JUDGMENT :

(Sujit Narayan Prasad, J.)

1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction and order of sentence dated 11.12.2012 passed by learned Principal Sessions Judge, Simdega in Sessions Trial No.93 of 2008 arising out of Jaldega P.S. Case No. 11 of 2008, corresponding to G.R. No. 127 of 2008, whereby and whereunder, the appellant has been convicted for the offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life.

2. The prosecution story in brief, as per the fardbeyan, reads as under:

According to the fardbeyan of widow of the deceased that on 09.04.2008 at about 8:45 p.m., the deceased along with his son Gurucharan Kulla was going to guard the bridge after taking meal. At about 9:00 p.m., her son came with fear and disclosed the incident to his mother while crying that uncle Mukund Kulla has killed his father with axe and when she came out and noticed, her husband was lying by side of the well, west to the house, with profuse bleeding and the accused was fleeing away from the village along with an axe in hand. Thereafter, on raising the alarm, the villagers came there and witnessed the occurrence.

On the basis of the fardbeyan of the informant, FIR was instituted and accordingly investigation proceeded and thereafter charge sheet has been submitted against the accused under Section 302 of the IPC. Thereafter, cognizance had been taken and the charges were framed and for the content of the charges, the accused pleaded not guilty and claimed to be tried. Thereafter, the trial proceeded and the learned trial court after considering the materials available on record and the testimonies of the witnesses, convicted the present appellant under Section 302 of the IPC.

3. Dr. Hasnain Waris, learned counsel for the appellant has submitted that the learned trial Court has committed error in convicting the appellant without taking into consideration the inconsistency in between the testimony of witnesses.

It has been contended that the conviction is based upon the eye witness, P.W.1 who happens to be aged about 10 years, basing upon his testimony, the conviction of the appellant is based, but, without taking into consideration the fact that P.W.1 is non-else but the son of the deceased and as such, the interested witness.

It has further been contended that non-examination of the Investigating Officer is also a vital ground to interfere with the judgment of conviction.

The further submission has been made that all the other witnesses are hearsay and as such, there is no corroboration of testimony of other witnesses with the testimony of P.W.1.

The further argument has been made that occurrence took place at night which was a dark night and it is not possible for P.W.1 to see the face of accused in flash of ten rupees torch.

Learned counsel for the appellant, on the basis of the aforesaid ground, has submitted that the judgment of conviction, therefore, is not sustainable in the eye of law.

4. While on the other hand, Mr. Manoj Kumar Mishra, learned APP appearing for the respondent-State has submitted by defending the judgment of conviction passed by the learned trial Court. It is incorrect on the part of the appellant to take the ground that merely because P.W.1 who happens to be aged about 10 years, his testimony is to be discarded.

It has been submitted that P.W.1, even though, was aged about 10 years, but his testimony has been relied upon by the learned trial Court after taking into consideration that on test, the learned trial Court has found him competent to understand and answer.

Submission, therefore, has been made that the law is well settled that if the witness is child, then the Court after taking into consideration his understanding, can well rely upon such testimony.

Learned APP appearing for the State has further submitted that the testimonies of other witnesses have also supported the prosecution versi