JUDGMENT : (G. Radha Rani, J.) This Criminal Appeal is filed by the appellant – accused No.1 aggrieved by the judgment dated 07.04.2015 passed in S.C.No.363 of 2014 by the learned V Additional District & Sessions Judge at Karimnagar, Karimnagar District, wherein the appellant was convicted for the offence under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and fine of Rs.500/-, in default of payment of fine to suffer simple imprisonment for three months. 2. The case of the prosecution as per the charge sheet filed by the Inspector of Police, Huzurabad was that A1 was the father of the deceased boy by name Tony aged 3 years and A2 was the mother of the deceased. A1 caused the death of the deceased boy at his home by smothering by a pillow sitting on the trunk of the deceased and A2, the mother of the deceased fabricated a story that their son suffered from vomitings and died, and screened the evidence. The prosecution case was initiated by the Village Revenue Officer (for short “VRO”), Huzurabad by filing the complaint on 02.12.2013 at 21:00 hours stating that the second son of Molugu Anandam (A1) by name Molugu Tony died in suspicious circumstances at his house. He came to know that the husband and wife i.e. A1 and A2 had ill feelings against each other and there used to be quarrels among them. The boy was sleeping with his father at the time of his death. As such, it was suspected that the father of the boy, who had quarrels with his wife, must have killed his son and the neighbors were also murmuring among themselves. As such, he requested the Police to inspect the spot, examine the dead body and to take necessary action. 3. Basing on the said report, the Probationary Sub-Inspector of Police of PS Huzurabad registered a case in Crime No.286 of 2013 under Section 174 Cr.P.C., recorded the statement of the complainant, visited the scene of offence situated at the house of the deceased at Mamindlawada, Huzurabad, found the dead body laid down in front of the house, found no visible external injuries, examined the parents, relatives and neighbors of the deceased. The parents stated that the deceased died due to vomitings, but the neighbors expressed suspicion over the father of the deceased. The parents stated that the deceased died due to vomitings, but the neighbors expressed suspicion over the father of the deceased. He also drafted the sketch map of the scene of offence and noted the details of the scene of offence in Crime Detail Form. He got shifted the body to the mortuary at Government Hospital, Huzurabad. On 03.12.2013, he got the dead body photographed, recorded the statements of LWs.2 to 6 and held inquest over the body of the deceased at the mortuary of Government Hospital, Huzurabad in the presence of the witnesses. The Medical Officer, Huzurabad referred the dead body of the deceased to MGM Hospital, Warangal for post mortem examination (for short “PME”) by a forensic expert. Accordingly, the body was shifted to Kakatiya Medical College, Warangal and an Assistant Professor of Kakatiya Medical College held post mortem examination and issued a report stating that the deceased died “due to multiple injuries”. Basing on the PME report and the statements of the relatives of the deceased, the Probationary Sub-Inspector of PS, Huzurabad altered the Section of Law from 174 Cr.P.C to Section 302 of IPC. Thereafter, he also recorded the statements of LWs.7 to 9. 4. Further investigation was conducted by the Circle Inspector of Police (for short “CI”), Huzurabad Rural circle. On 05.12.2013, the CI apprehended A1 and A2 at their home and interrogated them in the presence of two local witnesses. He got video graphed the confessions of A1 and A2 and seized the pillow used for smothering the deceased boy under the cover of panchanama. He also recorded the statement of LW.10. 5. Further investigation was conducted by the Inspector of Police of PS Huzurabad. The Inspector of Police of PS Huzurabad recorded the statements of neighbors, visited the hospital of Dr.B.Rama Linga Reddy, where A2 worked and recorded the statements of LWs.14 to 16. He filed charge sheet against A1 for the offence under Section 302 of IPC and against A2 for the offence under Sections 302 and 201 of IPC. 6. The learned Additional Judicial Magistrate of First Class, Huzurabad committed the case to the Court of Sessions. The case was tried by the learned V Additional District & Sessions Judge, Karimnagar vide S.C.No.363 of 2014. 7. The prosecution got examined PWs.1 to 23 and got marked Exs.P1 to P13 and MO.1 on its behalf. No defence witnesses were examined. 8. The learned Additional Judicial Magistrate of First Class, Huzurabad committed the case to the Court of Sessions. The case was tried by the learned V Additional District & Sessions Judge, Karimnagar vide S.C.No.363 of 2014. 7. The prosecution got examined PWs.1 to 23 and got marked Exs.P1 to P13 and MO.1 on its behalf. No defence witnesses were examined. 8. On considering the oral and documentary evidence on record, the learned V Additional District & Sessions Judge, Karimnagar acquitted A2 for the offences under Section 302 and 201 of IPC, but convicted A1 to rigorous imprisonment for life and fine of Rs.500/- for the offence under Section 302 of IPC and in default of payment of fine to suffer simple imprisonment for three months. 9. Aggrieved by the said conviction and sentence recorded by the trial court, A1 preferred this appeal. 10. Heard Sri M.K.Ratnam, learned counsel for the appellant and the learned Additional Public Prosecutor for the State. 11. Learned counsel for the appellant contended that except the evidence of a child witness examined as PW.8, there is no other reliable and admissible evidence adduced by the prosecution to prove the guilt of appellant – A1 for the offence under Section 302 of IPC. The evidence of all other witnesses was in the nature of hearsay. The evidence of the doctor, who conducted the PME examined as PW.19 was contrary to the case of the prosecution. The trial court failed to notice that the doctor, who conducted autopsy opined that the cause of death of the deceased was due to multiple injuries. The trial court failed to notice that the child witness deposed at the instance of his grandmother and PW.2 and his evidence could not be taken into consideration. The trial court failed to notice that on 01.12.2013 the accused took the deceased boy to hospital as he was suffering from motions and vomitings and on 02.12.2013 morning and evening also, the deceased boy was taken to the hospital by him and that it was also informed by him that the deceased fell in the drain and sustained injuries. The trial court adjudicated the matter erroneously and the appellant – A1 was entitled for benefit of doubt and acquittal. 12. The trial court adjudicated the matter erroneously and the appellant – A1 was entitled for benefit of doubt and acquittal. 12. Learned Additional Public Prosecutor supported the judgment of the trial court and contended that the evidence of the child witness was sufficient to prove the guilt of the accused for the offence under Section 302 of IPC. There was no illegality committed by the trial court in convicting the appellant – A1 and prayed to sustain the conviction recorded by the trial court. 13. Now the points for determination in this appeal are: 1) Whether the prosecution proved the guilt of the appellant / A1 for the offence under Section 302 of IPC beyond reasonable doubt? 2) To what result? POINT No.1: Whether the prosecution proved the guilt of the appellant / A1 for the offence under Section 302 of IPC beyond reasonable doubt? 14. On a perusal of the evidence of the complainant PW.1, the VRO, Huzurabad, he stated that on 02.12.2013 between 06:30 PM to 07:00 PM, he came to know that the boy by name Tony, son of A1 and A2 of Mamindlawada of Huzurabad Town died. Immediately, he went to the house of the accused and found the dead body of the deceased boy Tony. On his enquiry, the people gathered there informed him that on 01.12.2013, the accused took the deceased boy Tony to the hospital, as he suffered from motions and vomitings. From the private hospital, Huzurabad, they also took the deceased boy to Warangal on the same day evening and on 02.12.2013 morning they brought the boy to their house. Again, the accused took the boy to a private hospital on 02.12.2013 in Huzurabad. They also informed him that in the afternoon, the boy fell down in the drain and sustained injuries on his mouth. A2 went to bring milk to her son Tony. On her return she found her son dead. The people gathered there informed him that A1 and A2 quarreled with each other and A1 killed their son Tony. As such, he gave the report to the Police marked under Ex.P1. 15. A2 went to bring milk to her son Tony. On her return she found her son dead. The people gathered there informed him that A1 and A2 quarreled with each other and A1 killed their son Tony. As such, he gave the report to the Police marked under Ex.P1. 15. As per Ex.A1 also, he gave two versions that he came to know about the boy suffering with vomitings and that the mother of the boy by name Molugu Kavitha (A2) was a nurse and that she spoke with the doctor over phone on 01.12.2013 at 09:30 AM and informed that her son was vomiting and the doctor asked her to give him Perinorm injection, on which she gave the said injection. Again she spoke with the doctor on 03:30 PM and informed that the vomitings of the boy increased and that she administered the medicines, which were available in the house. But, there was no improvement in his condition. At 09:00 PM, he again vomited, on which the boy was taken to Dr.B.Rama Linga Reddy and the doctor advised her to take the boy to MGM Hospital, Warangal. They had taken the boy to MGM Hospital, Warangal. On 02.12.2013 at 05:00 AM, the boy was brought back by the parents from MGM Hospital, Warangal to their house. Till that time, the condition of the boy was good. The other version was that at 01:00 PM while the boy was playing, he fell in the drain and sustained injuries to his lips and asked his mother that he would drink milk. When the mother went into the house to bring money to get milk packet and she came out of the bedroom with money, the boy was found in the lap of his father on the bed and when the mother tried to get up the boy, there was no response from the boy. With the help of neighbors, the mother (A2) and brother of A2, took the boy to the hospital of Dr.B.Rama Linga Reddy and the doctor advised them to take the boy to a pediatrician. As such, they took the boy to Dr.Bhaskar, where he examined the boy and declared him dead. 16. The complainant further stated that the husband and wife i.e. A1 and A2 had ill-feelings against each other. As such, they took the boy to Dr.Bhaskar, where he examined the boy and declared him dead. 16. The complainant further stated that the husband and wife i.e. A1 and A2 had ill-feelings against each other. There used to be quarrels in the house and as the boy was sleeping with his father when found dead, it was suspected that the father of the boy, who had quarrels with his wife, must have killed his son. 17. The evidence of PW.1, as well as the contents of the complaint marked under Ex.P1 would disclose that PW.1 is not an eye-witness to the incident and his evidence is of hearsay in nature. Whatever he recorded in the complaint was what he heard from others. In his cross-examination, he stated that he could not say the names of the persons, who gathered at the house of the accused and who informed him that A1 killed Tony. 18. The mother, brother and sister of A2 were examined as PWs.4, 5 and 2 respectively. PW.4 had not stated about the disputes between A1 and A2 or that she suspected A1 in the death of the deceased boy Tony. She stated that she did not know as to how Tony died. She only stated that one year prior to the date of her recording the evidence, when she was at her house, A2 rushed to her house and informed that her son Tony was lying still without any movements and A2 went into the house for taking money for purchasing milk packet at that time. Immediately, she went to the house of the accused and took Tony to the hospital of Dr.B.Rama Linga Reddy, who advised them to take him to children’s doctor (LW.9 – Bhaskar). Thereafter, they took the boy to the said doctor and he examined the boy and declared that the boy Tony died. 19. The evidence of the brother of A2, who was examined as PW.5 is exactly similar to that of his mother. 20. The sister of A2, who was examined as PW.2 stated that A2 was working in the hospital of Dr.B.Rama Linga Reddy, Huzurabad as a sweeper. There were disputes between A1 and A2. A1 got suspicion on A2’s character. She came to know that on 02.12.2013, A1 killed his son by pressing with a pillow due to suspicion against A2. 20. The sister of A2, who was examined as PW.2 stated that A2 was working in the hospital of Dr.B.Rama Linga Reddy, Huzurabad as a sweeper. There were disputes between A1 and A2. A1 got suspicion on A2’s character. She came to know that on 02.12.2013, A1 killed his son by pressing with a pillow due to suspicion against A2. Thus, this witness stated that there were disputes between A1 and A2, and A1 suspected the character of A2. But the same was not supported by the evidence of PWs.4 and 5, the mother and brother of A2. The evidence of PW.2 that she came to know about A1 killing his son Tony is also hearsay evidence. When she was questioned in her cross-examination, through whom she came to know about the incident, PW.2 stated that she came to know through Akash, the elder son of A1 and A2, but admitted that she did not state before the Police about Akash informing her that A1 killed Tony by pressing the pillow over the face of Tony. 21. Another relative of A2, who was also residing nearby the house of A1 and A2 was examined as PW.10. He also stated that A1 was suspecting the fidelity of A2 and there were quarrels between them. On 02.12.2013, he came to know about the death of Tony and A1 killed his son by pressing the pillow on the face of Tony. This evidence is also in the nature of hearsay. In his cross-examination, this witness admitted that the marriage of A1 and A2 was a love marriage and since then there were no talking terms between the parents of A2, and A1. There were no amicable terms between them and A1. He stated that on hearing that Tony died, when he went to the house of the accused, at the house he heard from the people who gathered there that A1 killed Tony by pressing the pillow on his face. Thus, the evidence of this witness would disclose that the marriage between A1 and A2 was a love marriage, which was against the will and wish of family of A2 and there were no amicable terms between them and A1. 22. Two other neighbors were examined as PWs.11 and 12. Both these witnesses turned hostile. PW.11 stated that he did not know how the son of A1 and A2, by name, Tony died. 22. Two other neighbors were examined as PWs.11 and 12. Both these witnesses turned hostile. PW.11 stated that he did not know how the son of A1 and A2, by name, Tony died. PW.12 stated that A1 and A2 were living amicably. Sometimes, there used to be quarrels between them, but they were going to their respective works and used to live together. PW.12 stated that she was not in Mamindlawada, Huzurabad at the alleged time of incident of death of Tony and she did not know how the deceased Tony died. 23. Another set of witnesses, who were the colleagues of A2 working at the hospital of Dr.B.Rama Linga Reddy were examined as PWs.13, 14 and 15. All these witnesses stated that A2 worked as a sweeper in the hospital. PW.13 stated that he did not know about the disputes between A1 and A2 and did not know as to how the deceased Tony died. PW.14, a witness who was working as a sister in the hospital of Dr.B.Rama Linga Reddy stated that A2 used to inform her that there were quarrels between A1 and A2. But she stated that on 02.12.2013, A2 brought Tony to their hospital stating that Tony was having vomitings and Dr.B.Rama Linga Reddy referred Tony to the children’s doctor. Later, Tony died. PW.15, another witness who was also working as a sister in the hospital of Dr.B.Rama Linga Reddy stated that A1 and A2 used to come to their hospital quarrelling with each other in the premises of the hospital of Dr.B.Rama Linga Reddy. Both these witnesses PWs.14 and 15 stated that they came to know that A1 killed his son Tony. Their evidence with regard to the death of the deceased boy Tony is hearsay in nature. The evidence of PW.15 with regard to the quarrels between A1 and A2 would not disclose for what reason they were quarrelling with each other or that A1 was suspecting the fidelity of his wife A2. 24. Dr.B.Rama Linga Reddy was examined as PW.6. He stated that A2 worked as a sweeper in his hospital. He further stated that on 03.12.2013 in the evening at 04:00 or 05:00 PM, A2 along with some others brought Tony to their hospital and informed him that the boy was suffering from vomitings. 24. Dr.B.Rama Linga Reddy was examined as PW.6. He stated that A2 worked as a sweeper in his hospital. He further stated that on 03.12.2013 in the evening at 04:00 or 05:00 PM, A2 along with some others brought Tony to their hospital and informed him that the boy was suffering from vomitings. He then advised her to take the boy to the children’s doctor and she took her son to children’s doctor. His evidence also would disclose that on 01.12.2013, A2 telephoned him and informed him that her son was suffering from vomitings and then he advised her to give Perinorm injection. This witness was treated as hostile by the prosecution and his statement before the Police was marked as Ex.P3. 25. The pediatrician by name Dr.C.Bhaskar was examined as PW.7. He stated that on one day in the month of December, 2013 at 04:30 or 05:00 PM, A2 and some others brought the son of A2 by name Tony to his clinic and he was informed that he was suffering from vomitings. He examined the boy and found that his respiratory organs were not functioning. There was no heart beat and found pupils dilated and fixed and also found brain death of the child. He informed that that the boy Tony died and asked them to take to Government Hospital. Thereafter, they left his clinic. In his cross-examination, this witness stated that he had no personal knowledge of the cause of death of the deceased boy Tony. 26. The important evidence in this case is that of the child witness Molugu Akash, examined as PW.8, who was the elder brother of the deceased boy Tony. He was aged eight years by the date of his giving evidence and was studying 1st class. Some preliminary questions were put by the Court and after recording satisfaction about his ability to understand the questions and to give rational answers, his evidence was recorded. He stated that Tony was his younger brother. He died three (03) years ago. His father A1 killed his brother Tony by pressing the pillow on the face of his brother and therefore his brother Tony died. He was present in the house at that time. He witnessed while his father (A1) was pressing the pillow on the face of his brother Tony in the evening time. He died three (03) years ago. His father A1 killed his brother Tony by pressing the pillow on the face of his brother and therefore his brother Tony died. He was present in the house at that time. He witnessed while his father (A1) was pressing the pillow on the face of his brother Tony in the evening time. He stated that his father and mother were living amicably in the house. In his cross-examination, he stated that he was residing with his maternal grandmother, since the death of his brother Tony and was studying. He stated that there were no cordial relations between his maternal grandmother and his father. His mother – A2 was residing at Karimnagar. He further stated that PW.2 (i.e. his aunt), the younger sister of A2 was enmical towards his father. His grandmother and PW.2 were not allowing him to meet his father. His grandmother and PW.2 asked him to say that his father killed his brother Tony. On the question put by the Court, the witness stated that he deposed before the Court as to what he witnessed. He further stated that he did not go to school on the date of death of his brother Tony and he did not remember the exact time of the incident. He stated that his brother Tony was in a talking position for three days. He did not go to the hospital along with his brother Tony. 27. Under Section 118 of the Indian Evidence Act, 1872, a child is competent to testify, if he can understand the questions put to him and give rational answers thereto. No particular age is prescribed to treat a witness as a competent witness. As such, a child of tender age also can be allowed to testify, if he had intellectual capacity to understand the questions and give rational answers thereto. 28. The Hon’ble Apex Court in Panchhi and Others, National Commission for Women v. State of UP and others, AIR 1998 SC 2726 , held that: “Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others told them and thus a child witness is an easy prey to tutoring.” 29. In State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274 , the Hon’ble Apex Court held that: “It was hazardous to rely on the sole testimony of the child witness if is not available immediately after the occurrence of the incident before there was any possibility of coaching and tutoring.” 30. In Mangoo & another v. State of Madhya Pradesh, AIR 1959 SC 959, the Hon’ble Apex Court while dealing with the evidence of a child witness observed that there was always a scope to tutor the child, however, it cannot alone be a ground to come to a conclusion that the child witness must have been tutored. The Court must determine as to whether the child had been tutored or not. It can be ascertained by examining the evidence and from the contents there of as to whether there were any traces of tutoring. Competency of a witness is different from reliability of his evidence. The admissibility of the evidence of child witness has to be considered on reliability after scrutiny of his evidence. The rule of prudence which has been christened as a rule of law is that generally it is unsafe to rely upon the statement of a child witness as children can be easily tutored or threatened or persuaded to speak in the way as told by others. Hence, the statement of the child witness has to be examined carefully to see that he has not been tutored. 31. In Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 , the Hon'ble Apex Court held that corroboration of the testimony of a child witness is not a rule, but a measure of caution and prudence. 32. In the light of these principles in evaluating the evidence of the child witness, when the evidence of PW.8 is considered, PW.8 is a young boy of eight years of age at the time of giving his evidence on 17.12.2014. As the date of incident was alleged to be occurred on 02.12.2013, he was aged seven years at the time of the incident. He could not say as to when his brother Tony died. Initially, he stated that he could not say as to how many days before he died, but later stated that his brother Tony died three years back. 33. Thus, he was not capable of calculating the date and time of the incident. He could not say as to when his brother Tony died. Initially, he stated that he could not say as to how many days before he died, but later stated that his brother Tony died three years back. 33. Thus, he was not capable of calculating the date and time of the incident. As seen from the charge sheet filed by the police also, his parents A1 and A2 were taken into custody on 05.12.2013 and since then, PW.8 was in the custody of his maternal grandmother. The evidence of PW.10 also would disclose that there were no amicable terms between the parents of A2, and A1. PW.8 also admitted the said fact and stated that there were no cordial relations between his maternal grandmother and his father. He also stated that PW.2, his aunt was enmical towards his father and further stated that his maternal grandmother and PW.2 were not allowing him to meet his father. His evidence also would disclose that they tutored him to say that his father killed his brother Tony. When a child openly stated before the Court that his grandmother and PW.2 tutored him to depose as such, his evidence cannot be considered as a sole basis for convicting the accused No.1. There need to be corroboration to act upon the evidence of PW.8. 34. Another important witness in this case is that of the evidence of the doctor, who conducted Post mortem Examination on the body of the deceased. The Assistant Professor of Forensic Department, Kakatiya Medical College, Warangal was examined as PW.20. PW.20 stated that on 03.12.2013 at 12:30 PM, he received requisition from SHO of PS Huzurabad to conduct autopsy over the dead body of the deceased boy Tony. He conducted autopsy from 01:00 PM to 01:30 PM and found the following ante mortem injuries: External ante mortem injuries: 1) Minor scratches present on both upper and lower limbs, 2) Right scrotal sac swollen and contused. Internal injuries: 3) Blood stained fluid present in scrotal sac. 4) Right testis contusion. 5) Pelvis fracture on both sides. 6) Neck structures contused and hyoid, thyroid, cartilage normal and intact. 7) Heart contused in posterior aspect. 8) Mandible (lower jaw) fracture. 35. He stated that nothing abnormality was detected in the internal organs. Internal injuries: 3) Blood stained fluid present in scrotal sac. 4) Right testis contusion. 5) Pelvis fracture on both sides. 6) Neck structures contused and hyoid, thyroid, cartilage normal and intact. 7) Heart contused in posterior aspect. 8) Mandible (lower jaw) fracture. 35. He stated that nothing abnormality was detected in the internal organs. He stated that the cause of death of the deceased boy Tony to the best of his knowledge and belief was due to ‘multiple injuries’. The PME report was marked as Ex.P11. In his cross-examination, he stated there was no sign of asphyxial death of deceased Tony and further stated that if any person falls on a rough surface or rough object, the above said injuries could be caused. Thus, the evidence of this witness would disclose that the cause of death of the deceased was due to multiple injuries sustained by him and there was no sign of asphyxial death. 36. Learned counsel for the appellant relied upon the textbook of Medical Jurisprudence and Toxicology written by Dr.K.S.Narayana Reddy, Professor of Forensic Medicine, Retired Principal of Osmania Medical College, Hyderabad published by ALT publications in 2017, wherein with regard to the symptoms of homicidal smothering, it was mentioned that when the face is pressed into a pillow, the skin around the nose and mouth may appear pale or white due to pressure. Petechiae and congestion are rarely seen unless the victim struggles and fights for breath. Saliva, blood and tissue cells may be found on the pillow. The asphyxial signs and symptoms are severe, because death usually results due to slow asphyxia and often the fatal period is three to five minutes. The head and face may show intense congestion and cyanosis with numerous petechial hemorrhages in the skin of the face and beneath the conjunctivae. Blood may ooze out from the mouth and nose. The tongue may be protruded and may have been bitten. The air passages contain blood stained frothy fluid with red blood cells and desquamated respiratory epithelial cells. The lungs are congested. The death is rapid due to reflex cardiac arrest, rather than a purely hypoxic process. 37. This text on homicidal smothering would disclose that the asphyxial signs and symptoms were severe, but the evidence of PW.20 would disclose that there is no sign of asphyxial death of deceased Tony. The lungs are congested. The death is rapid due to reflex cardiac arrest, rather than a purely hypoxic process. 37. This text on homicidal smothering would disclose that the asphyxial signs and symptoms were severe, but the evidence of PW.20 would disclose that there is no sign of asphyxial death of deceased Tony. On the other hand, the injuries would disclose that there was pelvis fracture on both sides, contusion of right testis, blood stained fluid present in scrotal sac and fracture of mandible (lower jaw). There is no explanation for these fracture injuries found on the body of the deceased from the evidence of any of the witnesses. Though the prosecution case stated that A1 killed the deceased boy by smothering a pillow by sitting on his trunk, the evidence of PW.8 is silent on this aspect. PW.8 had not stated about his father sitting on the deceased boy. He only stated about pressing of the pillow on the face of his brother by his father. As such, there is no explanation for these injuries sustained by the deceased. On the other hand, the report given PW.1 marked under Ex.A1 would disclose that he was also informed immediately after the death of the deceased when he went to the house of the accused that the deceased fell in the drain and sustained injuries to his lips. As such, there is possibility of the deceased boy sustaining injuries due to his accidental fall in the drain, due to which, he might have suffered with vomitings and diarrhea and died due to these injuries and not being treated properly immediately. The evidence of PW.6 also would disclose that he informed A2 over telephone and advised her to give Perinorm injection, which would disclose that he had not examined the boy physically on 01.12.2013. His evidence also would not disclose his examining the boy on 02.12.2013. PW.6 only stated about seeing the boy on 03.12.2013 in the evening at 04:00 or 05:00 PM and that he advised the boy to be taken to a pediatrician. 38. Thus, the treatment given to the deceased on 01.12.2013 or 02.12.2013 was not brought on record by the Investigating Officer. The evidence of the witnesses PWs.1, 6 and 7 is consistent that the mother - A2 had only reported about the boy suffering with vomitings, but not stated anything about A1, who is her husband. 38. Thus, the treatment given to the deceased on 01.12.2013 or 02.12.2013 was not brought on record by the Investigating Officer. The evidence of the witnesses PWs.1, 6 and 7 is consistent that the mother - A2 had only reported about the boy suffering with vomitings, but not stated anything about A1, who is her husband. If there was any slightest doubt against the involvement of A1 in the incident, she was the first person who has to report against him. But charges were framed against her under Sections 302 and 201 of IPC stating that she suppressed the facts and tried to screen the evidence, for which she was acquitted. 39. Thus, the entire case rests only upon the hearsay evidence. There is no trustworthy or reliable evidence to prove the guilt of A1 for the offence under Section 302 of IPC. 40. The other evidence adduced by the prosecution is that of the videographer, examined as PW.9, who recorded the confession statements of A1 and A2. He stated that he recorded the statements of A1 and A2 at their house and he was called by the Police to record their statements. Thus, A1 and A2 were in the custody of Police by the date of recording their confessions on 05.12.2013. The other witnesses are the panch witness for the crime detail form and the scene of offence examined as PW.16, the panch witness for inquest examined as PW.17, the VRO of Chelpur, who acted as panch witness for the confession cum seizure panchanama, examined as PW.18. PW.18 stated about the confession of A1 and that A1 had shown the pillow with which he killed his son Tony and the Police seized the said pillow in his presence under the cover of panchanama marked as Ex.P9. In his cross-examination he stated that by the time he reached near the house of A1, police were already there and A1 was in the custody of police. Thus, the confession of A1 in the custody of Police is not admissible in evidence. 41. Though the Investigating Officer seized the pillow under the cover of panchanama, failed to send it to the forensic expert for opinion. Thus, the confession of A1 in the custody of Police is not admissible in evidence. 41. Though the Investigating Officer seized the pillow under the cover of panchanama, failed to send it to the forensic expert for opinion. As seen from the text of Medical Jurisprudence and Toxicology relied by the learned counsel for the appellant, there could be saliva, blood and tissue cells on the pillow and if the pillow was sent to the forensic expert, it could have been a reliable evidence to believe the case of the prosecution that the deceased boy died due to smothering. But the Investigating Officer failed to conduct the investigation on that line. As such, the seizure of pillow is of no consequence to believe the prosecution case to consider it as a material object used for commission of offence. PWs.21, 22 and 23 are the Investigating Officers, who conducted the investigation. 42. The trial court mainly relied upon the evidence of PW.8, the child witness to convict the accused. The trial court in its judgment had also recorded that it watched the confession statement made by A1 by playing the CD in the computer and noted that: “I heard the confession made by A1 that there are differences between him and A2 and he is not interested in A2 working in hospital and he is having suspicion on A2 and he further confessed that by consuming liquor without observing, he put his leg on pillow, which fell on the face of his son Tony. So, indirectly he confessed his guilt of prosecution case that he killed his son Tony due to suspicion on A2's character and paternity of his son Tony. The confession made by A1 also strengthens the evidence of independent witnesses in this case. Though there is no evidentiary value to the confession made by the accused, as they confessed the commission of offence before the Police, but, it is a strong circumstance to believe that A1 committed the murder of his son. Though, I am not taking into consideration the confession made by the accused, the evidence of PW.8, who is none other than the son of A1 and A2, clearly proves the guilt of A1 in this case. Though, I am not taking into consideration the confession made by the accused, the evidence of PW.8, who is none other than the son of A1 and A2, clearly proves the guilt of A1 in this case. Therefore, I am of the further opinion without any hesitation that the prosecution succeeded in proving its case beyond all reasonable doubt by producing sufficient evidence against A1 to say that he committed the murder of his Tony.” 43. Thus, on one side, the trial court rightly observed that confession made by the accused has no evidentiary value. But, on the other hand took it as a strong circumstance to believe that A1 committed the murder of his son Tony, which was not legally valid. The confession of A1 cannot be considered as corroborative evidence to the evidence of PW.8. The story of prosecution is at variance even with the confession of A1. Just by placing the leg on the pillow in an intoxicated condition, which fell on the face of his son Tony, there is no possibility of causing such injuries as noted by PW.20, the doctor who conducted the PME. 44. Burden lies on the prosecution to prove the case beyond reasonable doubt. But there is no reliable evidence brought forth by the prosecution to prove the guilt of the accused for the offence under Section 302 of IPC. As such, point No.1 is accordingly held that the prosecution failed to prove the guilt of appellant – A1 for the offence under Section 302 of IPC beyond reasonable doubt. POINT No.2: To what result? 42. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the trial court. The jail authorities are directed to release the convict immediately and set him free, if he is not required in any other case. M.O.1 shall be destroyed after expiry of the appeal time. As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.