JUDGMENT - BATTA R.K., J.:---The appellant was tried for murder of Pramila w/o Devilal Meshram (P.W. 13) under section 302 of the Indian Penal Code, as also, for attempt to murder said Devilal Meshram (P.W. 13) under section 307 of the Indian Penal Code. Prosecution, in all, examined 15 witnesses in support of the charges. The trial Court accepted the evidence of Pushpa Devilal Meshram (P.W. 7), who is daughter of Devilal (P.W. 13), as also, the evidence of Devilal himself and held the appellant guilty for murder under section 302 of the Indian Penal Code, for which the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- I/d. to suffer R.I. for six months. The appellant was also found guilty of attempt to murder Devidas (P.W. 13) for which he was sentenced to suffer R.I. for three years and to pay a fine of Rs. 1,000/- I/d. to undergo R/I. for three months. The appellant challenges his conviction and sentence in this appeal. 2. The prosecution case, in brief, is that there was a dispute relating to fencing which has, in fact, been admitted by the appellant in his statement under section 313 of the Cri.P.C. On 3-5-1996, at about 10.00 a.m., Devilal (P.W. 13) took bath and had his lunch and was to go back to his place of work. At that time, his wife and daughter Pushpa were inside the house. But, when he came out of the house, he saw the appellant armed with a dagger and a knife and the appellant told him that it was the last day of his life and that of his wife and that he shall murder both of them. In the meantime, Pramila came out of the house and she was accompanied by her daughter Pushpa. The appellant abused him and his wife and the appellant told his wife that she should not speak more or else he shall stab her. The appellant dealt blows of dagger on her right wrist and under the left arm pit, due to which wife of Devilal fell unconscious. Thereafter, the appellant dealt a blow of dagger on his chest just below the arm pit and after that, he went to his-in-laws' place to tell about the occurrence. The appellant chased him to the house of his mother-in-law. The accused was still insisting upon stabbing him. Thereafter, the appellant dealt a blow of dagger on his chest just below the arm pit and after that, he went to his-in-laws' place to tell about the occurrence. The appellant chased him to the house of his mother-in-law. The accused was still insisting upon stabbing him. The matter was reported to police. After investigation, the charge-sheet was filed. 3. The theory which was put in the cross-examination of Devilal (P.W. 13) is that, there was a scuffle between Devilal (P.W. 13) and the appellant and in the process, due to intervention, Pramila received injuries and that Devilal (P.W. 13) also received injuries in the said scuffle. There is, however, no whisper in the statement of accused under section 313 of the Code of Criminal Procedure about the scuffle theory. 4. The learned Advocate for the appellant took us through the evidence of Pushpa (P.W. 7) and pointed out that, from her cross-examination it is crystal clear that she has not seen the incident. He also took us through the evidence of Devilal (P.W. 13) and pointed out that, according to the Devilal, the appellant was armed with a dagger and a knife and he had given blows with the dagger on the right wrist and under the left arm pit of wife of Devilal, due to which she fell down. He also pointed out that Devilal (P.W. 13) does not speak of any assault on his abdomen and that no injuries were found by the Medical Officer, either on the right wrist or under the left arm pit of deceased Pramila. He also pointed out that this witness spoke of a dagger, knife and a spear head and has, ultimately, stated that it is correct that his wife was not assaulted by means of a knife. He denied that the appellant had a spear head in each of his hands and when confronted in respect of the same with the report, he stated that this part of his report is not correct. It is also pointed out that he has admitted that, at the time of incident, he had an axe with him and that there was a scuffle between the two. It is specifically pointed out by the learned Advocate for the appellant that this witness had to be brought under a warrant. It is also pointed out that he has admitted that, at the time of incident, he had an axe with him and that there was a scuffle between the two. It is specifically pointed out by the learned Advocate for the appellant that this witness had to be brought under a warrant. It is also admitted that the police told him of the evidence required to be given by him and that, whatever evidence he is giving, was according to what was told to him by the police. The learned Advocate for the appellant also pointed out that the recoveries have been disbelieved by the trial Court and in the light of evidence on record, the charges are not proved against the appellant and that the appellant should be acquitted. 5. On the other hand, Mrs. Jog, the learned A.P.P. urged before us that Devilal (P.W. 13) specifically stated that, at the time of incident, Pushpa (P.W. 7) was present and as such, her testimony that she had seen the incident cannot be discarded. She further pointed out that the evidence of Shankar s/o. Champat Khangal (P.W. 1) and Shoba Rangrao Parde (P.W. 2) supports the prosecution case that the appellant had followed Devilal (P.W. 13) and at that time, the appellant was armed with a knife and a spear head. According to the learned A.P.P., this evidence, coupled with the evidence of Devilal himself, is sufficient to prove the charges against the appellant and that there is no evidence whatsoever to interfere with the order of trial Court. 6. The appellant was charged for murder of Pramila and for attempt of murder of Devilal (P.W. 13). We shall, therefore, first take up the case of murder of Pramila against the appellant. 7. Prosecution has examined two witnesses namely Pushpa (P.W. 7), who is the daughter of Devilal (P.W. 13) Devilal (P.W. 13) himself for proving the assault by the appellant on Pramila. It is, no doubt, true that, according to Devilal (P.W. 13), Pushpa was present at the time of incident and she had come along with Pramila out of the house when the incident took place, yet Pushpa (P.W. 7) herself does not actually support the prosecution case. It is, no doubt, true that, according to Devilal (P.W. 13), Pushpa was present at the time of incident and she had come along with Pramila out of the house when the incident took place, yet Pushpa (P.W. 7) herself does not actually support the prosecution case. Though she did speak of having seen the incident in her cross-examination-in-chief, yet she admitted in her cross-examination that after she returned from the school at 2.00 p.m., she learnt about the incident in question. This witness Pushpa was about 7 to 8 years old at the time of recording of her deposition, which shows that she was 6 to 7 years at the time when the incident took place. Being a child witness, her evidence is required to be scrutinized carefully since there is always a danger of tutoring of child witnesses and this is what appears to have exactly happened in the case under consideration. 8. Pushpa (P.W. 7) in her examination-in-chief, had stated that the appellant was armed with a knife which was in his right hand and her mother intervened. The appellant told her mother to keep quiet and thereafter, the appellant assaulted her mother Pramila in the abdomen, on hands and at many other places on her body by means of a knife. In the cross-examination, she admitted that, on the day of incident, she had been to her school; her school begins at 10.00 a.m. or 10.30 a.m. till 2.00 p.m. and after recess from 2.30 p.m. to 5.00 p.m. According to her, she returned from the school at about 2.00 p.m. and she has admitted that, on her return, she learnt of some incident at her house. She also admitted that, before she entered the witness box, she was told what she should depose in the Court and whatever she has deposed was according to what was told to her. This shows tutoring of this witness and to some extent, I must say that the witness is also quite clever, since beginning time of school was given by her as 10.00 a.m. or 10.30 a.m., which is not correct. Either it should be 10.00 a.m. or 10.30 a.m., but such version is given by her because the incident has taken place after 10.00 a.m. Be that as it may, no reliance whatsoever can be placed on the testimony of this witness. Either it should be 10.00 a.m. or 10.30 a.m., but such version is given by her because the incident has taken place after 10.00 a.m. Be that as it may, no reliance whatsoever can be placed on the testimony of this witness. According to her, the appellant had assaulted her mother on hands and many other parts of the body besides abdomen, but the doctor found only one injury in the abdomen region. This witness has given narration in her examination-in-chief that appellant followed her father to the house of her grand mother. 8-A. The other eye-witness of assault on Pramila is Devilal (P.W. 13), who is husband of deceased Pramila. According to him, the appellant had given blows with a dagger on her right wrist and her left armpit. No corresponding injuries were found by Dr. Rajendrakumar Madangopal Bhattad (P.W. 14). He found only one injury in the epigastric region namely abdomen region. However, Devilal (P.W. 13) does not speak of any blow having been given in the abdomen region. He also admitted that the police had told him to give the evidence required and he gave evidence as told to him by the police. This is very aptly applicable insofar as assault on Pramila is concerned. At any rate, prosecution has failed to prove that any assault was made by the appellant in the abdomen region of deceased Pramila, on account of which she died. The defence has stated the theory of scuffle to this witness and this witness has admitted that there was a scuffle between him and the appellant. Dr. Bhattad (P.W. 14) has stated that the injury found on the abdomen of deceased Pramila was possible in scuffle if some sharp object touches the epigastric region of human body. In view of this, we are of the opinion that prosecution has failed to establish the charge of murder against the appellant and the appellant is entitled to acquittal on this count. 9. Coming to the assault on Devilal (P.W. 13); he has stated that the appellant had dealt a blow of dagger on his chest just below the right armpit. This evidence of Devilal (P.W. 13) gets complete support from the evidence of Dr. 9. Coming to the assault on Devilal (P.W. 13); he has stated that the appellant had dealt a blow of dagger on his chest just below the right armpit. This evidence of Devilal (P.W. 13) gets complete support from the evidence of Dr. Rajendrakumar Madangopal Bhattad, who has stated that he had examined Devilal (P.W. 13) and found incised wound of the size of 4" x ½" x ½" on the right side of the chest on 8th rib from mid axillary to mid clavicular region and the injury was obliquely placed. According to him, the injury was possible by a sharp cutting object like knife or spear head. 10. There is no reason whatsoever to disbelieve the deposition of Devilal (P.W. 13) that the appellant had inflicted knife blow on the right side of his chest. In fact, besides, the medical evidence it also gets support from the evidence of Shankar (P.W. 1) and Shoba (P.W. 2). Shankar (P.W. 1) has stated that his brother-in-law namely Devidas came to his house and he saw injury on his chest on the right side and at that time, Devilal was followed by the appellant. At that time, the appellant was armed with a big knife (suri) and a spear head. There was no cross-examination of this witness on material particulars. The statement of this witness was recorded on the date of occurrence itself. Likewise, Shobha (P.W. 2) has stated that the appellant Charandas was armed with a knife and a spear head and he was saying that he shall assault Devidas. 11. In view of the evidence of Devilal (P.W. 13), Medical evidence of Dr. Bhattad (P.W. 14) and evidence of Shankar (P.W. 1) and Shobha (P.W. 2), we are of the opinion that the charge of attempt to murder Devilal (P.W. 13) by the appellant has been duly proved and the conviction, as also, the sentence imposed on the appellant for the said offence cannot be interfered with. 12. For the aforesaid reasons, the appeal is partly allowed. The conviction and sentence imposed on the appellant for the offence of murder under section 302 of the Indian Penal Code by the learned Additional Sessions Judge, Achalpur vide judgment dated 21st October, 1997 in Sessions Case No. 108/96 is hereby set aside. 12. For the aforesaid reasons, the appeal is partly allowed. The conviction and sentence imposed on the appellant for the offence of murder under section 302 of the Indian Penal Code by the learned Additional Sessions Judge, Achalpur vide judgment dated 21st October, 1997 in Sessions Case No. 108/96 is hereby set aside. However, the conviction and sentence of the appellant under section 307 of the Indian Penal Code, in the same case, is hereby maintained. 13. The appellant is stated to be in custody in connection with this offence from 3-6-1996 till today. In case it is so, the said period shall have to be set off against the sentence imposed under section 307 of the Indian Penal Code in terms of section 428 of the Code of Criminal Procedure and the appellant shall be entitled to be released in case he is not required in any other case. The accused shall, accordingly, be released in case he is not required in any other case. The appeal is disposed of in the aforesaid terms. Appeal allowed. -----