JUDGMENT P. Govinda Menon, J. 1. This is an appeal by Vasu, son of P.K. Krishnan of Vallachira village, Trichur taluk who has been convicted by the learned Additional Sessions Judge of Trichur for offences under S.457 and 302 of the Indian Penal Code and sentenced to death under S.302 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and a fine of Rs. 100/- under S.457 of the Indian Penal Code. Along with the appeal there is also the reference by the learned judge for the confirmation of the sentence of death. 2. The case for the prosecution, briefly stated, is as follows: Pw. 20, Krishnan, the father of the accused had illicit sexual connections with the deceased Lakshmi, who was a widow and she became pregnant. A caste panchayat was held in the house of Pw. 11, Kochukuttan. Lakshmi and her children Pws.1 and 2 and his sons and several others took part in the panchayat. Pw. 20 admitted that he was responsible for Lakshmi's pregnancy and it was decided that Pw. 20 should pay Rs. 30/- to Lakshmi towards her confinement expenses. Pw. 20 paid the amount and the mediators put up a fence between the house of deceased Lakshmi and the house of Pw. 20. It is the prosecution case that the ignominy of the caste panchayat and the fact that Pw. 20 had to pay Rs. 30/- to Lakshmi made the accused feel very bitter towards Lakshmi and that the accused was often picking up quarrels with Lakshmi and her children and that afforded the motive for the accused to kill the deceased. 3. The incident happened on 21-6-1959. That night the deceased Lakshmi and her two children Pws.1 and 2 were sleeping in the central room of their house after having bolted the doors of the hut. Pw.1 swears that while he was sleeping somebody trod on his hand when he woke up and found the accused. The accused was bending and striking his mother with a sledge hammer which he had in his hand. By that time Pw. 2 also woke up and with the aid of the torch light which the accused was flashing, she also saw the accused striking her mother. Seeing this Pws.1 and 2 cried and the accused left the house through the northern door. 4. Pw. By that time Pw. 2 also woke up and with the aid of the torch light which the accused was flashing, she also saw the accused striking her mother. Seeing this Pws.1 and 2 cried and the accused left the house through the northern door. 4. Pw. 2 lighted a lamp and Lakshmi was given some water to drink. Pw. 2 then went to the house of her neighbour Pw. 3 leaving Pw.1 with the mother. Pw. 2 says that she told Pw. 3 that the accused had struck her mother with a sledge hammer. Pws. 2 and 3 then went and informed Pw. 4. Pws. 2, 3, 4 and 5 then hurried to the house of the deceased. Pw. 3 called Lakshmi, but there was no response, since Lakshmi had by then died. By that time Pws. 13, 11 and others also reached the house of Lakshmi. Pw. 13 and one Karaparambil Chathunny went to the house of Pw. 14 one Echarath Narayana Menon who is said to be the secretary of the local branch of the communist party. He was also told about the news. Pw. 14 then gave Pw. 13, Ext. P1 letter to be given to the Cherpu Police Station. It is stated that while going to the Police Station, Chathunny who was with Pw. 13 had an attack of fits and therefore had to be taken to his house. The letter Ex-Pi was left in Chathunny's house. Early next morning Pw. 13, being a tapper had gone for his work. At 7 a. m., he went to Chathunny's house and found that the letter to the police had not been delivered. He took the letter and delivered the same at Cherpu Police Station. At 8-15 A. M., the police recorded his statement Ex-P2. Ex-P9 is the F. I. R. prepared on the basis of Exts-P1 and P2. Pws. 18 and 19, two police constables then went to the place of occurrence. At about 12 o'clock Pw. 22 the Sub Inspector of police heard that it was a case of murder. So he also went to the scene of occurrence. He conducted the inquest over the dead body and Ex-P4 is the inquest report. After the inquest, the dead body was handed over to Pw. 18 for being taken to the District Hospital at Trichur. 22 the Sub Inspector of police heard that it was a case of murder. So he also went to the scene of occurrence. He conducted the inquest over the dead body and Ex-P4 is the inquest report. After the inquest, the dead body was handed over to Pw. 18 for being taken to the District Hospital at Trichur. The Sub Inspector then questioned the witnesses and prepared the scene mahazar Ex-P5. The accused was arrested at 1 p.m., the same day at his house and questioned. On being questioned, he took M.O.1 sledge hammer from the court-yard of his house and also M. O. V. torch from his house and handed them over to Pw. 22. They were taken into custody as per List Ex-P5, attested by witness. Pw. 15 the Assistant Surgeon of the Trichur Hospital conducted the autopsy and Ex-P3 is the postmortem certificate. 5. That Lakshmi sustained very serious injuries on the night of 21-6-59 and that she died of those injuries does not admit of any doubt. Ex-P3, the postmortem certificate mentions the following injuries: (i) Contusions over the left side of the chest in the front and over the left shoulder joint; (ii) Abrasion on the right fore-arm 4" below the elbow joint on the posterior surface; (iii) Fracture of the left costal ribs from the second to the eighth both inclusive about 3" away from the mid line on the anterior aspect; The left lung has ruptured on anterior surface. Liver, spleen and kidneys were also ruptured. There was perforation of the stomach on the anterior surface. When the skull was opened there was a fracture to the left temporal bone and the occipital bone to the left of the mid line; Death was due to Syncope due to haemorrhage and shock due to the above injuries. 6. Doctor swears that the injuries noted by him in the certificate are sufficient in the ordinary course of nature to cause death and that the said injuries could be caused by striking with a weapon like M. 0. I. Doctor also says that the deceased Lakshmi having hair on her head could sustain internal injuries on her skull without any visible external injuries and that all the injuries mentioned in Ex-P3 when taken together could not have been caused by a fall as suggested in cross-examination. I. Doctor also says that the deceased Lakshmi having hair on her head could sustain internal injuries on her skull without any visible external injuries and that all the injuries mentioned in Ex-P3 when taken together could not have been caused by a fall as suggested in cross-examination. He says that the internal injuries corresponding to external injury No.1 and the injures to the spleen, kidney and liver could also have been the result of the external injury No.1 and that all the injuries, are necessarily fatal. 7. Both before the committing Magistrate's court and in the Sessions Court, the accused denied knowledge of the incident and staged that he was falsely implicated. According to him there was no enmity between him and the deceased. 8. Relying on the evidence of the eye witnesses Pw.1 and 2 corroborated by the evidence of Pws. 3 to 5 the learned judge found the accused guilty. The learned Additional Sessions Judge did not accept the evidence of Pws. 7 to observing that he did not think it safe to act on the evidence of these witnesses regarding the alleged extra judicial confession. Likewise, the learned judge rejected the evidence of Pw. 10 one Pengan son of Ayyappan who spoke to his seeing the accused going at night to the house of the deceased Lakshmi with Mos.1 and 2. 9. The important question for our consideration is whether, we can safely rely on the testimony of Pws.1 and 2 to sustain the conviction. Pw.1 Subran is the son of the deceased, aged 10 years. In para 7 of the judgment, the learned judge says that before Pw.1 was put into the box, the boy was called near the dais and he was questioned to ascertain whether he was capable of understanding questions put to him and of giving rational answers to them. The learned judge has made a note to that effect in the deposition that the boy was questioned and that he was satisfied that though aged only 10, the boy is capable of understanding questions put to him and giving rational answers. The actual questions and answers have not however been recorded in the deposition and it is also not clear to us whether path was administered to the boy. 10. The actual questions and answers have not however been recorded in the deposition and it is also not clear to us whether path was administered to the boy. 10. Although there is no provision to have a preliminary examination, we are of the opinion that such a course is desirable and should be resorted to, because it offers an opportunity to the court to assess the mental capacity of the child witness. This view receives support in a recent decision of the Allahabad High Court in Ram Hanoor Pandey v. State (A. I. R.1959 Allahabad 409). Their Lordships following the decision in George L. Wheeler v. United States (1895 159 US. 523), held that "It is very desirable that a trial judge, who has a child witness before him, should preserve on the record, apart from the child witness's evidence in the case, some other questions and answers which could help the Court of Appeal to come to the conclusion whether or not the trial judge's decision in regard to the competency of the child witness was right or erroneous." Failure to do this in this particular case, however, does not vitiate the proceedings. We have to examine the evidence carefully and find out how far the evidence of this boy, Pw.1 is believable and acceptable. 11. It is well settled that although legally there is no bar in accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by their Lordships of the Privy Council in Mohammed Sugal Esa Mamasan Rer Alalah v. The King (A.I.R.1946 P.C. 3). The same view was taken by their Lordships of the Supreme Court in Rameshwar Kalyan Singh v. The State of Rajasthan (A.I.R.1952 S.C. 54). The learned Additional Sessions Judge had this principle in mind and he says that Pw. 1's evidence I is corroborated by the evidence of Pw. 2 and also by the evidence of Pws. 3 to 5. We shall therefore see whether the evidence of Pws.1 to 5 can be safely accepted. 12. Pw.1 swears that on the night in question, himself, his mother and his sister Pw. 2 were sleeping in the central room, that himself and Pw. 2 and also by the evidence of Pws. 3 to 5. We shall therefore see whether the evidence of Pws.1 to 5 can be safely accepted. 12. Pw.1 swears that on the night in question, himself, his mother and his sister Pw. 2 were sleeping in the central room, that himself and Pw. 2 were sleeping on either side of Lakshmi and that while so sleeping somebody trod on his hand that he woke up and saw somebody standing in the room. With the aid of the torch which the accused had he could identify the person as the accused. The accused was striking his mother with a sledge hammer. One of them hit Lakshmi's chest and another hit her left shoulder. Pw. 2 also woke up by that time and that when both of them cried, the accused went out through the northern door. Pw. 2 then lighted a lamp and gave the deceased water to drink. Pw. 2 then went to the house of Pw. 3 and soon afterwards returned with Pws. 3,4 and 5. Pw. 3 called out Lakshmi, but there was no response, because Lakshmi had by then died. Pws. 3, 4 and 5 were told that it was the accused who caused the injuries to Lakshmi and that the accused struck Lakshmi with a sledge hammer. Several people came to their house including Pws. 12 and 13. They were also told that the accused was the person who caused the injuries. Pws. 3, 4 and 5 corroborated the evidence of Pws.1 & 2 and they deposed that Pw. 2 went to their house and told them then and there that it was the accused who beat their mother with a sledge hammer and caused her death. These witnesses say that after the incident Pws. 7 and 13, among others, asked them as to who inflicted the injuries on Lakshmi and that they were told it was the accused." Pw.1 says that Pw. 14 was one of the persons who came to their house and he asked them and other neighbours who were present in the house as to what happened and they told him that it was the accused who inflicted the injuries. It was after such questioning that Pw. 14 gave Pw. 13 the letter Ex. P1 to be handed over to the police. 13. It was after such questioning that Pw. 14 gave Pw. 13 the letter Ex. P1 to be handed over to the police. 13. The evidence of Pws.1 to 5 have to be tested in the light of the evidence of Pws. 13 and 14 and Exs. P1 and P 2. Ex-P1 is a letter written by Pw. 14 to the Sub Inspector of Police, Cherpu on the night of the incident. What is stated therein is that Onuchira Kuttikattuveetil Manikutty's wife Lakshmi who is pregnant is seen lying dead in her house and that the neighbours say that it is not a normal death and requesting for necessary investigation. When this letter was presented to the Police by Pw. 13, he was questioned and his statement was recorded, it is Ex-P2. Therein he has stated that on 21-6-59, while he was sleeping in his house at about 2 in the night he was informed that there was some trouble in Lakshmi's house, that himself along with others went to the house of Lakshmi, that Pw. 3 told him that Lakshmi was lying dead, that it was not a normal death and that it was a case of suspicious death. He definitely stated that he does not know how death was caused. When examined in court, at one stage, Pw. 13 stated that nobody told him as to who caused the injuries to Lakshmi. But in cross-examination, he stated that Pw. 3 told him that it was the accused who hit Lakshmi with a sledge hammer. He was then questioned as to why he did not mention that fact to the Police when he gave the statement Ex-P2 and his reply was that it was because the children Pws.1 and 2 did not tell him directly. This explanation is puerile and cannot be accepted. If really Pws.1 to 5 had told him that it was the accused who caused the injuries to Lakshmi which resulted in her death, then, certainly Pw. 13 would have mentioned that fact to the Police, The non-mention of the accused's name in his statement could only mean that at the time when the first information was lodged nobody knew as to who the assailant was. 14. Pw. 14 says that on the night of the incident, Pw. 13 came to him and informed him about the death of Lakshmi and that he gave the letter Ex-P1. 14. Pw. 14 says that on the night of the incident, Pw. 13 came to him and informed him about the death of Lakshmi and that he gave the letter Ex-P1. His case is that he did not go to the house of Lakshmi or question the neighbours as stated by him in his letter. He further says that he questioned Pw. 13 specifically as to how the death was caused and that Pw. 13 only told him that it was not a normal death. If, as Pw.1 says, Pw. 14 had come to the house and if Pw. 14 had been told that it was the accused who inflicted the fatal injuries, then certainly the name of the accused would have been mentioned in the letter Ex-Pi. These circumstances throw considerable doubt on the truth of the prosecution case and we feel that it would not be safe to accept the evidence of Pws.1 and 2 when they say that they actually witnessed the incident and identified the accused as the assailant and that they reported about this to Pws. 3 to 5. This aspect of the case has unfortunately been overlooked and not considered by the learned Sessions Judge. The learned counsel for the defence took us through the evidence of these witnesses and pointed out various contradictions and circumstances to discredit their evidence. We feel there is considerable force in the criticisms made. 15. The learned Sessions Judge says that the accused had very strong motive to commit the crime. The learned judge explains the motive in para 18 of the judgment. The same motive would equally apply to all the suns of Pw. 20 and we do not find there was anything special for the accused to have committed the act. 16. In para 17 of the judgment the learned Sessions Judge refers to certain circumstances pointing to the fact that the accused must have committed the crime. The incident took place at mid-night and the police turned up only the next day. On hearing the incident several people gathered in the house of Lakshmi, but the accused and the members of his family went over there only when the Police came there. The learned judge says that if really the accused had been innocent his normal reaction would have been to rush to the neighbouring house and ascertain as to what the matter was. The learned judge says that if really the accused had been innocent his normal reaction would have been to rush to the neighbouring house and ascertain as to what the matter was. The evidence in the case shows that accused's house was very near to that of deceased Lakshmi and that he was sitting in front of his house. It is difficult to believe that the witnesses had particular occasion to notice that the accused had not come there. If really the accused and his people alone had not gone there, it ought to have been the subject of comment among the people gathered there. But we have no such evidence. 17. Another circumstance mentioned by the learned judge as lending support to the prosecution case is the recovery of M.0s.1 and 5 by the Sub Inspector of Police under list Ex-P6. The Sub Inspector says that he arrested the accused at 1 p. m., and on questioning him the accused took him to his house and M.O.1 sledge hammer was taken by the accused from the cow-shed and that M.O. V torch was taken from inside his house. The particular statement which the accused was alleged to have made has not been marked. M.O.1 is used by people who blast rock and it is in evidence that by profession accused is a person doing that work, and when sent to the Chemical Analyst no blood was detected on it. So nothing turned on the production of these material objects. 18. From what we have stated above, we are unable to find any reliable piece of evidence on which the conviction of the appellant could be sustained. It is really unfortunate that a gruesome murder like this goes undetected and unpunished. But as the evidence adduced in this case in not such as to inspire confidence and which can safely be acted upon, we are left only with the alternative of allowing the appeal. 19. Consequently, we allow the appeal setting aside the conviction and sentence on the appellant under S.302 and 457 of the Indian Penal Code and acquit him of all the charges. He shall be set at liberty at once unless wanted in any other case. The reference for the confirmation of the death sentence is rejected.