JUDGMENT: Hon'ble Mr. Justice R. Kantha Rao This appeal is directed against the order of conviction and sentence passed by II Additional Sessions Judge, Mahaboobnagar in S.C. No. 118 of 2003 whereby and whereunder the appellant was convicted for the charge under Section 302 IPC and was sentenced to undergo imprisonment for life. The prosecution case in a nutshell is as follows: 1. Smt. Mitta Sailamma hereinafter called the deceased is a resident of Tatiparthy village in Jadcherla Mandal of Mahaboobnagar District. P.W-5 Mitta Pedda Jangaiah is her husband. P.Ws-1 to 3 viz., Mitta Maheswari, Mitta Shivaiah and Mitta Ushanna are the children of the deceased and P.W-5 Mita Pedda Jangaiah. A-2 Mitta Balaiah who was acquitted by the trial Court is the younger brother of P.W-5 Mitta Pedda Jangaiah. A-1, the appellant herein is the brother-in-law of the said Balaiah. A-2 was suspecting that the deceased was practicing sorcery, (chetabadi) using the same against his wife and because of the said Black art his wife was not begetting children. It is said that the wife of A-2 underwent abortions twice on account of the sorcery used by the deceased against her. 2. On 03.07.2002 at about 2.00 p.m. there ensued a quarrel between the deceased and her husband (P.W-5) in regard to a family matter and thereafter P.W-5 left to his in- laws place at Malleboinapally village. Subsequent thereto, Balaiah came upon the house of the deceased and picked up a quarrel with her on the ground that she was using sorcery against his wife. It is said that in the course of the quarrel A-2 threatened the deceased with dire consequences. 3. While so on the intervening night of 3/4.07.2002 at about one hours while the deceased and her husband viz., P.Ws-1 to 3 were sleeping in front of their house, P.W-3, the son of the deceased woke up on hearing the cries of P.Ws-1 and 2 as "champe champe". When P.W-3 asked P.Ws-1 and 2 as to what happened, they informed him that Chandraiah, the appellant herein who is the brother-in-law of A-2 stabbed their mother with knife on her back and also on her hands. On hearing the cries of P.Ws-1 and 2, the neighbours viz., Macharam Chennaiah P.W- 4, Macharam Venkamma (L.W-5) and others residing in the vicinity also woke up and came to know about the incident through P.Ws-2 and 3. On hearing the cries of P.Ws-1 and 2, the neighbours viz., Macharam Chennaiah P.W- 4, Macharam Venkamma (L.W-5) and others residing in the vicinity also woke up and came to know about the incident through P.Ws-2 and 3. They also tried to catch hold of the appellant who was running away, but the appellant escaped into the darkness. 4. Thus, according to the prosecution the appellant who is the brother-in-law of the second accused stabbed the deceased to death on the instigation of A-2. 5. Thereafter, on 04.07.2002 at 7.00 am a case in Cr. No. 74 of 2002 under Section 302 IPC came to be registered against the appellant and A-2 by P.W-11 the Sub-Inspector of Police in Annasagar Police Station. P.W-12 Ch. Rajaiah, the Inspector of Police investigated into the offence. During the course of investigation he held inquest over the body of the deceased, forwarded the body of the deceased to Government Community Health Centre, Badepally for postmortem examination. P.W-9 Dr. B. Vijay Lakshmi, Civil Assistant Surgeon conducted autopsy over the body of the deceased. She opined that the deceased died of shock and hemorrhage due to the injuries caused to the vital organs viz., Lung and liver. On 13.07.2002, L.W-21 L. Yadi Reddy P.C. 318 and P.W-10 Md. Ibrahim P.C. 1828 of Annasagar Police Station effected the arrest of the appellant and A-2 at Kistaram village at 0600 hours and produced them before P.W-12 Ch. Rajaiah, the Inspector of Police. Thereafter on 13.07.2002 at 12 hours, in pursuance of the disclosure statement made by the appellant to the Inspector of Police before the panchas, the appellant lead the Investigating Officer and panchas to Kotha-cheruvu in the village limits of Tatiparthy and produced a blood stained knife from out of the bushes which was recovered under the cover of panchanama Ex.P-12. After completing the investigation P.W-12, the Inspector of Police laid charge sheet in the Court of Judicial Magistrate of I Class, Jadcherla who committed the case to the Court of Session, Mahaboobnagar as the offence is exclusively triable by Court of Session. 6. Subsequently the Sessions Judge, Mahaboobnagar tried the appellant for the charge under Section 302 IPC and the second accused for the charge under Section 302 read with 109 IPC. 7. 6. Subsequently the Sessions Judge, Mahaboobnagar tried the appellant for the charge under Section 302 IPC and the second accused for the charge under Section 302 read with 109 IPC. 7. In order to bring home the guilt of the appellant and A-2, the prosecution examined 12 witnesses, exhibited 13 documents and marked one material object. 8. The version of the appellant and A-2 is that of total denial, but they did not propose to examine any defence witnesses. Before the learned Sessions Judge, P.Ws-1 and 2 viz., M. Maheswari and M. Shivaiah, the daughter and the son of the deceased stated in their depositions that on the date of incident at about 1 O' clock in the night the appellant and A-2 came to their house, pushed their mother towards the wall of their house. On hearing the noise they woke up, thereafter A-1 and A-2 killed their mother and went away. P.W-3 the elder brother also woke up and they informed him about A-1 and A-2 killing their mother. They also stated that they found their mother with stab injuries. P.W-3 who is the son of the deceased deposed before the learned Sessions Judge that on the night of the incident P.Ws-1 and 2 woke him up and stated that their mother died. Subsequently he saw the appellant and A-2 running away, he chased them but they were escaped into the fields. This witness also stated that he found stab injuries on the back of his mother. It is also his version that P.W-4 M. Chennaiah, L.W-9 Gope Yadaiah and L.W-10 Macharam Bal Nagaiah who are the neighbours also chased the accused but they could not catch hold of the accused. 10. P.W-4 M. Chennaiah is a neighbour and his evidence is that while he was sleeping at his house, P.Ws-1 and 2 woke him up, thereafter he saw P.W-3 going along the road and when he enquired, P.W-3 told him that some persons beat his mother and were running away. He also stated that he too ran after the assailants, but could not find them. It is also his version that he enquired the children of the deceased and they told that their mother was stabbed by their uncle and his brother-in-law i.e., A-2 and A-1. He also stated that he too ran after the assailants, but could not find them. It is also his version that he enquired the children of the deceased and they told that their mother was stabbed by their uncle and his brother-in-law i.e., A-2 and A-1. The evidence of P.W-5 who is the husband of the deceased is not of much importance in view of the fact that he was not in the village at the time when the incident took place. His version is that he was informed by the children that A-1 and A-2 killed his wife. 11. P.W-7 Rachuri Gopaiah is a punch for the recovery of M.O-1 knife in pursuance of the disclosure statement made by the appellant, but this witness did not support the version of the prosecution and stated that his signature was obtained by the police. On a paper and nothing happened in his presence. Curiously despite the fact that one punch witness in respect of recovery of M.O- 1 knife in pursuance of the disclosure statement made by the appellant turned hostile, the prosecution did not take any steps to examine the other punch witness to prove the said fact. 12. P.W-9 Dr. B. Vijaya Lakshmi noticed nine stab injuries on the back of the deceased which are ante mortem in nature and in her opinion the cause of the death was on account of hemorrhage and injuries to the vital organs viz., Lung and Liver. P.W-11 Sri V. Sreedhar Naidu, the S.I. of Police, Annasagar Police Station and his evidence is only to the effect that he registered a case in Cr. No. 74 of 2002, on the strength of Ex.P-1 report lodged by P.W-3. The entire investigation except registering the case was conducted by P.W-12 the Inspector of Police. 13. Upon considering the above mentioned evidence, the learned trial Court found that the presence of A-2 and his participation in the commission of crime are doubtful, he was only implicated on the confession of the co-accused and also there was no material to show that A-2 abeted the commission of offence by A-1, the appellant herein. Accordingly the learned Sessions Judge gave benefit of doubt to A-2 and acquitted him of the charge under Section 302 read with 109 IPC. 14. Accordingly the learned Sessions Judge gave benefit of doubt to A-2 and acquitted him of the charge under Section 302 read with 109 IPC. 14. But on the same evidence the learned Sessions Judge found the appellant i.e., A-1 guilty for the charge under Section 302 IPC, convicted and sentenced him to punishment as mentioned above. 15. Mrs. Shanthi Neelam, learned Counsel appearing for the appellant would strenuously submit that the entire case is based on the evidence of two child witnesses P.Ws-1 and 2 viz., Kum. M. Maheswari and Master. M. Shivaiah, the evidence consists of material omissions, contradictions and suffers from serious infirmities which were not considered by the learned Sessions Judge, and therefore, the appellant is entitled for an acquittal. 16. We have given our anxious consideration to the evidence of the prosecution witnesses and the material papers. The case mainly rests on the evidence of P.Ws-1 and 2 who are no other children of the deceased and child witnesses. P.W-1 was aged 11 years and P.W-2 was aged 9 years respectively on the date of incident. 17. Under Section 118 of the Indian Evidence Act, a child is a competent witness, provided the said witness is able to understand the questions properly and is also able to give rationale answers to such questions. In the strict sense the testimony of a child witness can be relied upon without corroboration, but as a rule of prudence it is desirable to have corroboration from independent witnesses or from the circumstances. 18. In the case on hand, P.Ws-1 and 2 are not only child witnesses but they are also interested witnesses in view of their relationship with the deceased. They are susceptible to influence and tutoring. Therefore it has to be borne in mind that their evidence has to be scrutinized with great care and caution. 19. If we analyze the evidence of P.Ws-1 and 2 and the other witnesses, we find some serious infirmities in the version of the prosecution. 20. Admittedly the incident took place in a dark night. The said fact is not disputed by the prosecution. But none of the witnesses spoke as to how they identified the assailants in the dark night. If we analyze the evidence of P.Ws-1 and 2 and the other witnesses, we find some serious infirmities in the version of the prosecution. 20. Admittedly the incident took place in a dark night. The said fact is not disputed by the prosecution. But none of the witnesses spoke as to how they identified the assailants in the dark night. It may be true that the assailants are known to P.Ws1- to 3, but it is for the prosecution to explain that in spite of the darkness they could identify the assailants in the course of the incident which took place suddenly and was completed within no time. The prosecution did not adduce any evidence as to the source of light at the venue of offence at the time of the incident which might have enabled P.Ws-1 to 3 to identify the assailants. Further as rightly pointed out by the learned Counsel appearing for the appellant there are material discrepancies and inconsistencies in the evidence of the prosecution. 21. If we examine Ex.P-1 report lodged by P.W-3, it is obvious that the prosecution has no specific version and the story was developed from time to time. It is clearly mentioned in Ex.P-1 that P.Ws-1 and 2 told P.W-3 that the appellant stabbed the deceased with knife on her back indiscriminately and caused her death and subsequently P.W-3 and others searched for the appellant, he escaped and was not found. It is also mentioned therein that P.W-3 suspected that on the instigation of A-2 the appellant killed the deceased. Thus absolutely there is no mention about the participation of the second accused in commission of the offence. It may be a fact that A-2 was acquitted by the learned trial Court disbelieving his involvement. But to appreciate the evidence even against the appellant, the entire version of the prosecution has to be considered. 22. Coming to the evidence of P.Ws-1 and 2 before the trial Court they stated that A-1 and A-2 came to their house, they dashed the deceased towards the wall of the house, then P.Ws-1 and 2 woke up and they found their mother was being killed by A-1 and A-2. Curiously P.W-2 stated in his evidence that A-2 inflicted the stab injuries, whereas P.W-1 stated that while A-2 caught hold of his mother A-1 stabbed her with knife. Curiously P.W-2 stated in his evidence that A-2 inflicted the stab injuries, whereas P.W-1 stated that while A-2 caught hold of his mother A-1 stabbed her with knife. This is a serious infirmity in the version of P.Ws-1 and 2. 23. According to the prosecution till P.Ws-1 and 2 informed P.W-3 he did not witness the incident. The version of P.W-3 only indicates that he was informed by P.Ws-1 and 2 about the actual occurrence and thereafter he saw the appellant and A-2 running away. His version is that while the deceased, P.Ws-1 and 2 were sleeping at one place, he was sleeping at a distance of 10 feet from them and P.Ws-1 and 2 came and woke him up and informed him about the incident. But the version of this witness is inconsistent with the version of P.Ws-1 and 2. P.Ws- 1 and 2 deposed before the trial Court that they, P.W-3 and the deceased were sleeping in front of their house at one place on the date of incident. If the version of P.Ws-1 and 2 is accepted, since about nine stab injuries were inflicted on the person of the deceased. P.W-3 also must have been in a position to witness the incident, but his version is that he did not witness the incident of actual occurrence and was informed about the same by P.Ws-1 and 2. This is also a major discrepancy in the version of P.Ws-1 to 3 before the trial Court. Since nine ante mortem injuries were caused to the deceased, the incident must have taken place for considerable length of time and there is every possibility for P.Ws-1 to 3 to witness the main part of the incident, but their version as to the occurrence of actual incident is at variance and creates any amount of doubt as to whether in fact they were present at the time of commission of offence by the assailants. P.W-3 specifically stated in his evidence that on hearing the cries he woke up, he went to the rear side of their house and found the assailant fled away, he returned back to the house and questioned P.Ws-1 and 2 as to what happened and they stated that the appellant stabbed the deceased with knife on the back and hands, killed her and fled away. The said contradictions are marked as Ex.D-4, D-7 and D-8 respectively. The said contradictions are marked as Ex.D-4, D-7 and D-8 respectively. These contradictions are material because they specifically indicate that the offence was perpetrated by only one person but not by two persons which is contrary to the basic version of the prosecution. 24. The prosecution also sought to prove the recovery of M.O.-1 knife in pursuance of the disclosure statement made by the appellant, before P.W-12 the Inspector of Police before two punch witnesses. P.W-7 one of the punch witnesses did not support the prosecution version and only stated that he subscribed the signature on some paper at the instance of the police and the M.O-1 was not recovered in his presence. In spite of P.W-7 not supporting the version of the prosecution, the prosecution did not take any steps to examine the other punch witness. Under these circumstances, it is highly difficult to believe the said recovery of M.O-1 knife solely basing on the version of P.W-12, who is the Investigating Officer. 25. The defence version is that several people in the village were suspecting that the deceased was practicing sorcery and used the same against them and putting them to troubles. Therefore the defence theory is that there is scope for many others in the village to commit the murder of the deceased on the ground that she was practicing sorcery. From the cross-examination of the witnesses, it also appears that the version of the defence is that the deceased was having illicit intimacy with some persons in the village and on account of the said fact she might have been killed in connection with her illicit contacts. P.W-4 admitted in the cross-examination there are rumors about the deceased having illicit intimacy with one person belonging to Golla community and a panchayat was held in that connection. Therefore from the conduct of the deceased the possibility of some other persons causing her death also cannot be ruled out. 26. In view of what all discussed hereinabove, the prosecution commenced with the theory that the perpetrator of the crime was only one person i.e., A-1, and A-2 might have instigated A-1 to commit the offence. At a later point of time the evidence was let in to the effect that A-1 (appellant) and A-2 jointly committed the offence. 26. In view of what all discussed hereinabove, the prosecution commenced with the theory that the perpetrator of the crime was only one person i.e., A-1, and A-2 might have instigated A-1 to commit the offence. At a later point of time the evidence was let in to the effect that A-1 (appellant) and A-2 jointly committed the offence. The version of the witnesses as to the manner in which the offence was perpetrated is at variance and it does not inspire our confidence. Having regard to the material facts spoken to by P.Ws-1 to 3, we are of the considered view that it is highly difficult and not appropriate to place reliance on the testimony of P.Ws-1 and 2 who are the child witnesses. Since they are no other than the children of the deceased, they are susceptible for tutoring by the family members of the deceased. The learned trial Court rightly acquitted A-2 and wrongly convicted the appellant basing on the same evidence. The evidence forthcoming is of such a nature that truth cannot be separated from falsehood and is liable to be rejected in toto. 27. For the foregoing reasons, the order of conviction and sentence passed by the trial Court against the appellant is set aside, the appellant is acquitted of the charge under Section 302 IPC. The appeal is allowed. The appellant who is undergoing jail sentence in connection with this case shall be set at liberty, forthwith, if he is not required in any other case.