JUDGMENT : Sanjaya Kumar Mishra, J. The appellants, except Tajamul Sheikh, in this case, have assailed their conviction under Section 302/34 of the Indian Penal Code, 1860, herein after referred as the Penal Code, on 21.07.1995 by the Additional Sessions Judge, Pakur, in Sessions Case No. 576 of 1992 and the consequential sentence of imprisonment of life. The appellant Tajamul Sheikh has been convicted under Section 302 of the Penal Code and sentenced to undergo imprisonment for life. He also assails the aforesaid conviction and sentence. 2. During pendency of the appeal, the appellant no. 4, Samayun Sheikh @ Shama has expired and the appeal abated, as against him. 3. The case of the prosecution shorn of unnecessary details, is that in the night of 24.09.1991, one Mukul Sk son of the accused, Tajamul Sheikh along with a boy of the same village, Badrul Sk. went to see the last show in the cinema hall at Pakur. After witnessing the movie, around mid night, they returned home and when they came back, accused Tajamul Sheikh caught hold of the said Badrul Sk. and his son tied them to a ‘Tamtam’. He assaulted the said Badrul Sk. by a stick. Upon the cry of Badrul Sk., the informant along with his two sons, the deceased Md. Mustakin and Sattak Sk. came out of their house and they saw the accused Leyakat Mamlat and Tajamul Sk. were present there and was beating the said boy. Sattar Sk. challenged the accused Tajamul Sk. that why he was not beating his own son and was beating the boy of another person. This created ‘halla’. The other accused, namely, Nowresh Sk. and his son Huma Sk. and Shama Sk. also came there and accused Tajamul Sk. rebuked Sattar Sk., saying that if he assaulted Badrul, who he (Sattar) was to protest. Then on the order of accused Nowresh Sk., the accused, Leyakat Sk., Mamlat Sk., Huma Sk. and Shama Sk. hurriedly went to the informant’s verandah, caught hold the deceased and began to assault him with fists and slaps. The accused Tajamul Sk. went to his house and brought a ‘Bhala’ and he suddenly pierced the ‘Bhala’ on the right side chest of deceased Mustakim Sk. and as a result of that, the later fell down and instantly died. At the time, when ‘Bhala’ was pierced by the accused Tajamul Sk. The accused Tajamul Sk. went to his house and brought a ‘Bhala’ and he suddenly pierced the ‘Bhala’ on the right side chest of deceased Mustakim Sk. and as a result of that, the later fell down and instantly died. At the time, when ‘Bhala’ was pierced by the accused Tajamul Sk. on the chest of the deceased, the other accused persons, caught hold of the deceased and pressed him against the wall. This incident was witnessed by the parents and the brother of the deceased and other persons of the locality. After the occurrence, the informant Abdul Wahid Sk. (P.W. 4) lodged first information report before the Pakur (M) police station and P.S. Case No. 169 of 1991 was registered. Then the investigating officer took up the investigation of this case and in course of investigation, he examined the informant, recorded the statement, visited the spot, held inquest on the dead body of the deceased, prepared inquest report and sent the same for post-mortem examination, examined other witnesses, recorded their statement and arrested the accused, made seizures from the spot and upon completion of investigation, submitted charge sheet against the accused persons. 4. The appellants-accused took the plea of denial of the charges. They further submitted that they have been falsely implicated in this case, and the deceased has been killed in the darkness of the night and they have been implicated on false allegations. 5. In order to prove its case, the prosecution examined 12 witnesses. P.W. 4, Abdul Waheed Sk. is the informant of his case. He happens to be the father of the deceased and also an eye-witness to the occurrence. P.W. 1, Abdul Sattar Sk., is the younger brother of the deceased and also an eye-witness to the occurrence. P.W. 2, Khadiza Bibi happens to be the mother of the deceased and also an eyewitness to the occurrence. P.W. 3, Badrul Sk. is the boy with whom, the son of the appellant, Tajamul Sk. went to the cinema hall and after their return, he has been assaulted by the accused. P.W.5, Ketabuddin Sk., P.W. 6, Md. Ainul Haque, P.W. 9, Amrul Sk., P.W. 10, Ismail Sk., P.W. 11, Ali Sk. and P.W. 12, Auresh Sk. are the co-villagers, but, they have not supported the case of the prosecution. P.W.7, Dr. went to the cinema hall and after their return, he has been assaulted by the accused. P.W.5, Ketabuddin Sk., P.W. 6, Md. Ainul Haque, P.W. 9, Amrul Sk., P.W. 10, Ismail Sk., P.W. 11, Ali Sk. and P.W. 12, Auresh Sk. are the co-villagers, but, they have not supported the case of the prosecution. P.W.7, Dr. Bindu Bhushan has conducted the post-mortem examination on the dead body of the deceased on 25.09.1991 in the Sub Hospital Pakur. P.W. 8, Sureshwar Prasad Singh, A.S.I. attached to the Amrapara police station has stated that Saryu Prasad Singh, the investigating officer of the case has died in the meantime. He proved the formal F.I.R. and the signature of the investigating officer and also identified the case diary maintained by the investigating officer. 6. Based on the evidence led by the prosecution, especially the evidences of the eye-witnesses, being the parents and the brother of the deceased and duly corroborated by the medical evidence, the learned Additional Sessions Judge, Pakur came to the conclusion that the appellants are guilty of the offence under Section 302/34 of the Indian Penal Code, but the offence of Section 302 of the Indian Penal Code has been proved against the accused, Tajamul Sheikh. All of them were sentenced to undergo imprisonment for life. 7. In assailing the findings recorded by the learned Additional Sessions Judge, Pakur, convicting the appellants for the offence under Section 302 and 302/34 of the Indian Penal Code, the learned senior counsel, Mr. Rajeeva Sharma, assisted by Mr. Saurabh Shekhar, learned Amicus would submit that the investigating officer has not been examined in this case, thus the prosecution case has to be thrown away and the conviction has to be set aside. Terming the material evidence i.e. the narration of the eye-witnesses, P.W. 1, P.W.2 and P.W. 4 to be tainted because of close relationship with the deceased, the learned senior counsel would further submit that the recording of the conviction of the appellants are erroneous in the eye of law. It is also submitted that the appellants have not been charged under Section 302 of the Indian Penal Code but, they have been charged under Section 302/34 of the Penal Code, the appellant, Tajamul Sk. should not have been convicted under Section 302 of the Indian Penal Code. It is also submitted that the appellants have not been charged under Section 302 of the Indian Penal Code but, they have been charged under Section 302/34 of the Penal Code, the appellant, Tajamul Sk. should not have been convicted under Section 302 of the Indian Penal Code. It is therefore, argued on behalf of the appellants that they should be set at liberty, holding that their conviction to be erroneous, requiring interference. 8. Mr. Pankaj Kumar, learned A.P.P. appearing on behalf of the State would, on the other hand, submits that the evidence of eyewitnesses cannot be discarded only because of their relationship with the deceased, especially so, when their evidence is corroborated by the medical evidence and other attending circumstances of the case, like the deposition of P.W. 3. It is also brought to the notice of this Court by the learned counsel for the State that the investigating officer, having died in the meantime and the A.S.I. attached to his police station, having been examined, who has proved the F.I.R. (fard beyan) and other documents and has identified the case diary, the defence should have cross-examined the witness with respect to any contradiction that may be available on record, as far the eyewitnesses are concerned and, therefore, the learned counsel for the State would submit that the appeal should be dismissed. 9. In case involving the offence of culpable homicide, amounting to murder, the first and foremost duty of the prosecution is to prove that the death of the deceased was homicidal in nature. In this case, the evidence of P.W.7, Dr. Bindu Bhushan is very important. He has stated on oath that on 25.09.1991, he was posted as CAS at Sub-Hospital, Pakur. On that day, he held post-mortem examination on the dead body of the deceased, Muystakim Seikh, aged about 30 years, S/o Abdul Waheed of village-Ishakpur, P.S.-Pakur (M), Dist. Pakur. The dead body was identified by Constable No. 70, named Sravan Kumar. In course of such post-mortem examination, he found the following ante mortem injury:- “(i) A sharp cut penetrating would of 1”x1/2” x visceral depth, fracture of 4th and 5th right ribs puncturing right lungs and liver and huge amount of intra thorarin vacity with full of antemortem blood. On opening the abdomen stomach contained liquid, small and large intestine contained gas and fecal material. On opening the abdomen stomach contained liquid, small and large intestine contained gas and fecal material. Both kidneys were pale, spleen pale, bladder empty, heart empty and pale. On opening the scull brain was pale.” In his opinion cause of death was due to severe blood loss and injury to lung and liver. He has proved the post-mortem report (Ext.-2). He has further opined that the death took place between 10 to 20 hours from the time of post-mortem examination. He has further submitted that the bowel contained liquid diet. He has also stated that the direction of the penetration of wound was down ward because the liver was damaged. This witness has not been cross-examined by the defence, though opportunity was afforded to the learned defence counsel. Thus, it is clear that the death of the deceased is because of extensive internal hemorrhage, because of the injuries caused to the lungs and liver. The injury is possible by sharp cutting weapon. Thus, we agree with the implied finding of the learned Additional Sessions Judge that the death of the deceased was definitely homicidal in nature. The learned trial judge has not recorded a specific finding but from the tenor of the judgment impugned, it is clear that he has proceeded with the fact of homicidal nature of death of the deceased. 10. In order to examine, whether the prosecution has proved its case beyond reasonable doubt and whether the learned Additional Sessions Judge has come to the conclusion of guilt of the appellant is correct and not erroneous, we have to thoroughly examine the evidences of the three eye-witnesses. P.W. 1, Abdul Shakur Sk. is the younger brother of deceased Mustaque is an eye witness of the occurrence. In para 1 of his deposition, he specifically stated that the accused Leyakat Sheikh caught hold one hand of his brother and other hand was caught hold by Mamlet Sheikh and Tajamul pierced a spear in the left side of the rib of his brother and because of that, his brother died in five minutes. P.W. 2, Khadija Bibi is the mother of the deceased and is an eye-witness of the occurrence. She deposed in para 1 of her deposition that on the direction of accused Naresh Sk., Leyakat Sheikh, son of late Tayub Sk., Mamlet Sheikh, son of late Tayub Sk., Humayun Sheikh @ Huma Sk. P.W. 2, Khadija Bibi is the mother of the deceased and is an eye-witness of the occurrence. She deposed in para 1 of her deposition that on the direction of accused Naresh Sk., Leyakat Sheikh, son of late Tayub Sk., Mamlet Sheikh, son of late Tayub Sk., Humayun Sheikh @ Huma Sk. son of late Naresh Sk. and Samayun Sheikh @ Shama started beating his son Mustakim and other persons were holding him and then Tajamul pierced a spear on the right side of his chest, which resulted in his death within three minutes. P.W. 4, Abdul Wahid Seikh, father of the deceased, Mustakim has deposed that on the direction of accused Naresh Sk., Leyakat Sheikh, Mamlet Sheikh, Humayun Sheikh @ Huma Sk. and Samayun Sheikh @ Shama pressed his son Mustakim towards the wall and then Tajamul pierced a spear on the chest of his son, which resulted in his death within five to seven minutes. 11. P.W.4, the informant has stated that the blow was given by the appellant Tajamul Sheikh on the chest of the deceased. He has not specified, which part of the chest, nor was it stipulated in the cross-examination regarding the part of the chest, which happens to be the seat of the injury. The only contradiction that is appearing is that P.W. 1, Abdul Shakur Sk., the brother of the deceased had stated that the accused Tajamul Sheikh pierced the spear on the left side of the rib of his brother, whereas, his mother, P.W. 2, Khadija Biwi stated that the said appellant pierced a spear on the right side of his chest. The only contradiction that is appearing is that P.W. 1, Abdul Shakur Sk., the brother of the deceased had stated that the accused Tajamul Sheikh pierced the spear on the left side of the rib of his brother, whereas, his mother, P.W. 2, Khadija Biwi stated that the said appellant pierced a spear on the right side of his chest. In view of the clear evidence of P.W. 1, P.W. 2 and a categorical finding arrived at by the Doctor, conducting post-mortem examination, this Court is of the opinion that the small variation should not be given much weightage that it is settled principle of law of appreciation of evidence that witnesses, while speaking about the incident may make a minor small contradictions and in such a situation, it is the duty of the Court to shift the evidence, separate the grain from the chaff and look for nuggets of truth, when the nuggets of truth are available on record, then the Court, if it considers that the chaff had not inextricably mixed with the grain, then it can accept the grain or the nuggets of the truth and record a conviction based on such evidence. In this case, the evidence of P.Ws.1, 2 and 4 are very clear. They have been cross-examined at length, but there is no material contradiction in their witnesses. They happen to be parents of the deceased, but that itself will not make them untruthful witness. In this case, the rule of law is very settled in the sense that a close relation shall not resort to falsity and implicate an innocent person or persons, thereby sparing the real culprits. The only requirement of law is that the Court deciding such a case, based on evidence of close relatives of the deceased should consider and examine the evidence to find out whether it has a ring of truth in it, but, merely because they are relations of the deceased, their evidence cannot be negated right from the beginning. 12. The only requirement of law is that the Court deciding such a case, based on evidence of close relatives of the deceased should consider and examine the evidence to find out whether it has a ring of truth in it, but, merely because they are relations of the deceased, their evidence cannot be negated right from the beginning. 12. In that view of the matter, this Court is of the opinion that the learned Additional Sessions Judge, who had the opportunity of observing the demeanor of the witnesses, while their evidence were being recorded, has come to the conclusion that they are reliable witnesses, especially in view of the fact that their evidence has been corroborated by the medical evidence, this Court finds no reasonable cause to interfere in the findings recorded by the learned trial judge. Moreover, the determination of the issues to the criminal trial regarding the guilt and those of appreciation of evidence by a trial court must in the alternative, ultimate analysis based upon the robust common sense and trained intuition of the learned Trial Judge. Only in cases, wherein, the appreciation is manifestly perverse, it should be set aside by the appellate court and we find no such inherent perversity in appreciation of evidence in this case by the learned Trial Judge. The judgment rendered by the learned Additional Sessions Judge is an appropriately reasoned one and he has appreciated the evidence in proper manner, therefore, there is no need to interfere with the findings that the appellant Tajamul Sheikh having given the fatal blow on the chest of the deceased. 13. Another aspect that has been raised by the learned Amicus for the appellant is that the Investigating Officer has not been examined in this case and therefore, it is submitted that the case should be thrown out. This issue is no more res integra. In several cases, the Hon’ble Supreme Court has held that there is no inflexible rule of law that if the Investigating Officer is not examined in case the prosecution case should fail. 14. We take note of few of the cases to buttress our opinion. In the case of Behari Prasad Vs. This issue is no more res integra. In several cases, the Hon’ble Supreme Court has held that there is no inflexible rule of law that if the Investigating Officer is not examined in case the prosecution case should fail. 14. We take note of few of the cases to buttress our opinion. In the case of Behari Prasad Vs. State of Bihar, (1996) 2 SCC 317 , the Hon’ble Supreme Court has held that it is not correct to contend that if an Investigating Officer is not examined in a case, such a case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and bring out contradictions in their statements before the police. A case of prejudice is likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that the non-examination of Investigating Officer per se vitiates a criminal trial. 15. In the case of Ram Gulam Chaudhary Vs State of Bihar, (2001) 8 SCC 311 , the Hon’ble Supreme Court held that in that case non-examination of the Investigating Officer has caused no prejudice at all to the accused. It is so because there were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. 16. In the case of Raj Kishore Jha Vs. State of Bihar, (2003)11 SCC 519 , the Hon’ble Supreme Court has held that mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In that case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, it was held that it was not a fit case which can be stated to have caused any prejudice to the accused on account of Investigating Officer's non-examination. 17. Thus, the effect of non-examination of the Investigating Officer definitely depends upon the facts of a particular case. In this case, no contradiction pointed out by the defence in the testimony of any of the eye witnesses which are substantial in nature which could have been confronted to the Investigating Officer. 17. Thus, the effect of non-examination of the Investigating Officer definitely depends upon the facts of a particular case. In this case, no contradiction pointed out by the defence in the testimony of any of the eye witnesses which are substantial in nature which could have been confronted to the Investigating Officer. Moreover, not even suggestion has been given to any of the witnesses that the non-examination of the Investigating Officer has caused prejudice to the accused appellant. Learned Amicus has also failed to point out any specific reason or cause for coming to the conclusion that non-examination of the Investigating Officer has caused serious prejudice to the appellant. 18. The non-examination of the deceased Investigating Officer, Swaroop Prasad Singh, who recorded the F.I.R. and investigated this case was because he died during pendency of the trial. The F.I.R. and other documents in the hand writing of the Investigating Officer has been proved by P.W.8, Sureshwar Prasad Singh, A.S.I., Amrapara Police station in the district of Pakur. Whether the non-examination of the Investigating Officer will definitely result in throwing of the prosecution case, depends upon the facts of each case. Only when it is shown that by non-examination of the Investigating Officer, the defence has suffered irreparable prejudice, then only the prosecution case should be jettisoned. Hence, on that ground, the appeal cannot be allowed. Moreover, we see that the non-examination of the Investigating Officer has not caused any prejudice to the appellants. That being the case, we are not able to agree with the submissions made by Mr. Rajeeva Sharma, learned senior counsel appearing for the appellant. 19. The last argument was advanced by Mr. Saurabh Shekhar, learned Amicus in Cr. Appeal (DB) No. 234 of 1995. He submitted that this is not a case of culpable homicide, but it is a case of culpable homicide, not amounting to murder and therefore, the charge of Section 302 of the Indian Penal Code is not made out, rather, as submitted by the learned senior counsel, Mr. Rajeeva Sharma as well as the learned Amicus, Mr. Saurabh Shekhar that at best the offence of Section 304 Part I or Part II can be made out. Rajeeva Sharma as well as the learned Amicus, Mr. Saurabh Shekhar that at best the offence of Section 304 Part I or Part II can be made out. We have considered this argument very carefully and in our opinion, though the incident took place, arising out of a petty quarrel over the appellant Tajamul Sheikh’s son remaining absent from house to see a movie in the nearby town it cannot be said that the appellant Tajamul Sheikh did not act in a cruel and unusual manner, exception 4 to Section 300 of the Penal Code reads as follows:- “Section 300 Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” 20. In case, whether the occurrence takes place in a heat of passion without the offender making preparation for committing the offence, the Court may hold that the offence under Section 304 of the Penal Code is made out. However, in this case, when the incident started, that is the appellant Tajamul Sheikh was tying the two boys to the cart and assaulting one of them and abusing him, which was protested by the deceased. The appellant went back to his house, brought out a spear and the co-accused, present caught hold of the deceased and pressed him against the wall, thereby giving a freedom to the appellant, Tajamul Sheikh to pierce the spear on the right side of the chest of the deceased, which led to his death, because of puncture injuries to the lungs and liver, which resulted in a huge hemorrhage. Thus, this Court is of the opinion that this is where the appellant made preparation in the sense that he had brought out a spear and committed the murder of the deceased. Thus, we are not inclined to uphold the contentions raised by the learned counsel for the appellant. Another aspect, which is brought to our notice, is that the appellant Tajamul Sheikh was convicted under Section 302/34 of the Indian Penal Code. It is, therefore, argued that in the absence of a specific charge against the appellant Tajamul Sheikh under Section 302 of the Indian Penal Code separately is illegal. 21. Another aspect, which is brought to our notice, is that the appellant Tajamul Sheikh was convicted under Section 302/34 of the Indian Penal Code. It is, therefore, argued that in the absence of a specific charge against the appellant Tajamul Sheikh under Section 302 of the Indian Penal Code separately is illegal. 21. However, Section 464 of the Code of Criminal Procedure, 1973 provides as follows:- “464. Effect of omission to frame, or absence of, or error in, charge (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trail to be had upon a charge framed in whatever manner it thinks fit; Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 22. Thus, when the appellant has been tried for committing the murder of the deceased on the fateful night of 21.07.1995, because of the spear blow has been given on the right side of the chest of the deceased, we are of the opinion that a minor mistake in framing of charge will not vitiate the trial and, therefore, we find no merit in the appeal, as all the contentions raised by the learned counsel for the appellant, fails to hold any water. 23. In the result, both the appeals (Cr. Appeal (DB) No. 234 of 1995 (P) with Cr. Appeal (DB) No. 284 of 1995 (P) are dismissed, being devoid of any merit. The conviction of the appellants, as stated above and the consequential sentence are, hereby, confirmed. 23. In the result, both the appeals (Cr. Appeal (DB) No. 234 of 1995 (P) with Cr. Appeal (DB) No. 284 of 1995 (P) are dismissed, being devoid of any merit. The conviction of the appellants, as stated above and the consequential sentence are, hereby, confirmed. The appellants are stated to be on bail. They are directed to appear before the learned Sessions Judge, Pakur to serve out rest of their sentences within 30 days, hence. 24. Let a copy of the judgment along with the trial court records be sent back to the court of the learned Additional Sessions Judge, Pakur for initiation of appropriate recomittal procedure.