Judgment L. Narasimha Reddy, J. The sole accused in S.C. No. 223 of 2008 on the file of II Additional Sessions Judge, Karimnagar at Jagtial, filed this Criminal Appeal, feeling aggrieved by the conviction and sentence ordered against him by the trial Court, through judgment, dated 17.04.2009. The appellant was tried for the offences punishable under Sections 302 and 323 IPC, for committing the murder of his wife, Vollem Laxmi, on 10.09.2007, and causing a minor injury to his son, Vollem Manideep, by pushing him aside. The trial Court convicted the appellant for both the offences and imposed punishment of imprisonment for life and fine of Rs.1,000/-, in default, to suffer simple imprisonment for one month, for the offence punishable under Section 302 IPC, and fine of Rs.250/-, in default to suffer simple imprisonment for one week, for the offence punishable under Section 323 IPC. The case, as projected by the prosecution, was that the appellant was married to the deceased, Laxmi, and the couple had two children. The appellant was said to be employed in Dubai, and he suspected the fidelity of his wife, who was staying with her parents at Gambheerpur village. The accused is a native of Yakeenpur village of Karimnagar District. He is said to have come back from Dubai in the month of August, 2007, and when he went to the house of the parents of the deceased, with a request to send his wife along with him, his mother-in-law (P.W.1) is said to have declared that her daughter would be sent to his house, only after the disputes between them are settled, and very shortly, she would visit his village together with elders. On 10.09.2007, P.W.1, along with her sons, the deceased and her children, and elders of the village, is said to have come to Yakeenpur village, where the elders chosen by the accused were also present. After discussion, it was said to have been decided that the deceased should stay with the accused and the latter should look after her with affection, and that P.W.1 left that place in the afternoon. On the same day, P.W.1 is said to have received information to the effect that the appellant beat the deceased with a wooden pestle and used an electric wire to strangulate her, and that when the minor son came in the way, he has been pushed aside. On the same day, P.W.1 is said to have received information to the effect that the appellant beat the deceased with a wooden pestle and used an electric wire to strangulate her, and that when the minor son came in the way, he has been pushed aside. P.W.1 submitted a complaint (Ex.P.1) to the P.S. Korutla. That gave rise to registration of Crime No.182 of 2007 and investigation was taken up by the Investigating Officer (P.W.17). During the course of investigation, P.W.17 visited the site and got the inquest panchanama conducted and arranged for post mortem. The post mortem report revealed that there are five injuries on the body of the deceased, and out of them, injury No.3, a ligature mark of ½ inch x 10 cm. around the neck, is the cause of death. P.W.17 apprehended the accused on 19.09.2007 and recovered the material objects, that are said to have been used for committing the murder. After conducting the investigation, he filed charge sheet, wherein, the offences under Sections 302 and 323 IPC were alleged against the accused. On committal, the case was taken up by the Court of II Additional Sessions Judge, Karimnagar at Jagtial, as S.C.No.223 of 2008 and charges referable to Sections 302 and 323 IPC were framed. On denial of the charges by the accused, detailed trial was conducted, wherein P.Ws.1 to 17 were examined and Exs.P.1 to P.21 were marked. The trial Court has also taken on record the material objects as M.Os.1 to 9. The contradiction in the statement of P.W.6 was marked as Ex.D.1. The requirement under Section 313 Cr.P.C. was complied with, and on the basis of the evidence before it, the trial Court convicted the accused and sentenced him to undergo the punishment, as mentioned in the preceding paragraphs. Smt. A. Gayatri Reddy, learned counsel for the appellant/accused submits that there is any amount of contradiction between what is stated by P.W.1 in Ex.P.1 on one hand, and in her evidence in the Court, on the other hand. She contends that Ex.P.1 itself was filed at 5.00 p.m. on 10.09.2007, and the time gap enabled her to undertake thorough meditation and thinking process. She submits that the only person, who was treated as an eyewitness, is P.W.2, a minor son of the accused, and the same was not mentioned in Ex.P.1 at all. She contends that Ex.P.1 itself was filed at 5.00 p.m. on 10.09.2007, and the time gap enabled her to undertake thorough meditation and thinking process. She submits that the only person, who was treated as an eyewitness, is P.W.2, a minor son of the accused, and the same was not mentioned in Ex.P.1 at all. She further submits that even if the evidence of P.W.2 is taken into account, at the most, it would account for injury No.1, which was mentioned in Ex.P.14, post mortem report, and P.W.13, the doctor, who conducted the post mortem, opined that the said injury was not the cause of death at all. Learned counsel further submits that P.W.2 was a child of four years as on the date of the incident, and it was only after lapse of 14 months, during which the child was under the custody of P.W.1, that the evidence was recorded. She contends that this period was utilized to tutor the child. She places reliance upon the judgment of the Supreme Court in Panchhi and others Vs. State of Uttar Pradesh AIR 1998 SC 2726 , in support of her contention that the evidence of such witnesses must be scrutinized with utmost care and caution. She further submits that many other witnesses have turned hostile, and the evidence of other witnesses is hardly of any help to the prosecution. Her contention is that the accused deserves to be acquitted. Sri Palle Nageswara Rao, learned Additional Public Prosecutor, on the other hand, submits that it is a rare case, in which a minor child has witnessed a ghastly attack upon his mother, by none other than his father, and the trial Court has appreciated the evidence on record, with reference to the correct parameters. He submits that in Ex.P.1 itself, it was mentioned that the accused has not only strangulated the deceased, but also has beaten on her head, and that if the evidence in its entirety is taken into account, the inescapable conclusion is that the accused has committed the murder of the deceased. The accused is alleged to have committed the murder of his wife. There is no denial of the fact that there were disputes between the accused and his wife. The accused is alleged to have committed the murder of his wife. There is no denial of the fact that there were disputes between the accused and his wife. The accused got employed in Dubai for his livelihood, whereas his wife and children were living, either in his native place or in the house of his parents-in-law. Mens rea pleaded by the prosecution, on the part of the accused, is that he used to suspect the character of his wife, and on account of that, he committed the murder. The investigation into the matter began with the submission of complaint Ex.P.1 by P.W.1, the mother of the deceased. P.W.1 gave a brief account of the relation between the accused and the deceased, and about the factum of herself, her sons, and elders visiting the village of the accused on 10.09.2007, to settle the disputes. She is said to have left the village of the accused and has taken the daughter of the accused and the deceased, with her, to her native place. At 2.30 p.m. on the same day, she is said to have received information about the death of the deceased. Soon after that, she came to the village of the accused, visited the hospital, to which the dead body was shifted, and submitted Ex.P.1 complaint in the police station. Ex.P.1 was submitted at 5.00 p.m. on 10.09.2007 in the police station. The record is not clear about the distance between the place of residence of P.W.1 and that of the accused. All the same, the possibility of making an attempt to state something against the accused, particularly when the panchayat has taken place within a few hours before that, cannot be excluded. However, we would not propose to rest our conclusions on this aspect. P.W.1 has virtually repeated the contents of Ex.P.1, in her deposition in the Court and not being an eyewitness, her evidence cannot be of immediate relevance or help the Court or the prosecution. We, however, find that there is an improvement in the evidence of P.W.1, with reference to the source of information. P.W.1 has virtually repeated the contents of Ex.P.1, in her deposition in the Court and not being an eyewitness, her evidence cannot be of immediate relevance or help the Court or the prosecution. We, however, find that there is an improvement in the evidence of P.W.1, with reference to the source of information. In Ex.P.1, she stated: “When we reached the Ghambeerpur village, we received a telephone call that about 13.00 hours our son-in-law, Rajamallaiah, beat our daughter, Laxmi, with a wooden pestle, and strangulated with an electrical wire and escaped from the place, by pushing his son, Manideep, aged 5 years, and caused simple head injury. Immediately, the neighbours of her daughter shifted her to Government Hospital, Jagtial, with the help of 108 ambulance, but her daughter succumbed at about 16.30 hours. On receiving such information, she along with her relatives rushed to Jagtial Hospital, and noticed the body of her daughter in mortuary, and also found injuries on head and neck of her daughter. Hence, she requested for necessary action against her son-in-law, Vollem Rajamallaiah.” It was not mentioned in Ex.P.1 that P.W.2, the minor son of the accused and the deceased, has informed P.W.1 about his witnessing any acts, on the part of the accused. The only reference to P.W.2 was that he was pushed aside by the accused. However, in her chief-examination, P.W.1 stated: “My grand-son, Manideep, came to me, while weeping and informed that the accused beat on the head with a rice pounder (rokali banda) and during the course of escape, due to saree rounded to her leg, she fell down outside the house, and that the accused beat and killed my daughter. When I observed an injury on the forehead of my grand-son and questioned how he sustained injury, then he replied that when he went in rescue of his mother, the accused pushed him, and he fell down and sustained the injury.” This is a clear improvement upon Ex.P.1. Further, while there is a mention of the use of a wire to strangulate the deceased in Ex.P.1, there is no reference to that, in the evidence of P.W.1. P.W.2 is said to be the only eyewitness to the incident. He was examined on 17.11.2008. Since his age was 5 years at that time, the trial Court has taken adequate care and caution, before his evidence was recorded. P.W.2 is said to be the only eyewitness to the incident. He was examined on 17.11.2008. Since his age was 5 years at that time, the trial Court has taken adequate care and caution, before his evidence was recorded. If the age of the boy is taken as 5 years as on 17.11.2008, he would be aged less than 4 years as on the date of the incident, i.e., 10.09.2007. The evidence of P.W.2 is brief and both the chief-examination and cross-examination of this witness, are as under: “Chief examination: Yellamma is my paternal grand-mother. The person, who came before me, is my maternal grand-mother. Deceased, Laxmi, is my mother. The accused, who is now in the Court, is my father. My father beat with rice pounder (rokali banda) my mother and killed. When I went in rescue of my mother, the accused pushed me. I sustained injury on my forehead. I gave the statement before Magistrate. I am examined by the police. Cross examination by the accused: My maternal uncle informed that I am 5 years old. I know that I am staying in Gambheerpur. I am studying 1st class in Gambheerpur. Since childhood, I am staying with my maternal grand-mother. The accused beat my mother backside of the house. The accused picked up rice pounder (rokali banda) from the kitchen room. I stated before police that my father beat with ‘doddu katte’ (stout stick). I sustained bleeding injury. I did not go to the hospital. It is not true to suggest that I have not seen the incident and deposing falsehood as tutored by P.W.1.” We are conscious of the fact that the evidence of a juvenile witness must be analysed, with proper care and caution. Two contradictory phenomena come into picture. The first is that a boy of tender age would have no intention to distort the facts, and he would just speak about whatever he has witnessed. The other factor is that the witness of that nature may not be able to comprehend the facts to a level of precision, and unless corroborated by other evidence, it may not be safe to act upon such evidence. Reference, in this context, may be made to the judgment of the High Court of Punjab and Haryana in Amar Singh Bakhtawar Singh Vs. State. Reference, in this context, may be made to the judgment of the High Court of Punjab and Haryana in Amar Singh Bakhtawar Singh Vs. State. Since P.W.2 is the only eyewitness in the instant case, and his deposition is with reference to the death of his mother, we take it on its face value. We also express the view that a witness of that age is incapable of being inimically disposed of any person, that too, his father, notwithstanding the possibility of his having been tutored by P.W.1, during the interregnum. The evidence of P.W.2 would, at the most, account for a head injury. He did not say a word about the use of any wire or thread by the accused, much less, did he say that the accused has strangulated the deceased. Ex.P.14 is the post mortem report prepared by P.W.13. The injuries noticed by P.W.13 on the body of the deceased are listed in column No.11 of Ex.P.14, they are: Sl. No. Nature of injury Dimension Site and description Causative weapon Ante-mortem or post mortem 1 Lacerated wound 3x2x1/2 cm Scalp Parietal Occipital region Blunt Ante-mortem 2 Contusion 3x2x1 cm Rt.cheek Blunt Ante-mortem 3 Ligature mark abrasion extending over anterior surface ½ x 10 cm Neck anterior aspect Blunt Ante-mortem 4 Fracture Rt.Mandible (angle) Blunt Ante-mortem 5 Lacerated wound ½ x ½ x ½ cm Rt. Cheek Blunt Ante-mortem P.W.13 gave his opinion, at the end of the report, as under:- a) The approximate time of death is: 16 to 24 hours b) The cause of death to the best of my knowledge: ASPHYXIA due to strangulation with Hypovolemic shock due to superficial injuries. c) Reserved pending report from the Director-Forensic Science Laboratory, Government of Andhra Pradesh, Red Hills, Hyderabad-500 004 (A.P.) From this, it becomes clear that the cause of the death of the deceased is asphyxia, which is referable to injury No.3 on the neck. It has already been mentioned that P.W.2 did not state that the accused has caused any injury on the neck of the deceased. There is no other evidence on record to prove that the accused caused any injury on the neck of the deceased. Therefore, it emerges that the prosecution failed to establish the link between the accused and the vital injury on the body of the deceased. There is no other evidence on record to prove that the accused caused any injury on the neck of the deceased. Therefore, it emerges that the prosecution failed to establish the link between the accused and the vital injury on the body of the deceased. The gist of the evidence on record, at the most, would lead to a conclusion that the accused has caused a grievous injury i.e., injury No.1 upon the deceased. Therefore, it is difficult to hold that the accused is guilty of the offence of murder, under Section 302 IPC. In the result, the Criminal Appeal is allowed in part, and the conviction handed out and the sentence imposed for the offence under Section 302 IPC are set aside. In its place, it is held that the appellant is guilty of the offence under Section 326 IPC and is sentenced to undergo rigorous imprisonment for seven (7) years, and to pay fine of Rs.500/-(Rupees five hundred only), and in default of payment of the fine, to undergo simple imprisonment for one (1) month. The conviction and punishment referable to Section 323 IPC are sustained. Both the sentences shall run concurrently. It is directed that in case the appellant has served the sentence of seven years up to this date, he shall be set at liberty forthwith, if he is not required in any other case.