JUDGMENT AND ORDER : Arup Kumar Goswami, J. Heard Mr. H.R.A. Choudhury, learned Senior counsel, assisted by Mr. J. M. Soleman, learned counsel appearing for the appellants. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. Yakub Ali @ Nanoi and Hasiba Begum are convicted under Section 304(2)/34 of the IPC and also under Section 201/34 IPC. For the offence under Sections 302/34 IPC, they are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.20,000/- each. For the offence under Sections 201/34 IPC, they are sentenced to suffer rigorous imprisonment for 1 (one) year and to pay fine of Rs.3,000/- each. There was a juvenile accused, namely, Kabir Uddin, who is son of Yakub Ali @ Nanoi and his case was sent to the Juvenile Justice Board. 3. It is submitted by Mr. H.R.A Choudhury, learned Senior counsel appearing for the appellants, that the Juvenile Justice Board had acquitted Kabir Uddin. 4. The case presents a tale of twists and turns. Hasiba Begum, who is the wife of the deceased, Abdul Jabbar, lodged an ejahar against her two brother-in-laws, namely, Abdur Razzak and Abdul Sattar. Charge-Sheet was submitted by police against Yakub Ali @ Nanoi and his son Kabir Uddin. Hasiba Begum also adduced evidence in the form of PW1. She was followed by PW2, her daughter Imrana, who is the sheet anchor of the prosecution case. Imrana was a minor girl of about 10 years of age at the time of incident that occurred on 22.08.2000. In her deposition, Imrana implicated her mother and accordingly, the learned Trial Court, in exercise of power under Section 319 of the Cr.P.C, arrayed her as an accused. Against such arraignment, Hasiba approached this Court by filing a Criminal Revision Petition which was registered as Criminal Revision Petition No. 351/2003, but without any success. The revision was dismissed by an order dated 27.07.2006 holding that evidence of PW2 disclosed sufficient materials against Hasiba Begum. Consequently, the evidence of PW1 recorded earlier was expunged. 5. PW2 was, thereafter, cross-examined on behalf of Hasiba Begum. Five more witnesses were examined on behalf of the prosecution including the Doctor and the Investigating Officer. Defence had adduced evidence of four defence witnesses. Consequently, the evidence of PW1 recorded earlier was expunged. 5. PW2 was, thereafter, cross-examined on behalf of Hasiba Begum. Five more witnesses were examined on behalf of the prosecution including the Doctor and the Investigating Officer. Defence had adduced evidence of four defence witnesses. In his Section 313 Cr.P.C statement, Yakub @ Nanoi stated that brother of the deceased had implicated him because of their greed for the properties of the deceased, which they had sold off. Hasiba also stated that she was falsely implicated because of the greed for her property. She also stated that they had taken away the children from her. 6. Hasiba Begum, as informant, had lodged the ejahar on 25.08.2000 stating that Abdul Razzak, her husband's brother, had come to their residence at midnight when they were sleeping and informed that his father was seriously sick and that her husband should go along with him and, accordingly, her husband had left home along with Abdul Razzak. For the next two days, her husband did not return back and on 25.08.2000, at around 8 A.M., she received information that a dead body was lying in a paddy field and she, having gone there, found the dead body with a rope tied round the neck and with injuries on the body, and she confirmed the dead body to be that of her husband. In the ejahar, she implicated Abdul Razzak and his brother Abdul Sattar with the homicidal death of her husband. On the basis of her ejahar, Patherkandi P.S. Case No. 134/2000, under Sections 302/34 IPC, was registered. 7. Mr. H.R.A. Choudhury, learned Senior counsel appearing for the appellants has submitted that the learned Trial Court was wholly in error in convicting the appellants on the basis of the evidence on record. He has contended that PW2 had changed her version four times: statement given to the police, statement made under Section 164 Cr.P.C, evidence before Court before her mother was arrayed as an accused and lastly, after her mother was arrayed as an accused and, therefore, there is no reliability attached in the testimony of such a witness, who is, even otherwise, a child witness, prone and susceptible to tutoring. Mr. Mr. Choudhury submits that the materials on record would demonstrate that it was a case of tutoring which prompted the PW2 to depose in the manner as she did in her evidence based on which her mother was made an accused as she was under the custody of her uncle against whom the mother had lodged ejahar. He has submitted that the recovery of the spade at the instance of the accused Yakub Ali @ Nanoi does not inspire confidence in view of the evidence of PW4 and evidence of DW3. 8. Ms. S. Jahan, learned Additional Public Prosecutor, has submitted that in view of the evidence of PW4 and DW3, it has to be considered that recovery of the spade, the alleged weapon of offence was not recovered at the instance of the accused Yakub Ali @ Nanoi and that the seizure of the spade was not proved in accordance with law. She submits that on the date of the seizure, materials on record disclose that Yakub Ali @ Nanoi was not arrested. She has submitted that prosecution case, in the circumstances, rests solely on the testimony of PW2. In her usual fairness she has submitted that Mr. H.R.A. Choudhury is right in submitting that PW2 had given different versions at different points of time. While submitting that conviction can be sustained on the basis of the evidence of a child witness, she emphasizes that the Court will have to be careful and cautious in appreciating the evidence of a child witness. According to her, in the facts and circumstances of the case, as PW2 had shifted her stand periodically, her evidence does not inspire confidence. 9. PW2 was aged about 13 years when her deposition was recorded on 08.05.2003. In her evidence, she has stated that after her father's death, her mother eloped with Yakub @ Nanoi and since then she lives with him. After her father's death, police took her to Abdul Razzak's house where she and her brother are still residing. Her mother never tried to come near them and her uncle and other villagers provided them with food and dress, etc. After her father's death, police took her to Abdul Razzak's house where she and her brother are still residing. Her mother never tried to come near them and her uncle and other villagers provided them with food and dress, etc. She has stated that on the date of the incident, at around 11/12 o'clock at night, she heard her father's cry and, waking up, she went out, whereupon she saw her mother outside and her father lying on the ground with the accused Kabiruddin sitting on his chest and Yakub putting a rope around her father's neck and pulling him. Her mother was gagging her father with the Saree she was wearing and her mother showed a Dao to her and threatened that if she raised any cry, she would cut her. Similar threatening was given by Yakub that he was going to cut her as well as her father. Yakub took her to his residence and kept her there till around 10 o'clock of the next morning. She wanted to go to her uncle Rezzak's house, but her mother did not permit her to go. Next day, her mother went away with a man named Kala and retuned back at night and she stayed with two persons named Wajed Ali and Hanifuddin, who had been sent by Yakub Ali to guard them. PW2 also deposed that her request for seeing the dead body of her father was also declined by her mother and police took away her mother, younger brother and herself to the police station. She and her mother were produced before the Court three days later. Her mother took along her younger sister and she had delivered a son through Yakub, who is still living. 10. PW2 in her cross-examination stated that she had stayed in the police station for three days and was taken to the court from there. She stated that police did not beat her or her mother. She stated that her mother used to live in her uncle's house in a separate room before her elopement and that she and her mother used to have separate cooking arrangements. Police had told her mother that she had done something to her father and, therefore, she must trace him out. She stated that her mother used to live in her uncle's house in a separate room before her elopement and that she and her mother used to have separate cooking arrangements. Police had told her mother that she had done something to her father and, therefore, she must trace him out. On her cross-examination by Hasiba, her mother, she stated that she did not witness any occurrence and that she had deposed earlier as tutored by Abdul Razzak and her grand-mother as she did not understand anything. She was detained at the police outpost for 3/4 days and police had assaulted her when she told police that she did not know about the occurrence. She deposed as had been tutored for fear of being assaulted by police and she was instructed to implicate her mother as she was not willing to sell the property of her father. 11. PW3 deposed that wife of Abdul Jabbar, i.e., accused Hasiba, had gone to the police station to give a missing entry regarding her husband. 12. PW4 stated that he had heard about Yakub maintaining illicit relation with Hasiba as a result of which Yakub was ex-communicated. He also stated that Yakub Ali in their presence had stated that he had caused death of Abdul Jabbar with a spade, which was seized vide Ext.-6 from the house of Abdul Jabbar and that he was a witness to the seizure. He further deposed that Yakub had married Hasiba and that Hasiba is presently staying in Yakub Ali's house. In his cross-examination, he stated that he had told the Investigating Officer that Yakub Ali treated Hasiba as his daughter and that relationship of the deceased and Yakub Ali was good. He also stated that one week after recovery of the dead body, Yakub was arrested on his surrender and at the time of recovery of the spade, Yakub was absconding. He later on stated that Yakub was arrested after one month and he put his signature in the seizure list at the police station. 13. PW5 stated that he found Yakub Ali in the residence of Abdul Jabbar on the day the dead body was recovered and hearing the sound of police vehicle, he went away. 14. PW 6 is the Investigating Officer and he narrated the steps taken by him during the course of investigation. 13. PW5 stated that he found Yakub Ali in the residence of Abdul Jabbar on the day the dead body was recovered and hearing the sound of police vehicle, he went away. 14. PW 6 is the Investigating Officer and he narrated the steps taken by him during the course of investigation. He deposed that while preparing the inquest report, he did not notice any injury mark on the dead body and that at the instance of accused Yakub Ali, on being led by him, the spade was recovered from the house of the complainant and, accordingly, seizure list, Ext.-6, was prepared. In his cross-examination, he stated that PW2 did not tell him about Hasiba gagging her husband or threatening PW2 with a dao but had stated that her mother tried to rescue Abdul Jabbar from the clutches of Yakub. He confirmed that the accused, Yakub, was arrested on 18.09.2000 and he did not interrogate any of the brothers of the deceased. To a question posed by the court, he stated that Hasiba had given a Missing Entry Report about her husband, recorded as G.D. Entry No. 517 dated 24.08.2000. 15. PW7, who conducted the post-mortem examination, found the following injuries: “(i) Incised wound over the right thigh about 3” X 2” X 1”. (ii) Incised wound over the right side of the chest about 2” x 1” x bone depth. (iii) Incised wound over the rectal area about 3” X 2” X 1” in between the buttock. Whole the body was covered by with mud.” PW7, however, did not mention the type of weapon. 16. DW1 is the purchaser of the homestead, which belonged to the deceased Abdul Jabbar and he stated that the same had been sold to him by the mother and brothers of Abdul Jabbar. 17. DW2 is the father of Hasiba and he stated that she had been residing with him and that she had not remarried. In his cross-examination, he stated that his daughter neither made any contact with the children, who were residing in the homestead of their grand-parents, nor did she make any attempt to bring them back. 18. DW3 deposed that he was asked to put signature in a piece of paper in connection with the recovery of a spade, but he was not present at the time when the spade was recovered. 19. 18. DW3 deposed that he was asked to put signature in a piece of paper in connection with the recovery of a spade, but he was not present at the time when the spade was recovered. 19. DW4, who is an Advocate's clerk, stated that the appellant, Yakub Ali, was not present at the time when the spade was recovered from the house of Abdul Razzak. 20. We are in agreement with the learned counsel for the parties that on state of evidence, leading to discovery of the spade at the instance of Yakub, cannot be accepted. The evidence of PW4 goes to show that when the spade was seized, Yakub was not arrested. He also stated that he put his signature on the seizure list in the police station. PW6, on the other hand, stated that Yakub had led him for recovery of the spade. DW3 stated that the spade had been recovered after 3/4 days of the recovery of the dead body and he was not present at the time of recovery of the spade and that he had been called to the police station and asked to put signature in a piece of paper to show that the spade had been recovered. None of the seizure witnesses supported the version of PW6 with regard to leading to discovery of the spade at the instance of Yakub. Going by the evidence, it is apparent that Yakub was not even present with the spade was recovered. The seizure witnesses had also described the manner in which they had put signatures, the cumulative effect of which is that they did not witness the actual recovery of the spade. Therefore, the only surviving evidence against the appellant is the deposition of PW2. 21. In Suryanarayana v. State of Karnataka, reported in (2001) 9 SCC 129 , the Apex Court had discussed as to how the evidence of a child witness is to be considered. The Apex Court laid down that the evidence of a child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. Evidence of a child witness would require the court to scrutinize its evidence with care and caution. Evidence of a child witness would require the court to scrutinize its evidence with care and caution. If the child is shown to have stood the test of cross-examination and there is no infirmity in its evidence, the prosecution can rightly claim a conviction based upon its testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 22. In the light of the law laid down by the Apex Court, it will be necessary to evaluate the evidence of PW2. In her cross-examination, PW2 had stated that both she and her mother, hearing the alarm raised by her father, came out of the house and that her mother tried to rescue her father from the grasp of accused Yakub by pulling. In Court, while giving evidence, she had portrayed a different picture implicating the mother with the assertion that she was gagging her father with the Saree she was wearing and that she was threatened with dire consequences in the event of her raising hue and cry. In her Section 164 Cr.P.C statement, she had stated that her father was having an argument with Yakub Ali and his son and, during the scuffle, they felled him to the ground and that they had killed her father. Hasiba was not at all implicated in the said Section 164 Cr.P.C statement. After Hasiba was made accused, PW2 was cross-examined by Hasiba and, in such cross-examination, she stated that she had deposed as had been tutored by Abdul Razzak and her grand-mother. Hasiba was not at all implicated in the said Section 164 Cr.P.C statement. After Hasiba was made accused, PW2 was cross-examined by Hasiba and, in such cross-examination, she stated that she had deposed as had been tutored by Abdul Razzak and her grand-mother. She stated that she had been beaten up by police and was asked to depose against her mother as she was not willing to sell the property of her father. She also stated that she had been detained at the police station for 3/4 days and that she did not witness any occurrence. 23. The materials on record disclose that PW2 was in the custody of the family of the deceased. Her evidence that she was kept in the police station for 3/4 days has not been impeached. That the property of her father was sold has also been brought on record by the evidence of DW1, who is aged about 81 years. It is also brought on record through the cross-examination of PW6 that Hasiba had given missing entry in respect of her husband Abdul Jabbar, which was registered as Patherkandi G.D. Entry No. 517 dated 24.08.2000. The said G.D. Entry has not been proved by prosecution though the fact of Hasiba lodging a missing information report is established. Though PW2 had introduced a story of her mother eloping and marrying Yakub, prosecution had failed to demonstrate with any reliable evidence that Hasiba had eloped with Yakub and got married with him. On the contrary, the evidence of PW4 is that Yakub treated Hasiba as his daughter. DW2, father of Hasiba, deposed that Hasiba had not remarried and she had been living with him all throughout. 24. There is flip-flop in the statement and deposition of PW2. There is no corroborating evidence to support the evidence of PW2. Although Hasiba had made allegations against the brothers of the deceased, as appears from the evidence of PW6, the Investigating Officer, he did not even interrogate the brothers of the deceased. It is quite strange that the Investigating Officer did not make any such attempt. 25. In the totality of the facts and circumstances of the case, the possibility of PW2 being tutored cannot be ruled out. It is quite strange that the Investigating Officer did not make any such attempt. 25. In the totality of the facts and circumstances of the case, the possibility of PW2 being tutored cannot be ruled out. Even if she was not tutored, her evidence had left a lot to be desired and the same is not found to be inspiring and, therefore, we are of the considered opinion that on the evidence of PW2, it will be highly unsafe to convict the appellants. 26. In view of the above, we are of the opinion that the appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned conviction is set aside. Consequently, the appellants are set at liberty. 27. Registry will send back the records.