JUDGMENT : 1. The present criminal appeal is filed by the accused against the impugned judgment of conviction and order of sentence dated 31st August, 2015 made in S.C.No.181/2012 on the file of the IV Additional District and Sessions Judge, Madhugiri convicting the accused for the offence punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/in default of payment of fine to undergo further simple imprisonment for three months. 2. It is the case of the prosecution that the deceased Gangamma had two brothers – Muddappa and Rangashamaiah and three sisters. Her third daughter – Parvathamma was married to accused about fourteen years back as on the date of incident and after five years of their marriage, there was a dispute between them which ended in divorce. It is the further case of the prosecution that the accused married again and was having two children. The father of the accused – Muddappa and his brother Rangashamaiah sold the ancestral properties bearing Sy.Nos.63 and 69 situated at Gurudevarahally and shared the sale proceeds among themselves. After coming to know the same, though Gangamma (deceased) had a share in the sale proceeds, she was not given her share. Therefore, she was constrained to file the original suit i.e., O.S.No.66/2012 before the JMFC., Madhugiri and on 25.1.2012 when the summons of the suit was served on the father of the accused, on he coming to know about the same, thinking that if his aunt Gangamma is alive, her share has to be given and if she is not alive, her share also would come to them and with that intention on 26.1.2012 at 12.30 p.m., when Gangamma was in her house in Madhugiri Town in Chinnappa Galli, he entered into the house and dowsed her with kerosene and tried to set fire on her and thereafter, he strangulated her with her own saree and killed her. Hence, Madhugiri Police filed the charge sheet against the accused for the offence punishable under Section 302 of IPC. 3. It is the further case of the prosecution that presence of the accused was secured and produced before the Committal Court and was taken to the judicial custody. Hence, Madhugiri Police filed the charge sheet against the accused for the offence punishable under Section 302 of IPC. 3. It is the further case of the prosecution that presence of the accused was secured and produced before the Committal Court and was taken to the judicial custody. Thereafter, on 27.4.2012, cognizance of the accused was taken for the offence punishable under Section 302 r/w 149 of IPC., a case was registered as C.C.No.420/2012 and was committed to the Court of Sessions. 4. The learned Sessions Judge framed the charge against the accused on 17.10.2012, read over the same and explained to him. As the accused denied the charges and claimed to be tried. 5. In order to prove its case against the accused, the prosecution examined its witnesses P.Ws.1 to 19 and got marked the documents Exs.P.1 to Ex.P.17 and material objects – M.Os.1 to 12. After completion of recording of the evidence of the prosecution witnesses, statement of the accused as contemplated under the provisions of Section 313 Code of Criminal Procedure was recorded. However, the accused though has denied all the incriminating evidence appearing against him, has not adduced any oral and documentary evidence in support of his case. 6. The learned Sessions Judge after formulating the points for consideration and considering both oral and documentary evidence on record has recorded a finding that the prosecution has proved beyond all reasonable doubt that on 26.1.2012 at 12.30 p.m., the accused with an intention to kill Gangamma in order to avoid giving her share in the sale proceeds of the ancestral property bearing Sy.Nos.63 and 69 of Guruvaderahally, went to her house, doused her with kerosene and tried to set fire on her, but as she did not catch fire because the match box was wet, he strangulated her with saree and killed her and thereby has committed an offence punishable under Section 302 of IPC. Accordingly, by the impugned judgment and order of sentence dated 31st August, 2015, the learned Sessions Judge sentenced the accused to undergo imprisonment for life with a fine of Rs.5,000/and in default of payment of fine, to undergo further simple imprisonment for three months. Hence, the present appeal is filed by the accused. 7. We have heard the learned Counsel for the parties. 8. Hence, the present appeal is filed by the accused. 7. We have heard the learned Counsel for the parties. 8. Sri A.H. Bhagavan, learned Senior Counsel for the appellantaccused contended that the impugned judgment and order of sentence passed by the learned Sessions sentencing the accused for imprisonment for life for the offence punishable under Section 302 of IPC., without appreciation of evidence is illegal and contrary to law and the same is liable to be set aside. He further contended that the conviction of the accused based on the evidence P.W.19 – the child witness aged about 3 years as on the date of the incident, cannot be sustained since, the child of such a tender age is not capable of comprehending anything and to give rational answers after a lapse of two to three years. Hence P.W.19 is an incompetent witness and his evidence is wholly inadmissible in view of the provisions of Section 118 of the Indian Evidence Act. He further contended that admittedly, the investigating officer has not recorded the statement of P.W.19 immediately after the incident. Therefore, his evidence is suspectable because there are chances of he being tutored by P.W.16 to give false evidence as he was his custodian. On that ground alone, the impugned judgment and order of conviction cannot be sustained. He further contended that P.W.19 was summoned as additional witness after completion of the prosecution evidence on the application filed by the Public Prosecutor after three years of the incident and he has not been examined as prosecution witness. It is to be noted that P.W.19 does not depose before the Court that the accused has strangulated the deceased and even his evidence is inconsistent to the evidence of P.W.16 – Malleshappa and hence, his evidence cannot be relied upon. 9. The learned Senior Counsel further contended that the prosecution has not proved its case in view of the fact that the averments in Ex.P.10 – the complaint does not depict that the child – P.W.19 has informed about the incident and when P.W.19 is not an eye witness. He would further contend that P.W.19 has stated only once that he had seen the accused on the date of the incident and in the Court. Therefore, his evidence is not creditworthy to believe the case of the prosecution. 10. He would further contend that P.W.19 has stated only once that he had seen the accused on the date of the incident and in the Court. Therefore, his evidence is not creditworthy to believe the case of the prosecution. 10. The learned Senior Counsel would further contend that there is no link in the chain of circumstances from the beginning till completion of evidence though it is an admitted fact that the death of the deceased was homicidal in nature. Even the Court below has committed an error in believing the evidence of either P.W.4 or P.W.16, who have spoken about the movement of the accused near the place of incident as they are the chance witnesses and their evidence is unclear and irrational and hence, their evidence cannot be considered as gospel truth. The evidence of P.W.4 with regard to accused going inside the house of P.W.16 is one sided and is only in support of the evidence of P.W.16, who is highly interested. Hence, the evidence of P.Ws.4 and 16 are inconsistent and cannot be relied upon. He would further contend that P.Ws.2 and 3, who are the adjacent neighbours have turned hostile in part. Even the evidence of P.W.4 cannot be believed as his statement was recorded by the investigating officer only on 5.2.2012 after a lapse of 9 days from the date of the incident. He would further contend that the statements of the prosecution witnesses were recorded on 26.1.2013, 27.1.2013 and 3.2.2012 and hence, there is an inordinate delay in recording their evidence and hence, no reliance can be placed on the evidence of the prosecution witnesses. 11. The learned Senior Counsel would further contend that though P.Ws.4, 16 and 19 are material witnesses, their evidence cannot be believed as they are highly interested witnesses. Even P.W.16, who is the husband of the deceased and highly interested witnesses has given his evidence against the accused, who got divorce from his daughter about 14 years prior to the date of incidence. Therefore, the evidence of P.W.16 is only based on assumptions and presumptions which is impermissible in view of the provisions of Section 119 of the Indian Evidence Act. 12. The learned Senior Counsel would further contend that P.W.19 has not made any statement either before P.W.16 or anybody with regard to the alleged incident. Therefore, the evidence of P.W.16 is only based on assumptions and presumptions which is impermissible in view of the provisions of Section 119 of the Indian Evidence Act. 12. The learned Senior Counsel would further contend that P.W.19 has not made any statement either before P.W.16 or anybody with regard to the alleged incident. He would further contend that when P.W.4 has given his evidence that as on the date of incident, he was present in the house and on he seeing the accused entering into the house of P.W.16, at that time since P.W.16 came screaming, P.Ws. 2 and 3 who were present along with P.W.4, went inside the house of P.W.16. In view of inconsistency in the evidence of P.Ws.4 and 16, who are partisan witnesses, the learned Sessions ought not to have convicted the accused relying upon their evidence. The learned Senior Counsel further contended that the investigating officer has not recorded the statement of P.Ws.16 and 19 under the provisions of Section 161 of the Code of Criminal Procedure. Therefore, he contended that the entire case of the prosecution is based on presumptions and assumptions and the learned Sessions Judge relying upon the same has proceeded to convict the accused and hence, he sought to set aside the impugned judgment and order of sentence and to allow the present appeal filed by the accused. 13. In support of his contentions, the learned Senior Counsel relied upon the following catena of decisions of the Hon’ble Supreme Court with regard to child witness: (i) Bhagwan Singh and Others Vs. State of M.P. reported in 2003 SCC (Crl.) 712 – paragraphs 18,19,20 to 22; (ii) Orsu Venkat Rao Vs. State of Andhra Pradesh reported in 2004 Crl.L.J.4656 – paragraphs 5, 8, 10 and 11; (iii) Gunduchi Patnaik Vs. State of Orissa reported in 1985 Crl.L.J.645 paragraph8; (iv) Kanan and others Vs. State of Kerala reported in AIR 1979 SC 1127 paragraph1; (v) Ganesh Bhavan Patel and Another Vs. State of Maharashtra reported in AIR 1979 SC 135 paragraphs15, 18 and 29 (delay in recording statement); (vi) Kadungoth Alavi Vs. State of Kerala reported in 1982 Crl.L.J.94 paragraph – 13 ( with regard to Section 119 of the Cr.P.C.); and (vii) Nanhar Vs. State of Haryana reported in 2010 Crl.L.J.3450 – paragraphs27, 29 and 30 (with regard to circumstantial evidence); 14. State of Kerala reported in 1982 Crl.L.J.94 paragraph – 13 ( with regard to Section 119 of the Cr.P.C.); and (vii) Nanhar Vs. State of Haryana reported in 2010 Crl.L.J.3450 – paragraphs27, 29 and 30 (with regard to circumstantial evidence); 14. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment of conviction and order of sentence contended that the evidence of the natural witnesses P.Ws.4, 16 and 19, corroborate each other with regard to involvement of the accused in committing the homicidal death of the deceased. He would further contend that the evidence of P.Ws.4 and 16 with regard to presence of P.W.19 – child in the house of P.W.16 as on the date of the incident is established and is proved and hence, his evidence cannot be disbelieved. He further contended that the opinion in Ex.P.7 – the Forensic Science Laboratory report at Serial No.2, clearly depicts thin layer chromatographic and UVSpectrophotometric methods have responded positive for the presence of kerosene residues and hence, there is no delay in lodging the complaint. He would further contend that P.W.13 – Sharadamma – daughter of the deceased, has prepared the complaint on the basis of the statement made by her father. The evidence of the doctor – P.W.1 and the postmortem report clearly depicts that death of the deceased was due to strangulation using a nylon saree and hence, the case of the prosecution cannot be disbelieved. He would further contend that P.Ws.2 and 3, who are independent witnesses, though have also spoken to about the homicidal death, have turned hostile inpart. 15. The learned Additional SPP further contended that the learned Sessions Judge considering both oral and documentary evidence on record in proper perspective has proceeded to convict the accused for the offence punishable under Section 302 of IPC and the same is in accordance with law and hence, this Court cannot interfere with the same in exercise of appellate powers of this Court. 16. In support of his contentions, the learned Additional SPP relied upon the following judgments: (i) State of U.P. Vs. Krishna Master and Others reported in AIR 2010 SC 3071 (Child witness); and (ii) Smt. Parvati and Another Vs. The State of Karnataka in Criminal Appeal No.1765/2016 D.D.8th January, 2019 (Coordinate Bench of this Court) –paragraphs 23, 24, 26 and 27. Therefore, he sought to dismiss the present criminal appeal. Krishna Master and Others reported in AIR 2010 SC 3071 (Child witness); and (ii) Smt. Parvati and Another Vs. The State of Karnataka in Criminal Appeal No.1765/2016 D.D.8th January, 2019 (Coordinate Bench of this Court) –paragraphs 23, 24, 26 and 27. Therefore, he sought to dismiss the present criminal appeal. 17. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration in the present appeal is: “Whether the learned Sessions Judge was justified in passing the impugned judgment of conviction and order of sentence, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/, in the facts and circumstances of the present case?” 18. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully. 19. In order to reappreciate the entire material on record, it is relevant to consider the evidence of the prosecution witness and the documents relied upon. (i) P.W.1 – Dr. Savitha, the Medical Officer of the Government Hospital, Madhugiri, who conducted the postmortem examination over the dead body of the deceased Gangamma has deposed that she has issued the postmortem examination report as per Ex.P.1 and she has put her signature at Ex.P.1(a). She has given her opinion as per Ex.P.2 in view of the letter sent by the Police with regard Nylon cloth and accordingly, opining that strangulation could be possible by the use of M.O.1 Nylon Saree and has supported the prosecution. (ii) P.W.2 – Sri Beeralingappa and P.W.3 – Smt. Kavelamma, who are husband and wife and adjacent owner have deposed that when they were in front of the house of Malleshappa’s House while returning to their home, at that time, they had seen the accused coming out from deceasedGangamma’s House. Their statements were recorded under Section 161 of Cr.P.C. as per Ex.P.3 and have turned hostile to the prosecution case. (iii) P.W.4 – Sri Kamaraju, who is the nephew and neighbour of P.W.16 has spoken to about seeing the accused moving near the house of P.W.16 and has supported the case of the prosecution. Their statements were recorded under Section 161 of Cr.P.C. as per Ex.P.3 and have turned hostile to the prosecution case. (iii) P.W.4 – Sri Kamaraju, who is the nephew and neighbour of P.W.16 has spoken to about seeing the accused moving near the house of P.W.16 and has supported the case of the prosecution. (iv) P.W.5 – Mangalagowramma, daughter of P.W.16 and deceased has deposed regarding the motive and has identified M.Os.1 to 3 i.e., saree, blouse and petticoat and is the hearsay witness. She has supported the case of the prosecution. (v) P.W.6 – Sri K.N. Nataraju, who is panch witness to the spot mahazar Ex.P.5 has identified M.Os 4 to 6 – Kerosene tin, Bangle pieces and cement earth containing kerosene and has supported the case of the prosecution. (vi) P.W.7 – Sri Gangoji Rao, who is the panch witness to Ex.P.5 – spot mahazar has deposed in support of the prosecution case and has identified the material objects – M.Os.4 to 6. (vii) P.W.8 – Smt. Sowmyavani, the Assistant Engineer, who has prepared the sketch of the spot as per Ex.P.6 spot mahazar has supported the prosecution case. (viii) P.W.9 – P. Mallesh, Assistant Director of Forensic Science Laboratory, Bengaluru, has issued the FSL report as per Ex.P.7 and has supported the prosecution case. (ix) P.W.10 – Basavaraju, panch witness to Ex.P.8 – the seizure mahazar for seizure of clothes of the accused i.e., full shirt and lungi M.Os.11 and 12 has turned hostile to the case of the prosecution. (x) P.W.11 – Pandurangappa, panch witness to P.W.8 has identified his signature in the seizure mahazar and has turned hostile to the prosecution case. (xi) P.W.12 – Jagadish Kumar, who is the postman said to have delivered the summons – Ex.P.9 to the father of the accused has supported the prosecution case. (xii) P.W.13 – Smt. Sharadamma, daughter of P.W.16 – complainant and the deceased has spoken to regarding motive and having prepared the complaint – Ex.P.10 on the instructions given by P.W.16 – her father – Malleshappa and has supported the prosecution case. (xii) P.W.13 – Smt. Sharadamma, daughter of P.W.16 – complainant and the deceased has spoken to regarding motive and having prepared the complaint – Ex.P.10 on the instructions given by P.W.16 – her father – Malleshappa and has supported the prosecution case. (xiii) P.W.14 – Siddaraju – son in law of P.W.16 and the panch witness to the inquest mahazar has deposed that after he coming to know about the incident, he has gone to the spot and he enquiring with the accused in the police station about the incident, he told him that after killing his motherinlaw, he was happy. He has supported the prosecution case. (xiv) P.W.15 – M.R. Lakshminarayana, who is the panch witness for inquest mahazar – Ex.P.11 has identified his signature as per Ex.P.11(a) and has supported the case of the prosecution. (xv) P.W.16 – Malleshappa – the husband of the deceased and complainant, who has lodged the complaint as per Ex.P.10 and grand father of P.W.19 – Preetham has supported the prosecution case. (xvi) P.W.17 – Smt. V. Nirmala, the PSI before whom P.W.16 appeared on 26.1.2012 and had lodged the complaint Ex.P.10, who on the basis of FIR, registered a case as per Ex.P.12 has identified her signature as per Ex.P.12(a). (xvii) P.W.18 – Sri Sathyanarayana Kudur, who was the Investigating Officer had deposed that he took charge of further investigation on 26.1.2012 from P.W.17 – Smt. Nirmala and conducted the inquest panchanama on the same day as per Ex.P.11 at the mortuary; recorded the statement of C.Ws.5 to 10 and 11; seized the material objects – M.Os.1 to 3 and 5 as per Ex.P.13, conducted spot mahazar Ex.P.5 and seized the material objects – M.Os.7 to 10; On 27.1.2012, he seized the material objects M.Os.11 and 12 as per seizure mahazar Ex.P.8, then recorded the voluntary statement of the accused and produced him as well as the seized material objects – M.Os.11 and 12 before the Court. He also recorded the voluntary statement of C.Ws.12 and 13, sent the seized material objects to Forensic Science Laboratory (FSL) for chemical examination; on 5.2.2012 recorded the statements of C.Ws.2 to 5; on 11.2.2012 statement of C.W.19; received the FSL report on 27.2.2012 as per Ex.P.7; on 25.3.2012 he received the summons as per Ex.P.15 in O.S.No.66/2012 from the Civil Court and the documents Ex.P.16, 17 as well as opinion of the DoctorEx.P.2 and filed the final report. (xiii) P.W. 19 – Master Preetham, who is a child witness/eye witness and grand son of P.W.16 and deceased has deposed that he had informed P.W.16 about the incident and has supported the prosecution case. 20. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge, proceeded to convict the accused for the offences punishable under Section 302 of IPC holding that the prosecution has proved beyond all reasonable doubt that on 26.1.2012 at 12.30 p.m., accused person with an intention to kill Gangamma in order to avoid giving her share in the sale proceeds of the ancestral property bearing Sy.Nos.63 and 69 of Guruvaderahally, after coming to know about the issue of summons in the suit for partition filed by her against his father and uncle, went to her house, doused her with kerosene and tried to set fire on her, but as she did not catch the fire because the match box was wet, he strangulated her with the saree and thereby had killed her and committed an offence punishable under Section 302 of IPC. 21. This Court being the Appellate Court has to reappreciate both oral and documentary evidence on record whether the impugned judgment is based on the material evidence on record or not. The entire case of the prosecution is based on the evidence of P.W.4 – Kamaraju the nephew and neighbour of P.W.16 who is none other than the husband of the deceased, has last seen the accused while the accused coming out of the house of P.W.16, but is not an eye witness to the incident; P.W.19 – the child witnesses and eye witness; and the evidence of the doctor – P.W.1 and material documents Exs.P.1 to 17 and M.Os.1 to 12. P.W.1 – Dr. P.W.1 – Dr. Savitha, who conducted the postmortem on the dead body of the deceased has stated that there was bruising ligature around the neck of the deceased and kerosene smell on the dead body. Accordingly, she has issued the postmortem report – Ex.P.1, identified her signature as Ex.P.1(a), opinion as per Ex.P.2, her signature as Ex.P.2(a); opining that the death was due to asphyxia as a result of strangulation with ligature. She has deposed that the injuries mentioned in the postmortem report could be possible, if a person is strangulated using a nylon saree and she has opined that the death could occur by the use of a saree. 22. P.W.2 – Sri Beeralingappa, who is the adjacent owner of P.W.16 has deposed that on 26.1.2012 at about 12.00 noon, when they were going in front of the house of P.W.16 – Malleshappa, they saw that the people had gathered in front of the house of P.W.16, and when they enquired from the people who had gathered there, they informed them that the accused had killed the deceased – Gangamma by pouring kerosene on her. In his crossexamination, he has admitted that he had seen the accused coming out of the house of the deceased and P.W.16, and has turned partly hostile to the case of the prosecution. P.W.3 – Kavalamma, who is also one of the neighbour of P.W.16 has deposed that on the date of the incident, she had not seen the accused coming out of his house and has not supported the case of the prosecution. P.W.4 – Sri Kamaraju, who is nephew, neighbour and witness for the alleged motive against the accused has deposed that he is the adjacent owner of P.W.16. On 26.1.2012 when he was in his house, he had seen the accused going inside the house of Malleshappa at about 11.45 p.m. and thereafter, he screamed. At that time, himself, P.Ws.2 and 3 went inside the house, where P.W.19 – Preetham was crying falling down; the kerosene had sprinkled and cylinder had fallen. Then thinking that the deceased was still alive, took her to the hospital, where the doctors, after examining her, told that she was dead and her dead body was handed over to them. He has further deposed that there was animosity between P.W.16 and the accused with regard to divorce between the daughter of P.W.16 and the accused. Then thinking that the deceased was still alive, took her to the hospital, where the doctors, after examining her, told that she was dead and her dead body was handed over to them. He has further deposed that there was animosity between P.W.16 and the accused with regard to divorce between the daughter of P.W.16 and the accused. P.W.16 was not able to talk properly when compared to earlier. He has further deposed that the police have recorded his statement that “at about 11.45 on the date of the incident, the accused had gone inside the house”. He has supported the prosecution case. 23. P.W.16, the husband of the deceased has deposed that after finishing his business, at about 12 noon on 26.1.2012, he came to his house and at that time, his grandson – Preetham was there. When he was near the house, he saw the accused putting the lach of the door from the front and when he asked him as to why he has come here, he told to go inside and see. So he went inside and saw the kerosene sprinkled on the floor and cylinder had fallen down, his grandson was crying, saree of his wife was tied around her neck, it had become reddish and hence, he went outside and screamed, and thereafter, Kamaraju, Kavalamma, Beeralingappa – P.Ws. 2, 3 and 4 respectively came and they took his wife to the hospital, where it was told by the doctor that she was already dead. He then lodged a complaint through P.W.13 – his daughter as per Ex.P.10 and he was not in a position to speak properly after eight days in view of the death of his wife. He was in depression. Thereafter, he was not able to speak. He has further deposed in his crossexamination that he was just showing signs and gestures and was speaking slowly. He has further deposed the same version which he has made in his examinationinchief. He lodged a complaint which was got computerized by his daughter Sharada as per Ex.P.10. Thereafter the police had come to the spot and drew the spot mahazar and also seized the material objects kerosene can, bangle pieces, chips of cement of the floor M.Os.4 to 6. 24. He lodged a complaint which was got computerized by his daughter Sharada as per Ex.P.10. Thereafter the police had come to the spot and drew the spot mahazar and also seized the material objects kerosene can, bangle pieces, chips of cement of the floor M.Os.4 to 6. 24. The learned Sessions Judge by the impugned judgment and order of sentence has recorded a finding that admittedly though P.W.16 was not in a position to speak properly, has spoken slowly by showing signs and gestures while deposing before the Court and in his examinationinchief itself at paragraph1, he has deposed that because he was depressed by the death of his wife, he was not able to speak properly. He has not stated in his crossexamination that when he went inside, P.W.19 informed him about pouring of kerosene and strangulation of his wife with the help of a saree by the accused. Though in the crossexamination he has tried to answer the question posed by the learned Counsel for the defence only by signs and gestures as he could not answer the questions properly, thereby the learned Sessions Judge had given a separate white paper to him for writing. The provisions of Section 119 of the Indian Evidence Act, 1872, clearly depict that the witness, who is unable to speak may give his evidence in any other manner in which he can make it intelligently, as by writing or by signs, but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence, provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed. Admittedly, in the present case, though P.W.16 was unable to speak to give his evidence in examination in chief as was not able to answer, in crossexamination, the learned Sessions Judge ought to have recorded the same before commencement of the evidence of P.W.16 and would have taken the assistance of an interpreter or a special educator in recording his statement, and such statement would have been videographed instead the learned Sessions has not followed the said procedure. Therefore, the movement of the accused near the house of P.W.16 is not proved from the evidence of P.Ws.4 and 16 and hence, the said evidence cannot be considered as gospel truth. The evidence of P.W.4, who is the neighbour of P.W.16 is only one sided and is corroborative with the evidence of P.W.16, who is highly interested witness, whose evidence is inconsistent with the evidence of P.W.2 and hence, cannot be taken into consideration. It is also relevant to note that P.W.16, who is the husband of the deceased was highly interested to give evidence against the accused, as the accused had got divorce from his daughter about 10 years prior to the date of the incident only by signs and gestures which is impermissible in view of the provisions of Section 119 of the Indian Evidence Act stated supra and on that ground alone, the impugned judgment and order of conviction cannot be sustained. 25. It is also not in dispute that P.W.19 the grand son of the deceased who was aged about 3 years as on the date of the incident was not having the capacity to understand and give evidence after three to four years of the incident, though the child was competent to give evidence in view of the provisions of Section 118 of the Indian Evidence Act. But his evidence was not recorded by the investigating officer on the date of the complaint or immediately. He was summoned as additional witness by the Court after completion of evidence of the prosecution witnesses on the application filed under Section 311 of Code of Criminal Procedure filed by the public prosecutor after a lapse of three years, is an after thought, as he was not examined as the prosecution witness. Therefore, the evidence of three years old boy, who cannot understand the acts, cannot be accepted. 26. It is also relevant to take into consideration that the investigating officer has not followed the procedure as contemplated under Section 161 of Code of Criminal Procedure and therefore, the same is proved as fatal to the case of the prosecution. Therefore, the evidence of three years old boy, who cannot understand the acts, cannot be accepted. 26. It is also relevant to take into consideration that the investigating officer has not followed the procedure as contemplated under Section 161 of Code of Criminal Procedure and therefore, the same is proved as fatal to the case of the prosecution. It is also admitted by P.W.19 in his crossexamination that he was accompanied by P.Ws.13 and 16 to the Court and it is contended by the learned Counsel for the appellant that P.W.19 was tutored by P.W.16 and other relatives when Ex.P.10 – complaint does not depict that the child informing P.W.16 about the incident that occurred in the house of P.W.16 and even otherwise, P.W.16 is not an eye witness to the incident. P.W.19 – Preetham has stated that he has seen the accused only on the date of the incident and thereafter, in the Court. Therefore, it can be presumed that his evidence affects the creditworthiness of the prosecution case. Even there is no circumstantial evidence to link the accused with the crime in the evidence from the beginning till completion of the investigation. It is relevant to consider that the statement of P.W.4 was recorded by the investigating officer only on 5.2.2012 after 9 days from the date of the incident. Even the statements of prosecution witnesses were recorded by the investigating officer on 26.1.2012, 27.1.2012 and 3.2.2012 and hence, as there is an inordinate delay in recording their statements. Therefore, no relevancy can be placed on their statements to convict the accused. 27. Admittedly, P.Ws.2 and 3 are adjacent neighbours of P.W.16, who have turned hostile inpart. The material on record clearly depicts that P.W.19 has not disclosed before anybody including P.W.16 with regard to incident. In view of the fact that the evidence of P.Ws.4 and 16 is not consistent and as they are the close relative and partisan witnesses, the learned Sessions Judge erred in placing reliance upon their evidence. The material on record clearly depicts that P.W.19 has not disclosed before anybody including P.W.16 with regard to incident. In view of the fact that the evidence of P.Ws.4 and 16 is not consistent and as they are the close relative and partisan witnesses, the learned Sessions Judge erred in placing reliance upon their evidence. The statement of P.Ws.16 and 19 as contemplated under Section 161 of the Code of Criminal Procedure is not at all recorded by the investigating officer and the learned Sessions Judge also has not considered the said material fact that P.W.19, who is aged about 3 years on the date of incident, was not capable of understanding things that happened on that day and his version ought to not to have been considered for convicting the accused. 28. In the evidence of P.W.19, he has admitted that he was taken to the Court on all hearing dates by P.W.16 and other relatives and as such, he might have been tutored by P.W.16 or P.W.13. The averments made in the complaint Ex.P.10 does not depict that the child – P.W.19 has informed P.W.16 about the incident that had happened inside the house, when he was not in position to see, what happened inside the kitchen, as he was sitting in the room. Even P.W.16 is also not an eye witness to the incident. When P.W.19 has given his version that he had seen the accused only as on the date of the incident and in the Court, his evidence is not creditworthy to the case of the prosecution for convicting the accused. 29. While considering the evidence of the child witness, who is aged about 3 years, the Court must carefully look into adequate corroboration from other evidence with regard to his testimony and it is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. Admittedly, in the present case, P.W.19 was summoned to be introduced as additional witness after completion of the prosecution witnesses, on the application filed by the Public Prosecutor after a lapse of three years, as he was not examined as witness in the charge sheet. Therefore, the evidence of P.W.19, who is a child witness, cannot be considered for convicting the accused. Therefore, the evidence of P.W.19, who is a child witness, cannot be considered for convicting the accused. The said material aspect has not been considered by the learned Sessions Judge. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Bhagwan Singh Vs. State of M.P. reported in 2003 SCC (Crl.) 712 wherein at paragraphs18 to 22 it has been held as under: “18. In our considered opinion, the evidence of the child witness suffers from serious infirmity due to omission of the prosecution in not holding test identification parade and not examining Agyaram whom as alleged, the child first met after the incident. There are other circumstances discussed by the trial Judge, which also make the evidence of the child witness highly unreliable for basing a conviction. 19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U.P. [ (1998) 7 SCC 177 : 1998 SCC (Cri) 1561]. 20. In the case before us, the trial Judge has recorded the demeanour of the child. The child was vacillating in the course of his deposition. From a child of six years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his being tutored, the court should be careful in relying on his evidence. We have already noted above that Agyaram, maternal uncle of the child, who first met him after the incident and took him along with his younger brothers to his father's village, has not been produced by the prosecution as a witness in the court. It was most unlikely that if the child had seen the incident and identified the three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. It was most unlikely that if the child had seen the incident and identified the three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. The conduct of his father Radheyshyam who was produced as a witness by the prosecution is also unnatural that before recording the statement of the child by the police, he made no enquiries from the child. 21. We find some force in the submissions made by the learned counsel appearing for the State of Madhya Pradesh that looking to the age of the child and his two younger brothers, it was most likely that they were with the mother and sleeping with her when she had gone to stay with her deceased father Mata Prasad. But the other possibility of the children being fast asleep when the elders of the house were attacked and killed cannot be ruled out — as the incident is alleged to have happened in the midnight. Mere presence of the children in the house at the time of the incident is no assurance to the case of the prosecution that the eldest child got up on hearing hue and cries and had not only seen the incident but also identified the accused. Taking into consideration the child psychology, a lad of six years having seen his mother being assaulted would have raised a cry; but he says that he quietly went back to sleep. It is most unnatural even for a child that after witnessing his mother being assaulted by known persons he would go back to sleep to wake up late in the morning only when his maternal uncle Agyaram came to fetch him and his younger brothers to his father's village Alampur. 22. It is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. (See paras 1415 of State of Assam v. Mafizuddin Ahmed [ (1983) 2 SCC 14 : 1983 SCC (Cri) 325] .) In that case evidence of a child witness was appreciated and held unreliable thus: (SCC p. 20): “14. The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. (See paras 1415 of State of Assam v. Mafizuddin Ahmed [ (1983) 2 SCC 14 : 1983 SCC (Cri) 325] .) In that case evidence of a child witness was appreciated and held unreliable thus: (SCC p. 20): “14. The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment: ‘… the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.’ 15. A bare perusal of the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years. But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other.” 30. Admittedly, there are certain glaring facts which casts serious doubt on the veracity of the evidence of the prosecution as already stated supra that as on the date of the incident, P.W.19, who is aged about 3 years was examined as an additional witness after completion of the evidence of all the prosecution witnesses. His statement was neither recorded by the police, who is alleged to have seen the actual incident nor he was examined immediately by the police or he has revealed anything to anyone including P.W.16 – his grandfather. Therefore conviction based on the evidence of the child witness is erroneous and cannot be sustained. In view of the provisions of Section 118 of the Indian Evidence Act, the evidence of child witness should not be relied upon unless the same was available immediately after the incident, since the police have not recorded the statement of P.W.19 immediately after the incident and he was examined as additional witness after three years, that too, after completion of the evidence of the prosecution witnesses. Therefore, the evidence of child witness is always dangerous unless immediately available after the occurrence and before there were any possibility of coaching and tutoring. 31. Therefore, the evidence of child witness is always dangerous unless immediately available after the occurrence and before there were any possibility of coaching and tutoring. 31. In the present case, P.Ws.4 and 16, are close relatives of the deceased, but P.W.19, who is child witness, has not been examined immediately after the incident though he was immediately available before any possibility of coaching or tutoring. Therefore, it would be extremely unsafe to rely on the evidence of such child witness. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Kanan and Others Vs. State of Kerala reported in AIR 1979 SC 1127 wherein it is held as under: “3.…..It is well settled that where a witness identifies an accused, who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous Test Identification Parade to test his powers of observations. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.” 32. Admittedly, in the present case though the incident occurred on 26.1.2012, P.W.19 was examined on 7.7.2015 and was neither examined as prosecution witness nor his statement was immediately recorded by the police under the provisions of Section 161 of the Code of Criminal Procedure, but was examined as additional witness after completion of the evidence of the prosecution witnesses, on the application under Section 311 of the Code of Criminal Procedure made by the Public Prosecutor, that too, after three years. On that ground alone, benefit of doubt to has to be given to the accused, and therefore, the impugned judgment of conviction and order of sentence is liable to be set aside. 33. One unusual feature which projects its shadow on the evidence of P.W.19 and casts a serious doubt about he being an eyewitness of the occurrence, is the undue delay on the part of the investigating officer in recording his statement. 33. One unusual feature which projects its shadow on the evidence of P.W.19 and casts a serious doubt about he being an eyewitness of the occurrence, is the undue delay on the part of the investigating officer in recording his statement. Although this witness was or could be available for examination, when the investigating officer visited the scene of occurrence or soon thereafter, his statement under Section 161 of the Code of Criminal Procedure could have been recorded. In view of the fact that the statement of P.W.19 was not at all recorded by the investigating officer nor he has been examined as witness and for the first time, he was called as additional witness after completion of evidence of the prosecution witnesses on the application filed by the Public Prosecutor after a lapse of three years, the delay is fatal to the case of the prosecution. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ganesh Bhavan Patel Vs. State of Maharashtra reported in AIR 1979 SC 135 wherein at paragraphs15, 18 and 29 it is held as under: 15. As noted by the trial court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 of the CrPC were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. 18. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. 18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. on the 30th, of Constable Shinde at 4 a.m. and thereafter of Welji, Kanjibhai (PW 7) Santukbai (PW 6), Pramila, and Kuvarbai, between 8 a.m. and 1 p.m. 29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the ‘FIR’ and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. 34. The evidence of P.W.16 was not recorded as contemplated under Section 119 of the Indian Evidence Act. As already stated supra, P.W.16 in his crossexamination has tried to give his evidence by way of signs and gestures. Therefore, the trial Court was not justified in appreciating the evidence of P.W.16 and relying upon his evidence has proceeded to pass the impugned judgment and order of conviction. On that ground alone, the impugned judgment and order of conviction is liable to be set aside. The indication in Section 282 of the Code of Criminal Procedure is that the Court can make use of the services of an interpreter to assist the court to examine a witness. In this case, it is not clear from the judgment or the deposition of P.W. 16 as to who assisted the Court to elicit the answers given in the chiefexamination. In this case, it is not clear from the judgment or the deposition of P.W. 16 as to who assisted the Court to elicit the answers given in the chiefexamination. Admittedly, P.W.16, who was not in a position to answer the questions asked by the Counsel for defence, if he is to be examined, that can only be with the help of an expert or some person, who is very much familiar with the witness. If somebody else is available, it is better the services of a person, who is a witness in the case is not made use of to interpret his evidence or to converse with him. On that ground alone, the impugned judgment is liable to be set aside. 35. No doubt the circumstantial evidence has to be considered only if the chain of circumstances is so complete in all respect as held by the Hon’ble Supreme Court in the case of Nanhar Vs. State of Haryana reported in 2010 Crl.L.J.3450 (SC) while considering the provisions of Section 32 of the Indian Evidence Act and Sections 300 and 149 of the IPC, at paragraphs 27, 29 and 30, it is held as follows: “27. Similarly, when the case is based on circumstantial evidence, it has now been well settled by several authorities of this Court that the chain of circumstances should be complete in all respects and the pointer of guilt should continuously be on the accused only. Any deviation of the pointer of guilt from the accused would enure him the benefit of doubt.” “29. Admittedly, from the evidence of PW 7 Sudesh, it has come on record that the deceased Vijay was having a bank account and he was also a member of some society, where his standard signatures were available. But those standard signatures were not made the basis for comparison of his handwriting alleged to have been found from his possession. In Sharad Birdhichand Sarda [ (1984) 4 SCC 116 : 1984 SCC (Cri) 487] it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respects. The relevant paras 15354 are reproduced hereinbelow: (SCC p. 185) “153. In Sharad Birdhichand Sarda [ (1984) 4 SCC 116 : 1984 SCC (Cri) 487] it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respects. The relevant paras 15354 are reproduced hereinbelow: (SCC p. 185) “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the following observations were made: ‘19. … Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions.’ (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” (emphasis in original) “30. The aforesaid cardinal principles with regard to the completion of the chain of circumstantial evidence, for holding the appellants guilty could not be established at all by the prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.” 36. The aforesaid cardinal principles with regard to the completion of the chain of circumstantial evidence, for holding the appellants guilty could not be established at all by the prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.” 36. The learned Additional SPP placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of U.P. Vs. Krishna Master & Others reported in 2010 Crl.L.J. 3889 to contend that the child witness testifying as to ghastly event witnessed years ago in his tender age cannot be disbelieved on the ground that he could not recapitulate such old incident. We agree with the law laid down by the Hon’ble Supreme Court in the aforesaid case, wherein in the said case, the eye witness has claimed before the Court that he has seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc., he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same, at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence. In the present case, it is not the case of the prosecution that P.W.19, is the eye witness for accused pouring kerosene on the deceased and strangulating her. Admittedly, the child was sitting in the hall and next to it, there is a kitchen and then the room where it is alleged that the accused has strangulated the deceased as can be seen from Ex.P.6 – sketch of the scene of the offence and hence, there was no possibility for him to witness the alleged incident and it is not the case of the prosecution that in no where P.W.16 has informed the police that P.W.19 has seen the ghastly incident. Therefore, the said judgment has no application to the facts and circumstances of the present case. 37. Another judgment relied upon the by the learned Additional SPP is in the case of Smt. Parvathi Vs. Therefore, the said judgment has no application to the facts and circumstances of the present case. 37. Another judgment relied upon the by the learned Additional SPP is in the case of Smt. Parvathi Vs. State of Karnataka in Criminal Appeal No.1765/2016 Date of Disposal 8th January, 2019 wherein a Coordinate Bench of this Court has held that the law has recognized the child as a competent witness, but a child particularly at tender age, who is unable to form a proper opinion or information about the nature of the incident because of its immaturity of understanding, then only the Court has to consider the evidence of that witness very carefully. The evidence of such a child is required to be evaluated meticulously because he is an easy prey for tutoring. Therefore, in such eventuality, the Court has to look for corroboration from other evidence to the child’s testimony. In the present case, there is neither any testimony corroborating the evidence of P.W.19 – child witness, who is not an eye witness nor the police have recorded his statement under the provisions of Section 161 of the Code of Criminal Procedure immediately after the incident or he is examined as prosecution witness, but he has been examined as an additional witness, that too, three years after completion of the evidence of the prosecution witnesses, on the application filed by the Public Prosecutor. P.W.16, who is the interested witness and husband of the deceased, whose evidence is only based on signs and gestures is impermissible as contemplated under Section 119 of the Indian Evidence Act. Therefore, the judgment of the Coordinate Bench of this Court has no application to the facts and circumstances of the present case. 38. It is not in dispute that as per the complainant, he got his third daughter – Parvathamma married to the accused about 14 years earlier to the date of the incident and after five years of their marriage, a dispute arose between them which ended in a divorce by mutual consent and absolutely there is no motive made out by the prosecution against the accused and there are no eye witnesses to the scene of occurrence and the entire case of the prosecution is based on the circumstantial evidence. The complainant is suspecting the accused only because of the divorce between the accused and his daughter and hence, he had animosity against the deceased. Subsequently, the deceased Parvathamma had filed a suit – O.S.No.66/2012 against the father and uncle of the accused for partition and share in respect of the immoveable property. The material on record clearly depicts that, on the summons issued in the said suit on the father of the accused, he has affixed his L.T.M., but has not written the date of service of summons. The shara for having issued the summons shows the date as 3.3.2012 and it is written by the processserver which does not mean that the father of the accused was served on that date. The Registered Post Acknowledgment Due is also produced which shows that the notice on temporary injunction has been sent to the father of the accused on 24.10.2012 itself and the evidence of the postman shows that on 25.1.2012, he had gone to the house of the accused and intimated about the issue of notice to the mother of the accused. In view of the above two circumstances, the prosecution suspects the involvement of accused in the commission of the offence stated supra. 39. On meticulous examination of evidence on record, it is clear from the evidence of P.Ws.1, 2, 3, 4, 13, 16 and 19 that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. “It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the consideration of the Court is to ensure that miscarriage of justice is prevented. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.” evidence adduced in the case, one pointing to the guilt of the accused and the favourable to the other to his innocence, the view which is accused should be adopted. The paramount 40. For the reasons stated above, the point raised in the present criminal appeal is answered in the negative holding that the learned Sessions Judge was not justified in passing the impugned judgment of conviction and order of sentence, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/, in the facts and circumstances of the present case. Accordingly, we pass the following: ORDER (i) Criminal Appeal filed by the accused is allowed; (ii) The impugned judgment and order of sentence dated 31st August, 2015 made in S.C.No.181/2012 on the file of the IV Additional District and Sessions Judge, Madhugiri convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/in default of payment of fine to undergo further simple imprisonment for three months is hereby set aside; (iii) The accused is acquitted of all the charges leveled against him; (iv) The accused shall be set at liberty forthwith, if not required in any other case.