JUDGMENT : Shree Chandrashekhar, J. In Sessions Trial No. 240 of 2009, Balmiki Yadav @ Sadhu Yadav and Ranju Devi have been convicted and sentenced to life imprisonment with a fine of Rs. 10,000/- each under section 302 of the Indian Penal Code, for committing murder of Leela Devi. 2. Kenduadih P.S. Case No. 103 of 2008 was registered on the basis of the fardbeyan of the informant, namely, Tuklal Yadav which was recorded at about 08:30 AM on 28.12.2008. In his statement the informant has alleged that Balmiki Yadav, Ranju Devi and another person (name not disclosed) have committed murder of his daughter. After the investigation, a charge-sheet was submitted against Balmiki Yadav and Ranju Devi and they have faced the trial on the charge of committing murder of Leela Devi. 3. During the trial, the prosecution has examined nine witnesses; the informant was examined as PW-2. PW-3, Ram Jatan Kumar and PW-6, Rajan Prasad Yadav are brothers of Leela Devi; PW-1, Komal Kumari and PW-9, Priti @ Urmila Kumari, are her daughters; and PW-5, Shankar Yadav is a neighbour of the deceased. 4. The case of the prosecution is that Ranju Devi was concubine of Balmiki Yadav and Balmiki Yadav had left his family and living with Ranju Devi in a different house. In the night of 27.12.2008 both visited Kusnaur, Joda Chimni where Leela Devi was living with her children. There a quarrel started between Balmiki Yadav and his wife which ensued assault upon Leela Devi by both of them and finally they dragged Leela Devi on the road and Balmiki Yadav crushed her with a vehicle. 5. The informant has come to the Court to depose that in the intervening night of 27/28.12.2008 he received a telephonic message from elder brother of Balmiki Yadav that his daughter has been murdered. He along with his son had gone there at about 02:00 AM in the night and found dead-body of his daughter on the road and his grand daughter narrated the whole incident to him. PW-3 and PW-6 have also stated that Shankar Yadav had informed them that their sister has been killed. They have also spoken about the dead-body lying on the road; head of Leela Devi crushed and; the children of Leela Devi narrating the entire episode to them. PW-5, elder brother of Balmiki Yadav, was at home in the night of 27.12.2008. PW-3 and PW-6 have also stated that Shankar Yadav had informed them that their sister has been killed. They have also spoken about the dead-body lying on the road; head of Leela Devi crushed and; the children of Leela Devi narrating the entire episode to them. PW-5, elder brother of Balmiki Yadav, was at home in the night of 27.12.2008. In the midnight at about 01:00 AM, PW-9 accompanied by the wife of Bhubneshwar Yadav came to his house and told him that her father and Ranju Devi have killed her mother. He had gone to the house of Leela Devi and seen her crushed dead-body. He is a witness to the inquest report. The main Investigating Officer of this case was examined as PW-7; PW-8 has submitted the charge-sheet. PW-7 has deposed in the Court that he has recorded the fardbeyan of PW-2, prepared an inquest report and sent the dead-body for post-mortem examination. There are two places of occurrence; one was inside the house of Leela Devi and another was the main road connecting Kenduadih with Jharia where her dead-body was found lying. He has found a dragging mark from the house of Leela Devi which is in front of the road. 6. PW-1 and PW-9, daughters of Leela Devi, are the star witness for prosecution. They are the eye-witness to the actual occurrence. They were sleeping in the house with their mother and brother in the night of 27.12.2008. There is some discrepancy in the testimony of PW-1 and PW-9 in so far as entry of the appellants in the house is concerned; PW-1 has stated that her father knocked the door and asked her mother that he would stay there in the night, however, PW-9 has deposed in the Court that her father jumped the boundary wall and came inside the house, but then, this was just a minor omission in their testimony and it would not affect the prosecution story that both the appellants had visited Leela Devi in the intervening night of 27/28.12.2008. PW-1 and PW-9 have narrated the incident in the night of 27.12.2008 in detail. They have deposed in the Court that their father insisted that he would stay there in the night, but, their mother protested and asked him to go away whereupon their father started assaulting their mother. PW-1 and PW-9 have narrated the incident in the night of 27.12.2008 in detail. They have deposed in the Court that their father insisted that he would stay there in the night, but, their mother protested and asked him to go away whereupon their father started assaulting their mother. They have made specific allegation against their father that he strangulated their mother, dragged her dead-body on the main road and crushed her by running over vehicle on her dead-body. 7. Mr. Arwind Kumar, the learned counsel for the appellants has contended that there are gaping holes in the prosecution story; important witnesses one amongst them was Manoj Kumar were not examined; crushing of the dead-body on the main road and cleaning of vehicle in a densely populated area are unbelievable; presence of alcohol in the body of Leela Devi and; arrest of Balmiki Yadav from the house of Ranju Devi, are such inconsistent facts which have not been explained by the prosecution and while so a serious doubt on complicity of the appellants in the crime has arisen. The learned counsel has further submitted that PW-1 and PW-9 who are of tender age are tutored witness and in absence of any independent corroboration to their testimony, the appellants cannot be convicted on the basis of their testimony. 8. PW-1 and PW-9 are daughters of Leela Devi and their intimate relationship with the deceased and the appellant No.1 would in normal circumstances not make their testimony doubtful. They would not gain anything by falsely implicating their father for committing murder of their mother, however, as observed by the Hon'ble Supreme Court in the case of “Dinesh Kumar Vs. State of Rajasthan” reported in (2008) 8 SCC 270 , their testimony is required to be scrutinized with greater care and caution. 9. A child witness is competent to depose to the facts and the only requirement in law is that a child witness should be able to understand the questions and able to give rational answers thereof. The Evidence Act does not prescribe any particular age for treating a witness to be a competent one. 9. A child witness is competent to depose to the facts and the only requirement in law is that a child witness should be able to understand the questions and able to give rational answers thereof. The Evidence Act does not prescribe any particular age for treating a witness to be a competent one. Section 118 of the Evidence Act provides that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the question put to them or from giving rational answers to the questions, because of tender years, extreme old age and disease whether of mind, or any other cause of the same kind. The law is now fairly settled that the evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about quality and reliability thereof can record conviction, based thereon (refer: Suryanarayana Vs. State of Karnataka, (2001) 9 SCC 129 ). 10. PW-1 and PW-9 both have withstood the test of cross-examination and the defence could not shake them and elicit anything material from them which would have diminished their credibility. In their cross-examination, they have reaffirmed that in the night of 27.12.2008 they were sleeping in the house with their mother and they have seen the appellants visiting their house and their father assaulting their mother. They have deposed in the Court that Balmiki Yadav was not residing with them rather he was staying in another house with Ranju Devi. They have explained that Balmiki Yadav threatened them and, therefore, they did not raise cries. After the incident, PW-9 had gone to the house of PW-5 and narrated the whole incident. 11. It was a winter's night and murder of Leela Devi was committed in the midnight. The criticism to the prosecution story that no independent witness has seen the occurrence has no substance. The venue of the crime is rural area and normally the villagers out of fear, friendship or other prejudices may not come forward to depose in the Court. The quality of evidence tendered by PW-1 and PW-9 does not leave any room for a doubt on presence of the appellants in the midnight of 27.12.2008 in their house. The venue of the crime is rural area and normally the villagers out of fear, friendship or other prejudices may not come forward to depose in the Court. The quality of evidence tendered by PW-1 and PW-9 does not leave any room for a doubt on presence of the appellants in the midnight of 27.12.2008 in their house. PW-2 and PW-3 have deposed in the Court that Balmiki Yadav had illicit relationship with Ranju Devi and that was the reason he had left his family and was staying with Ranju Devi in another house. On this material aspect of the case these witnesses have corroborated PW-1 and PW-9. Another criticism which was pressed to discard the testimony of PW-1 and PW-9 is that they are tutored witness, but, we find that in their cross-examination both have denied that they have tendered tutored evidence. PW-1 has stated in her cross-examination to a suggestion by the defence that she was not tutored by her maternal uncle (Mama) and PW-9 has stated that her maternal uncle had only told her to depose in the Court about who had killed my mother. In “Suresh Vs. State of U.P.” reported in (1981) 2 SCC 569 , the Hon'ble Supreme Court has observed that a little tutoring is inevitable in order to lend coherence and consistency to the disjointed thoughts of a child witness. Even so, we do not find any material which would suggest that PW-1 and PW-9 are tutored witnesses. The narration of the occurrence as described by them is fully corroborated by the medical evidence. 12. PW-4, Dr. Swapan Kumar Sarak, who has conducted the post-mortem has found the following ante-mortem injuries on the dead-body of Leela Devi: “Abrasion:- (i) 1/2” x 1/4” 2 in numbers in a gap of 1/4” over under surface of right side of chin with cresentric nail marks. (ii) 1/2” x 1/4” obliquely upward and backward on right side from middle of neck with nail marks. (iii) 3/4” x 1/4” obliquely upwards and backward and 1” x 1/4” just parallel with nail marks on upper part front of left side of neck.” 13. Mr. Ravi Prakash, the learned Spl. PP has submitted that the prosecution story that Balmiki Yadav @ Sadhu Yadav strangulated Leela Devi is established from the marks on her neck. (iii) 3/4” x 1/4” obliquely upwards and backward and 1” x 1/4” just parallel with nail marks on upper part front of left side of neck.” 13. Mr. Ravi Prakash, the learned Spl. PP has submitted that the prosecution story that Balmiki Yadav @ Sadhu Yadav strangulated Leela Devi is established from the marks on her neck. We further find that PW-4 has rendered an opinion that the cause of death was asphyxia as a result of throttling. 14. PW-4 has found the following post-mortem external injuries on Leela Devi: “(i) Crusted laceration extending from frontal to occipital region of size 9” x 2” with flattening of head and face and brain matter drained out. All skull and facial bones found in multiple pieces along with mandible. (ii) Abrasion 4” x 1” with laceration 1/2” x 1/2” bone deep on back of right elbow. (iii) Grazing type of abrasion 6” x 1 ½” on left side of face and lower jaw. (iv) 1/2” x 1/6” abrasion on middle of right clavicle obliquely. (v) 2 ½” x 1” abrasion over front of left clavicle and shoulder. (vi) 3” x ¾” over front of left forearm. 15. PW-1 and PW-9 both have stated that the accused persons dragged their mother outside the house and their father ran over vehicle on her dead-body. The aforesaid post-mortem injuries, particularly, the crushed occipital area of Leela Devi provides further credibility to the testimony of PW-1 and PW-9. 16. The above being the factual scenario, we are of the opinion that the prosecution has produced sufficient evidence during the trial to establish presence of the appellants at the place of occurrence and at the time of occurrence. 17. The prosecution has also established active role played by Balmiki Yadav in murder of Leela Devi, however, on participation of Ranju Devi sharing a common intention to murder Leela Devi, we find that the prosecution evidence is lacking in quality as well as quantity. 18. PW-1 in paragraph no.3 of her examination-in-chief has stated that her father ran over vehicle on her mother and in paragraph no.7 of her cross-examination she has stated that her father dragged her mother to the road. PW-9 has also stated that her father had crushed drive her mother by a vehicle. 18. PW-1 in paragraph no.3 of her examination-in-chief has stated that her father ran over vehicle on her mother and in paragraph no.7 of her cross-examination she has stated that her father dragged her mother to the road. PW-9 has also stated that her father had crushed drive her mother by a vehicle. It is the case of the prosecution that the appellants entered the house of Leela Devi in the midnight and Balmiki Yadav insisted to spend the night there, however, she protested and thereafter a quarrel had ensued. Balmiki Yadav started assaulting and strangulating Leela Devi by pressing her neck and though in their examination-in-chief PW-1 and PW-9 have stated that Ranju Devi caught hold of her hands, they have not said anything about the role played by Ranju Devi. On such evidence, in our opinion, it is difficult to infer that she shared common intention with Balmiki Yadav to commit murder of Leela Devi. 19. In “Mithu Singh Vs. State of Punjab” reported in (2001) 4 SCC 193 , the Hon'ble Supreme Court has observed that to substantiate a charge under section 302 IPC with the aid of section 34 IPC it must be shown that the criminal act complained against one was done by one of the accused persons in furtherance of a common intention of both. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available, however, an inference as to common intention shall not be clearly drawn for culpable liability can arise only if such inference can be drawn with a certain degree of assurance. 20. In our opinion, the evidences laid by the prosecution to rope in Ranju Devi for murder of Leela Devi do not lend assurance to the Court to uphold her conviction under section 302 IPC simplicitor or with the aid of section 34 IPC; she has been convicted under section 302 IPC. 21. Accordingly, conviction of Ranju Devi under section 302 IPC is set-aside. 22. 21. Accordingly, conviction of Ranju Devi under section 302 IPC is set-aside. 22. The prosecution has established presence of Ranju Devi at the place of occurrence and the evidences on the role played by her would bring her case within section 326 r/w 34 IPC and, therefore, we hold that she is liable to be convicted under section 326 r/w 34 IPC. 23. The judgment of conviction under section 302 IPC and the order of sentence of RI for life with fine of Rs.10,000/-, both dated 22.05.2010, passed against the appellant No. 2, namely, Ranju Devi by the learned Sessions Judge, Dhanbad in Sessions Trial No. 240 of 2009 are set-aside. 24. The appellant No.2, namely, Ranju Devi is convicted and sentenced to RI for ten years under section 326 r/w 34 IPC. 25. The judgment of conviction under section 302 IPC and the order of sentence of RI for life with fine of Rs. 10,000/-, both dated 22.05.2010, passed against the appellant No. 1, namely, Balmiki Yadav @ Sadhu Yadav are upheld. 26. Mr. Ravi Prakash, the learned Spl.PP states that both the appellants are in custody and the appellant No.2, namely, Ranju Devi has already undergone custody of more than fifteen years, with remission. 27. Accordingly, the appellant No.2, namely, Ranju Devi shall be set free forthwith, if not wanted in connection to any other criminal case. 28. In the result, Criminal Appeal (DB) No. 649 of 2010 qua the appellant No.2, namely, Ranju Devi is partly allowed and qua the appellant No.1, namely, Balmiki Yadav @ Sadhu Yadav, it is dismissed. 29. Let lower Court records be transmitted to the Court concerned, forthwith. 30. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.