JUDGMENT : ANANT S. DAVE, J. 1. This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction rendered in Sessions Case No.39 of 2007 dated 30.1.2009 passed by learned Additional Sessions Judge and Fast Track Court, Porbandar, whereby the appellant-original accused is convicted for the offence under Sections 397 and 302 of the Indian Penal Code and imposed sentence of life imprisonment and fine of Rs.5,000/- and in default thereof six months rigorous imprisonment for Section 302, for Section 397 rigorous imprisonment of 7 years and fine of Rs.2,000/- and in default of the same further imprisonment for 6 months and further to undergo sentence for 6 months and fine of Rs.500/- and in default of the same further imprisonment for 15 days for the offence punishable under Section 135 of the Bombay Police Act. The sentences was ordered to run concurrently. 2. In nutshell, the complainant is the husband of deceased and accused was having acquaintance with the family and wife of the complainant who was attending B.Ed classes in Junagadh and came into contact with accused. On the day of the incident, namely, on 16.5.2007 around 18:15 hours she was called at Kamalabaug garden, Porbandar by the accused who reached there on Hero Honda motorcycle with hockey, petrol, acid and khukri like weapon from Upleta. Son, aged 5 years of the deceased and the complainant was also present. However, it is alleged that the accused committed a loot of ornaments namely ‘mangalsutra’ and ‘golden chain (lucky)’ and inflicted deadly blows of hockey and khukri on head as well as on face with knowledge and intention caused such grievous injuries to which injured succumbed to. Further, upon committing the crime as above, ornaments looted were handed over by accused to P.W.6 and thereafter upon completion of investigation and on filing of charge-sheet and committal of case, in which, 22 prosecution witnesses and 31 documentary evidence fell into consideration for the trial Court resulting into conviction and sentence, to which, reference is made in preceding paragraph. 3. At the outset, Mr. Pravin Gondaliya would contend that complainant-husband P.W.1 has no personal knowledge of the incident while P.W.2 is a child witness aged about 6 years at the time of recording the testimony. 3. At the outset, Mr. Pravin Gondaliya would contend that complainant-husband P.W.1 has no personal knowledge of the incident while P.W.2 is a child witness aged about 6 years at the time of recording the testimony. P.W.5, a Gardner claims to be an eye witness and P.W.6 produced ornaments of the deceased to the police at Kamalabaug police station. Various other panchas of panchnama P.W.s 4, 7, 8, 9, 10, 11, 13, 14, 15, 16 and 19 have turned hostile. The above panchas include that they were panchas of recovery of articles from the place of incident in presence of FSL, all golden ornaments, discovery of weapon like khukri, dagger and other articles from the scene of offence. That even learned trial Judge has not believed T.I. parade of identifying accused by P.W.5 and, therefore, the case of the prosecution based on the evidence like testimonies of child witness P.W.2 and eye witnesses P.W.5 and P.W.6 deserves to be carefully considered. 4. By taking us to testimonies of P.W.2 aged 6 years, it is submitted that the above witness was tutored and that fact appears on record in his cross-examination. That absence of articles namely ornaments looted by accused in the complaint and even in examination-in-chief of P.W.5, Gardner. That version of P.W.5 to have witnessed the crime is also doubtful as of inflicting blows of hockey and then accused escaping by jumping the wall of the garden. Likewise, P.W.6 who was standing at bus-stand of Narsang Tekri, where the accused dropped ornaments in his front pocket of the shirt and thereafter P.W.6 reached at his residence at Ranavav and on the next day handing over such articles to Kamalabaug Police Station at Porbandar, we have been taken to whole testimonies of P.W.6. Further, accused on the day of incident arrived from Upleta, a place at the distance of more than 80 Kms with hockey, dagger, acid bottles etc. at the public garden, where son of the victim was also present and the story of the prosecution creates doubt and false implication of the accused cannot be ruled out. That for investigation carried out in the manner in which even learned trial Judge passed strictures and many vital aspects were either not brought on record or witnesses present there at the scene of offence and had seen the incident came to be dropped, to which, the defence had objected. That for investigation carried out in the manner in which even learned trial Judge passed strictures and many vital aspects were either not brought on record or witnesses present there at the scene of offence and had seen the incident came to be dropped, to which, the defence had objected. One of them was Ashok who had seen the incident and chased the accused upon commission of crime. Thus, collectively, conviction secured based on testimonies of child witness who was tutored and version of the eye witness like P.W.5 and that of P.W.6 who handed over ornaments of which even identity is also doubtful, this Court in exercise of the appellate powers would certainly interfere by quashing and setting aside the conviction and sentence so ordered by the trial Court. 5. Per contra, learned APP would contend that in this case the prosecution has proved its case beyond reasonable doubt, for which, the trial Court has assigned reasons based on findings for which evidence was appreciated threadbare and version of the eye witness P.W.5, a Gardner who was present is not only inspiring confidence but reliable and, therefore, rightly believed by learned trial Judge. That no mentioning about items of ornaments looted by accused by P.W.5 is insignificant inasmuch as P.W.6 in his testimony establish that ornaments were dropped by accused during evening hours of the very day of the incident and that he knew the accused and, therefore P.W.6 had even approached police authority at Kutiyana and thereafter on the very next day at Kamalabaug Police Station, Porbandar and handed over the ornaments. That conduct of the accused of making an attempt to commit suicide by consuming poisonous substance reveal guilty mind and P.W.2, a child witness has categorically deposed in his examination-in-chief including that of inflicting hockey blow on the vital part of body namely on head of his mother, for which, corroboration is available in medico legal evidence. Other injuries reflected on body of the deceased in all 14 were found possible by stick like, hockey and also dagger which came to be recovered and discovered. It is submitted that P.W.s 5 and 6 are independent witnesses and there is no reason to disbelieve them. Other injuries reflected on body of the deceased in all 14 were found possible by stick like, hockey and also dagger which came to be recovered and discovered. It is submitted that P.W.s 5 and 6 are independent witnesses and there is no reason to disbelieve them. Thus, collectively, though T.I. parade is not believed by learned trial Judge but testimonies of P.W.2 a child witness, P.W.5 a Gardner and P.W.6 a person who knew the accused and possibility of handing over looted ornaments to him stood established upon identification of such ornaments and, therefore, conviction secured by prosecution and sentence so imposed by the trial Court both are within four corners of law warranting no interference in exercise of the powers by this Court. 6. In the backdrop of appreciation of entire evidence vis-a-vis judgment and order of conviction and sentence for various offence under challenge and submissions made by learned counsel for the appellant-convict and learned APP, we find that complaint is filed by P.W.1-husband of the deceased and that FIR was registered on 16.5.2007 being Exh.13 in which, the information about the incident was received by the complainant from his son aged 5 years that accused had inflicted blows of hockey on the head of his wife. In this complaint, the fact of items of ornaments looted by the accused is absent. That, testimonies of P.W.2, a child witness, in his examination in- chief deposes to the extent of inflicting injuries over head of his mother and taking away ornaments namely ‘mangalsutra’ and ‘golden chain’ and further inflicting a knife blow on the neck of his mother who fell down there and the accused made his escape good, she was taken by P.W.8 who runs travel company named ‘Eagle Travels’ but, in his testimony do not support the case of the prosecution. According to child witness, while he was brought before the Court his father and accompanying police, both had tutored him about the manner in which incident is to be described and also about the type of ornaments to be identified. That even identification of accused was also disclosed and that vulnerability in his talk to state as told by his father upon allurement given of providing a bicycle in case if child deposed in a manner he was tutored by him. That even identification of accused was also disclosed and that vulnerability in his talk to state as told by his father upon allurement given of providing a bicycle in case if child deposed in a manner he was tutored by him. Thus, leaving to appreciate the testimonies of P.W.5, a Gardner who is his cross-examination comes out with number of contradictions about not stating very crucial things in his police statement dated 15.8.2007 and the above contradictions stand proved in the testimonies of investigating officer P.W.20 and 21. P.W. Exh. Name of witness Description of witness 1 12 Ramesh Bhikhabhai Husband of deceased) Complainant 2 14 Aryan Rameshbhai, Son of the deceased (child witness) 3 18 Dr. Mitalben Tribovanbhai Who performed P.M. 4 22 Sahil Gafarbhai Qureshi (Hostile) Panch of Panchnama 5 23 Menand Devshibhai Bhutiya (eye Witness) Gardener (Waterman) Kamalabaug 6 24 Amubhai Madhabhai Who produced the ornament of deceased to police 7 27 Bipinbhai Nathabhai (Hostile) Accused purchased pesticide from this witness 8 28 Bharat Samatbhai Odedara (Hostile) Travelswala who took son of deceased from garden after incident 9 29 Sureshbhai Veljibhai Sarvaiya (Hostile) Clothes of the accused recovery panchnama 10 30 Kasambhai Abasbhai (Hostile) ---do--- 11 31 Vikrambhai Jivabhai (Hostile) Panch of arrest panchnama of accused 12 32 Bharatsinh Majbutsinh Jethwa (Hostile) Panch of panchnama of recovery of articles from the place of incident in presence of FSL 13 33 Vijaybhai Madhavjibhai (Hostile) Panchnama of recovery of golden ornament by P.W.6 Amu Madha 14 34 Khimjibhai Savjibhai (Hostile) ---do--- 15 35 Hardas Vinjabhai (Hostile) Discovery weapon (Kukari) 16 36 Punilbhai Bhikhubhai (Hostile) --do-- 17 37 Govindbhai Karmanbhai PSI IO who recorded complaint 18 41 Amrabhai Sajanbhai PSO Kamalabaug Police Station 19 45 Rameshbai Kantilal (Hostile) 2nd Panch of recoveerey of articles from the place of incident 20 50 Yajendrasinh Zilubha PI who took over the investigation from Jadeja from 17.5.2007 21 73 Jaydevsinh Jaswansinh Jadeja PI Kamalabaug Police Station, Investigation officer 22 74 Kantilal Muljibhai (TI Parade not believed) Executive Magistrate, TI parade 8. That T.I. parade itself is not believed by the trial Court and that P.W.5 was taken to the office of Executive Magistrate by two police personnels. That T.I. parade itself is not believed by the trial Court and that P.W.5 was taken to the office of Executive Magistrate by two police personnels. Likewise, P.W.6 in whose pocket ornaments were dropped by the accused create doubt about motive of commission of crime at least under Section 397 by the accused and thereafter P.W.6 made an attempt to approach local police at Kutiyana where he resided and contacting one Jiviben, aunt of the accused who on the contrary ascertained that ornaments belong to her. That none of the police personnels who were present at Kutiyana Police Station where P.W.6 had tried to make contact was examined. Here also, P.W.6 admits that in his statement before police it was not stated by him that upon asking Jiviben about the ornaments she told him that such articles belong to her. For convicting the accused the trial Court has believed version of the child witness P.W.2 and getting due corroboration from P.W.5 and P.W.6 . For panchas as recorded earlier and almost all panchas have turned hostile and not supported the case of the prosecution and when testimonies of the child witnesses not supported by corroborating evidence and that TI parade is not believed by learned trial Judge it would be unsafe to convict the accused by believing that the prosecution has succeeded in proving its case beyond reasonable doubt. Even the investigation is not carried out about motorcycle used by the accused and particularly that of dropping of an eye witness named Ashok who was present at the garden and seen the offence. So is the case about no investigation qua alleged attempt of suicide by the accused. We are in agreement with the decision relied on by Mr.Gondaliya about apprehension of testimonies of child witness and creditability thereof K. Venkateshwarju vs. State of Andhra Pradesh (2012) 8 SCC 73 and Hamza vs. Muhammedkutty @ Mani and Ors. (2013) 11 SCC 150 and possibility of a child witness by reason of his tender age is a pliable witness and by threat, coercion or inducement can be tutored easily. (2013) 11 SCC 150 and possibility of a child witness by reason of his tender age is a pliable witness and by threat, coercion or inducement can be tutored easily. That testimonies as a whole of P.W.2, a child witness as discussed earlier reveal that he was tutored by giving inducement and so admitted about various stages of the crime and, therefore, such version in absence of any corroboration of cogent and convincing in nature entitles the accused for benefit of doubt leaving us with no option but to reverse the conviction and sentence so ordered. 9. We find no reason to sustain the conviction of the convict-original accused for the offence under Sections 397 and 302 of Indian Penal Code and under Section 135 of Bombay Police Act. We, therefore, pronounce the acquittal of the convict-original accused and allow Criminal Appeal No.245 of 2009. The impugned order of conviction and sentence passed by learned Additional Sessions Judge and Fast Track Court, Porbandar in Sessions Case No. 39 of 2007 dated 30.1.2009 against the convict-original accused for the offence under Sections 397 and 302 of Indian Penal Code and under Section 135 of Bombay Police Act is quashed and set aside. Appellant is already on bail and therefore, his bail bond and surety shall stand cancelled.” 10. R & P be sent back to the trial court forthwith.