiction and improvement. Learned counsel has, in particular, pointed out to the statements of PW-2 at paragraph-3 which indicates that Ox were introduced into the field of the informant by the son of Lakhan Hansda where ladyfinger was planted. This is inconsistent from the fardbeyan story and a major improvement. At paragraph-4, he states that number of villagers had seen the occurrence from a distance, but there are no prosecution eyewitness to support it. In his cross-examination, he states at paragraph-7 that he is a student of Class-VI. There is major contradiction in his statement at paragraph-9 and 10 where he speaks about the time of occurrence as 9.00 am whereas in the fardbeyan, the time of occurrence is 11.00 am. At paragraph-10, his statement further creates doubt as according to him, his grandfather Sukhdeo Hansda had reached on his own at 9.00 am at the place of occurrence and the accused Lakhan Hansda had also reached there at 9.00 am and the occurrence occurred at 9.00 am. He further states that he along with Amit had come back. At paragraph-11, he denies that there was any altercation before the occurrence. He further states that he along with Amit had come back. At paragraph-11, he denies that there was any altercation before the occurrence. At paragraph12, he further states that he had not gone back to the field again and had reported about the occurrence to his Aunt. At paragraph-13, he states that he along with Munda Badakuwa had gone to the police station at 4.00 pm where the police made inquiries from him and then recorded it. However, the fardbeyan shows that it was recorded at his house in village Durita. However, he did not remember who wrote it and that what was written over it, he had not read it, nor anyone had read it over to him. He denies that the accused Lakhan Hansda had indulged in 'Marpit' (assault) with his grandfather and the incidence did not occur in the field where ladyfinger was planted. These inconsistencies and contradictions in the statement of the prosecution witness no. 2, the sole eyewitness who is also the informant, leaves serious dent to the entire prosecution case as there are no other witness who claim himself to be an eyewitness to the occurrence. PW-4 is another grandson of the deceased Sukhdeo Hansda who was at the place of his maternal uncle and came to know of the incidence at 1.00 pm after return to his village from one Lal Mohan Gope. In his cross-examination, he categorically denies having seen the occurrence. When he came back, there were number of persons in his house beside the dead body. PW-5 is the son of the deceased Sukhdeo Hansda namely, Arjun Hansda, who is also a hearsay witness. He came to know of this incidence from the informant Budesh Hansda and his son Amit (PW-3). Apart from the evidence of the informant, the deposition of these witnesses are mere repetition of what the informant stated in his fardbeyan. This witness in his cross-examination has claimed ignorance about the plot no, khata no., etc of the plot in which ladyfinger was planted. However, at para-10 he states that adjacent to the plot where ladyfinger was planted, there were paddy field on three sides. At paragraph-14 of his cross-examination, this witness has stated that when his father was brought to his house, he was having his last breath and was alive by that time. However, at para-10 he states that adjacent to the plot where ladyfinger was planted, there were paddy field on three sides. At paragraph-14 of his cross-examination, this witness has stated that when his father was brought to his house, he was having his last breath and was alive by that time. This statement of PW-5 completely contradicts the statement of the informant (PW-2) that his grandfather had died at the place of occurrence and thereafter, villagers had brought him to his house. This witness has also stated that the victim after coming back from the place of occurrence, died within half an hour between 9.00-9.30. He has denied any land dispute with his father. Father of Budesh had predeceased, as per his statement at para-22. PW-6, the Investigating Officer namely Ram Chandra Paswan upon getting information on telephone, reached Durita village and recorded the fardbeyan of the informant Budesh Hansda which is in his own handwriting and signature which has been proved and marked as Ext.2/1. According to him, the fardbeyan was read over to the informant and thereafter he inscribed his signature thereupon in the presence of the witnesses Amit Hansda and Dukkan Hansda who also inscribed their signature. He had prepared the inquest report in carbon copy, original of which is in his handwriting and signature, which has been proved and marked as Ext.3. It contains the signature of two witnesses. The formal FIR is recorded in the handwriting of Suresh Singh, literate constable and signature of the then Officer-in- Charge Ram Lal Ram thereupon has been proved and marked as Ext.4. Endorsement on the fardbeyan by the then Officer-in-Charge Ram Lal Ram has been proved and marked as Ext.2/2. This witness has examined the place of occurrence described at para-7 of his deposition. It is near Somai Nala in a paddy field with a thick boundary between two paddy fields. There were trees of Babool and in the north of that was field of Budhu Hansda, in the south of it was the paddy field of Choya Hansda, in the east of it was paddy field of Mesa Torapkuru and in the west of it was the field of Bundhu Hansda. This witness has stated that the accused had surrendered during raid. This witness has stated that the accused had surrendered during raid. According to this witness, he had not gone to the place of occurrence after taking over the investigation on that day, but on the next day, he had reached there at 10.00 am. At paragraph-11 of his deposition, he had described that the place of occurrence indicated signs of foot mark which however, he had not recorded in his case diary. He had not gone there with a magnifying glass, etc, neither measured the foot marks. At para-14, he states that the informant and other witnesses had narrated the time of occurrence as 11.00 am, whereas the time of occurrence was 9.00 am. At para-15 of his deposition, this witness states that the place of occurrence is not field where ladyfinger was planted. The field where ladyfinger was planted is about 1.00 km far from there. PW-7 is the cousin of the deceased who is also a hearsay witness. He was in his house at the time of occurrence and had not seen the occurrence. PW-8 is Harish Hansda whose statement is of no consequence. 8. Learned counsel representing the appellant has also placed before us the evidence of PW-1 Dr. Santosh Kumar Srivastava who conducted postmortem examination on the dead body of Sukhdeo Hansda at 10.00 am on 02.10.2009 and found the following ante mortem injuries on external examination as also on dissection, described hereunder: “External: i. Lacerated wound on forehead 2”x ½”x bone deep. ii. Lacerated wound on left side of forehead 1”x ½”x bone deep. iii. Lacerated wound on occipital region 3”x2” x bone deep. iv. Lacerated wound on right elbow posteriorly 1” x 1/2” x bone deep. v. Bruise on left forearm 2” x 1”. On dissection: i. head and neck – fracture of frontal bone of scalp. Brain matter lacerated. ii. Thorax – heart – both chamber empty, lungs – pale, ribs – intact. iii. Abdomen – stomach – digested food. iv. Lever – pale, spleen – pale, Kidney – nothing abnormal, Urinary bladder – 100 mm urine Rigor Mortis present in both upper and lower limbs. Time since death – 6 hrs to 36 hrs. Cause of death- Head injury caused by hard and blunt substance may be lathi. This postmortem report is written and signed by me, mark it Ext.1”. Lever – pale, spleen – pale, Kidney – nothing abnormal, Urinary bladder – 100 mm urine Rigor Mortis present in both upper and lower limbs. Time since death – 6 hrs to 36 hrs. Cause of death- Head injury caused by hard and blunt substance may be lathi. This postmortem report is written and signed by me, mark it Ext.1”. This witness has proved the postmortem report signed by him, which has been marked as Ext.1. According to him, head injury caused by hard and blunt substance may be like lathi is the cause of death. Time since death is 6-36 hours. In his cross-examination, he states that it was not possible to say as to what was the position of the injured who died subsequently at the time of inflicting injury. However, at para- 5, he states that such an injury can be caused by fall or by dashing, if caused by force. At para-6, he states that mud or anything like that was not found on the dead body. 9. After such a detailed analysis of the evidence on record, following legal submissions have been made by the learned counsel representing the appellant. That the case of the prosecution has not been proved beyond all reasonable doubt. PW-2, informant who claim himself to be the sole eyewitness, has discredited himself during trial from being treated reliable or trustworthy witness. Learned Court has not recorded its opinion as to the competency of the child witness (PW-2) who was aged 9 years at the time of occurrence and 11 years at the time of deposition. His statement is not supported by his brother Amit Hansda (PW- 3) as he was not found competent to depose by the learned Trial Court. Evidence of other prosecution witnesses PWs-4, 5, 7 and 8 are at best hearsay and cannot improve upon what the informant has stated in the fardbeyan. Practically, there is no witness to the occurrence. Deposition of the Investigating Officer creates serious doubt about the place of occurrence. No sign of grazing has been found in the field where ladyfinger was planted. This was the genesis of the dispute, as per the informant. The Medical Officer in his cross-examination and the inquest report proved by the prosecution as Ext.3 both show that there was no presence of any mud, etc. on the body of the victim. No sign of grazing has been found in the field where ladyfinger was planted. This was the genesis of the dispute, as per the informant. The Medical Officer in his cross-examination and the inquest report proved by the prosecution as Ext.3 both show that there was no presence of any mud, etc. on the body of the victim. In such a situation, it is wholly unsafe to record conviction of the appellant on such unreliable and sketchy evidence. Learned counsel has relied upon the judgment rendered by the Apex Court in the case of Panchhi and others versus State of U.P. [ (1998) 7 SCC 177 ] on the test to determine the competency of a child witness. The appeal has merit and therefore deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. 10. Learned Additional Public Prosecutor Mr. Azeemuddin has laboured hard to support the findings of the learned Trial Court. He has also delved deep into the evidence of the prosecution witnesses and mainly relied upon the testimony of Budesh Hansda (P.W.2), who according to him, has truthfully narrated the incidence during trial and supported the entire prosecution story as made out by him in his fardbeyan. He submits that minor inconsistency in the statement of Budesh Hansda (P.W.2), who is child of tender age while making deposition before the Sessions Court on the aspects of time or other statements as to who introduced cattle in the field where ladyfinger was planted etc. pointed out by learned counsel for the appellant, should not weigh upon the Court to discredit his entire testimony as an eye witness. Merely because that other villagers who have seen the occurrence from a distance have not come forward to support the prosecution case, should not negatively weigh upon the Court to reject the substantive piece of evidence brought on record by the prosecution in the nature of an eye witness Budesh Hansda (P.W.2), medical evidence of Dr. Santosh Kumar Srivastava (P.W.1) read together with the statement of other prosecution witness like Arjun Hansda (P.W.5) and Lalendra Hansda (P.W.7). The incidence has taken place in the first half of the day. The villagers do not carry watch to pin point the exact time of the occurrence. Santosh Kumar Srivastava (P.W.1) read together with the statement of other prosecution witness like Arjun Hansda (P.W.5) and Lalendra Hansda (P.W.7). The incidence has taken place in the first half of the day. The villagers do not carry watch to pin point the exact time of the occurrence. The Investigating Officer in his deposition has also supported that the incidence was around 9.00-9.30 am, so has the other prosecution witness Lalendra Hansda (P.W.7) stated like that and informant also in his deposition has stated the time of occurrence as 9.00 am, though in the fardbeyan, there may be slight error in reporting time of occurrence as 11.00 a.m. This indication of time of occurrence may be assumption of different persons, none of whom were carrying watch in the village. Therefore, on these minor inconsistencies, it is not safe to disbelieve the evidence of a child witness Budesh Hansda (P.W.2) who does not bear any animosity with the accused from before. The case of the prosecution needs to be considered in that perspective. Findings of the learned Trial Court therefore cannot be said to suffer from perversity or error in appreciation of evidence to the extent of disbelieving the entire case of the prosecution. The appeal being without merit is fit to be dismissed. 11. We have considered the submission of learned counsel representing the appellant; learned Additional Public Prosecutor representing the State; gone through the materials on record including the fardbeyan; framing of the charge; evidence of eight prosecution witnesses and four prosecution exhibits adduced without objection; statement of the accused made under Section 313 Cr.P.C and also perused the impugned order of conviction and order of sentence. 12. We have given anxious consideration to the factual and legal grounds urged on behalf of the appellant and minutely scrutinized the evidence in entirety to find out, whether the case of the prosecution stands on its own footing and leaves no element of reasonable doubt to support the findings recorded by the learned Trial Court. Essentially the case of the prosecution hinges upon the informant Budesh Hansda who has deposed as P.W.2 during trial. We have read the fardbeyan and compared his statement made during trial, both minutely and at the same time, in entirety. The first noticeable contradiction or improvement which learned counsel representing appellant has tried to show from his testimony, is on the time of occurrence. We have read the fardbeyan and compared his statement made during trial, both minutely and at the same time, in entirety. The first noticeable contradiction or improvement which learned counsel representing appellant has tried to show from his testimony, is on the time of occurrence. While testing this proposition in the context of the entire evidence of Budesh Hansda (P.W.2), we cannot leave aside the broad picture of the prosecution case that the informant along with his cousin Amit Hansda (P.W.3) had gone to the field in the morning and on seeing the cattle of Lakhan Hansda grazing in his field where ladyfinger was planted, had returned to his house and informed his grandfather Sukhdeo Hansda (deceased) who accompanied them and chased away the Ox and cow from the field up to Somai Nala. Statement relating to time of occurrence by rustic villagers like Budesh Hansda (P.W.2) who himself was a child witness or other prosecution witness such as Arjun Hansda (P.W.5), son of the deceased read in conjunction with the statement of Investigating Officer Ram Chandra Paswan (P.W.6) at Para 14 convey that these persons who do not carry any watch being rustic villagers have indicated an assumption of time when the occurrence took place which may not be exact to the watch. As such, on this score, we are satisfied that any such inconsistency as to the time of occurrence is not so grave that it renders the entire prosecution case as doubtful. Further, the statement of Budesh Hansda (P.W.2) at para 10 and 12 also needs to be read in continuity with other statements made by this witness during course of his deposition. The learned Trial Court though has not put question to this witness during trial to test his competency, but on reading of the entire evidence of this prosecution witness, who was 11 years of age at the time of deposition, it has not found any lack of rational answers to the question posed by the defence during cross examination or in the narration of the prosecution story as stated by him in his fardbeyan. We also on appreciation of the evidence of Budesh Hansda (P.W.2) are satisfied that he is a competent witness in terms of Section 118 of the Evidence Act, quoted below: “118. We also on appreciation of the evidence of Budesh Hansda (P.W.2) are satisfied that he is a competent witness in terms of Section 118 of the Evidence Act, quoted below: “118. Who may testify.- 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 those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answer to them.” The position of law so far as competency of witness is concerned, is well settled that all witness are competent to testify unless they are prevented from understanding the questions put to them or from giving rational answers to those questions by virtue of their tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Even a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answer to them. We are profitably relying upon a decision rendered by the Apex Court in the case of Dattu Ramrao Sakhare and others versus State of Maharashtra [ (1997) 5 SCC 341 ) followed in State of Madhya Pradesh versus Ramesh and others [ (2011) 4 SCC 786 )]. The statement of a child witness should be read with caution and care to test whether he has been subjected to tutoring. 13. This Court has to see whether core of the prosecution case suffers a dent on the basis of inconsistency, embellishments or certain minor improvement in the prosecution evidence during trial. We find from the statement of the Investigating Officer Ram Chandra Paswan (P.W.6) also that the place of occurrence is at a distance from the field of the informant where ladyfinger was planted. From the statement of Budesh Hansda (P.W.2) during trial and as made in his fardbeyan also, it is evident that assault did not take place at the plot where lady finger was planted, since the grandfather of the informant Sukhdeo Hansda and the informant together with his cousin brother Amit Hansda (P.W.3) had chased the cattle of the appellant up to Somai Nala. The suggestion of the defence about the place of occurrence being a plot where lady finger was grown has been categorically denied by the informant at para 14 of his deposition. It has further transpired from the statement of Arjun Hansda (P.W5) at para 9; Investigating Officer Ram Chandra Paswan (P.W.6) at para 7 that adjacent fields of the informant were paddy fields. The place of occurrence was thick boundary between two paddy fields near Somai Nala. Therefore, absence of mud on the dead body during preparation of Inquest Report is easily explained. 14. Understanding the sequence of facts proved by the prosecution in proper perspective, it becomes clear that after the cattle of the accused Lakhan Hansda were chased out of the field where lady finger was grown by the grandfather of PW-2, informant i.e. victim Sukhdeo Hansda up to Somai Nala Lakhan Hansda came from behind and assaulted Sukhdeo Hansda with lathi on the vital part of his body i.e. head a number of times. The medical evidence of Dr. Santosh Kumar Srivastava (P.W.1) who conducted the post mortem and proved the same which has been marked as Ext. 1 has shown practically 3 injuries on the head, either on the forehead or on the left side of forehead or occipital region and two other injuries on the right elbow posteriorly 1” x ½” x bone deep and bruise on left forearm 2” x 1”. These injuries were found on external examination, while on dissection of head and neck, it was fund that there was fracture of frontal bone of scalp; brain matter inside was lacerated. The stomach also contained digested food, which is quite likely in a case where the occurrence has happened in early part of first half of the day. The injuries have been found on the dead body of the deceased on vital part i.e., head. The nature of injuries have been proved by the medical evidence i.e., caused by hard and blunt substance sufficient in the ordinary course of nature to cause death. The manner of assault as proved by the prosecution witness Budesh Hansda (P.W.2) indicates that the accused intended to cause those injuries. The injuries were of such nature which were likely to cause death in ordinary course of circumstances. The manner of assault as proved by the prosecution witness Budesh Hansda (P.W.2) indicates that the accused intended to cause those injuries. The injuries were of such nature which were likely to cause death in ordinary course of circumstances. If the first three ingredients of Section 300 thirdly of the Indian Penal Code has been proved as above, the forth inference is to be drawn logically that the accused intended to cause such injuries and the injuries were of such nature which were likely to cause death in the ordinary course of circumstances. 15. We have also tested the proposition advanced on behalf of learned counsel representing the appellant whether the case of appellant could fall within the meaning of Exception 4 to Section 300 of the Indian Penal Code. However, the evidence on record particularly para 11 of Budesh Hansda (P.W.2) coupled with the nature of injuries on the body of the deceased dispels any room to accord the benefit of Exception 4 to Section 300 of the Indian Penal Code to the accused/appellant, since there is no proof that the assault was inflicted in the heat of passion in a sudden fight or in a sudden quarrel without the accused resorting to any cruelty in causing such injuries. There is no evidence that there was a verbal altercation or a sudden fight immediately preceding the assault which could bring the case of the appellant under the scope of Exception 4 to Section 300 of the Indian Penal Code. 16. Considered thus, upon proper re-appreciation of the evidence on record, we are satisfied that the appellant has not been able to make out a case for interference in the findings of the learned Trial Court or has been able to create any reasonable doubt in the prosecution evidence to accord him the benefit of doubt. The appeal being devoid of merit, is accordingly dismissed. Let the Lower Court Record be sent down to the Court below forthwith along with copy of the judgment. 17. We also record our appreciation to the able assistance rendered by learned counsel Mrs. Alpana Verma appointed by JHALSA to represent the appellant during hearing of this case. The Member Secretary, JHALSA would bear her admissible legal remuneration within a period of four weeks from the date of receipt of an application enclosing the certified copy of the judgment.