JUDGMENT : Shree Chandrashekhar, J. Bengabad PS Case No. 144 of 2009 was registered on the basis of the fardbeyan of Chandawa Devi which was recorded at about 9:45 AM on 16.11.2009 near her house. The informant is mother of Prince Verma, the deceased. She has alleged that the appellant who is her sister-in-law has thrown her son in a nearby well and the doctor who has conducted the post-mortem examination has stated that Prince Verma has died due to asphyxia on account of drowning in the water. After the investigation, a charge-sheet was filed and the appellant has faced the trial on the charge of committing murder of Prince Verma. 2. In S.T. No. 113 of 2010, the learned Additional Sessions Judge, Giridih has held that ocular evidence of the prosecution witnesses that the appellant with an intention to commit murder of Prince Verma has thrown him in a well is corroborated by medical evidence which confirms cause of death as asphyxia due to drowning. Accordingly, the appellant has been convicted and sentenced to RI for life under Section 302 of the Indian Penal Code. 3. PW-3, Chandawa Devi is sister-in-law of the appellant. PW-2, PW-6, PW-7 and PW-8, the co-villagers, are the eye-witnesses; they are related to the informant. The defence has examined two witnesses, namely, Tejani Devi who is sister-in-law of the informant and Surendra Verma who is father of the deceased-child. 4. The case of the prosecution is that there was constant quarrel between the informant and the appellant who on account of her matrimonial discord was residing at her parents' place and due to her annoyance with the informant she has thrown her son in the well in the morning of 16.11.2009. PW-3, the informant is not an eye-witness. She has deposed in the Court that when she came back home from the temple after offering worship, PW-2, PW-6 and PW-8 informed her that Gudia Devi has killed her son. She has stated that the appellant was staying with her family because of her own matrimonial dispute and on various domestic issues she has quarreled with her. She has further deposed that the appellant was threatening to teach a lesson to her. PW-2 has stated that in the morning of 16.11.2009 she was near the well. At that time PW-6 and PW-8 were also around. She has further deposed that the appellant was threatening to teach a lesson to her. PW-2 has stated that in the morning of 16.11.2009 she was near the well. At that time PW-6 and PW-8 were also around. She has seen the appellant carrying the child near the well and suddenly she threw him in the well. By the time she could intervene and raise hulla the appellant had sneaked inside the house. PW-6 and PW-8 have also deposed in the Court that they have seen the appellant carrying Prince Verma, a minor child aged about 5-6 years, and throwing him in the well. PW-4 had stated that when hulla was raised he rushed to the well and brought out Prince Verma from the well. In his examination-in-chief, he said that he cannot remember whether the child was dead or alive when he was taken out from the well and therefore he was declared hostile at the instance of the prosecution. PW-5 is also a co-villager. In the morning of 16.11.2009 he was sitting outside his house and he has seen the appellant carrying the child. He stated that after sometime he saw the appellant returning home but at that time the child was not with her. In the meantime he heard hulla and rushed towards the well. He has said that Prince Verma was lifted out from the well; he was aged about 4-5 years and; he was found dead. PW-7 has also stated that on hearing hulla he had gone near the well and there he heard PW-2 and PW-8 saying that the appellant has thrown the child in the well. 5. The appellant has taken a defence that in the morning of 16.11.2009 Chandawa Devi had gone to temple to offer prayer. At that time her children were sleeping. Prince Verma when woke-up did not find his mother around so he went outside the house and while searching for his mother when he came across the well he fell down and slipped in the well. In her cross-examination PW-2 has stated that granddaughter of Hiro Mahto had fallen in the well and she herself has also once slipped in the well. It has also come on record that there was no boundary around the well. In her cross-examination PW-2 has stated that granddaughter of Hiro Mahto had fallen in the well and she herself has also once slipped in the well. It has also come on record that there was no boundary around the well. The prosecution evidence is that relationship between the appellant and the informant was not quite good and there were constant quarrel between them. The informant, the mother of Prince Verma has said so in her examination-in-chief itself. Still, on examination of the entire evidence we are not convinced that on account of strained relationship with the appellant, the informant has falsely implicated her in this case. DW-1 and DW-2 both have deposed in favour of the appellant and they are close relatives of the appellant, however, their evidence is of no avail to the defence. DW-1 has stated that she has not seen Prince Verma drowning in the well and at the time of the incident DW-2 was not at home – he was at Surat. 6. The informant, PW-2, PW-6 and PW-8 are close relatives but then the appellant is also a close relative of theirs and, therefore, it is difficult to accept the defence story that the appellant has been falsely implicated in this case. A relative of the victim may not necessarily be hostile to the accused and it is quite settled by now that close relationship of a witness with the victim is not a ground to discard his testimony. In “Waman v. State of Maharashtra” reported in (2011) 7 SCC 295 , the Hon’ble Supreme Court has observed that relationship is not a factor to affect credibility of a witness and all that is required is to scrutinize evidence of a related witness with a little care. On a close scrutiny of the testimony of PW-2, PW-3, PW-6 and PW-8, we do not find any trace of taint in their evidence on account of strained relationship between the appellant and the informant. 7. The evidence tendered by the prosecution witnesses that the appellant has thrown Prince Verma in the well has remained unshaken. There are three eye-witnesses who have seen the appellant throwing Prince Verma in the well and the evidence of PW-5 is also suggesting the same inference. In the cross-examination of these witnesses nothing material on this point has been elicited by the defence. There are three eye-witnesses who have seen the appellant throwing Prince Verma in the well and the evidence of PW-5 is also suggesting the same inference. In the cross-examination of these witnesses nothing material on this point has been elicited by the defence. PW-4 and PW-7 have sufficiently corroborated the prosecution evidence tendered by PW-2, PW-6 and PW-8. 8. The prosecution story that Prince Verma has died due to drowning is corroborated by the medical evidence. PW-1, Dr. Sunil Kumar Singh who has conducted the post-mortem examination at about 13:15 PM on 16.11.2009 has found froth coming out from both nostrils of Prince Verma; trachea congested and contained sand particles; right chamber of the heart contained dark fluid blood; lungs were water-logged and; stomach was full of sandy water. In his opinion death was caused due to asphyxia on account of drowning and the time elapsed since death was approximately 24 hours. According to the prosecution, the incident has happened around 06:00 to 06:30 AM in the morning and on a telephonic information the police has arrived in the village at around 09:30 AM. The fardbeyan of the informant was recorded at 09:45 AM and a First Information Report has been lodged at 11:00 AM. On such facts, Mr. Ravi Prakash, the learned Spl. PP has rightly contended that false implication of the appellant is completely ruled out. 9. However, in our opinion conviction of the appellant under section 302 of the Indian Penal Code is not proper. 10. There is serious controversy on cause of death of Prince Verma. The prosecution evidence on the point whether Prince Verma was dead or alive when he was taken out from the well is quite contradictory. The person who has taken out Prince Verma from the well is PW-4 and in his examination-in-chief he has stated that he was not sure whether Prince Verma was dead or alive when he was taken out from the well. PW-2, PW-6 and PW-8 were around the well at the time of the occurrence and they have immediately raised hulla whereupon the villagers came there and Prince Verma was taken out from the well. The narration of the events as spoken by these prosecution witnesses indicates that this all had happened quite quick and fast. PW-2, PW-6 and PW-8 were around the well at the time of the occurrence and they have immediately raised hulla whereupon the villagers came there and Prince Verma was taken out from the well. The narration of the events as spoken by these prosecution witnesses indicates that this all had happened quite quick and fast. Now if Prince Verma was taken out from the well immediately it is most unlikely that he would have died due to drowning within such a short time. And above all, PW-2 has said in her cross-examination that when Prince Verma was taken out from the well he was alive and thereafter he fell in the well again. This time when he was taken out from the well he was found dead. 11. In the above state of evidence, we are of the opinion that all that the prosecution has been able to establish is that the appellant with an intention and knowledge that Prince Verma would die due to drowning has thrown him in the well but he was brought out alive from the well and, therefore, conviction of the appellant under section 302 of the Indian Penal Code is not sustainable in law. 12. Section 307 of the Indian Penal Code reads as under: “307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 13. The first distinction between the offence punishable under section 307 the Indian Penal Code and Section 302 the Indian Penal Code is that the offence under section 307 the Indian Penal Code is not culpable homicide; the victim finally survives. Secondly, it is not necessary that to constitute an offence under section 307 the Indian Penal Code hurt must be caused to the victim. Secondly, it is not necessary that to constitute an offence under section 307 the Indian Penal Code hurt must be caused to the victim. What is required by the prosecution to establish is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of Maharashtra v. Kashirao” reported in (2003) 10 SCC 434 , the Supreme Court has observed as under: “20. .......The essential ingredients required to be proved in the case of an offence under section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.” 14. The appellant had requisite intention and knowledge as well that Prince Verma would have died due to drowning but he was brought alive from the well and, therefore, she has committed the offence under section 307 of the Indian Penal Code. The doctor has not found any injury on the dead-body of Prince Verma and, moreover, this is not a case set up by the prosecution that the appellant has assaulted Prince Verma and, therefore, she is convicted and sentence to RI for seven years under section 307 of the Indian Penal Code. 15. Accordingly, the judgement of conviction under section 302 of the Indian Penal Code and the order of sentence of RI for life for the said offence, both dated 30.08.2011, passed against the appellant, namely, Gudia Devi by the learned Additional Sessions Judge, Giridih, in S.T. No. 113 of 2010 are set-aside. 16. The appellant, above-named, is convicted and sentenced to RI for seven years under section 307 of the Indian Penal Code. 17. Mr. 16. The appellant, above-named, is convicted and sentenced to RI for seven years under section 307 of the Indian Penal Code. 17. Mr. Ravi Prakash, the learned Spl.PP states that the appellant has remained in custody for more than twelve years, with remission. 18. Accordingly, the appellant, namely, Gudia Devi who is in custody, shall be set free forthwith, if not wanted in connection to any other criminal case. 19. In the result, Criminal Appeal (DB) No. 559 of 2011 is partly allowed, in the aforesaid terms. 20. Let lower Court records be transmitted to the Court concerned, forthwith. 21. Let a copy of the judgement be transmitted to the Court concerned through 'FAX'.