JUDGMENT D.N. Roy, J. - Raja Ram has been convicted under Sec. 302, I.P.C. for the murder of his wife Smt. Vidyawati and of his two sons, Raghunandan aged eleven years and Kishan Lal aged three years, some time between the evening of 23rd October 1958 and the evening of 26th October 1958 at his house in village Dhakia-Naru within police circle Bilari in district Moradabad and has been sentenced to death by the Second Temporary Civil and Sessions - Judge, Moradabad. He has appealed against his conviction and sentence. Along with the appeal there is the usual reference by the learned Judge for the confirmation of the death sentence. 2. Raja Ram is by caste a Kahar. He was a man of some substance and had about 60 or 65 Bighas of cultivatory land. His family consisted of himself and his wife and two sons as also a daughter by name Tarawati aged about Five years. Raja Ram was, however, not at all industrious and he started selling away his property about five years before the date of the alleged occurrence. Part of the land measuring about 20 Bighas had been given away by him on Batai to one Smt. Rama. His indolence and his wasteful habits were disliked by his wife and she resented the transfers of the property made by him. In this set up of things, it is said, the present offence had been committed. 3. The prosecution alleged that two days before Dashehra an altercation took place between the husband and wife over their domestic affairs but the Pradhan of the village namely Surat Singh (P.W.4) intervened and pacified the two. On Thursday the 23rd of October 1958 Dashehra was celebrated at Sahaspur and there the effigy of Rawan had been burnt. The husband and wife with all the children, it is alleged, went to Sahaspur to witness the Mela and they returned home late in the night. Since Friday the 24th of October 1958 the house was found by the neighbours chained from outside, but not locked. This state of affairs was noticed till the evening of Sunday the 26th of October 1958 without obviously any suspicion arising in the minds of the neighbours. Since Friday the 24th of October 1958 the house was found by the neighbours chained from outside, but not locked. This state of affairs was noticed till the evening of Sunday the 26th of October 1958 without obviously any suspicion arising in the minds of the neighbours. On the 26th of October 1958 after sunset Mohan Kahar (P.W. 7) who is a cousin of the appellant and was residing in village Chetrampur came to village Dhakia-Naru and informed Bir Sahai (P.W. 1) that on Friday the 24th of October Raja Ram appellant had gone to his house along with his daughter Tarawati and he disclosed to him on Sunday the 26th of October 1958 in the afternoon that he had murdered his wife and two of the sons at his house on account of quarrel which he had with his wife. Mohan (P.W. 7), it is said, told Bir Sahai (P.W. 1) that he came immediately to verify that fact. The prosecution story went on to say that on receipt of this information Bir Sahai (P.W. 1) took Mohan (P.W. 7), Surat Singh Pradhan (P.W. 4) and one Chhotey to the house of Raja Ram. They found the door of the house chained from outside. There was no sign of life inside the house. They opened the chain and entered into the house and found the door of the inner Kotha shut. They opened that door as well and inside the Kotha they found the dead bodies of Vidyawati, Raghunandan and Kishan Lal in an advanced stage of putrefaction. They also found their dog inside that Kothri. The mouth of the dog was found stained with blood. Bir Sahai then left the place for the Thana along with Mohan and he lodged the first information report there on 26th October 1958 at 9-35 P. M. - the Thana having been at a distance of two miles from the village of occurrence. At the time of the making of the report Sub-Inspector Jaswant Singh (P.W. 19) happened to be present at the Thana. He proceeded to the house of the appellant and found the three dead bodies lying there. One of the arms of Raghunandan was found missing. The Sub-Inspector performed the necessary inquiry inquest, took blood-stained earth and other materials and prepared the site plan. The dead bodies were sent to the mortuary. He proceeded to the house of the appellant and found the three dead bodies lying there. One of the arms of Raghunandan was found missing. The Sub-Inspector performed the necessary inquiry inquest, took blood-stained earth and other materials and prepared the site plan. The dead bodies were sent to the mortuary. He arrested the appellant at the house of Mohan (P.W. 7) in village Chetrampur on 27th October 1958. The daughter Tarawati was also there. It is said that a blood-stained Gandasa Ex. 1 which was the weapon of attack was recovered by Sub-Inspector Jaswant Singh wrapped in a shirt in the present of Kaddhey, Ram Dayal, Mohammad All and Puran at the instance of the appellant on the 27th of October 1958 at 6-30 P. M. who dug it out after removing earth one cubit deep from under a stack of Bhusa in the south-west corner of the room. This recovery was set down in the recovery memo Ex. Ka-5 and attested by all the four witnesses, two of whom namely, Puran and Ram Dayal thumb-marked it and the other two namely Mohammad Ali and Kaddhey signed on it in English and in Hindi respectively. The Gandasa and the blood-stained shirt, it is said, were sealed up in the presence of all these witnesses. These materials were sent to the Chemical Examiner and to the Serologist to Government and they reported that they were stained with human blood. 4. The postmortem examination over the three dead bodies had been performed on the 28th of October 1958 by Dr. Jamil Ahmad, Medical Officer Incharge Police Hospital, Moradabad and he prepared the postmortem reports Exts. Ka-12, Ka-13 and Ka-14 at the time of the examination. Dr. Jamil Ahmad was dead when the case was heard by the Sessions Judge. Mukchtar Ahmad (P.W. 13) a compounder of that hospital proved that these reports bore the signatures of Dr. Jamil Ahmad. 5. Kishan Lal was about three years old. Raghunandan was about eleven years old. Smt. Vidyawati was 32 years old. The postmortem reports mentioned that in the Kishan Lal death took place about five days before the postmortem examination and in the case of the other two, four days before the examination. All the three dead bodies were in an advanced stage of decomposition. Maggots were present. The skin was pealing off at various places and the hair was also falling off. All the three dead bodies were in an advanced stage of decomposition. Maggots were present. The skin was pealing off at various places and the hair was also falling off. Kishan Lal had three incised wounds caused by some sharpedged weapon and death was due to shock and haemorrhage from the wound of the lung and heart. Raghunandan had four incised wounds. His abdomen was found eaten away by some animal. His injuries were also caused by some sharp cutting weapon and death was due to shock and haemorrhage on account of the injuries. Vidyawati had a lone incised wound 2"x " chest cavity deep starting from the middle of the clavicle, dividing it and going downward, cutting the first and second ribs and entering the lung. This injury was also caused by some sharp cutting instrument and death in her case was due to shock and haemorrhage on account of this injury. 6. The only eye-witness to the incident is said to be Tarawati (C.W. 4) , the daughter of the appellant, aged five years. She stated that she was asleep and she got up when the father killed the three with a "spade." According to her, the victims cried and she also cried and wept. The learned Sessions Judge was considerably impressed by her evidence and remarked that although she was aged five years she was a precocious child and she impressed him to be a witness of truth. We have considered her evidence in all its aspects and we are of opinion that it does not fit in with the rest of the evidence or with the attendant circumstances of the case. In the first place, spade is not said to be the weapon of attack. It was a Gandasa which was relied upon by the prosecution as the weapon used. In the second place, there is no corroborative evidence to the effect that shrieks were made and cries were raised. The strangest part of the case is that Bir Sahai (P.W. 1) whose house is just adjoining that of the deceased and Smt. Kallan (P.W. 2) and Smt. Lilawati (P.W. 3) whose houses are also in close proximity knew nothing about the murders until they came to light on the 26th of October 1958 almost four days after the occurrence. Not a shriek was heard by any neighbour and not a whisper came into their ears. Not a shriek was heard by any neighbour and not a whisper came into their ears. Under the circumstances we are of opinion that it would be extremely hazardous to rely upon the testimony of Tarawati. There are no more dangerous witnesses than young children. Any mistake or discrepancy in their statements are ascribed to innocence or failure to understand; and undue weight is often given to what is merely a well-taught lesson. They are easily taught stories and they live in a world of make-believe, so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate. The evidence of a child witness should therefore be accepted with great caution. In the instant case the evidence of Tarawati cannot be accepted as true because, as we have already stated, it does not fit in with the rest of the evidence or with the attendant circumstances of the case. 7. The prosecution relied upon two extra judicial confessions alleged to have been made by the appellant. The first confession is said to have been made by him to Mohan (P.W. 1), his cousin, in village Chetrampur in the presence of Smt. Permia (C.W. 3) , the mother of Mohan and Manori (C.W. 2) , the son of Mohan, which led Mohan to visit village Dhakia-Naru and lodge the report with the police. Two different versions were set out by the prosecution in regard to this confession. According to one version, the confession was made on Friday the 24th of October when the accused went to the house of Mohan. According to the other version, it was made on Sunday the 26th of October, that is on the very day the report was lodged with the police. The second confession is said to have been made to Shiv Singh (P.W. 5) the Pradhan of village Chetrampur on Sunday the 7th of October 1958 at 10 A.M. when the appellant, it is said, met Shiva Singh with a request that he may help him in raising a plea of alibi and that if the police made any enquiry from him he might say that the appellant had been in Chetrampur since the day of Dashehra. The evidence regarding the first confession is so flimsy and contradictory that it does not stand the test of scrutiny at all. The evidence regarding the first confession is so flimsy and contradictory that it does not stand the test of scrutiny at all. Mohan (P.W. 7) stated that Raja Ram appellant who is his cousin came to his house in village Chetrampur along with his daughter Tarawati on Friday the 24th of October, 1958 and that on the following Sunday, that is, on 26th October 1958 he confessed to him that he had murdered his wife and two sons at his own house in village Dhakia-Naru. In cross-examination he, however, said that it was on Friday when he had reached Chetrampur that the witness had asked the accused where his wife and two sons had been and it was on that very date that the accused had made the confession in the presence of Smt. Persia and Manori. Permia and Manori who were necessary witnesses to unfold the prosecution story were not produced on behalf of the prosecution. They were therefore examined by the Judge under Sec. 540, Cr. P.C. Manori stated that the confession was made to his father Mohan on Sunday at noon in his presence and in the presence of his grandmother Permia and that although normally he should have been at the place of his employment at that hour he was accidentally present at home because on that date he could not get any employment in spite of his having gone out in the morning in search of work. According to Manori, he used to be away from home every day from 6 A.M. to 5 P.M. when he was at work. Shrimati Permia on the other hand stated that Manori was not out of employment on that date, that he was actually working as a labourer at the place of a Jat and that he used to come home every day at moon and to go back to his place of work in the afternoon. Apart from the vital contradiction between the two statements on such an important point, there is another aspect which is also of some consequence. Manori stated that on Friday and Saturday he was at his house from 5 in the evening to 6 A.M. on the following morning and that during those hours he did not meet the accused at all. This seems to have been rather unnatural and unconvincing. Manori stated that on Friday and Saturday he was at his house from 5 in the evening to 6 A.M. on the following morning and that during those hours he did not meet the accused at all. This seems to have been rather unnatural and unconvincing. Equally unnatural and unconvincing is the testimony of Smt. Permia when she said that on the first two days of his stay the appellant had not been asked, nor did he himself say, as to how his wife and his two sons had been getting on and that it was on the 3rd day after his visit that an enquiry was made about their welfare. Contradictory and unconvincing statements on such vital points should have driven the Sessions Judge to the conclusion that the alleged confession was faked and fabricated. The Sessions Judge, however, came to the conclusion that the confession was made by the accused voluntarily on Friday. He observed:- "The wavering statement which Mohan has given on this point gives support to the defence suggestion that in all probability the confession was made on Friday, and this was natural too in the circumstances of the case. I am therefore inclined to accept the defence suggestion that the confession, if made, was made on the very first day the accused reached Mohan's house .............. The contention of the learned defence counsel that if the confession had actually been made Mohan would naturally have run to the accused's place on that very day, and as he did not do so, no confession appears to have ever been made to him, and therefore, the whole story in this regard appears to be concocted, does not appear to be well-founded, because even if the confession was made on Friday there was nothing unnatural in Mohan's keeping the secret within himself for two days, firstly, on account of the great fear which he must naturally have felt on knowing about the three murders, and secondly, because of being busy in devising some escape for the accused. Whether this confession was made on Friday or Sunday would make no difference for the reasons already discussed." 8. The finding aforesaid is on the face of it erroneous and is built' upon fallacious reasoning and upon a sort of a special pleading for the prosecution which the witnesses themselves did not advance. Whether this confession was made on Friday or Sunday would make no difference for the reasons already discussed." 8. The finding aforesaid is on the face of it erroneous and is built' upon fallacious reasoning and upon a sort of a special pleading for the prosecution which the witnesses themselves did not advance. The defence never suggested that any confession had been made on any day. Witness Mohan did not claim that he kept the secret to himself for two days on account of some fear or that he kept himself busy in devising some escape for the accused. Two of the witnesses were emphatic in their statement that the confession was made in their presence on Sunday. Mohan to whom the confession is said to have been made stated ultimately that it was made on Friday. Mohan did not advance any explanation as to why he did not proceed to the house of the accused forthwith. He had therefore to take the wavering attitude that the confession was probably made either on Friday or on Sunday. Neither view could be accepted as correct. We may in this connection refer to the statement of Surat Singh who said that Mohan witness told him that the confession had been made to him by the accused on Friday. If facts are proved which suggest that no confession could have been made to the persons named, or at the time stated by them, the alleged confession must forthwith be rejected. Where the main foundation for the conviction is the confession alleged to have been made by the accused, there are three things which the prosecution must establish:- (1) that a confession was made; (2) that evidence of it can be given; and (3) that it is true. Where there is conflict of evidence as to the manner and the time of it, the accused would be justified in asking the Court to reject it. 9. Equally unconvincing is the evidence bearing upon the second confession alleged to have been made by the accused to Shiva Singh (P.W. 5) the Pradhan of village Chetrampur. The accused was not known to him. 9. Equally unconvincing is the evidence bearing upon the second confession alleged to have been made by the accused to Shiva Singh (P.W. 5) the Pradhan of village Chetrampur. The accused was not known to him. Shiva Singh says that on Monday the 27th of October 1958 at 10 A.M. the accused came to his house to request him that if any enquiry were set on foot he should say that the accused had been in village Chetrampur since the day of Deshehra. Shiva Singh further says that when he asked the accused as to why he wanted this to be done the latter told him that he had murdered his wife and two sons. According to Shiva Singh, when he got the confession from the accused he started for police station Bilari to convey the information to the police and he met the Station Officer on way at the level crossing of Matlabpur Railway Station and he told the Sub-Inspector about it and the Sub-Inspector then came to Mohan's house and arrested the accused there. There is an inherent improbability in this story. According to the first set of prosecution witnesses, dealt with above, the confession had already been made to Mohan either on Friday or on Sunday and Mohan had already left for the village of occurrence to take necessary steps in regard to the matter. The accused could not have been unaware of it. He could not in that state of circumstances have approached Shiva Singh the Pradhan of the village who was a stranger to him with the request of leading support to a false plea of alibi. The evidence of Shiva Singh lacks corroboration and is unnatural and unconvincing. The appellant had denied that he had made any confession. In view of the circumstances stated above we hold that the alleged confessions were not proved to have been made and they cannot form the basis of a conviction. 10. The only other evidence that was raised against the accused was the discovery of the blood-stained Gandasa made at his instance. The evidence regarding it is also unconvincing. This alleged recovery was covered by the recovery memo. Ex. Ka-5 which ex-facie appears to have been attested by four persons viz., Puran, Ram Dayal Mohammad Ali and Kadhe Ram. Ex. 10. The only other evidence that was raised against the accused was the discovery of the blood-stained Gandasa made at his instance. The evidence regarding it is also unconvincing. This alleged recovery was covered by the recovery memo. Ex. Ka-5 which ex-facie appears to have been attested by four persons viz., Puran, Ram Dayal Mohammad Ali and Kadhe Ram. Ex. Ka-5 indicates that Puran and Ram Dayal thumb-marked it, and Mohammad Ali and Kadhe Ram signed on it, the former in English and the latter in Hindi. Excepting Puran, the other three have been produced in evidence. All of them said that the recovery was made in their presence and at the instance of the accused who dug out the ground and brought out the blood-stained Kulhari kept wrapped in a shirt from underneath the stack of Bhusa. Mohammad All P.W. 8 stated that the recovery memo. Ex. Ka-5 had been thumb-marked by him. There is, however, no thumb-impression of Mohammad Ali on Ex. Ka-5. When his attention was drawn to his alleged signature in English on Ex. Ka-5 he stated that he is illiterate and he does not know Hindi or English and he can only make his thumb-impression. There is therefore intrinsic proof of the fact that the recovery memo - Ex. Ka-5 is a fabricated document and what is contained in it has not the stamp of truth. The alleged recovery cannot therefore form the basis of a conviction. 11. From what we have stated above, we are unable to find any reliable piece of evidence on which the conviction of the appellant can be sustained. It is really unfortunate that a tripple murder of this nature goes undetected and unpunished. The faulty and faked investigation and the unreliability of the evidence produced in the case are responsible for producing this result. There being not an iota of evidence in the case which can safely be depended upon, we would be left only with the alternative of allowing the appeal. Consequently we allow the appeal, set aside the conviction and sentence of the appellant under Sec. 302, I. P. C. and acquit him of the charge. He should be set at liberty at once unless wanted in any other matter. 12. The reference for the confirmation of his death sentence is rejected.