JUDGMENT : Shree Chandrashekhar, J. The appellant along with other four were convicted and sentenced to RI for life and fine of Rs. 3000/- under section 302/149 of the Penal Code, 1860 and RI for three years and fine of Rs. 1000/- under section 201/149 of the Penal Code, 1860. 2. About 08 : 00 PM in the night of 10th February 2008, Sur Singh Tubid, Jobna Tubid and Roybari Tubid were attacked by an unlawful assembly of more than twenty-five persons of village Hessabandh. On the basis of the fardbeyan of Gobardhan Tubid aged about seven years, Muffasil PS Case No. 16 of 2008 was registered on 11th February 2008 against Deven Surin, Vijay Surin @ Tui Surin, Saheb @ Gumdi Surin, Damu Surin @ Gundi Surin, Jaipal Surein @ Singrai Surin, Moreng Singh Gagarai @ Jode, Tulsinath Surin and unknown. According to the informant, who gave his fardbeyan at 02 : 30 PM on 11th February 2008 at village Jojohatu before the officer-in-charge of Chaibasa Muffasil police station, all the accused belonged to village Hessabandh. 3. The Investigating Officer collected evidence against twenty-one persons who were involved in the murder of Sur Singh Tubid, Jobna Tubid and Roybari Tubid and, accordingly, they were sent up for trial for committing the offences under sections 302/149, 376(2)(g) and 201/149 of the Penal Code, 1860. 4. Seventeen witnesses were examined in Sessions Trial No. 143 of 2008 - Gobardhan Tubid was examined as PW2. The learned Sessions Judge acquitted sixteen accused holding that the charges against them were not proved beyond reasonable doubt. Moreng Singh Gagarai @ Jode, Damu Surin @ Gundi Surin, Jaipal Surein @ Singrai Surin, Mangru Gagarai @ Leda @ Mugudu Gagrai and Deven Surin were found guilty under sections 302/149 and 201/149 of the Penal Code, 1860 - the charge for the offence under section 376(2)(g) of the Penal Code, 1860 was found not proved against all the accused. 5. Mr. R.P. Gupta, the learned counsel for the appellant refers to the judgment dated 14th January 2020 by which Cr. Appeal (DB) No. 493 of 2014 with Cr. Appeal (DB) No. 551 of 2014 filed by other four convicts were partly allowed, in the terms indicated therein. 6. Mrs. Niki Sinha, the learned Spl.PP, however draws our attention to the evidence of PW3 to submit that there is specific allegation against Deven Surin. 7. Appeal (DB) No. 493 of 2014 with Cr. Appeal (DB) No. 551 of 2014 filed by other four convicts were partly allowed, in the terms indicated therein. 6. Mrs. Niki Sinha, the learned Spl.PP, however draws our attention to the evidence of PW3 to submit that there is specific allegation against Deven Surin. 7. A glance at the Sessions Court's judgment would indicate that no evidence was laid by the prosecution to establish the charge of gang rape upon Roybari Tubid and Jobna Tubid. PW2 who was about ten years of age and PW3 who was just six years old are the witnesses on whom the prosecution has rested its case. Section 118 of the Indian Evidence Act provides 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 those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The learned trial Judge believed PW2 and PW3 and held that they are reliable and trustworthy witnesses. We find that the learned trial Judge recorded their testimony after putting few questions to ascertain their maturity and though the learned trial Judge did not record his satisfaction in the deposition-sheet as regards maturity of these witnesses to tender evidence, as held by the Privy Council in “Mohamed Sugal Esa Mamasan Rer, Alalah v. The King” AIR 1946 PC 3 , we would assume that the learned trial Judge was satisfied about maturity of PW2 and PW3 to tender evidence in the Court. 8. The testimony of a child witness can be accepted if it inspires confidence and it is sufficient to record conviction of an accused, and whether corroboration is necessary in a case which is solely founded on the evidence of a child witness would depend on the facts and circumstances of the case. 9. In “K. Venkateshwarlu v. State of A.P.” (2012) 8 SCC 73 , the Supreme Court has observed as under: “9. ……….A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. ……….A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.” 10. In the Court, PW2 and PW3 have narrated the incident which had happened in the evening of 10th February 2008. At that time they were returning home. They identified the appellant as one of the assailants who assaulted Sur Singh Tubid, Jobna Tubid and Roybari Tubid. By now it is well settled that in every case there may be inconsistencies in the testimony of the prosecution witnesses. Minor inconsistencies in the testimony of PW2 and PW3, in our opinion, would not throw a doubt on complicity of the appellant in the crime. In view of sterling quality of the evidence against the convicts, acquittal of sixteen accused persons do not persuade us to disbelieve testimony of PW2 and PW3. 11. In “A. Shankar v. State of Karnataka” (2011) 6 SCC 279 , the Hon'ble Supreme Court has held as under: 22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.” 12. We have also carefully scrutinized the testimony of PW2 and PW3 and find that they have proved presence of the appellant at the place of occurrence. From the testimony of PW2 and PW3 which is corroborated on the point of occurrence by the evidence of PW1, PW4, PW5, PW8 as also by PW9, PW10, PW11 and PW12, presence of the appellant at the place of occurrence was proved by the prosecution. 13. A plea has been raised that conviction of the appellant with the help of section 149 of the Penal Code, 1860 is not proper. But we are not inclined to accept this submission particularly in view of the evidence that several persons had participated in the occurrence and the appellant was present there - but, not as a bystander. By now it is well-settled that the conviction with aid of section 149 of the Penal Code, 1860 can be recorded against less than five persons if it is found that five or more persons took part in the occurrence. 14. In “Ram Dular Rai v. State of Bihar” (2003) 12 SCC 352 , the Supreme Court has observed as under: “6. Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.” 15. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.” 15. But conviction of the appellant for murder with aid of section 149 of the Penal Code, 1860 cannot be recorded. 16. Dr. Dhirendra Kumar PW6, who conducted the postmortem examination on 13th February 2008 at 02 : 30 PM, found the following injuries on Sur Singh Tubid: “Rigor-mortis absent in all limbs. External 1. Incised wound over nose with blood clots. - 1? × 1/4? × bone deep 2. Nasal bone fractured 3. Swelling over forehead 4. Abrasion over hands and chest 5. Post-mortem injuries on head and leg by fraction and eaten ups by wild animal. Injury No. 1 to 4 were ante-mortem”. 17. PW6 has stated that on the same day, that is, on 13th February 2008, the Medical Board consisting of him conducted the postmortem examination of Roybari Tubid and found the following injuries: “External 1. Lacerated wound of (R) chick 3? × 2? × bone deep. Mandible was fractured. Teeth were broken out of the socket. Gum was lacerated. 2. Multiple abrasion over leg. Chest, thigh and perineum (private organ of the body). 3. Her Sari was tight a round the neck. Black colour bruise present around neck”. 18. On 13th February 2008, the Medical Board conducted the postmortem examination of Jobna Tubid at 03 : 30 PM and found the following injuries: “External 1. Post mortem injury over face eaten by wild animal. 2. Bruise over the left side of the face-3? × 2? 2 3. Swelling over left arms 3? × 2? with fracture of right humerous. 4. Lacerated wound of left of the chest and abdomen. Blood stain present measuring 6? × 3? into deep to peritoneal cavity. Intestine was producing". 19. According to PW6, the injuries on Sur Singh Tubid, Roybari Tubid and Jobna Tubid were ante-mortem in nature and caused by sharp-cutting as well as hard and blunt substance. 20. PW6 deposed in the Court that the Medical Board found incised wounds as well as lacerated wounds on the body of the deceased persons - these injuries are not explained by the prosecution. 20. PW6 deposed in the Court that the Medical Board found incised wounds as well as lacerated wounds on the body of the deceased persons - these injuries are not explained by the prosecution. In their testimony, PW2 and PW3 did not say a word about assault on Sur Singh Tubid, Roybari Tubid and Jobna Tubid by any weapon. They have stated that the appellant and others assaulted them by fists and kicks. On such evidence, an inference on sharing of the common object to commit murder of Sur Singh Tubid, Roybari Tubid and Jobna Tubid cannot be drawn. The prosecution has failed to establish who amongst the mob inflicted which particular injury to Sur Singh Tubid, Roybari Tubid and Jobna Tubid. According to the prosecution witnesses, several other persons had surrounded the deceased persons, and there was animosity between the villagers of Hessabandh and Pandabir. PW3 has no doubt made a specific reference about Deven Surin, but, at the same time, we find that she also did not impute any allegation of assault by a sharp cutting weapon by him. We further find from the evidence of PW2 and PW3 that they did not tell the Investigating Officer or depose in the Court that Deven Surin was holding a weapon much less a sharp cutting weapon. 21. In our opinion, the prosecution failed to establish that the appellant shared common object with others to commit murder of Sur Singh Tubid, Roybari Tubid and Jobna Tubid and that he had knowledge that murder of Sur Singh Tubid, Roybari Tubid and Jobna Tubid would be committed in the prosecution of common object of the unlawful assembly. 22. The injuries found on the deceased persons, such as, fracture of ribs and bones would fall under the definition of grievous hurt. The appellant is said to have assaulted the deceased persons with fists and kicks and, therefore, we hold that he voluntarily caused grievous hurt to Sur Singh Tubid, Roybari Tubid and Jobna Tubid and while so, he committed the offence under section 325 of the Penal Code, 1860 [refer, “Lal Mandi v. State of W.B.” (1995) 3 SCC 603 ]. 23. In view of the aforesaid discussions, the judgment of conviction and the order of sentence of RI for life and a fine of Rs. 23. In view of the aforesaid discussions, the judgment of conviction and the order of sentence of RI for life and a fine of Rs. 3000/- for the offence under section 302/149 of the Penal Code, 1860 and RI for three years and a fine of Rs. 1000/- for the offence under section 201/149 of the Penal Code, 1860 dated 30th June 2014 against the appellant Deven Surin passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in Sessions Trial No. 143 of 2008 are set-aside. 24. The appellant is convicted and sentenced to RI for seven years for the offence under section 325 of the Penal Code, 1860. 25. Mrs. Niki Sinha, the learned Spl.PP states that the appellant is in custody since last more than ten years. 26. Accordingly, the appellant Deven Surin shall be set free forthwith, if not wanted in connection to any other case. 27. In the result, Cr. Appeal (DB) No. 13 of 2020 is partly allowed in the above terms. 28. IA No. 5838 of 2021 stands disposed of. 29. Let the lower Court records be transmitted to the Court concerned, forthwith. 30. Let a copy of the Judgment be transmitted to the Court concerned through FAX.