JUDGMENT A.L.DAVE, J. ( 1. ) THE appellant was the accused before Sessions Court, Amreli, in Sessions Case No. 33 of 2002 and was tried and convicted for the offence of murder of her mother-in-law Lilaben Jivrajbhai on 28.10.2001 at about 21.30 hours at village Dundhiya-Pipaliya of Taluka Vadiya in District Amreli by giving axe blows. She is sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- and in default, to undergo simple imprisonment for two months by judgement and order dated 22.8.2005 in Sessions Case No. 33 of 2002 rendered by the Sessions Court. ( 2. ) AS per the prosecution case, the appellant and her mother-in-law Lilaben were not sailing smoothly. Their relations were strained. Similarly, the appellant's relation with her husband was also strained. From the wedlock with first informant Harsukh Jivrabhai, the appellant had delivered two children. AS per the prosecution case on the date of incident, deceased Lilaben and the appellant's two children namely minor Yogesh and Chirag, were sleeping at osari of the house in two different beds lying close to each other. AS per the prosecution case, the appellant went there armed with an axe and started inflicting blows on the deceased while deceased was sleeping. AS per the prosecution case, this incident was seen by the appellant's sons Yogesh and Chirag. Yogesh intervened in the incident and tried to stop the appellant from making further attack by embracing the accused. The appellant, thereafter, left the place. Yogesh and Chirag rushed out of the house and asked a relative to inform their father. The appellant's husband Harsukh arrived at the spot and took the deceased to the hospital where she was declared dead. The appellant's husband Harsukh lodged FIR with the police, on the basis of which offence was registered and case was investigated. During the course of investigation, as per the prosecution case, panchnama of the place of incident was drawn. Clothes of the appellant were recovered. The axe used in the commission of crime was discovered by the accused and was seized by the police. Statements of relevant witnesses were recorded and ultimately, having found sufficient material against the accused, police filed chargesheet in the Court of JMFC, Vadia, who in turn committed the case to the Court of Sessions and Sessions Case No. 33 of 2002 came to be registered. Statements of relevant witnesses were recorded and ultimately, having found sufficient material against the accused, police filed chargesheet in the Court of JMFC, Vadia, who in turn committed the case to the Court of Sessions and Sessions Case No. 33 of 2002 came to be registered. Charge was framed against the accused appellant at Exh. 2 for the offence of murder to which she pleaded not guilty and claimed to be tried. ( 3. ) THE trial Court, after considering the evidence led by the prosecution, came to the conclusion that the prosecution was successful in proving the charge against the accused appellant and therefore recorded conviction as stated hereinabove. Being aggrieved by the said judgement and order, the present appeal is preferred. ( 4. ) LEARNED advocate Mr. Tolia for the appellant submitted that in the instant case except child witness Yogesh no other independent witness has supported the prosecution case. He submitted that Yogesh claims to be an eye witness to the incident but if the evidence is seen, the possibility of his not being an eye witness cannot be ruled out. Apart from that, it was submitted by learned advocate Mr. Tolia that the evidence of Yogesh is inconsistent and self-contradictory. The witness admits to have grievance and prejudice against his mother accused-appellant. He also admits to have a soft-corner, respect and regard for his grandmother. His evidence would reveal that on the day of the incident, he had gone to sleep prior to the occurrence and when he woke up he found his grandmother lying dead in the bed. Necessarily, therefore, he could not have witnessed the occurrence. LEARNED advocate Mr. Tolia submitted that, of course, at a later point of time in his deposition he describes the occurrence as if he has seen the occurrence. Therefore, the evidence of this witness is inconsistent and self contradictory. He further submitted that Yogesh is a child witness. When the incident occurred he was about 9 or 10 years of age and his evidence was recorded three and half years after, when his age was about 14 years and therefore no reliance can be placed on evidence of such a witness and conviction could not have been founded on the basis of this sole piece of evidence. Learned advocate Mr. Learned advocate Mr. Tolia submitted that there are other circumstances against the appellant which may prima facie appear to be going against the appellant but in fact, if they are scrutinized properly it would be clear that those circumstances cannot be used against the appellant. ( 5. ) LEARNED advocate Mr. Tolia submitted that as per the prosecution case the appellant discovered the axe allegedly used in the commission of crime and that the said axe contained blood stains of the group of the deceased. However, the evidence of the prosecution, if seen as a whole, it comes in evidence of the first informant Harsukh that the axe was lying on the spot of the incident. Panchnama of the place of incident, however, does not speak about the same. The case of the prosecution is that the axe was discovered by the appellant on the next day. However, the panchnama of the witness did not support the prosecution case of discovery of weapon by the accused appellant. ( 6. ) THE second circumstance that may go against the appellant is blood stained clothes of the appellant. Learned advocate Mr. Tolia submitted that in this context if the evidence is seen, as per the prosecution case, the clothes were recovered from the accused appellant by drawing panchnama. If the panchnama is seen the same was drawn at the Panchayat Office between 8.15 and 9 hours. However, if the evidence of the Investigating Officer is seen, he states that the accused was arrested and the clothes were recovered from her house. THErefore, for recovery part, there are two different versions emerging from the evidence which are self-contradictory. Learned advocate Mr. Tolia submitted that these circumstances cannot, therefore, lend any corroboration to the oral evidence of Yogesh who claims to be an eye witness. It was also submitted that according to Yogesh he had embraced his mother to deter her from inflicting further blow. However, his clothes were not recovered by the police and they were not claimed to have been stained with blood although the clothes of the accused were alleged to have been stained with blood whom the witness claimed to have embraced (clasp). Panchnama of the place of incident also indicates that the deceased had blood profusely as there was a pool of bled noticed and recorded in panchnama at the place of incident. Learned advocate Mr. Panchnama of the place of incident also indicates that the deceased had blood profusely as there was a pool of bled noticed and recorded in panchnama at the place of incident. Learned advocate Mr. Tolia submitted, therefore, that with the above scanty and shaky evidence, the trial Court committed an error in convicting the appellant. THE appeal may therefore be allowed and conviction may be set aside. Learned Addl. Public Prosecutor Mr. Pandya has opposed this appeal. According to him, Yogesh is the son of the appellant. He has not to falsely implicate the appellant. The grievances whatever he may have, he would not falsely involve his mother in an offence. He submitted further that from the evidence of Yogesh in cross examination, it becomes clear that he had seen the incident and had registered the sequence of events and once such aspect emerges from the cross-examination, the conviction cannot be said to have been ill-founded. Learned APP Mr. Pandya submitted further that blood stained clothes of the accused and discovery of blood stained weapons by the accused would lend corroboration to the version of witness Yogesh and therefore witness Yogesh though the sole witness and though a minor, his version gets corroboration from contemporaneous material and evidence and therefore the trial Court was justified in convicting the appellant and the Court may not interfere with the said judgement. The appeal may therefore be dismissed. ( 7. ) WE have examined record and proceedings in the context of rival submissions. Having gone through the record and proceeding, we find substance in the submission made by learned advocate Mr. Tolia that all independent witnesses except Yogesh have chosen not to support prosecution case. As per the prosecution case, besides Yogesh, Chirag was also an eye witness to the incident but he has not supported prosecution case. Therefore, so far as direct evidence is concerned it is deposition of Yogesh which is the only piece of evidence adduced by the prosecution. The evidence of this witness runs into several pages. He is a minor and was aged about 14 years when his evidence was recorded. The incident had occurred about three to four years prior to the date of recording of the evidence. He must be about nine to ten years at the time when the incident occurred. In examination in chief he says that the accused appellant is his mother. The incident had occurred about three to four years prior to the date of recording of the evidence. He must be about nine to ten years at the time when the incident occurred. In examination in chief he says that the accused appellant is his mother. She murdered his grandmother. He then goes to say that he and his brother Chirag were sleeping near grandmother. At that time the appellant inflicted axe blow on the head of his grandmother. He therefore got up and embraced his mother. Still his mother, the appellant herein, went on to give two to three more blows with the axe and told them that they should leave the space or else they would also be done to death. This witness says that he and Chirag went away from the place to Jadavbhai and asked him to inform their father in the field. He attributes the motive to the effect that his mother did not want to stay in the house and therefore she committed murder of his grandmother. He identifies the axe as the weapon which was with the accused appellant at the time of incident. ( 8. ) DURING cross-examination he admits frankly that relation between his parents was not cordial for last about three to four months. Similarly, relation between the deceased and the accused appellant was also not cordial. He admits that he believed that the relation between his parents was strained because of fault on the part of his mother and that he was nurturing an acute sense of hatred towards his mother. He also admits that he used to live his grandmother and his father. He also admits that deceased was not taking care of him and as a result relation with his mother was not cordial for last about three years. He also admits that his father has taken divorce from the appellant and remarried. He goes on to state further during cross-examination that he went to sleep at about 8 in the evening on the eventful day. His brother also went to sleep along with him in the same cot. His grandmother was sleeping a little away from the space where they were sleeping. He also admits that if somebody raise shouts for help, it can be heard by the neighbours. His brother also went to sleep along with him in the same cot. His grandmother was sleeping a little away from the space where they were sleeping. He also admits that if somebody raise shouts for help, it can be heard by the neighbours. He stated that when he and his brother Chirag woke up , they noticed dead body of their grandmother on the cot. ( 9. ) HE has also stated that he had not intimated anyone about the appellant having inflicted axe blows on the deceased Lilaben prior to deposing before the Court. ( 10. ) THE above evidence would show that here is the witness who hates his mother belabouring under the impression that the relation between his mother and father is not cordial because of some fault of his mother. He is a child witness. After the incident when he goes out he does not indicate to Jadavbhai the name of the assailant and only asks Jadavbhai to inform his father in the field about the death of the grandmother. He also categorically states that before deposing before the Court he had not stated before any one about the appellant having given axe blows to the deceased Lilaben. This would rule out recording of his statement by police as well apart from the fact that he is not telling anyone about having seen the incident involving his mother which is not a natural conduct at least of a child of 10 years of age. What is narrated, however, is not complete narration of deposition of this witness. In his lengthy cross-examination certain questions were put to him and the answers to them may inculpate the appellant. For example, he states that he was sleeping when his mother inflicted axe blows to his grandmother. His mother inflicted four to five blows to his grandmother, whereupon his grandmothe screamed two to three times but none of the neighbours came. Many persons were standing outside the house. This piece of evidence would indicate that this witness must have witnessed the occurrence and this statement is given in cross-examination of the witness and therefore it may appear that the statements in cross-examination are sufficient to convict the appellant. Many persons were standing outside the house. This piece of evidence would indicate that this witness must have witnessed the occurrence and this statement is given in cross-examination of the witness and therefore it may appear that the statements in cross-examination are sufficient to convict the appellant. We are, however, of the view that if this piece of evidence was the only piece of evidence, we would be right in saying that they are good enough to accept the prosecution case as they have emerged during the cross-examination. But here is a case where the witness, in cross-examination, at one stage makes a statement which would definitely rule him out as an eye witness and later on in cross-examination he gives a version totally contrary. Therefore, the deposition is divided into two parts. One which projects the witness as a possible eye witness and the other which negatives that possibility. These two conflicting and inconsistent facts emerging from the version of the solitary eye witness would entitle the accused to the benefit of interpretation which is favourable to her I.e. conviction cannot be founded on such fragile evidence of the solitary child eye witness. ( 11. ) WE are, of course, conscious about the fact that apart from this direct ocular evidence, there is evidence in form of report of the FSL indicating presence of blood marks on the clothes of the accused as well as on the axe. Both these articles carry blood marks of the group of the deceased. These circumstances would again lead to guilt of the accused because the axe is discovered by the accused and the clothes were recovered from the accused in presence of panch witnesses as per prosecution case. ( 12. ) THESE two pieces of circumstantial evidence again need to be examined critically. So far as recovery of clothes of the accused is concerned, it may be recorded that the panch witnesses in whose presence the clothes were recovered have not supported the prosecution case. They speak of the accused having produced the clothes but in the same breath they speak of having not noticed any blood marks on it. However, the witnesses admit that they had signed a ready made panchnama. Apart from above aspects, it is the case of the prosecution that the clothes were recovered from the accused at the time of her arrest. However, the witnesses admit that they had signed a ready made panchnama. Apart from above aspects, it is the case of the prosecution that the clothes were recovered from the accused at the time of her arrest. It is a question for which there is no uniform answer from the prosecution as to where she was arrested from. According to the panchnama, she was arrested at the panchayat Office where as as per the evidence of the Investigating Officer, she was arrested from her residence. ( 13. ) WHAT therefore emerges is that there is conflicting evidence as to the place of drawal of arrest and recovery panchnama and panch witnesses admit that they had signed a ready made panchnama. Therefore, find of blood marks of the group of the deceased on the clothes of the accused appellant cannot be relied on to record conviction or to lend support to the version of the so-called eye witness. ( 14. ) SO far as find of blood stains of the group of the deceased on the axe is concerned, we may record that as per the prosecution case, the axe was discovered by the accused in the presence of panch witnesses on the next day of incident and it carried blood stains at the time of discovery. Here again the panch witnesses do not support the prosecution case of discovery and find of blood stains on the axe. Apart from that, there is evidence of witness first informant Harsukhbhai who has deposed that he had seen the axe at the place of incident. This version of this witness is not challenged contradictory or controverted by the prosecution. If this is so, the Investigating Agency ought to have recovered the axe from the place of incident at the time of drawal of panchnama but the panchnama of the place of incident is silent about the presence of axe. Therefore, either the panchnama is not properly drawn or the first informant Hasurkhbhai is not telling truth. Further the drawal of discovery panchnama not supported by the panch witnesses would also be under a cloud of doubt. If the axe was lying at the place of incident, there was no question of discovery of the axe by the accused on the next day. ( 15. Further the drawal of discovery panchnama not supported by the panch witnesses would also be under a cloud of doubt. If the axe was lying at the place of incident, there was no question of discovery of the axe by the accused on the next day. ( 15. ) THE resultant effect is that the circumstantial piece of evidence namely find of blood on the clothes of the accused and find of blood on the axe discovered by the accused would not carry prosecution case any further as they are weak pieces of evidence. THEse pieces of evidence cannot lend support to another weak piece of evidence namely ocular evidence of eye witness. THE whole prosecution case, therefore, appears to be untrustworthy for convicting the accused woman for the offence of murder and sentencing her to imprisonment for life. THE conviction recorded by the trial Court, therefore, deserves to be upset and set aside. ( 16. ) THE appeal is, therefore, allowed. Conviction and sentence recorded by the judgement and order dated 22.8.2005 convicting the appellant for the offence of murder of Lilaben is hereby set aside. THE appellant who is in jail be set at liberty forthwith if not required in any other case. Fine, if any, paid shall be refunded to the appellant.