JUDGMENT : Shree Chandrashekhar, J. In Mahuwatand P.S. Case No. 29 of 2010, Dinesh Karmali, Jaggu @ Munna Karmali, Bilasi Devi, Babita Devi and Futu Chand Karmali were named as accused for committed murder of Anjani Devi. After the investigation a charge-sheet was submitted against Bilasi Devi and Babita Devi under section 302/34 IPC; others were absconding. Subsequently, charges were framed against others and they all have faced the trial in Sessions Trial No. 263 of 2011 on the charge under section 302 r/w section 34 IPC. 2. Jaggu @ Munna Karmali and Futu Chand Karmali, the appellants, have been convicted and sentenced to RI for life and a composite fine of Rs. 50,000/- under section 302/34 IPC; the fine amount is to be paid to daughter of the victim. Bilasi Devi has been acquitted of the charge framed against her. 3. During the trial, the prosecution has examined six witnesses out of whom Jai Prakash Karmali PW-1, Shailendra Karmali PW-2, Anamika PW-3 and Fagu Karmali PW-4 are the related witnesses; PW-3 is daughter of the deceased. 4. PW-5, Dr. Vinod Das who has conducted the post-mortem examination over the dead-body of Anjani Devi on 02.08.2010 at about 13:30 PM has found ligature marks over her neck extending from thyroid cartilage encircling the neck from both sides, about one inch wide. In his opinion cause of death was asphyxia due to strangulation. 5. The appellants have set up a defence that Anjani Devi was a hot tempered lady who has committed suicide. 6. However, the findings recorded by PW-5 in the post-mortem examination report and his evidence in the Court would go to show that Anjani Devi has died a homicidal death. 7. The presence of ligature mark encircling neck of Anjani Devi from both sides is a clear sign of strangulation by rope/clothe. In the Textbook of Medical Jurisprudence and Toxicology by Modi, 26th Edition, it is stated that in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal strangulation abrasions and ecchymoses round the ligature mark are found; carotid arteries' internal coats are raptured and; larynx trachea and hyoid bone are fractured. 8. It is also common that in a case of homicidal strangulation abrasions and ecchymoses round the ligature mark are found; carotid arteries' internal coats are raptured and; larynx trachea and hyoid bone are fractured. 8. Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology, Sixth Edition, also refers to ligature mark in case of homicidal death which usually would encircle neck horizontally below thyroid cartilage. It says that abrasions and bruises around the ligature mark are common in a case of homicidal death by strangulation. According to Parikh, similar hypothesis such as fracture of hyoid bone, laryngeal cartilages, tracheal rings and carotid arteries are common. 9. PW-5 has also found hyoid bone of Anjani Devi fractured, both carotid arteries ruptured and 3rd and 4th cervical bones as well as tracheal cartilage dislocated. These are characteristic marks of a homicidal death by strangulation. 10. Mr. Arwind Kumar, the learned counsel for the appellants submits that no evidence much less any legally admissible evidence has been produced by the prosecution to establish complicity of Jaggu @ Munna Karmali and Futu Chand Karmali in causing death of Anjani Devi. 11. PW-3, Anamika is the only eye witness in this case. She is a child witness and intimately related to Anjani Devi and therefore her testimony has to be examined with great care and caution. In “Waman v. State of Maharashtra” reported in (2011) 7 SCC 295 , the Hon’ble Supreme Court has observed that merely because the witnesses are related to the complainant or the deceased their evidence cannot be thrown out, for relationship is not a factor to affect credibility of a witness. 12. Section 134 of the Indian Evidence Act provides that no particular number of witnesses is required to prove any fact in a case. Under section 118 of the Indian Evidence Act a witness who is able to understand the questions and give rational answers thereof is a competent witness to depose to the facts. 12. Section 134 of the Indian Evidence Act provides that no particular number of witnesses is required to prove any fact in a case. Under section 118 of the Indian Evidence Act a witness who is able to understand the questions and give rational answers thereof is a competent witness to depose to the facts. In “Ratansinh Dalsukhbhai Nayak v. State of Gujarat” reported in (2004) 1 SCC 64 , the Hon’ble Supreme Court has observed that in terms of section 118 of the Indian Evidence Act all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to the questions because of tender years, extreme old age, disease—whether of body or mind, or any other cause of the same kind. Therefore, evidence of a child witness is not required to be rejected per se, however, the Court as a rule of prudence examines evidence of a child witness with close scrutiny. In “Dattu Ramrao Sakhare v. State of Maharashtra,” reported in (1997) 5 SCC 341 , the Hon’ble Supreme Court has observed that the only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the evidence must be reliable and his demeanor must be like any other competent witness and there is no likelihood of his being tutored. 13. PW-3 before her testimony was recorded by the learned Trial Judge was put to maturity test by questioning her and on being satisfied with her maturity her evidence has been recorded. She was aged about 10 years and studying in Standard-III when she has deposed in the Court. At that time, she was staying with her maternal grandparents. She has stated that her father has killed her mother and in the same breath she further says that Jaggu @ Munna Karmali, Dinesh Karmali, Futu Chand Karmali and Babita Devi have killed her mother. She has further stated that they strangulated her mother with rope and at that time her father had threatened to kill her. After they left she found that her mother has died. PW-1, who is cousin brother of Anjani Devi has stated that on getting information from his uncle about death of Anjani Devi he had gone to her house at Kodwatarn. He has seen black marks around the neck of Anjani Devi. After they left she found that her mother has died. PW-1, who is cousin brother of Anjani Devi has stated that on getting information from his uncle about death of Anjani Devi he had gone to her house at Kodwatarn. He has seen black marks around the neck of Anjani Devi. At that time Babita Devi and Bilasi Devi were present there. He has further stated that his sister had told him that after her husband married Babita Devi his family members started harassing her. PW-2 is brother-in-law of Anjani Devi. He has also gone to her house and seen black marks on her neck and he apprehended that she was strangulated to death. He is a witness to the inquest report. PW-4, who is maternal uncle of the deceased has also seen injury marks on her neck. He is also an inquest witness. 14. Dinesh Karmali and Babita Devi have absconded and therefore keeping this aspect of the matter in mind, we propose to touch upon testimony of the prosecution witnesses only to the extent whether complicity of the appellants is found in the occurrence. 15. PW-3 is a competent witness and from her testimony we are satisfied that she had requisite maturity to understand questions and give rational answers thereto, however, we would confine scrutinizing of her testimony limited to the appellants and not make comment on credibility of PW-3 as such. From her evidence, we find that she is not certain about involvement of the appellants in the crime. She is specific about the role played by her father and going by the reasonings given by the learned Sessions Judge for acquitting Bilasi Devi we find that evidence of PW-3 on complicity of the appellants is not sufficient and moreover it is no different from the evidence laid against Bilasi Devi. Of course, she has stated about presence of the appellants at the scene of crime and she has also stated that her father, Babita Devi and Futu Chand Karmali had put the dead body of her mother on the cot but only on this much of evidence it is difficult to infer that Futu Chand Karmali has also actively participated in causing death of Anjani Devi. The evidence against Jaggu is even more scanty. 16. PW-1, PW-2 and PW-4 are not the eye witnesses. The evidence against Jaggu is even more scanty. 16. PW-1, PW-2 and PW-4 are not the eye witnesses. They do not say that Anjani Devi was harassed, tortured or assaulted by the appellants in their presence. In their cross-examination they have stated that police never inquired about the occurrence from them. PW-3 in her evidence has not claimed that she has told these witnesses about active participation of the appellants in the crime and these witnesses also do not say that PW-3 has informed them about any role played by the appellants. The appellants were residing in a different house has come on record. PW-2 has stated that Futu Chand Karmali was residing separately from Dinesh Karmali and the Investigating Officer has also deposed in the Court that the accused persons were residing in different houses. The presence of Futu Chand Karmali at the place of occurrence as spoken by PW-3 is not unnatural. On getting information about the incident the relatives may rush there and therefore on the basis of mere presence of a person at the place of occurrence an inference cannot be drawn that he has actively participated in the occurrence. In the present case, such inference cannot be drawn for one another reason and, that is, PW-1 has stated that when he arrived at the house of Anjani Devi he found that Babita Devi and Bilasi Devi were present there but on such evidence Bilasi Devi has been acquitted by the learned Trial Judge. 17. The above being the state of evidence, we are of the opinion that the evidence of PW-3 on complicity of the appellants in the crime is lacking in quality. Her evidence against them is very sketchy and on such evidence it would be highly unsafe to base conviction of the appellants under section 302/34 IPC for committing murder of Anjani Devi. 18. Accordingly, we hold that the prosecution has failed to prove the charge against the appellants, namely, Jaggu @ Munna Karmali and Futu Chand Karmali under section 302/34 IPC and, therefore, their conviction in Sessions Trial No. 263 of 2011 is held unsustainable. 19. Jaggu @ Munna Karmali and Futu Chand Karmali are acquitted of the criminal charges framed against them in Sessions Trial No. 263 of 2011. 20. 19. Jaggu @ Munna Karmali and Futu Chand Karmali are acquitted of the criminal charges framed against them in Sessions Trial No. 263 of 2011. 20. Accordingly, the judgment of conviction of the appellants, namely, Jaggu @ Munna Karmali and Futu Chand Karmali under section 302 r/w section 34 of the Indian Penal Code dated 23.11.2016 and the order of sentence of RI for life and composite fine of Rs. 50,000/-under section 302 r/w section 34 of the Indian Penal Code dated 02.12.2016, passed by the learned 2nd Additional Sessions Judge, FTC, Bermo at Tenughat in Sessions Trial No. 263 of 2011 are set-aside. 21. Mr. Abhay Kumar Tiwari, the learned APP states that the appellants, named above, are in custody. 22. Accordingly, the appellants, namely, Jaggu @ Munna Karmali and Futu Chand Karmali shall be set free forthwith, if not required in connection to any other case. 23. In the result, Criminal Appeal (DB) No. 446 of 2017 is allowed. 24. Let lower court records be transmitted to the Court concerned, forthwith. 25. Let a copy of the judgment be communicated to the trial Court through FAX.