JUDGEMENT : Per, Shree Chandrashekhar,J. The appellant has suffered the Judgement of conviction under section 302 of the Indian Penal Code (in short, IPC) dated 16.2.2018 and the order of sentence dated 21.2.2018 by which he was awarded sentence of RI for life and fine of Rs. 3,000/-under section 302 IPC with a default stipulation to undergo SI for four months. 2. Kasmar PS case No. 20 of 2011 has been registered against the appellant on 26.3.2011 under section 302 IPC for committing murder of Chandmuni Devi, his mother. 3. In the fardbeyan which was recorded at 6:45 AM on 26.3.2011 Jitlal Manjhi has stated that the last evening at about 09:00 PM his brother, the appellant, came home and asked food from his mother. However before she could start his brother started assaulting the mother. On raising hulla several persons from the vicinity rushed there however by that time his mother had died. 4. After the investigation a charge-sheet was submitted against the appellant and he has faced the trial on the charge under section 302 IPC. During the trial the prosecution has examined four witnesses; PW-2 and PW-3 are brothers of the appellant. 5. PW-2, the informant is elder brother of the appellant. He is the sole eye-witness in this case. 6. Under section 134 of the Indian Evidence Act to prove any fact in a case no particular number of witnesses is required. In “Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra reported in (1973) 2 SCC 793 the Hon'ble Supreme Court has observed that; “even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration”. 7. PW-2 is intimately related to the appellant as well as the deceased however merely because he is related to both of them his evidence cannot be discarded rather this is a good reason to accept his testimony for he would not falsely implicate his own brother for committing murder of his mother. It is a well-accepted proposition in law that while scrutinizing testimony of a related and interested witness this has to be kept in mind that he would not shield the real culprit and falsely implicate an innocent man. It is a well-accepted proposition in law that while scrutinizing testimony of a related and interested witness this has to be kept in mind that he would not shield the real culprit and falsely implicate an innocent man. PW-2 has deposed in the Court that the appellant came in the night and assaulted the mother with a dagger. After inflicting injury on her neck he fled away. He tried to apprehend him but became apprehensive as he was carrying a dagger. On his raising hulla several villagers came there and called Mukhiya who sent information to the police station. He has affirmed that his statement was read over to him over which he has put his thumb impression. From testimony of PW-2 it appears that his claim in the fardbeyan that he is an eye-witness to the actual assault upon his mother by the appellant is not affirmed by him. He has stated that he has three brothers and all of them are residing separately. At the time of occurrence wife of the appellant had gone to her parents' place with her children and the appellant had come in the house of his mother in the evening for food. He has truthfully disclosed in the Court that there was a land dispute amongst the brothers and the dispute was continuing since one or two months. 8. In the opinion of PW-4 the injuries were ante-mortem in nature and caused by sharp and heavy object and the cause of death was due to hemorrhage and shock. PW-2 may not have seen the appellant actually assaulting the mother and in the Court he is not very certain about it but from his evidence this much is established that the appellant was seen running away with a knife from the house of the mother. PW-1 has stated that on her hulla when he had gone to the place of occurrence he was told that the appellant has killed his mother. He is not an eye-witness but his previous statement read with his testimony is relevant under section 157 of the Evidence Act. PW-3 who is another brother of the appellant has not supported the prosecution and he was declared hostile. But the reason for this is not far to seek. He is not an eye-witness but his previous statement read with his testimony is relevant under section 157 of the Evidence Act. PW-3 who is another brother of the appellant has not supported the prosecution and he was declared hostile. But the reason for this is not far to seek. He has made a false statement in the Court is apparent from the cause of death of his mother described by him in the examination-in-chief – fall from the machaan. However when cross-examined by the prosecution he admits that the appellant is his own brother and at the time of the occurrence wife of the appellant had gone to her parents' place with the children. He has further admitted that all his brothers are residing separately and at the time of the occurrence he was at home. It has come in the evidence of PW-2 and PW-3 that they had gone to the house of their mother with their wife and children however they were not examined during the trial. PW-1 has further admitted that there are several houses around the place of occurrence and PW-2 has stated that about 40-50 persons had arrived at the place of occurrence however no independent witness has been examined by the prosecution. The relatives of an accused turning hostile during the trial is not a new phenomenon and the villagers not coming forward to give direct evidence against a co-villager is also not unknown in a criminal trial. There may be various reasons why a relative or a co-villager would not come to the Court to give evidence and it has created considerable difficulties for the prosecution to lead direct evidence during the trial. But as held by the Hon'ble Supreme Court in a catena of judgements it is quality of the evidence and not quantity which matters the most in a criminal trial and conviction of an accused can be recorded solely on the basis of testimony of a solitary witness if his evidence is cogent, consistent and convincing. 9. Having examined the evidence tendered by PW-2, we find that PW-2 is a truthful witness. In paragraph 18 of the impugned judgement in Sessions Trial No. 289 of 2011 the learned Sessions Judge has held as under: “18. The accused is charged with the murder of his own mother. 9. Having examined the evidence tendered by PW-2, we find that PW-2 is a truthful witness. In paragraph 18 of the impugned judgement in Sessions Trial No. 289 of 2011 the learned Sessions Judge has held as under: “18. The accused is charged with the murder of his own mother. It is true that the I.O. and other seizure list witnesses to the recovery of the weapon of murder i.e. dagger, have not been examined despite all possible efforts of the court. In the facts and circumstances of the case, in my considered view, their non-examination is not fatal to the prosecution case. It would have been better if they were examined before the court. But merely for want of their examination, other evidence on record cannot be ignored. PW-2 Jitlal Manjhi is the elder brother of the accused and the informant of this case. His house is situated just in front of the house of accused where the deceased was living. He has deposed that in all their three brothers, quarrel had taken place regarding partition of their landed property. It has come in the evidence that the accused has got two sons and he was also entangled with a widow of his village which was being opposed and objected to by the deceased and the deceased was also not interested in giving share to the accused due to the above reason. This had caused annoyance to the accused due to which he has committed murder of his mother by a knife. PW-2 informant had seen the accused while he was just coming out of his house with a blood stained dagger in his hand and blood was also lying there on his hand, and when they tried to apprehend him, he fled away from there. P.W.-2 has further deposed that they informed the local mukhiya about the occurrence who reached within half-an-hour and the Mukhiya informed the police. The occurrence is said to have taken place at about 9 O'clock in the night and the fard-e-beyan of P.W.-2 informant had been recorded at the earliest opportunity on the next morning at about 6:45 A.M. Itself. The version of P.W.-2 has been supported by P.W.-1 Rasik Manjhi who lives in the same village. He has deposed that later on, the dagger had been recovered from a gaddha (ditch). The version of P.W.-2 has been supported by P.W.-1 Rasik Manjhi who lives in the same village. He has deposed that later on, the dagger had been recovered from a gaddha (ditch). No cross-examination of P.W.-2 has been made on the evidence regrading recovery of dagger from the ditch at the instance of the accused. The cross-examination is completely silent on this point. The informant P.W.-2 has mentioned in his fard-e-beyan that the deceased was stabbed at neck, hand and chest which injuries are also corroborated by the medical evidence of P.W.-4. From perusal of the postmortem report (Ext.-1), it is evident that the deceased was given seven stab wounds. She was stabbed on her neck at three places, one stab wound at shoulder and three stab injuries on left arm. Thus, the intention of the accused by inflicting several stab injuries to the deceased to cause her death is very clear. P.W.-2 has seen a blood stained dagger in the hand of the accused while he came out of his house after causing injuries to the deceased and the doctor has also opined that the injuries has been caused by a sharp and heavy object. The defence of the accused that the deceased died due to fall from ladder, has been totally denied by the doctor P.W.-4 who says that such injuries are not possible in that way. The doctor has categorically deposed in para 11 of his testimony that it was a homicidal death. In his statement u/s 313, Cr.P.C., the accused has not taken the plea of alibi that he was present at his in-laws' house in a different village and hence, the evidence of P.W.-3 Jitan Manjhi who is another brother of the accused, is of no use to the accused. P.W.-2 has been declared hostile by the prosecution. The plea of alibi has also not been taken by the defence in cross-examination of P.Ws.-1 and 2. There is very clear cut reason for causing the death of the deceased by the accused since the accused was annoyed as the deceased was not interested in giving share to him in the landed property. He has been seen at the place of occurrence by P.W.-2 running away from there with a blood stained dagger in his hand which has been recovered from a ditch on his instance which is supported by P.W.-1.The evidence of P.Ws. He has been seen at the place of occurrence by P.W.-2 running away from there with a blood stained dagger in his hand which has been recovered from a ditch on his instance which is supported by P.W.-1.The evidence of P.Ws. 1 and 2 are cogent, reliable and trustworthy and I have got no reason to disbelieve the same. From the facts and circumstances of the case and materials on record, I am fully convinced that it is only the accused who has committed the murder of his deceased mother. Non-examination of the I.O. and the seizure list witness to the recovery of weapon of assault, is not fatal to the prosecution case. The prosecution has proved its case against the accused beyond reasonable doubts.” 10. Chandmuni Devi has suffered a homicidal death has been proved by the prosecution. PW-4, Dr. Ganesh Prasad Gupta who has conducted post-mortem examination has found the following injuries on Chandmuni Devi: External Injuries: I. Lacerated wound present on neck (upper ends and right side) sized about 5”x4”x2” wound starts from just below ramus of mandible right side extending just below chin. All muscles of neck, skin, blood vessels, (right carotid and right jugular vein) were cut. Cartilage of trachea were also found cut. II. Deep cut present on mid of neck starts from just below chin to hyoid bone area. Skin muscle and tracheal ring were cut. III. Deep cut wound present on neck left side extending from lower end of ramus of mandible left side to hyoid bone region size- 2”x ½ ”x 1 ½ ”. IV. A cut wound present on left shoulder region size 3”x ½ ”x1” V. A cut wound present on left arm (deltoib region) size 2”x ½” x1” VI. A cut wound present on left arm just above elbow joint of size of 1½ ”x ½ ”x ½ ” VII. Acut wound present on left arm on just elbow joint in size of 1 ½ ” x ½ ”x ½” bone deep.” 11. The appellant was found running away from the house of his mother with a dagger in his hand and evidence of PW-2 is corroborated on material parts by PW-1 and PW-4. From the prosecution evidence, we find that presence of the appellant at the place of occurrence and at the time of occurrence has been proved by the prosecution. The appellant was found running away from the house of his mother with a dagger in his hand and evidence of PW-2 is corroborated on material parts by PW-1 and PW-4. From the prosecution evidence, we find that presence of the appellant at the place of occurrence and at the time of occurrence has been proved by the prosecution. There was no intervening circumstance brought on record to show that Chandmuni Devi might have been assaulted by someone else. A suggestion has come from the defence during cross-examination of the prosecution witnesses that on account of land dispute the informant has falsely implicated his own brother but the evidence laid during the trial of Sessions Trial No. 289 of 2011 and other attending circumstances do not suggest what the defence has tried to show. In this context it is important to keep in mind that PW-3, another brother, has not supported the prosecution, though he has spoken about the land dispute. He would have been a beneficiary of false implication of the appellant in the case but in his evidence he does not implicate him. 12. However we are of the opinion that the conviction of the appellant under section 302 IPC is not proper – the reasons are many. 13. In the first place the Investigating Officer was not examined during the trial and for that reason prejudice has been caused to the appellant. According to the prosecution the confessional statement of the appellant was recorded and on his disclosure a dagger was recovered. However, the seizure witnesses were not produced during the trial and the seizure memo was not proved. No part of the confessional statement of the appellant was marked and proved during the trial and the formal FIR and inquest report were also not proved during the trial. These mistakes during the investigation and the trial would not affect the prosecution case in so far as involvement of the appellant in the occurrence is concerned, but then, in a case of this nature like the present one it cannot be said that no prejudice has been caused to the appellant. These mistakes during the investigation and the trial would not affect the prosecution case in so far as involvement of the appellant in the occurrence is concerned, but then, in a case of this nature like the present one it cannot be said that no prejudice has been caused to the appellant. In “Behari Prasad v. State of Bihar” reported in (1996) 2 SCC 317 , the Hon'ble Supreme Court has observed that no straight jacket formula can be laid down and a case of prejudice likely to be suffered by an accused has to be proved on facts of the case. A criminal trial would not be vitiated merely because the Investigating Officer has not been examined during the trial, however, there is one principle in criminal law which says that if substantial prejudice is caused to an accused the benefit must go to him. This is the case of the prosecution that there was a land dispute between the brothers and they were annoyed of the appellant whom they suspected to have an illicit relationship with a widow. Their mother was not agreeing for partition of land and she was also furious at the appellant for his illicit relationship. PW-2 has stated that the appellant was in the house of the mother since evening and the incident has happened at around 9:00 PM. The manner of occurrence and how the incident was triggered have not been brought out in the evidence of the prosecution witnesses. From the attending circumstances and annoyance of his mother with the appellant it can be inferred that upon a quarrel the appellant has assaulted his mother. He was at her place since evening but the occurrence has taken place after few hours and therefore pre-meditation on his part must be ruled out. The number of injuries caused to Chandmuni Devi would indicate that he was so enraged that he perhaps lost self-control. And, the prosecution has failed to establish the genesis of the occurrence – it has remained in the realm of speculation – and therefore the appellant should be extended the benefit. 14. In the final analysis, we hold that the appellant is liable to be convicted under section 304 Part 1 IPC and, accordingly, his conviction under section 302 IPC is set-aside. 15. 14. In the final analysis, we hold that the appellant is liable to be convicted under section 304 Part 1 IPC and, accordingly, his conviction under section 302 IPC is set-aside. 15. The judgement of conviction of the appellant, namely, Ratan Lal Tudu under section 302 IPC dated 16.2.2018 and the order of sentence of RI for life and fine of Rs. 3,000/- for the said offence dated 21.2.2018 passed by the learned Additional Sessions Judge-II, Special FTC (CAW), Bermo at Tenughat in Sessions Trial No. 289 of 2011 are set-aside. 16. The appellant, above-named, is convicted and sentenced to RI for 10 years under section 304 Part I IPC. 17. Mr. Ravi Prakash, the learned Spl.PP states that with remission the appellant, namely, Ratan Lal Tudu has remained in custody for more than ten years and five months. 18. Accordingly, the appellant, namely, Ratan Lal Tudu, who is in custody, shall be set free forthwith, if not wanted in connection to any other criminal case. 19. In the result, Criminal Appeal (DB) No. 514 of 2018 is partly allowed, in the aforesaid terms. 20. Let lower Court records be transmitted to the Court concerned, forthwith. 21. Let a copy of the judgement be transmitted to the Court concerned through 'FAX'.