JUDGMENT : M.A. Ali, J. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. Azad Ahmed learned counsel for the appellants in Crl. A. No. 83/2014 and Crl. A. 331/2014, Mr. J. Islam, learned counsel for the appellant in Cr. A. 77/2015 and Mr. A.R. Talukdar, learned counsel for the appellant in Crl. A. 101/2019 as well as Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 2. All these four appeals arose out of the judgment and order passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 43/2013 and therefore, we propose to dispose of all the four appeals by this common judgment. By the impugned judgment, the learned Sessions Judge convicted the appellants under Section 120(B)/302 IPC and sentenced them to imprisonment for life and fine of Rs.5000/- each with default stipulation. 3. According to the prosecution, the deceased Mallika Begum was the wife of appellant Sipat Khan. The appellants Safir Uddin is the husband of the appellant Sipat Khan's sisters. Appellant Sipat Khan was residing in a different house with his another wife. There was some land dispute between the appellant Sipat Khan and his first wife Mallika Begum (deceased) relating to a plot of land and various village meetings were held for the same. The accused persons entered into conspiracy to kill the deceased Mallika Begum and ultimately on the fateful night, at about 12 O'clock all the accused persons named in the FIR killed the deceased by assaulting her. PW-3, the son of the deceased informed the PW-4 Abdul Halim about the incident in the morning, and Abdul Halim lodged the FIR (Exrt.5). On the basis of the said FIR, police registered Ram Krishna Nagar P.S. Case No. 154/2012 under Section 302/34 IPC. In course of investigation, witnesses were examined under Section 161 CrPC, inquest was done, body of the victim was sent for postmortem examination and Dr. Bimal Kumar Sarkar conducted the postmortem examination. 4. The autopsy doctor found the following injuries on the body of the victim. "(i) Ligature mark is present high of the neck, obliquely placed, non continuous - open behind right ear, base perchmentiad, surrounding tissue congested and hemorrhagic spots present. (ii) Laceration left side of ear (2cm X 1cm X bone deep zygomatic) Laceration dorsum of right hand over M.P. Joint - 2nd and 3rd (1cm X cm X bone deep). "(i) Ligature mark is present high of the neck, obliquely placed, non continuous - open behind right ear, base perchmentiad, surrounding tissue congested and hemorrhagic spots present. (ii) Laceration left side of ear (2cm X 1cm X bone deep zygomatic) Laceration dorsum of right hand over M.P. Joint - 2nd and 3rd (1cm X cm X bone deep). (iii) Laceration right foot dorsum (medial) 2cm X 1cm bone deep. Second column:- CRANIUM AND SPINAL CANAL:- 1. Scalp, skull, vertebrae:- Healthy 2. Membrane:- Congested. 3. Brain and spinal cord: Brain - congested, spinal cord-healthy. THORAX:- 1. Walis ribs and cartilages:- Healthy. 2. Pleurae:- Healthy. 3. Laryax and trach ere, right lung and left lung:- Congested. 4. Pericar (dium), Heart and Vessels:-Healthy. ABDOMEN:- Abdomen is healthy. MUSCLE BONES AND JOINTS Muscle bones and joints as described in External Appearance. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE:- The injuries sustained and hanging is ante mortem." 5. In the opinion of the doctor, the death was due to asphyxia resulting from hanging which was ante mortem. 6. On conclusion of the investigation, charge sheet was laid against all the four accused appellants and eventually they stood trial before the court of Sessions. 7. In course of trial, all the appellants pleaded not guilty to the charge. Prosecution examined as many as 12 witnesses to bring home the charges against the appellants. During examination under Section 313 CrPC, the appellants took the plea of innocence and accused Sipat Khan examined himself as DW-1. On appreciation of the evidence, learned Sessions Judge convicted the appellants under Section 302/IPC R/W Section 120(B) IPC and awarded sentence as indicated above. 8. Learned Sr. Counsel, Mr. H.R.A. Choudhury, submits, that the entire prosecution case was banking more or less on the oral testimony of PW-3, a child witness, who was not at all worthy of placing reliance, because of glaring inconsistency in his evidence and statement made in various stages of the proceeding. Mr. Choudhury further contends that the medical evidence was also not conclusive that the death of the victim was homicidal and therefore, the impugned judgment is required to be interfered. 9. Ms. S. Jahan, learned Addl. Mr. Choudhury further contends that the medical evidence was also not conclusive that the death of the victim was homicidal and therefore, the impugned judgment is required to be interfered. 9. Ms. S. Jahan, learned Addl. P.P., for the respondent, supporting the impugned judgment submits, that some discrepancy in the oral testimony of PW-3, though, may be here and there, such insignificant discrepancy cannot affect his testimony, inasmuch as, he was present with the victim on the night and had seen the occurrence. 10. Apparently, there was no other eye witness of the occurrence, except the PW-3 and the learned trial court heavily relied on the oral testimony of the PW-3 to convict the appellants. 11. Pw-3, who was aged about 7/8 years at the time of occurrence deposed, that his father Sipat Khan have been residing in a separate house with his another wife and used to visit them occasionally once in a month. On the night of the occurrence, Abdul Kadir, Safir, Moina Mia and his father Sipat Khan came to their house. Accused Moina and Kadir wrapped him in a rug and threw him. At that point of time, accused Safir and his father Sipat Khan was standing outside the house. Accused Moina and Kadir took away his mother (deceased) and threw her on the ground and he could notice the occurrence in the moonlight. He further stated that thereafter his father and Safir assaulted his mother by giving fist blow and also hitting with lathi (stick) near the electric post in their courtyard. After assaulting his mother, all the accused persons left the place leaving the deceased under a mango tree and on the following morning he found his mother lying dead under the mango tree. Having seeing his mother lying dead, he raised alarm, hearing which neighboring people, namely, Kala Mia, Sabur, Sukkur, Motin Mia and his sons, Rezia, the wife of Safir and accused Abdul Kadir etc. came to the place of occurrence. In the meantime, he traced out a mobile phone under the pillow of his mother and informed PW-4 about the occurrence. Thereafter, PW-4 came accompanying with the police. During cross examination, he stated that he was brought to the court and before the Judicial Magistrate by his uncle (PW-4). came to the place of occurrence. In the meantime, he traced out a mobile phone under the pillow of his mother and informed PW-4 about the occurrence. Thereafter, PW-4 came accompanying with the police. During cross examination, he stated that he was brought to the court and before the Judicial Magistrate by his uncle (PW-4). He also stated that as soon as the accused Kadir threw him on the ground, he became unconscious and he regained his sense in the morning. He also stated, that on the next morning when his maternal uncle (PW-4) came, he reported the matter to him. He also admitted to have stated before police in his statement under Section 161 CrPC, that he woke up hearing sound of the door and saw the accused Kadir lifting his mother by gagging her mouth. He also admitted to have not disclosed about the name of Moina @ Moinul to his uncle or to the police. 12. We have taken note of the statement of this witness recorded under Section 164 CrPC as well as Section 161 CrPC. In his statement recorded under Section 161 CrPC, he only implicated the accused/appellant Kadir and stated that hearing sound of the door he woke up and noticed Kadir taking his mother by pressing her mouth and he heard the sound and scream of his mother. On the next morning he found his mother lying dead. Whereas, in the statement recorded under Section 164 CrPC, he stated that at the night suddenly he saw his uncle Kadir and Safir entered into his house and Kadir started assaulting his mother by giving punch and thereby caused fracture on his left eye. He also stated to have seen two other persons. He further stated in the statement under Section 164 CrPC, that accused Kadir lifted him by hand and thereafter Kadir and Safir strangulated his mother to death and left the place. Whereas, according to his evidence in court, it was Moina and Kadir, who took his mother and threw her on the ground and thereafter accused Safir Uddin and his father assaulted her with lathi and left her under the mango tree and on the following morning he noticed his mother lying dead. 13. Whereas, according to his evidence in court, it was Moina and Kadir, who took his mother and threw her on the ground and thereafter accused Safir Uddin and his father assaulted her with lathi and left her under the mango tree and on the following morning he noticed his mother lying dead. 13. What is therefore apparent from the oral testimony of this witness is that he has changed his version during statement under Section 164 CrPC as well as in his evidence in court as to the sequence of occurrence and also the involvement of the different accused. In his first statement recorded under Section 161 CrPC, he only implicated Kadir and stated to have not seen anything, that happened outside the house. Whereas, while deposing in court and also under Section 164 CrPC, he turn to be an eye witness to the assault on the deceased and tried to give a detailed description of the occurrence involving all the four appellants. We also take note of that, since after the occurrence, the PW-3 has been under care and custody of his maternal uncle, the informant (PW-4), who tried his best to implicate lot many persons in the case and lodged the FIR implicating as many as six persons, even before he met the PW-3, from whom he came to know about the occurrence. What further transpires from the evidence of the PW-3 is that during statement recorded under Section 161 CrPC, PW-3 implicated only one Kadir and stated that he did not see the occurrence having taken place outside the house. Whereas, since after his coming under the care and custody of his uncle (PW-4), he made considerable improvement and thereby not only implicated all the appellants, he also turned to be eye witness of the entire occurrence. Therefore, the possibility of tutoring of this witness cannot be ruled out. The Apex Court in Rajkumar Vs. State of Madhya Pradesh, (2014) 5 SCC 353 , dealing with the child witness observed that : "................... Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. The trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him." 14. In State of Madhya Pradesh Vs. Ramesh and Anr., (2011) 4 SVV 786, the Apex Court after considering a large number of decisions came to the conclusion as under: "14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has not been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 15. True it is, the testimony of a child witness is not required to be rejected per-se, rather, what is required is to scrutinize the evidence of child witness with great care and caution, because of their susceptibility to tutoring and influence. In the present case as indicated above, the testimony of the PW-3 is totally inconsistent and contradictory with his previous statement. Considerable improvement in his evidence before court clearly suggests that he was tutored or at least the possibility of tutoring cannot be ruled out. Reason being that since after the occurrence, the PW-3 has been in custody of PW-4, who is found to be a highly partisan and interested witness, trying his best to implicate lot many persons in the case even by fragile attempt of making out a concocted story of criminal conspiracy. Reason being that since after the occurrence, the PW-3 has been in custody of PW-4, who is found to be a highly partisan and interested witness, trying his best to implicate lot many persons in the case even by fragile attempt of making out a concocted story of criminal conspiracy. Till coming into the custody and care of PW-4, the PW-3 did not project him to be an eye witness to the assault on the deceased, allegedly taken place outside the house, not he implicated the appellants, except one. The PW-3 started implicating the appellants only after his coming into the custody and care of the PW-4. Therefore, in our considered view, no credibility can be attached to the oral testimony of the PW-3, the sole eye witness in the case. 16. Pw-4, the informant stated in his evidence that the deceased informed him prior to the occurrence, that having noticed the demeanor and behavior of her husband Sipat Khan, she apprehended that Sipat Khan might kill her. She also informed him over phone that Moina Mia @ Moinul threatened her with dire consequence, unless she leave the land. He also stated that on the previous day evening at about 6 PM, the deceased called him over phone and told that the accused Moina, Safir, Kadir and Sifat held a meeting near the house of one Abdul Sabur and made a plan to kill her. However, due to disruption of network, she could not complete her conversation and on the following morning at about 6 AM, PW-3 informed him over phone, that his mother was killed. He further stated that immediately upon receiving the information from PW-3, he along with PW-5, PW-6 and PW-7 came to Ram Krishna Nagar Police Station and lodged the FIR, which was written by himself. In the FIR, he implicated the accused Sipat Khan, Sarif Khan, Salma Begum, Safir Uddin, Abdul Kadir, Mayub Ali. He further stated that he also wanted to implicate one Moina Mia, but as because one Ibrahim Ali threatened him not to implicate Moina Mia, he did not mention the name of Moina Mia in the FIR. Having lodged the FIR, he went to the place of occurrence along with police and found the body of the victim near a mango tree. Having lodged the FIR, he went to the place of occurrence along with police and found the body of the victim near a mango tree. He stated to have noticed one injury mark above the right eye lid, some laceration mark on hand and her Bengals were found over the palm. But, he did not state before police regarding Moina having threatened the victim or about any meeting being held on the previous day among Moina, Safir, Kadir and Sifat. He stated that on arrival at the place of occurrence, his nephew (PW-3) told that accused Moina, Kadir, Safir and Sifat Khan killed his mother. 17. Pw-7, who happens to be the brother of PW-4, and accompanied the PW-4 to the police station, deposed that, when they arrived the place of occurrence along with police, PW-3 did not tell them anything. He only came to know from the people assembled there, that Sipat Khan visited the residence of the deceased in the morning. He also stated that PW-3 informed over phone that his mother was lying dead outside the house. What is therefore evident from the oral testimony of PW-4 and PW-7, both being brothers of the deceased is that PW-3 only informed about the death of his mother, he did not tell the details of the occurrence nor he told about the accused who were involved in the offence. Surprisingly, PW-4, even before coming to the place of occurrence and without knowing about the occurrence, lodged the FIR implicating as many as 6 persons including the present appellants. He further stated that he was also willing to implicate the name of Moina, but on being threatened by one Ibrahim Ali, he did not mention the name of Moina in the FIR. But in his previous statement before police he did not state that he left the name of Moina because of threat by Ibrahim. PW-7 also stated in his evidence about the victim informing him that the four accused persons had a meeting on the previous day, but this witness also did not make any whisper in his previous statement recorded under Section 161 CrPC regarding such meeting by the appellants on the previous day. 18. Pw-5 and PW-6 have made similar statement as deposed by PW-4. However, these two witnesses are also found to have stood contradicted with their previous statement. 18. Pw-5 and PW-6 have made similar statement as deposed by PW-4. However, these two witnesses are also found to have stood contradicted with their previous statement. Both these witnesses came to the place of occurrence on the next morning after having come to know about the occurrence from PW-4. According to PW-9, having come to know about the occurrence, he came to the place of occurrence and saw the accused Sipat, husband of the deceased. According to him, the husband of the deceased Sipat Khan, who came in the morning, immediately left the place and did not return. 19. The doctor (PW-1), who conducted the postmortem examination, deposed that the death of the victim was due to asphyxia resulting from hanging which was ante mortem. What we notice from the medical evidence of PW-1 and the postmortem report is that though, the doctor has opined the cause of death of the deceased to be asphyxia because of hanging, the medical evidence nowhere indicated the death of the deceased to be homicidal. The postmortem report shows that ligature mark was present high of the neck, obliquely placed, non continuous and open behind right ear, which clearly suggests that the cause of asphyxia was hanging, but there is nothing in the postmortem report or evidence of the doctor to suggest that the hanging was homicidal. 20. A dispassionate scrutiny of the evidence of the prosecution, as indicated above, it appears that the medical evidence as to the cause of death was inconclusive, inasmuch as, though the doctor has stated that the death was caused by hanging, the doctor has not opined conclusively that the hanging of the deceased was homicidal. The testimony of the lone eye witness being a child, as indicated above is found to have suffered from glaring inconsistencies, which rendered his evidence unworthy of placing reliance. That apart, the facts and circumstances of the case and the nature of evidence of the PW-3, possibility of his tutoring also cannot be ruled out. Evidently, the PW-4, PW-5, PW-6 and PW-7 came after the occurrence. Although they have stated that they saw various injuries on the body of the victim, such testimony of PW-4, PW-5, PW-6 and PW-7 with regard to the injury does not find support from the medical evidence. Evidently, the PW-4, PW-5, PW-6 and PW-7 came after the occurrence. Although they have stated that they saw various injuries on the body of the victim, such testimony of PW-4, PW-5, PW-6 and PW-7 with regard to the injury does not find support from the medical evidence. When the prosecution has failed to establish beyond doubt that the death of the deceased was homicidal, and the testimony of the lone eye witness is totally unreliable, the prosecution can by no stretch of imagination be held to have succeeded in proving the charge of murder of the deceased beyond reasonable doubt and therefore, the impugned judgment of conviction and sentence is not sustainable. Accordingly, we set aside the conviction of the appellants and allow all the four appeals. The appellants be released and set at liberty forthwith, if not required in any other case. 21. Send down the LCR. 22. It appears that the learned Sessions Judge has not passed any order with regard to compensation under Section 357A IPC, though the victim is survived by three minor children. The District legal Services Authority shall examine the necessity of providing any compensation to the dependent of the victim. And shall also ensure that the compensation if granted reach the real beneficiary.