JUDGMENT 1. This Jail appeal has been filed by Sunder Singh against his conviction under section 302 I.P.C., ordered by the learned Sessions Judge, Sri Ganganagar, on January 14, 1972 sentencing him to imprisonment for life. 2. The case of the prosecution was that on the night between 22nd and 23rd January, 1971 accused-appellant Sunder Singh killed his wife Dano in his own house by using a `kulhari' and ran away. The report was lodged by accused-appellant's brother Inder Singh, who indicated that the relations between the husband and the deceased wife were not cordial. Sunder Singh remained absconded for about ten days and was arrested by the investigating agency on January 31st, 1971. An information was given under section 27 of the Evidence Act by the accused on February 7, 1971 regarding the whereabouts of `kulhari', the alleged weapon of offence, and it was discovered in pursuance of that information by the Station House Officer on that very day. The `kulhari was suspected to have blood on it and therefore it was sealed and sent for chemical examination. The reports of the Chemical Examiner and that of the Serologist show that the `kulhari' had human blood on it. 3. On February 8,1971 the accused was sent to the judicial-lock-up and on application was made by the Station House Officer before the Sub-divisional Magistrate, Sri Ganganagar that a statement of the accused under section 164, Cr. P.C. be recorded. On February 9, 1971 the accused was produced before the Court of Sub-divisional Officer who after observing the procedure as prescribed by section 164 Cr. P.C. and giving him one hour's time to re-think over the matter recorded the confessional statement of the accused which is Ex. P. 17. According to this statement the accused admitted to have committed the murder of his wife on the night between 14th and 15th January, 1971 and the version given by him was that when he came back from the field, to his house, he found two persons with his wife, and the deceased was sitting naked on a `chaddar' spread over the floor. He further stated that his wife picked up a `kassi' and tried to attack on him, but he could not be hit by her. He further stated that his wife picked up a `kassi' and tried to attack on him, but he could not be hit by her. He therefore picked up the axe which was lying nearby and gave two blows on the head and neck of the deceased and thereafter he went away from his house leaving his two minor children in the house. . 4. The prosecution produced PW 4 Gurdayal Singh, minor son of the accused appellant, in the witness-box, and examined him as an eye-witness. His statement was recorded on November 17, 1971. In his statement PW 4 Gurdayal Singh deposed his age as 6 years. PW 4 Gurdayal Singh turned hostile to the prosecution, but in the cross examination by the pp he deposed that his mother was killed by his father. When he was further cross-examined by amicus curiae on behalf of the defence, he stated that he came to know about the death of his mother next morning that she was killed by deeling `kulhari' blows her stomach. 5. The learned trial Judge discarded the confessional statement of the accused on the ground that it did not find corroboration from any other source in material particulars. The learned Judge was of the opinion that the medical testimony did not lend support to the confessional statement of the accused as the deceased has sustained as many as five incised wounds on her person, while the accused in his confessional statement had deposed that he dealt only two "kulhari' blows on the neck and the head of the deceased. The statement of the child witness however v/as found credible by the learned trial Judge and therefore placing reliance on the testimony of PW 4 Gurdayal Singh and the fact of recovery of blood-stained axe at the instance of the accused he held the appellant guilty of murder and passed a sentence of life imprisonment. 6. This appeal was filed from jail by the accused appellant but looking to the severity of the offence Mr. Bhagwati Prasad was appointed as amicus curiae. 7. Learned counsel appearing on behalf of the appellant urged that the court below has committed a grave error in placing reliance on the testimony of child witness who was hardly five years of age at the time of the incident. Bhagwati Prasad was appointed as amicus curiae. 7. Learned counsel appearing on behalf of the appellant urged that the court below has committed a grave error in placing reliance on the testimony of child witness who was hardly five years of age at the time of the incident. He also contended that even the child witness does not support the prosecution story as in his examination-in-chief he turned hostile to the prosecution case while in his cross-examination by the Public Prosecutor he did not disclose anything which may find corroboration from other circumstances. In such a situation it is vahemently urged that such a statement should not have been made the basis for conviction. As regards the recovery of the blood-stained axe it is contended that the axe was recovered from a place which was accessible to all and sundry as it was put in a `chhapper' where every-body could go without impediment as the boundary wall of that house was hardly 3 to 4 feet high. It was also contended that if the testimony of the child witness is discarded, then this fact alone that a blood-stained 'kulhari' was discovered at the instance of the accused cannot from the basis for conviction of the accused. 8. Learned Public Prosecutor, however, contended that the confessional statement was wrongly rejected by the court below and if it is taken into consideration then that confession can by itself form the basis for conviction though it was retracted later on by the accused himself. He also placed reliance on the testimony of the child witness whom the learned counsel characterised as a credible witness. 9. The confessional statement Ex. P. 17 was recorded by PW 12 Shri J. N. Sharma. In that statement, it is no doubt, admitted by the accused-appellant that he had kilted his wife Mst. Dano with an axe but he deposed certain circumstances which compelled him to take that action. According to this statement the deceased wife of the accused was found in the company of two persons when he returned to his house from field. These persons ran away white his wife was sitting naked on a `chaddar' spread on the floor. This fact no doubt stands proved that Mst. Dano was naked at the time when she was belaboured because the Station House Officer found her`salwar' on a cot when the dead-body was inspected by him. These persons ran away white his wife was sitting naked on a `chaddar' spread on the floor. This fact no doubt stands proved that Mst. Dano was naked at the time when she was belaboured because the Station House Officer found her`salwar' on a cot when the dead-body was inspected by him. But this circumstance alone cannot lead to infer that she was done to death by none else but her husband. A bare perusal of the confessional statement shows that it stands contradicted in two important material particular viz; (i) the time of murder as given by the accused is a date a week prior to the actual date of murder, and (ii) the medical testimony runs contrary to the statement made by the accused. In his confessional statement Ex. P. 17 the accused has categorically stated that he gave only two`kulhari'blows to his wife while the deceased was found by the doctor to have sustained as many as five incised would besides one bruise and four abrasions. The presence of the bruise and abrasions shows that the murder has not been committed in the manner in which it has been deposed by the accused. The deceased, it appears, must have resisted the assailant while he tried to over power her and it is probably in that attempt that she sustained bruise and abrasions. In this view of the matter, we find it difficult to accept the contention of the learned Public Prosecutor that the confessional statement was voluntary and true and therefore it should have been accepted as evidence and should have been made the basis for convicting the accused-appellant. In our opinion, the court below has rightly rejected the confessional statement. 10. The statement of PW 4 Gurdayal Singh when read as a whole leaves an impression, in our mind, that this witness cannot be relied upon. He was a child witness hardly of 5 years of age at the time when the incident had taken place. The witness has been changing off and on his version about the incident. His inconsistency renders him unreliable. A boy of 5 years who deposed so many contradictory facts about the incident cannot be said to be a credible witness and it will be highly unsafe to base the conviction .of the accused-appellant on such infirm evidence. We, therefore, cannot place reliance on such an evidence of the alleged eye-witness. His inconsistency renders him unreliable. A boy of 5 years who deposed so many contradictory facts about the incident cannot be said to be a credible witness and it will be highly unsafe to base the conviction .of the accused-appellant on such infirm evidence. We, therefore, cannot place reliance on such an evidence of the alleged eye-witness. 11. Now there remains only the circumstance, the recovery of blood-stained `kulhari' from the `Chhappar' of the house of the accused in pursuance of the information given by the accused while he was in custody. This circumstance alone is not . sufficient, in our opinion, to fasten the guilt on the shoulders of the accused-appellant especially when the recovery was after about 10 days and that two made from a place which is accessible to all and sundry. In this view of the matter we do not find any reliable evidence on the record to uphold the conviction of the accused-appellant and we are left with no alternative but to extend the benefit of doubt to the accused. 12. The appeal is, therefore, allowed, the accused appellant Sunder Singh is acquitted of the charge under section 302 Indian Penal Code, and the sentence of life imprisonment awarded to him is set aside. Sunder Singh is in jail. He shall be released forthwith, if not required in any other case. *******