JUDGMENT : R.N. Misra, J. - This is an appeal by 7 Appellants all of whom have been convicted u/s 304, Part-II read with Section 148, Indian Penal Code. Appellant No. 4 has been given a sentence of 5 years rigorous imprisonment u/s 304, part-II, Indian penal Code and one year's rigorous imprisonment u/s 148, Indian Penal Code while the remaining Appellants have been sentenced to rigorous imprisonment for 3 years under the first count and of one year under the second count and the sentences of each of them have been directed to run concurrently with the sentence u/s 301, Part-II, Indian Penal Code. 2. According to the prosecution, Appellants Aruna, Baruna and Karuna alias Rama are the sons of Appellants Fakira, while Appellants Chhanda and Durga are the so of Appellant Taila. P.w. 6 is the uncle of the deceased. The Appellants as also the deceased are close against. The deceased was the gountia of the village prior to the abolition of gounti system. The parties had their lands close by and disputes in relation to lands were in existence between them. On the 20th October, 1966 at about sunset the 7 Appellants went to the place where they had got lands and were keeping ambush. Appellant Fakira and his sons bad concealed themselves behind a bush whereas Taila and his two sons were concealing themselves behind a big stone. Applicant Baruna was holding an axe and a stone and Karuna was holding a spade and the rest of the Appellants were each holding a lathi. The deceased returned from his field through the field of the Appellants. Baruna threw a stone at him as a result of which it is alleged he fell down. Baruna immediately ran and gave a stroke with his axe while Karuna in his turn assaulted him with a spade and all other accused persons dealt lathi blows as in result of which the deceased Purandar received several injuries on his person and lay in the field senseless. The Appellants ran away. P.w. 5, a boy aged about 10 years who is the son of p.w. 6 went and informed about the concurrence to his father. P.w. 6 came along with p.w. 5 to the place of occurrence and found Purandar lying flat with his face upwards in a senseless condition. The Appellants ran away. P.w. 5, a boy aged about 10 years who is the son of p.w. 6 went and informed about the concurrence to his father. P.w. 6 came along with p.w. 5 to the place of occurrence and found Purandar lying flat with his face upwards in a senseless condition. P.w. 6 found Dirju (p.w. 1) a field servant of Purandar guarding his master. He sent Dirju to 08011 the wife of Purandar and panch members and himself remained at the spot. Purandar was removed to the village by being put on a cot. There he was given water and tea and when he was asked as to who assaulted him he is said to have given out the names of the Appellants. He was carried to the Bijepur police station at a distance of 12 miles from the village. His wounds were attended to by the pharmacist and thereafter the first information report was recorded on the next day i.e., 21.10-1966 at 9 A.M. P.w. 7, the wife of Purandar featured as the informant. After the F.I.R. was lodged, on police requisition the deceased was sent to the Bijepur hospital. From there he was sent to the Bargarh hospital by a bullock cart. But during transit it is said that he expired. P.w. 1 conducted the post-mortem examination over the dead body at 7 A.M. On 23-10-1966 and the Appellants were charge-sheeted on 6.2.1967 after investigation. 3. All the Appellants denied the charges against them and claimed to be tried. The entire incident was denied. 4. 8 witnesses were examined at the trial on behalf of the prosecution. P.w. 1 is the doctor who conducted the postmortem examination. P.w. 2 was a witness to the inquest and p.w. 3, a constable who escorted the dead body for post-mortem purposes. P.w. 4 was a seizure witness who testified to the seizure of the axe and lathi from the house of some of the Appellants. He, however, was declared hostile by the prosecution. P.w. 5 is the only eye-witness to the occurrence. His father, p.w. 6 stated that on information from p.w. 5 he came to the spot and saw Purandar lying senseless. P.w. 7 is the widow of 1 be deceased who lodged the F.I.R. in the manner already indicated and p.w. 8 is the investigating officer. P.w. 5 is the only eye-witness to the occurrence. His father, p.w. 6 stated that on information from p.w. 5 he came to the spot and saw Purandar lying senseless. P.w. 7 is the widow of 1 be deceased who lodged the F.I.R. in the manner already indicated and p.w. 8 is the investigating officer. Apart from these witnesses, one Dirju Padhan was examined as a Court witness. A statement u/s 164, Code of Criminal Procedure bad been taken from this Court witness who bad then supported the prosecution case, but now while being examined at the trial he feigned knowledge about the details. 5. The learned Sessions Judge referred to the evidence of p.w. 5 at considerable length and ultimately accepted her evidence and came to bold that her evidence had been corroborated by the testimony of p.w. 6 and that of the doctor and found against the Appellants. 6. Mr. Misra, learned Counsel for the Appellants contended that the medical certificate and the evidence of the doctor do not corroborate the prosecution evidence regarding the injuries. There is absolutely no mark of any lathi blow. He further contended that the evidence of p.w. 5 is liable to be discarded and no importance should have been given to that evidence. P.w. 7 lodged the F.I.R. a day after the occurrence. She admits at the trial that she knew about p.w. 5 being an eye witness by the time the first information report was lodged, yet p.w. 5's name is signally absent from the F.I.R. That apart, she being a child witness, the learned Sessions Judge should have taken necessary precautions before proceeding to examine her. She should have been immediately examined by the police. The delay in examining her is fatal against the prosecution. As the evidence transpires, Mr. Misra asserts, at about 10 o' clock in the morning on 22-10-1966, the process of investigation started. Yet p.w. 5 was not examined by the police until 6 A.M. On the next day. Mr. Misra also refers to certain broad features in the prosecution case which go to show that the case as alleged is improbable. The fact that Purandar fell down when a stone was thrown at him is improbabilised as none of the injuries on the person of Purandar fits in to a blow with a stone. Mr. Misra also refers to certain broad features in the prosecution case which go to show that the case as alleged is improbable. The fact that Purandar fell down when a stone was thrown at him is improbabilised as none of the injuries on the person of Purandar fits in to a blow with a stone. If the blow from the stone-throw was so serious that Purandar fell down it cannot be accepted that he did not leave an injury mark. P.w. 1, the doctor has categorically stated that the process of decomposition of the body had not started by the time of postmortem. In the circumstances unless the corresponding mark of injury relatable to the blow from the stone-throw is found on the body of Purandar is the case of his falling down as a result of such a blow from stone-throw is indeed difficult to accept. 7. Mr. Misra relied upon the decision of their Lordships of the Supreme Court in the case of Rameswar v. State of Rajasthan AIR 1952 S.C. 4. Bose, J. stated that it was desirable that judges and magistrates should always record their opinion that the child understood the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. In the present case, three test questions were put to the witness by the learned Sessions Judge and her answers were recorded. The same may be extracted. o. Why have you come to Court today? A. I have come to Court to give evidence of what I have seen. o. What have you read? A. I am reading in Class III. o. How did you come to Sambalpur? A. I have come by bus to Sambalpur. Thereafter the evidence has been recorded. Nowhere there is an indication available either in the records of evidence or even in the judgment of the learned Sessions Judge as to what opinion he had formed about the understanding capacity of the child. There is also no indication that it was impressed upon p.w. 5 that it was necessary that the truth be stated. 8. P.w. 5 had been examined u/s 164, Code of Criminal Procedure. There is also no indication that it was impressed upon p.w. 5 that it was necessary that the truth be stated. 8. P.w. 5 had been examined u/s 164, Code of Criminal Procedure. There he had stated that the Appellant Baruna assaulted the deceased with an axe on the head and now at the trial it was stated that the assault was on the hand. The learned Sessions Judge opines that this discrepancy is not material. He has stated: The consistent evidence of this witness before the police, in the committing Court as when as in this Court is that Baruna dealt a blow with an axe on the right band of Purandar. From the recording of the magistrate of the statement of this witness u/s 164, Code of Criminal Procedure it is not clearly legible whether he has written the word "hand or band". I, therefore, find no importance in this discrepancy. The learned trial judge who was a very senior and experienced Sessions Judge must have known that the statement of the witness before the police was not substantive evidence and was not available for any use other than for the purpose of contradiction. The statement u/s 164, Code of Criminal Procedure is very clear and legible and clearly reads as 'head' and not 'hand' 9. I will now proceed to examine the other defects pointed out in the evidence of p.w. 5. During commitment proceedings he had stated that the place of occurrence was in the field of Purandar while at the trial it has now been stated to be the land of the Appellants. That discrepancy has been overlooked on the basic that the lands are located near about and therefore no serious view can be taken of the discrepancy. The next criticism about the delay in recording the statement of p.w. 5 has been brushed aside by the learned trial judge on the basis that there is no delay. I have already indicated that there was a delay of about a day in recording the statement of p.w. 5 by the investigating officer. The importance of recording the evidence of the eye witnesses without loss of any time cannot be over-emphasised. Courts have always taken the view that it -1 must be immediately done and the first opportunity should be availed to do it. This is more as in the case of a child witness. The importance of recording the evidence of the eye witnesses without loss of any time cannot be over-emphasised. Courts have always taken the view that it -1 must be immediately done and the first opportunity should be availed to do it. This is more as in the case of a child witness. The view taken by the learned Sessions Judge on this score was unwarranted. There was some evidence that p.w. 5 had been adopted by the deceased and be performed the sudhi ceremony of his. P.w. 4 who was declared hostile accepted the fact of such adoption. He may have been declared hostile, but his evidence cannot be brushed aside. The learned Sessions Judge stated in his judgment, that p.w. 6 bad emphatically denied the allegation of adoption. But that seems to be not true and it is said to be an error of record. In the circumstances on the evidence of p.w. 4 it can be held that p.w. 5 was adopted by the deceased. 10. The next aspect for consideration is that p.w. 5 had stated before the police that while he was returning to the spot along with his father he found the Appellants returning home in the field and they had nothing in their hands. But in Court he stated that he did not see the Appellants while returning to the field along with p.w. 6. The learned Sessions Judge has explained away this aspect by saying: Firstly this discrepancy is not material as it does not relate to the main occurrence. Secondly assuming that the statement of p.w. 5 before the police is correct, there is a lapse of time between p.w. 5 coming to the village narrating the incident to the father and then the father and Ron returning to the spot. In the meanwhile if the accused persons go away with the weapon thrown them somewhere and again out of curiosity were coming to the spot to see the injured and were returning to the village thereafter there is no inconsistency in the statement of p.w. 5. This approach of the learned Sessions Judge to the matter seems to be against the natural course of conduct. The Appellants having committed assault bad taken to their heels. It was never expected that they would come back to the place of occurrence. 11. This approach of the learned Sessions Judge to the matter seems to be against the natural course of conduct. The Appellants having committed assault bad taken to their heels. It was never expected that they would come back to the place of occurrence. 11. It is equally interesting to note that the learned Sessions Judge came to hold that p.w. 5' evidence was corroborated from the fact that he bad immediately reported the incident to his father and from the further fact that there were 3 incised injuries on the person of the deceased. These cannot ready be corroborating aspects. The evidence of p.w. 6 has to be viewed with caution in the background of the present case. Besides, the details of injuries as given by p.w. 5 do not fit in with the medical evidence and the medical evidence cannot be taken to corroborate the evidence of p.w. 5 on that account. The learned Sessions Judge himself has stated: The witness p.w. 5 says that Baruna and Rama dealt several blows by axe and spade. of course there is no mark of any injury which could be inflicted by a lathi. It may be the blows by lathis were not quite violent so as to leave marks of injuries but the fact remains that is incised wounds were noticed by the doctor which could be caused by axe and spade. Such an approach again seems to be rather out of the way. If the Appellants were inflicting lathi blows, there is hardly any justification to hold that they were not violent so as to leave any mark of injury. 12. The evidence of p.w. 5 in the present case cannot be relied upon for the purposes of sustaining the conviction. It would be indeed risky to convict 7 Appellants on the sole testimony of p.w. 5 whose evidence suffers the infirmities which I have already noticed. In this view of the matter I would conclude that the safer course is to give benefit of doubt to the Appellants and acquit them. 13. I would, therefore, allow this appeal and set aside the conviction of the Appellants and cancel their bail bonds. Final Result : Allowed