JUDGMENT : G.C. Das, J. - This is an appeal by Dasarathi Mahanto against his conviction u/s 302, Indian Penal Code and the sentence of imprisonment for life awarded by the learned Sessions Judge, Mayurbhanj-Keonjhar, by his judgment dated February 6, 1960. Originally there were two other accused persons who stood their trial with the Appellant. They were Garucharan Mohunto, elder brother of the Appellant, and Ramchndra Mohanto, nephew of the Appellant. All the accused persons were charged under Sections 302/34, Indian Penal Code, Gurucharan and Ramachandra were acquitted by the learned Sessions Judge and the Appellant was convicted and sentenced u/s 302, Indian Penal Code. 2. The prosecution case, briefly stated, is this: The, Appellant on account of certain troubles with regard to the elopement of his daughter was socially boycotted by his caste people in the village. Sometime before the occurrence the Sudhi ceremony of the mother of the Appellant Dasarathi look place. The deceased Sricharan who is a close relation of the Appellants that time suggested that the Appellant should make some Prayaschit, but the Appellant resented. The result was that the social boycott continued. Thereafter Sricharan's daughter-in-Law died and the Appellant. Dasarathi was not invited to her Sudhi ceremony. It appears that Dasarathi along with his brother Gurucharan and nephew Ramachandra formed one party and remained socially boycotted. On the night of occurrence the deceased was sleeping in his buffalo-shed with his youngest son (PW. 10), grandson (PW. 11), who are children between ages of 10 and 14. The three accused persons came there and while the Appellant went inside the buffalo-shed with an axe in his hand, the other two remained outside with sticks in their hands. When the deceased was asleep, the Appellant Dasarathi gave four blows on his head with the blunt end of his axe. On seeing this, the other two accused persons fled away and the Appellant left the place after inflicting blows on Sricharan and Sricharan died instantaneously. P.Ws. 10 and 11 who saw the occurrence immediately raised an alarm as a result of which the widow of the deceased (P.w. 8) came and saw her husband dead. Immediately she called her eldest son (P.W. 6) and P.W. 6 in his turn called the other villagers. The prosecution case is that P.Ws. P.Ws. 10 and 11 who saw the occurrence immediately raised an alarm as a result of which the widow of the deceased (P.w. 8) came and saw her husband dead. Immediately she called her eldest son (P.W. 6) and P.W. 6 in his turn called the other villagers. The prosecution case is that P.Ws. 11) and 11 informed them that the Appellant Dasarathi came with the other two accused persons and committed the murder. P.W. 6 thereafter lodged the first information report and after due investigation charge-sheet was submitted against all the three accused persons of whom, as I have stated earlier, two stood acquitted by the learned Sessions Judge. 3. The defence of the Appellant was a plea of not guilty. He denied to have gone to the buffalo-shed of the deceased where he was sleeping and committed the murder. 4. The learned Sessions Judge relying upon the evidence of the two child witnesses P.Ws. 10 and 11 and certain other circumstances, convicted the Appellant u/s 302, Indian Penal Code and sentenced him to R.I. for life. 5. Mr. Kanungo on behalf of the Appellant contended that in view of the candid conduct of the Appellant as also in view of the conduct of the other villagers, the learned Sessions Judge should not have convicted the Appellant in the absence of any independent testimony, all the witnesses being relations of the deceased. He further argued that in view of the major discrepancies in the evidence of the two child witnesses, P.Ws. 10 and 11 the conviction is not warranted. He further argued that the conduct of these two child witnesses is rather unusual. 6. The prosecution in this case sought to rely upon the evidence of P.Ws. 4 and 5 to show that the Appellant Dasarathi went out of his house with an axe in hand towards the later part of the night and after sometime came back with the ex-Party had further stated that the Appellant after returning told his wife that he had killed Sricharan. The statements of these two witnesses before the police as also u/s 161, Code of Criminal Procedure are not quite consistent. They however turned hostile at the trial and did not answer to any question. The statements of these two witnesses before the police as also u/s 161, Code of Criminal Procedure are not quite consistent. They however turned hostile at the trial and did not answer to any question. The learned Sessions Judge rightly observed that even if they would have stuck to their previous statements at the trial, there could not have been a conviction unless the direct testimony of the two boy witnesses was believed. Anyway, no weight has been put on the evidence of P.Ws. 4 and 5 by the trial judge. 7. The evidence of P.Ws. 10 and 11 was that they could recognise the culprit because of the moonlit night and the flame of the fire which was burning inside the buffalo-shed. According to them a little before the occurrence they had gone for purposes of urination and had come and poked the fire at the fireplace so that it may burn a little brighter and thereafter they sat on the charpoy where they were sleeping. The deceased was sleeping in another charpoy close by: It is at this point of time that they saw the three accused persons coming through the path in the adjoining Bari. According to them Gurucharan and Ramachandra remained outside the cow-shed while the Appellant Dasarathi came inside with an axe in hand. Seeing him thus coming inside the shed, the two boys got frightened and lay down on their bed. The Appellant then scattered the fire and felt the body of the two boys with his hand and dealt four blows on the head of the deceased. On seeing him giving the blows, Gurucharan and Ramachandra fled away. The Appellant Dasarathi also fled away after giving the blows. Thereafter, according to the two boys, they raised an alarm which brought P.W. 8, the widow of the deceased, to the place from her room which is at a distance of about 21 cubits. She saw her husband dead and went to call her eldest son (P.W. 6). The two boys informed P.Ws. 6 and 8 when they came that it is the Appellant Dasarathi who gave the fatal blows and killed Sricharan P.W. 6 thereafter brought the other villagers including the Padhan of the village (P.W. 7). To these villagers the two child witnesses also named the Appellant Dasarathi being the assailant. The two boys informed P.Ws. 6 and 8 when they came that it is the Appellant Dasarathi who gave the fatal blows and killed Sricharan P.W. 6 thereafter brought the other villagers including the Padhan of the village (P.W. 7). To these villagers the two child witnesses also named the Appellant Dasarathi being the assailant. P.W. 10, the youngest son of the deceased is aged 14 years and was examined on oath, whereas p.w. 11 aged ten years (son of P.W. 6) did not understand the implication of oath and accordingly no oath was administered to him. To begin with the learned Sessions Judge, had believed the evidence of these two child witnesses on the ground that the discrepancies in their evidence are rather minor and were not on material points. On going through the evidence of P.Ws. 10 and 11, we find that there are major discrepancies which affect the prosecution story very greatly. To start with, P.W. 10 in his deposition stated that the accused persons came through the Saru Badi which adjoins the buffalo-shed. It may be remembered that this buffalo-shed is open on two sides and is covered with Jhati on the other two sides. The open two sides are north and east and the covered sides are west and south. According to P.W. 10 the Saru Bari is to the north of the shed and the accused persons came through that Saru bari; whereas P.W. 11 stated that the accused persons did not came through the Saru Bari, and they came only through the village path. Further, he had stated before the Committing Court that the accused persons came from the southern side. It may be stated here that on the southern side the shed was closed and if one comes through this southern side he will have to go round through the western side to come to the north on which side that opening is. On the eastern side the buffaloes were there. The other major contradiction in the evidence of these two boys was that both of them had stated that: "We woke up our mother after the incident" whereas P.W. 8 the mother of P.W. 10 had stated that the "two boys began to cry and hearing the cries, I came out". In her cross-examination she stated that "it is false to say that. In her cross-examination she stated that "it is false to say that. I had come out of my room not at the cries of Srikanta and Ranga (P.Ws. 10 and 11 respectively)".She further clarified that the room would be about 21 cubits from the room where her husband was sleeping on the night of occurrence and she got up on hearing the cries of Ranga that my husband had been killed. Both P.Ws. 10 and 11 had stated before the Committing Court that they got up when their mother came inside the shed. P - W. 10 said that "until my mother came, we did not cry". P.W. 11 said that they got up when the grant-mother called them. The evidence of these two witnesses at the trial was that they brought P.W. 8 and began to cry inside the shed whereas the evidence of P.W. 8 was that when she went inside the shed, she saw the two boys crying violently holding the dead man. The positive statement of the two boys was that the did not touch the dead body of Sricharan and they stood at some distance. Besides, there are certain other inconsistencies in their statements before the Committing Court as also at the trial. At the trial P.W. 10 stated that "I did not state at the Committing Court that the night was cloudy and there were intermittent showers". The if statement of P.W. 10 before the Committing Court was admitted at the trial u/s 288, Code of Criminal Procedure and it shows that P.W. 10 did in fact state before the Committing Court that the night was cloudy and there were intermittent showers. Further he stated that the Same Bari was muddy and he and PW. 11 pointed out to the police the foot-prints of the accused. P.W. 12, the assistant sub-inspector of police who conducted the investigation states that the two boys did not show him the foot-prints of the accused persons. These are some of the material discrepancies which the learned trial judge should have taken into consideration. If in fact there were heavy showers and there were foot-prints of the accused persons that would have supplied definite evidence against the Appellant. The learned Judge was wrong in thinking that they are not material for the prosecution. In view of the major contradictions in the evidence of, P.Ws. If in fact there were heavy showers and there were foot-prints of the accused persons that would have supplied definite evidence against the Appellant. The learned Judge was wrong in thinking that they are not material for the prosecution. In view of the major contradictions in the evidence of, P.Ws. 10 and 11, apart from they are being child witness, it is difficult to believe them. A child witness, as has been stated by Kenny in his book 'Outlines of Criminal Law' at page 421, is not a safe witness and the judge should caution the jury while accepting their evidence. In Article 600 the learned author observed: Corroboration is required in those cases in which under the Children and Young Persons Act, 1933, a very young child was allowed to give evidence withoutbeing sworn. The precaution is wise; for a tribunal of adults may place under reliance upon such evidence for getting that, though children are less fraudulent than adults, they are more imaginative. Hence the judge should caution the jury. It has been said that Children are a most untrustworthy class of witnesses; for, as our common experience teaches us, they often when of a tender age, mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hope of reward, and by desire for notoriety. They are, both 'suggestible' and even 'auto-suggestible'- On the other hand-intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy." The Patna High Court in the case of Jalwanti Lodhin Vs. The State, had observed that though according to Section 118 of the Evidence Act, a child of 6 or 7 years is a competent witness to give evidence in Court, as it appears from her position, she could understand the question put to her and give rational answers thereto. It is well settled that the evidence of children is notoriously dangerous "If unless immediately available and unless received before any possibility of coaching is eliminated. There should be closer scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law. In the instant case there is no independent corroboration of the evidence of the two child witnesses, P.Ws. 10 and 11. There should be closer scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law. In the instant case there is no independent corroboration of the evidence of the two child witnesses, P.Ws. 10 and 11. P.W.6 is the brother of P.W. 10 and father of P.W. 11. P.W. 8 is the mother of P.W. 10 and grandmother of P.W. 11. P.Ws. 7 and 3 are their relations and are hostile to the Appellant. Hence there is no independent witness to corroborate the evidence of these two child witnesses apart from the major diecrepancies in their evidence. What is more is the conduct of these two boys. According to their evidence immediately before the occurrence, they went out for purposes of urination, came back inside the shed and sat on the charpoy when they saw the Appellant along with the two other accused persons entering into the shed and then they slept on their respective charpoys. When the Appellant entered the shed, he felt the body of these witnesses with his band, uncovered their faces and again covered them. But yet they did not raise a single voice. According to them, they' saw the Appellant inflicting four blows one after the other on the head of the deceased. But still not a little shriek was heard at the ghastly attack. The conduct of these two boys, if they were, awake, was extraordinary and if they were asleep, which is more consistent with their conduct, they had never seen the occurrence. Also the story narrated by these two boys regarding the extinguishment of the fire is contradictory to each other. Thus, in this view of the matter, it is absolutely unsafe to base the conviction of the Appellant on the testimony of these two child witnesses. In addition to all these, the conduct of the accused persons seems to be very candid. The occurrence took place shortly before the dawn. As soon as the other villagers assembled at the spot the accused persons also came there. P.W. 8 is positive that these accused persons were present before P.Ws. 3, 6, and 7 left for the police station. According to P.W. 3 before the accused persons came to the spot, they had started for the police station; whereas P.W. 6 stated that although he met the accused persons, he did not ask them any question. P.W. 8 is positive that these accused persons were present before P.Ws. 3, 6, and 7 left for the police station. According to P.W. 3 before the accused persons came to the spot, they had started for the police station; whereas P.W. 6 stated that although he met the accused persons, he did not ask them any question. P.W. 7 the Padhan had stated that he did not meet these accused persons before going to the police station. Later on, in his cross-examination he, however, was constrained to admit that the three accused persons were at the spot along with the other villagers. This conduct, doubtless, goes in favour of the Appellant; whereas the conduct of PW Section 3, 6 and 7 in not asking them any question although according to the prosecution evidence by that time they had known the Appellant to be the assailant is rather curious. One other factor is that P.Ws. 6, 6 and 7 while going to the police station passed by the house of one Ismailee who according to the prosecution is an influential person in the locality. P.W. 6 denied to have met this Ismailee altogether whereas P.Ws. 3 and 7 admitted to have met him on the way. When PW. 3 stated that they only spoke to him about the murder but did not name the Appellant as the assailant, P.W. 7 stated that they told him that they were going to the police station since a murder had been committed. No specific question was asked to him whether or not he had mentioned the name of the Appellant to this Ismailee. The fact, however, remains that the name of Dasarathi ' not mentioned to Ismailee. This Ismailee was summoned on behalf of the defence. The order sheet of the Sessions Judge shows that summons were issued and were received by Ismailee, but there is nothing on record to show that this Ismailee was present in Court. The learned Sessions Judge, however, stated in his judgment that although Ismailee was present in Court, the defence did not examine him. For this reason, we had to examine the entire record, but we did not see anything to show that he was present in court and was declared hostile by the defence. The non-mention of the name of the Appellant to this Ismailee goes in favour of the Appellant. For this reason, we had to examine the entire record, but we did not see anything to show that he was present in court and was declared hostile by the defence. The non-mention of the name of the Appellant to this Ismailee goes in favour of the Appellant. Because if these two boys had stated at the earliest opportunity that the Appellant was the assailant, there was nothing to prevent them to mention the name of the Appellant to this Ismailee who according to both the prosecution and the defence is an influential person in that locality. 8. The very time of the occurrence as has been alleged by the prosecution is rather unusual. If the Appellant would have committed the murder, he certainly would not have chosen the last part of the night for commission of the offence. The Medical evidence also does not corroborate the story given by the two child witnesses, P.Ws. 10 and 11. According to the prosecution four successive blows were given whereas according to the medical officer only three distinct injuries were there on the person of the deceased. 9. For the reasons stated above, we are satisfied that the prosecution has failed to bring home the guilt to the Appellant. Accordingly the judgment of the learned Sessions Judge convicting the Appellant u/s 302, Indian Penal Code and sentencing him to imprisonment for life must be set aside. The appeal is accordingly allowed and the Appellant is acquitted of the charge u/s 302, Indian Penal Code and he is ordered to be set at liberty forthwith. Final Result : Allowed