JUDGMENT : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD 1. The instant appeal has been preferred under Section 374(2) of the Code of Criminal Procedure against the Judgment of conviction dated 09.02.2017 and Order of sentence dated 10.02.2017, passed by learned District & Additional Sessions Judge-III, Dumka, in Sessions Trial No.181 of 2012, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code and upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and fine of Rs.25,000/- and in default of payment of fine, further S.I. for three months. 2. The prosecution case was instituted on the basis of fardbeyan of the informant, namely, Parbatiya Devi, alleging therein that the first marriage of her elder sister Shivratiya Devi (deceased) was solemnized with Kamu Singh and three children were born out from his first husband. The second marriage of her sister was solemnized eight years ago with Sukhdeo Bhandari and a female child was born who is aged about 07 years and the second child is aged 02 years. 3. It has further been alleged that the marriage of her sister with Sukhdeo Bhandari was solemnized eight years ago and after marriage he kept her sister properly for one year and after one year he started to assault and quarrel with her regularly. 4. It has also been alleged that yesterday, i.e., on 14.02.2011, when the informant was at her mother's house at Gopikandar then in the evening at about 7:30 p.m. wife of Bishnu Rai came and told to the mother of informant to go to the house of her daughter Shivratiya Devi, where her husband has burnt her. At that time the informant was there so her mother told her to go to the house of Shivratiya and inquire about the matter. When the informant was going to the house of her sister Shivratiya Devi from the house of her mother, on the way she came to know from the people that the villagers of her sister's village have taken her sister to Gopikandar Hospital. When the informant was going to the house of her sister Shivratiya Devi from the house of her mother, on the way she came to know from the people that the villagers of her sister's village have taken her sister to Gopikandar Hospital. She reached the Hospital where the female child of her sister's first husband Payal Kumari told that her father Sukhdeo Bhandari has burnt her mother by setting fire and this occurrence has taken place on 14.02.2011 at about 6:00 p.m. 5. It has been further alleged that the informant had taken her sister with the help or villagers to Sadar Hospital, Dumka for her treatment where during treatment she died on 15.02.2011 and the informant has claimed that Sukhdeo Bhandari has killed her sister (deceased Shivratiya Devi) by setting the fire. 6. On the basis of the fardbeyan of informant dated 15.02.2011, Gopikandar P.S. Case No. 05/2011 dated 16.02.2011 has been registered U/s 302 of the Indian Penal Code against accused Sukhdeo Bhandari. 7. After completion of investigation, the Investigating Officer has submitted charge-sheet No. 19/2011 dated 01.06.2011 against the accused Sukhdeo Bhandari U/s 302 of the IPC. 8. Accordingly, the cognizance for the offence under the aforesaid section was taken against the above named accused and the case was committed to the Court of Sessions on 05.12.2012. 9. On 20.05.2013, the charge under sections 302 I.P.C was framed against the accused, namely, Sukhdeo Bhandari, to which he pleaded not guilty and claimed to be tried. 10. In order to prove its case, the prosecution has examined 11 witnesses, namely, PW. 1 Payal Kumari (daughter of the deceased), PW. 2 Bhawani Mirdha, PW. 3 Nimbulal Mandal, PW. 4 Parbati Devi (sister of the deceased and informant of this case) and PW. 5 Dr. Kumar Bagish (who has conducted autopsy on the dead body of Shibratiya Devi). 11. The statement of the accused was recorded under section 313 of the Criminal Procedure Code wherein he has denied the evidence against him. No evidence was adduced by the defence. 12. The trial Court, after evaluating the evidence of prosecution witnesses found the charges levelled against the appellant proved. 13. Accordingly, the appellant has been found guilty under section 302 of IPC, as such convicted and sentenced vide impugned Judgment of conviction dated 09.02.2017 and Order of sentence dated 10.02.2017, which is the subject matter of instant appeal. 12. The trial Court, after evaluating the evidence of prosecution witnesses found the charges levelled against the appellant proved. 13. Accordingly, the appellant has been found guilty under section 302 of IPC, as such convicted and sentenced vide impugned Judgment of conviction dated 09.02.2017 and Order of sentence dated 10.02.2017, which is the subject matter of instant appeal. Grounds on behalf of the Appellant 14. Mr. Durga Charan Mishra, learned counsel for the appellant, has taken the following grounds in assailing the impugned order of conviction: - (i) This is a case where the prosecution has miserably failed to establish the case due to the reason that conviction is based upon the sole testimony of PW1, who happens to be the minor female child of the age of about 07 years, as such, the testimony of PW-1 cannot be said to be trustworthy attracting the conviction against the appellant. (ii) Since as per the prosecution version the burn injury to the deceased was to the extent of 65% and there is no report of the Doctor examining the deceased at the time when she was taken to hospital for the purpose of providing treatment so as to assess her mental status or consciousness to say about the occurrence. (iii) Due to the non-examination of the Investigating Officer, the appellant has seriously been prejudiced since the vital contradiction has not been taken. (iv) PW-4 has testified in her testimony that her sister (deceased) before her death had told her that after abusing her, Sukhdeo has burnt her after pouring kerosene oil upon her but burning is to the extent of 65%, then it is quite impossible to utter a word regarding the cause of burn injury, as such, the prosecution story has no legs to stand. (v) The conviction is based upon the testimony of P.W.1 Payal Kumari and the informant PW-4 Parbati Devi, who are highly interested witnesses and, as such, conviction since is based upon highly interested witnesses, cannot be said to be justified since even though it has come in the testimony that local people had arrived at the place of occurrence and two of them have been examined but both of them have been declared hostile. Therefore, since the conviction is based solely upon the testimony of the interested witnesses, the conviction based upon the same, cannot be said to be sustainable in the eyes of law. Therefore, since the conviction is based solely upon the testimony of the interested witnesses, the conviction based upon the same, cannot be said to be sustainable in the eyes of law. (vi) Learned counsel has further taken the ground that no any independent witness has been examined by the prosecution in this case. 15. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that judgment of conviction is not sustainable in the eyes of law and hence, the instant appeal may be allowed by quashing and setting aside the judgment of conviction. Grounds on behalf of the State 16. Per contra, Mr. Pankaj Kumar, learned Public Prosecutor, appearing for the respondent State, has defended the impugned judgment of conviction on the following grounds :- (i) The PW-1 cannot be said to be not a trustworthy witness merely because she was of the tender age is totally misplaced on the ground that the requirement as under Section 118 of the Evidence Act has already been taken into consideration which would be evident from the very first line of the testimony of PW-1 as recorded by the concerned trial court. (ii) The testimony of PW-1 as per the narration of the story is that she had seen the appellant pouring the kerosene oil from behind of the deceased and thereafter set her on fire. (iii) In the cross examination also, the PW-1 has remained consistent with respect to the version that the appellant has caused burn injury upon the deceased. (iv) Merely because the Doctor has not examined the deceased at the time when she was carried to the Hospital that whether she was in a position to say something when she was said to be having 65% burn injury, the prosecution case will not vitiate. (v) The testimony of PW-1 is also corroborated from the testimony of PW-4 who has also supported the prosecution version based upon the disclosure so made by the deceased in Hospital about the commission of offence by the appellant. 17. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. Analysis 18. 17. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. Analysis 18. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses as well as the other documents available in the lower court records. 19. This Court is required to answer the following issues: - (i) Whether the judgment passed by the learned trial court convicting the appellant can be said to be justified? (ii) Whether the trial court is correct to rely upon the testimony of the sole eye witness who is in her tender age in reaching out the conviction of the appellant? 20. Since all the issues are interlinked, they are being considered together and being answered hereinafter. But before considering the aforesaid issues, the testimony of the witnesses are required to be referred herein which reads hereunder as: - PW-1 Payal Kumari is the daughter of the deceased. She has deposed in her examination-in-chief that about three years ago she was with her mother Shivratia Devi. In the night, Sukhdeo Bhandari poured kerosene oil on her mother from the back side and set her on fire and her mother started to burn. Then her mother jumped into the "Nad" which was full of water. She has further stated that when she cried then people came and took her mother to hospital by thela (cart) where her mother died. This witness has identified the accused in the court. In her cross-examination she has stated that except her younger brother no other person was present there. She has further stated that she was with her mother and she went there on the asking of Rita Devi. Rita Devi had told her that quarrel is going on between her parents. She has further stated that the accused had lit the fire in her presence. She has further stated in para 4 of her crossexamination that after the occurrence many persons were gathered but she was not able to tell their names. She has further stated that Chhotua and Bishnu had taken her mother to Hospital by thela (cart). They had come on hearing hulla. She has further stated in para 4 of her crossexamination that after the occurrence many persons were gathered but she was not able to tell their names. She has further stated that Chhotua and Bishnu had taken her mother to Hospital by thela (cart). They had come on hearing hulla. PW-2 Bhawani Mirdha - He has stated in his examination-in-chief that the occurrence took place 2½ years ago and he was not at his house. He has deposed on the next day he had gone there where people said something and other persons said other thing and Police has not recorded his statement. This witness has declared hostile by the prosecution. In his cross-examination by the prosecution, he denied the suggestions given by the prosecution and stated that he has not seen the occurrence. PW-3 Nibulal Mandal - He has stated in his examination-in-chief that the occurrence took place 2½ years ago and he has no knowledge about the occurrence. This witness has been declared hostile by the prosecution. In his cross-examination by the defence he has stated that accused person is villager and he has not heard about the occurrence. PW-4 Parbati Devi – This witness is informant of this case and sister of the deceased. She has stated in her examination-in-chief that the occurrence took place 2½ years ago and she was at her house with her mother. This witness has further stated that Bishnu came at about 7 O'clock and informed that her sister Shivratiya Devi has been killed by her husband Sukhdeo Bhandari by setting her on fire. When she was going to see her sister, on the way, she came to know that her sister has been taken to hospital and when she reached hospital, she saw her sister in burnt condition at Gopikandar. She has further stated that her sister told her that after abusing her, Sukdheo has burnt her after pouring kerosene oil upon her. She has further stated that the quarrel was going on for the last one year between them. She has further stated that she taken her sister to Sadar Hospital where she died on the next day. This witness has identified the accused present in the court. In her cross-examination, she has stated in para 3 that her sister has two children with Sukhdeo and Bishnu is resident of Gopikandar, who is brother in relation of Naihar. She has further stated that she taken her sister to Sadar Hospital where she died on the next day. This witness has identified the accused present in the court. In her cross-examination, she has stated in para 3 that her sister has two children with Sukhdeo and Bishnu is resident of Gopikandar, who is brother in relation of Naihar. She has further stated that she had taken the dead body to her Naihar, where funeral was performed. In para 5, she denied that her sister has burnt herself and accused has not burnt her. PW-5 Dr. Kumar Bagish He is the Doctor who had conducted autopsy on the dead body of the deceased. He has stated in his examination-in-chief that on 15.02.2011 he was posted as Medical Officer at Sadar Hospital, Dumka and on that day he conducted autopsy on the dead body of Shibratiya Devi, W/o Sukdeo Bhandari aged about 35 years and found burn injury 65%, involving whole body including chest, abdomen, thigh, back of chest, genitalia second degree. In his opinion the death of the deceased was due to hypovolemic shock as a result of extensive burn injury. Time elapsed since death was within 24 hours. This witness has identified the post-mortem report which bears his own pen and signature, which is marked as Ext.1. In his cross-examination, he has stated that the injury which was found on the person of the deceased may be self-inflicted. 21. Learned trial court, based upon the testimonies of eye witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellant under Section 302 of Indian Penal Code and sentenced to undergo R.I. for life. 22. This Court is now proceeding to examine as to whether the testimony of PW-1 can be said to be trustworthy or not as has been argued on behalf of the appellant since she was only 07 years of age. 23. It is evident from the testimonies of the witnesses, particularly, PW-1, Payal Kumari (daughter of the deceased) that she has specifically deposed about witnessing the commission of offence. She remained consistent even in the cross examination. 24. 23. It is evident from the testimonies of the witnesses, particularly, PW-1, Payal Kumari (daughter of the deceased) that she has specifically deposed about witnessing the commission of offence. She remained consistent even in the cross examination. 24. So far as the admissibility of the evidence of PW-1 on the ground of age is concerned, this Court has found from the deposition of PW-1 wherein the very first line which has been taken note about the mental consciousness of the PW-1 which suggests and clarifies that the learned trial court has taken care of Section 118 of the Evidence Act. 25. Further, no question has been put to that effect on behalf of the defence to show the unreliability of the said testimony on this count. 26. It is further evident that the PW-1 has deposed that from behind the kerosene oil was poured by the appellant upon the deceased was set at fire which evidence has also been clarified by the testimony of the Doctor who has found the extensive burn injury on the chest. 27. The nature of injury in the back portion of the chest, according to our considered view, is in corroboration to the testimony of PW-1 Payal Kumari (daughter of the deceased) who has deposed that fire was set from behind the back after pouring kerosene oil. Therefore, the testimony of PW-1 has been corroborated by the testimony of the Doctor. 28. Further, another witness, i.e., PW-4 Parbati Devi, who is sister of the deceased, has deposed that when she had visited the hospital to see her sister (deceased), her sister told her that after pouring kerosene oil upon her, Sukdheo has burnt her. Therefore, the testimony of PW-1 finds corroboration from the testimony of PW-4, Parbati Devi. 29. This Court, before proceeding further, deems it fit and proper to refer the judicial pronouncement regarding admissibility of the evidence of interested witnesses as has been argued on behalf of the prosecution. 30. The Hon'ble Apex Court in the case of Mallanna and Others v. State of Karnataka reported in (2007) 8 SCC 523 has been pleased to hold that the evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility then the Court can disbelieve the same. 31. 31. In Kulesh Mondal v. State of West Bengal reported in (2007) 8 SCC 578 , the Hon'ble Apex Court has held at paragrqaph 10 which read hereunder as :- 11. “10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab [ AIR 1953 SC 364 ] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) ‘25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [1951 SCC 1213]. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.’ 11. Again in Masalti v. State of U.P. [ AIR 1965 SC 202 ] this Court observed : ‘14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.’ 12. To the same effect is the decision in State of Punjab v. Jagir Singh [ (1974) 3 SCC 277 ], Lehna v. State of Haryana [ (2002) 3 SCC 76 ] …. To the same effect is the decision in State of Punjab v. Jagir Singh [ (1974) 3 SCC 277 ], Lehna v. State of Haryana [ (2002) 3 SCC 76 ] …. As observed by this Court in State of Rajasthan v. Kalki [ (1981) 2 SCC 752 ] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [ (2002) 6 SCC 81 ] .” [Bhargavan v. State of Kerala, (2004) 12 SCC 414 ].” 32. In Masalti & Others v. State of Uttar Pradesh reported in AIR 1965 SC 202 , the Hon'ble Apex Court has held as under paragraph 14 which reads hereunder as:- “14. Mr Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prove to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 33. The Hon'ble Apex Court in the case of Dalip Singh & Others v. State of Punjab reported in AIR 1953 SC 364 has held at paragraph 26 which reads hereunder as :- “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 34. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 34. In Guli Chand and Others v. State of Rajasthan reported in (1974) 3 SCC 698 wherein Vadivelu Thevar v. State of Madras reported in 1957 SCR 98 has also been relied upon wherein it has been held that mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. For ready reference, paragraph 11 of the aforesaid judgment is quoted hereunder as:- “11. The High Court had certainly given sufficiently good reasons for distrusting the evidence of witnesses who did not belong to village Timava although, even out of these, Shri Das, PW 1, and Basantilal, PW 2, are mentioned in the FIR, Courts have held that the testimony of a chance witness, although not necessarily fake, is proverbially unsafe. In the case before us, however, there is the evidence of Banwarilal, PW 7, son of the deceased, and of Lohde PW 6, who seems to belong to the party of Brijmohan, as well as of Champoli, PW 5, who are residents of village Timava. It has been held by this Court that the mere fact that a witness is a relation or a victim is not sufficient to discard his testimony. In Dalip Singh v. State of Punjab, [ AIR 1953 SC 364 ] this Court said: “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 35. This is not to say that in a given case, a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.” 36. It is, thus, evident that mechanical rejection of testimony of witnesses who are related to deceased is not permissible. However, the evidence of such witnesses should be examined minutely and this Court is now proceeding to examine the testimony of P.W.1 and P.W.4 as to whether they are highly interested witnesses by taking into consideration the testimony of these witnesses. 37. It is evident that the P.W.1 Payal Kumari has fully supported the prosecution version by stating that from behind the kerosene oil was poured by the appellant and the deceased was set at fire. 38. PW-4 Parbati Devi, who is sister of the deceased, has deposed that when she had visited the hospital to see her sister (deceased), her sister told her that after pouring kerosene oil upon her, Sukdheo, the appellant herein, has burnt her. Therefore, the testimony of PW-1 finds corroboration from the testimony of PW-4, Parbati Devi. 39. The prosecution has considered P.W.1 Payal Kumari to be the eye witnesses basis upon which the impugned judgment has been passed. 40. This Court, on the basis of consideration of testimonies of P.W.1 Payal Kumari has found that this witness has supported the prosecution version since she, in specific term, has stated that after pouring kerosene oil the deceased was set at fire by the appellant. 41. Learned counsel for the appellant has further argued that Investigating Officer has not been examined by the prosecution in this case which has cause serious prejudice to the appellant. 42. 41. Learned counsel for the appellant has further argued that Investigating Officer has not been examined by the prosecution in this case which has cause serious prejudice to the appellant. 42. Admittedly, the investigating officer has not been examined in this case by the prosecution but it is settled principle of law that when the statement of the witnesses and the evidence produced by the prosecution are trustworthy and reliable then this lacuna cannot have any fatal effect, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Bahadur Naik v. State of Bihar, (2000) 9 SCC 153 , for ready reference, the relevant paragraph is being quoted hereunder as:- “2. The appellant has not been able to shake the credibility of the eyewitnesses. No material contradiction in the case of the prosecution has been shown to us. Under these facts and circumstances, the non-examination of the investigating officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination.” 43. Similarly, the Hon'ble Apex Court in the case of Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 has reiterated the same view at paragraph 30 which is being quoted and referred hereunder as :- “30. In our view, in this case also nonexamination of the investigating officer has caused no prejudice at all. All that Mr Mishra could submit was that the examination of the investigating officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The investigating officer was not an eyewitness. The body had already been removed by the appellants. The investigating officer, therefore, could not have given any evidence as to the actual place of occurrence. 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 led to any prejudice to the appellants. We, therefore, see no substance in this submission.” 44. Another argument is that no independent witness has been examined by the prosecution. Their evidence cannot be discarded merely because the investigating officer was not examined. The non-examination of the investigating officer has not led to any prejudice to the appellants. We, therefore, see no substance in this submission.” 44. Another argument is that no independent witness has been examined by the prosecution. It has been contended that as per prosecution version, the deceased was taken to the hospital with the help of some people who had gathered there on the crying of PW-1 they have not been examined in order to take corroboration of the occurrence. 45. The position of law is well settled as has been held by Hon'ble Apex Court in Sarwan Singh and Others v. State of Punjab reported in (1976) 4 SCC 369 wherein it has been laid down that non-examination of independent witness when said to be fatal and what is necessary for proving the prosecution case is not quantity but quality of evidence. For ready reference paragraph 13 of the said judgment is quoted hereunder as:- “13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the “pakodewalla”, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion the comments of the Additional Sessions Judge are based on serious misconception of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore nobody wants to be a witness in a murder or in any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes. So far as “pakodewalla” and hotelwalla etc. are concerned there is positive evidence to show that they were interrogated by the police but they expressed ignorance about the occurrence. They may have proceeded to their village homes. So far as “pakodewalla” and hotelwalla etc. are concerned there is positive evidence to show that they were interrogated by the police but they expressed ignorance about the occurrence. In this connection the evidence of PW 5 Harnek Singh clearly shows that the Investigating Officer interrogated the hotelwalla and the “pakodewalla” but they stated before him that they had not witnessed the occurrence. In these circumstances, therefore, there was no obligation on the prosecution to examine such witnesses who were not at all material. It is not a case where some persons were cited as eyewitnesses by the prosecution on material points and were deliberately withheld from the court. For these reasons, therefore, the learned Additional Sessions Judge was not at all justified in raising an adverse inference against the prosecution case from this fact and the High Court was right in rejecting this part of the reasoning adopted by the learned Additional Sessions Judge.” 46. The Hon'ble Apex Court has been pleased to observe therein that due to non-examination of independent witness, the prosecution case will not be vitiated if the other testimonies are there in corroboration to the prosecution story with no inconsistency and nothing has been pointed out to discredit their testimonies. 47. Here, in the facts of the given case, it is evident from the testimonies of P.W.1 and P.W.4 taken together with the testimonies of P.W.5 (Doctor), that the prosecution version has been corroborated and, as such, even though the independent witnesses have not been examined, the testimonies of P.W.1 and P.W.4 corroborated by the Doctor PW-5, cannot be discarded. 48. The ground as has been agitated that due to non- examination of independent witnesses the prosecution has failed to prove the prosecution story, according to our considered view, is having no substance and the same is accordingly rejected. 49. This Court, in order to appreciate the submission advanced on behalf of all the appellant with respect to the evidences adduced on behalf of the prosecution, deems it fit and proper to refer the provision of Section 106 of the Evidence Act, because when the alleged occurrence had taken place at that time appellant/ accused was with the deceased in his house and, as such, onus is upon him to explain that in which the circumstances the occurrence had taken place. 50. 50. In this context the statutory provision as contained in Section 101 to 105 of the Evidence Act is required to be referred herein. It is stipulated in the aforesaid Sections that the burden of proving the charge is upon the prosecution and only in case the prosecution will be able to prove the case beyond all reasonable doubt, then only the judgment of conviction can be passed but the exception has been carved out under Section 106 of the Evidence Act whereby and whereunder it has been provided that there will be reverse onus upon the accused person to disprove what has been alleged. 51. In this context, it also requires to refer herein that onus to disprove the guilt lies on the accused persons in view of provision as contained under Section 106 of the Indian Evidence Act, 1972, which reads as under:- “106.Burden of proving fact especially within knowledge. – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 52. In this context, the Hon’ble Apex Court in the judgment rendered in Joshinder Yadav Vs. State of Bihar reported in (2014) 4 SCC 42 held at paragraphs 16, 17, 18 considering the implication of the provision of Section 106 of the Evidence Act has held as under:- “16. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The burden which had shifted to the accused was not discharged by them. In this connection, we may usefully refer to the judgment of this Court in [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] wherein this Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus : (AIR p. 406, paras 10-11) “10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. Relevant portion of the said judgment reads thus : (AIR p. 406, paras 10-11) “10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. ‘101.Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.’ Illustration (a) says— ‘A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.’ This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience.” 17. In Balram Prasad Agrawal v. State of Bihar [ (1997) 9 SCC 338 ] the prosecution had established the cruel conduct of the accused i.e. her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. This Court observed that what happened on the fateful night and what led to the deceased's falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. This Court observed that it is true that the burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread over years as was well established from the unshaken testimony of father of the deceased, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 ] . 18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water.” 53. Further, reference, in this regard be made to the judgment rendered in Tulshiram Sahadu Suryawanshi & Anr Vs. State of Maharashtra reported in (2012) 10 SCC 373 at paragraph 22 held as under:- “22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the three accused. In other words, the appellants, their son A-3 and the deceased were the only occupants of the house and it was, therefore, incumbent on the appellants to have tendered some explanation in order to avoid any suspicion as to their guilt. All the factors referred above are undoubtedly circumstances which constitute a chain even stronger than the account of an eyewitness and, therefore, we are of the opinion that conviction of the appellants is fully justified.”. 54. The position of law as per the provision of Section 101 to Section 105 of the Evidence Act is very explicit wherein the burden will lie upon the prosecution to prove the charge beyond all shadow of doubt but in certain circumstances the onus will shift upon the accused to disprove the commission of crime. 55. 54. The position of law as per the provision of Section 101 to Section 105 of the Evidence Act is very explicit wherein the burden will lie upon the prosecution to prove the charge beyond all shadow of doubt but in certain circumstances the onus will shift upon the accused to disprove the commission of crime. 55. It is evident from the record that the present case is based upon the testimony of the sole eyewitness PW1 who is the daughter of deceased who had categorically testified that in the night, Sukdeo Bhandari poured kerosene oil on her mother from the back side and set the fire and her mother began to burn and her mother jumped into the “Nad” which was full of water. PW.4 has testified that when she reached at Gopikandar Hospital then her sister(deceased)told her that after abusing her Sukdheo has burn thereafter pouring kerosene oil upon her. Admittedly they are daughter and sister of the decease but their testimonies are reliable and trustworthy in respect of the alleged occurrence. 56. Further Dr. Kumar Bagish (PW5) has also found 65% burn injury on the body of the deceased and in his opinion the death of deceased was due to hypovolemic shock as an extensive burn injury on the body of the deceased. 57. From perusal of entire material on record, I find that there is one eyewitness of the instant case and though she is minor female child and the trial court has also certified that the witness understands the question put to her and replied properly. She has specifically stated that Sukhdeo Bhandari poured kerosene oil upon her mother from the back side and set on fire. Further she was cross-examined at length and was consistent in her statements, so is entirely believable and there is no reason forthcoming as why she cannot be believed. Thus, her evidence is reliable and trustworthy. 58. In this context it is pertinent to mention here that the Hon'ble Apex Court in catena of decision has held that conviction can be based upon the basis of testimony of the sole eyewitness reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of Sheelam Ramesh v. State of A.P., (1999) 8 SCC 369 . The Hon’ble Supreme Court in Para -18 held as follows:- “18. The Hon’ble Supreme Court in Para -18 held as follows:- “18. According to learned counsel for the accused appellants, though PW 3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.” 59. In the case of Namdeo v. State of Maharashtra, reported in (2007) 14 SCC 150 , the Hon’ble Supreme court in Para- 29 and 38 held as follows :- “29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.” 38. From the above case law, it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the “sole” testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. Conclusion 60. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. Conclusion 60. Hence, considering the statement of the PW1, PW.4 and P.W.5 and the legal aspect as discussed above this Court is of view that the prosecution has successfully established the charge under section 302 of the IPC against present appellant beyond all shadow of reasonable doubt and if the learned trial court put its reliance upon the testimony of PW.1 in reaching its conclusion of conviction of the appellant, it cannot be said to be faulted with. 61. We, on the entirety of the facts and circumstances and as per the discussion made hereinabove, are of the view that the impugned judgment of conviction/sentence, needs not to be interfered with. 62. In the result, the instant appeal stands dismissed. Pradeep Kumar Srivastava, J. - I agree.