JUDGMENT Chaudhary Sia Saran Sinha, 1. The sole appellant stands convicted under two counts, namely, under sections 302 and 326, Indian Penal Code; the punishment awarded under these counts being imprisonment for life. 2. The short facts, relevant for disposal of this appeal, are these. one Chamak Lal Yadav, one of the deceased in this case, was the father of Ramsewak (P.W.2) the informant of this case. Besides the informant, he had one more son, namely Bachaspati Yadav, the other deceased of this case. The appellant is an agnatic relation of the informant and has his house in village Charapatti, their houses being quite adjacent to each other. The allegation in the fard beyan (Ext. 3) recorded on the statement of the Informant on the 23rd May, 1970 at 6.30 A.M. by the police officer Akhileshwar Das (P.W.7) is that in the night intervening between the 22nd and 23rd May, 1970 the appellant hurled sword blows on Chamaklal Yadav and his two sons including the informant. While Bachaspati Yadav met an 'instantaneous death, Chamaklal Yadav died in the Monghyr Hospital shortly after his arrival there. The injuries on the person of the informant were also attended to. No motive has been assigned in the fardbeyan for this brutal murder. 3. In O.D. slip was issued for recording the dying declaration of Chamaklal as also of the informant, and there is some as to whether, In fact, any declaration was recorded controversy such dying. 4. After the usual Investigation, chargesheet was submitted and, on being committed to the court of sessions, the appellant stood trial before the Session Judge, Monghyr, with the result as mentioned above. 5. The defence was a simple one, namely false implication at the instance of Mukhiya and Sarpanch of the village; the appellant having deposed in a criminal case instituted against them by one Pramod Yadav. Thus, the main contention of the learned Counsel for the appellant the instant being one from Jail was that no conviction should have been based on the sole testimony of a child witness, namely, the informant, his age at the time of occurrence undisputedly being only five years and a few months. The further contention also was that the other evidence adduced by the prosecution, which is in the nature of corroborative and circumstantial evidence, is equally untrustworthy and not fit to be accepted. The further contention also was that the other evidence adduced by the prosecution, which is in the nature of corroborative and circumstantial evidence, is equally untrustworthy and not fit to be accepted. Learned Counsel for the State, reasonably contended that it might not be safe in the facts and circumstances of this case to hold the appellant responsible for the brutal murder of two persons. namely Chamaklal and Bachaspati, it not being disputed in the instant case that they were the victims of murder. He faintly argued that a conviction might be based against the appellant for the charge under section 326 of the Indian Penal Code for voluntarily causing grievous hurt to the informant. 6. Chamroo Yadav (P.W.1) came to say that when he reached the place of Occurrence on hearing hulla, shortly after the occurrence, the informant told him that the appellant had fled away after inflicting sword injuries' on the two deceased as also on him (informant). The informant himself claimed to be an eye witness, not only to the assault inflicted on him but also to the assaults inflicted on the two deceased. Sumitra Devi (P.W. 3) the mother of the informant, who was sleeping inside her courtyard, came to say that when on the hulla or the informant she came out of the courtyard, he saw the appellant with Ii sword in his hand, presumably at the place of occurrence itself. Her further statement was that though Bachaspati was dead by the time she went to the place of occurrence, her husband was alive, and be gave out that it was the appellant who had cut him through, that is to say had inflicted the swerd blows. 7. As stated above, the fardbeyan was recorded in the Moghyr Hospital at 6.30 A.M on the 23rd May, 1970, the occurrence alleged having taken place on the preceding night Before this fardbeyan was recorded, a sanha (Ext. 5) had been recorded at the police station on the statement of the village Chaukidar. Tota Paswan (P.W.8). When this sanha is read with the evidence of the Chaukidar (P.W. 8) it appears that this Chaukidar set out for the police station to lodge the sanha at about 3 A.M. and reached there at 5 A.M. when it was recorded. 5) had been recorded at the police station on the statement of the village Chaukidar. Tota Paswan (P.W.8). When this sanha is read with the evidence of the Chaukidar (P.W. 8) it appears that this Chaukidar set out for the police station to lodge the sanha at about 3 A.M. and reached there at 5 A.M. when it was recorded. There is evidence to show that this Chaukidar had visited the place of occurrence prior to his going to the police station for lodging this sanha. Obviously, the informant and injured Chamaklal who had not succumbed to the injuries by then were present at the place of occurrence and so was Sumitra Devi (P.W. 3). If the story of Chamaklal giving out the name of his assailant, the story about the informant seeing the assault as also the story about Sumitra seeing the appellant with a sword in his hand been of all true, one would have expected this Chaukidar to make a mention of the same in the sanha, but the bold assertion in the sanha is that he heard the rumour about Chamaklal being killed. Thus, the earliest version of the occurrence recorded earlier than the fardbeyan, introduces a serious infirmity in the prosecution case inasmuch as the name of the appellant is conspicuously absent therein. 8. The evidence on the record strongly probabilises the recording or a dying declaration of the informant in the hospital. The evidence further indicates that efforts were being made to record the dying declaration of Chamaklal as well, though as it appears he died while his dying declaration was being recorded. Undisputedly, the stage of recording the dying declaration was learned to the recording of the fardbeyan. This dying declaration, as was contended by the Learned Counsel for the appellant, has been withheld and no satisfactory explanation is coming forth for the same. This is also a circumstance which goes against the prosecution case. 9, The injuries on the person of Chamaklal were such as would have ordinarily incapacitated him from remaining conscious. According to Dr. Ramendra Nath Choubey (P.W. 5), he had six incised wounds on his neck as also on his shoulder. This is also a circumstance which goes against the prosecution case. 9, The injuries on the person of Chamaklal were such as would have ordinarily incapacitated him from remaining conscious. According to Dr. Ramendra Nath Choubey (P.W. 5), he had six incised wounds on his neck as also on his shoulder. P.W. 1 who claimed to have reached the place of occurrence and who is also a co-villager and a neighbour too, though his house is intervened by some houses from the house of the deceased does not state about Chamaklal giving out the name of his assailant at the place of occurrence. Even P.W. 2 who claimed to be sleeping on the darwaja itself close to the cot where Chamaklal was sitting does not say about Chamaklal giving out the name of his assailant. Thus, the only evidence in this respect is that of the wife of the deceased namely, P.W. 3, which, in the facts and circumstances of this case does not inspire confidence. Her statement before the supervising authority, namely, Harinadnan Jha (P.W. 10), she did not make this statement at an earlier stage when she was examined before the police. It is, therefore, somewhat difficult to accept the prosecution story regarding Chamaklal disclosing the name of his assailant, and reasonably enough, learned Counsel for the State did not press this point. Before coming to the evidence of the informant, let me deal with the evidence of P.W. 1 and P.W. 3. The evidence of P.W. 1 is hearsay he having been told the name of the appellant by the informant. The informant himself, however, does not claim to have told the name of the assailant to P.W.1. He appears to be interested in the prosecution, though there is no material to show that he is inimically disposed towards the appellant, inasmuch as we find him taking Chamaklal and the injured informant to Monghyr police station along with others. His anxiety to support the prosecution would also be evident on a comparison of his statement made before the sessions court with that made by him in the committing court. He was also found taking recourse to memory, a plea not unoften adopted by untrustworthy witnesses. P.W. 3 was sleeping in her courtyard. She claimed to have come to the place of occurrence on hearing the hulla raised by the informant. He was also found taking recourse to memory, a plea not unoften adopted by untrustworthy witnesses. P.W. 3 was sleeping in her courtyard. She claimed to have come to the place of occurrence on hearing the hulla raised by the informant. Only two blows were inflicted on the informant. They were grievous in nature and on vital part of the body. According to the informant, the sword blows were hurled on him after the infliction of sword blows on his brother and father. A child of five years as P.W. 2 was and considering the serious nature of injuries inflicted on him, it becomes some what doubtful whether he would have been in a position to cry out so as to awake his sleeping mother inside the courtyard to enable her to come to the darwaja. Although seriously grieved this lady might have been on account of the brutal assault on her husband and her two sons, had she, really seen the appellant with a sword in his hand, normal breast of the same before the village Chaukidar who rushing to the police station to inform the police. Although the investigating officer has not been examined, for the purpose of contradiction a portion of the case diary has been exhibited. It is undisputed in this case that P.W. 3 did not state before the police either about the informant crying out the name of the appellant as his assailant or about the appellant having been seen by her with a sword in his hand. P.W. 3 has given her age as 40 years and was thus sufficiently advanced in age; but we find the ball being set in motion by her son, the informant, a child of five years and not by her. There is evidence to show that a large number of persons had collected at the place of occurrence shortly after the occurrence, but none except these witnesses has come forward to furnish corroborative evidence in the facts and circumstances of this case, it may be extremely unsafe to put reliance on the statement of P.W. 3, particularly In the context of her not making such incriminating statement In her statement before the police and similar is the case with P.W. 1. 10. We are thus left only with the evidence of P.W. 2 who is undisputedly a child witness. 10. We are thus left only with the evidence of P.W. 2 who is undisputedly a child witness. Section 118 of the Evidence Act states as follows: All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, of any other cause of the same kind." It would appear from section 118 of the Evidence Act that the competency of a child witness to testify as a witness is a condition precedent to the ad ministration to him of an oath or affirmation and is a question distinct from that of his credibility when he has been so sworn or affirmed. Although certain questions were put to P.W.2 by the trial court, the order sheet dated the 18th March, 1975 does not indicate if the court was satisfied with the requirement of section 118 of the Evidence Act. The opinion expressed by the trial court, as is evident from the deposition of this witness, is that the witness appeared to be determined, presumably, to depose (drirka nis hohit se malum hus). The questions and answers show that P.W.2 did not know what wail truth and what was falsehood. He did not know that a man is liable to punishment for deposing falsely. To crown all, be did not also know that it was wrong to speak false. He had no idea as to the number of months that comprise a year. The fardbeyan (Ext.3) purports to contain the left thumb impression of P.W. 2 and there is a statement therein of the fardbeyan being read over to him and about his putting the thumb impression on understanding the same; but P.W 2 has Stated in his evidence that the police did not read over to him what was taken down and that his thumb impression was obtained on a blank paper. According to P.W. 8, when he went to the place of occurrence shortly after the occurrence, be enquired from P.W.2 and P.W.3 as also from injured Chamaklal as to who had assaulted him (kaun yaisa kiya), but no reply was given and it was then that P.W.8 went to the police station to lodge the sanha. According to P.W. 8, when he went to the place of occurrence shortly after the occurrence, be enquired from P.W.2 and P.W.3 as also from injured Chamaklal as to who had assaulted him (kaun yaisa kiya), but no reply was given and it was then that P.W.8 went to the police station to lodge the sanha. who, as stated above, did not disclose the name of tile appellant as the assailant. P.W.2. while stating that he did not tell any thing to P.W. 8, added that he was then unconscious, but in the next breath he stated that he had given out the name of the appellant as the assailant and that be was in his senses, though, subsequently to court question he adhered to his earlier statement, namely, that he was unconscious. Subsequently, however, in further cross-examination his statement was that he did not tell anything to anyone about the occurrence. P.W.2 deposed that be saw the assault on his father, brother as also on himself, but undisputedly he did not state so either before the police or the committing court; rather he stated in the committing court that the appellant tried to strike him, but be fled away. He claimed to have named the appellant in his dying declaration; but, as stated above, the prosecution has not allowed that document to see the light of the day. If sword blows were inflicted on his father and brother before he was assaulted and if, as further stated by P.W.2, he was assaulted while be was asleep and woke up only after his assault. the question of his seeing the assault on his father and brother and, on his being assaulted, his raising a hulla, as stated In the fardbeyan, cannot arise. The nature of the injuries found by P.W.5 on this boy of tender age in the shape of two injuries on vital parts was such as would have ordinarily incapacitated him from raising the hulla and consequently the question of his mother coming to him on hulla and seeing the assault on P.W.2, as stated by P.W.2, though not claimed by P.W.3, cannot also arise. If in these circumstances, P.W.2, impressed the trial court, as determined to depose, it may be indicative of the element of his being tutored. 11. If in these circumstances, P.W.2, impressed the trial court, as determined to depose, it may be indicative of the element of his being tutored. 11. A definite suggestion given to P.W.2 is that he has named the appellant as an assailant at the instance of the Mukhiya and the Sarpanch of his village on being tutored by them. Ext.B is the charge sheet which shows that the police submitted this charge sheet against the Mukhiya and the Sarpanch on the complaint of one Pramod. This Ext.B shows the name of the appellant as a witness. P.W.8 in paragraph no.7 of his cross-examination admitted that Pramod had brought a criminal case against the Mukhiya and the Sarpanch, though he showed his ignorance, like P.W.3, about the appellant deposing in that case against the Mukhiya and the Sarpanch. There is a specific defence of the appellant to this effect in his examination under section 342 of the Code of Criminal Procedure. The suggestion to P.W.2 further is that his Chhota Babu, namely his uncle. worked, presumably, as a labourer of Mukhia and Sarpanch though he has denied the suggestion. It is undisputed that this Mukhiya and Sarpanch went to the place of occurrence shortly after the assault was over and much before the recording of the fardbeyan (Ext3). They were also found present on the Ijlas while the prosecution witnesses were being examined. It is the admission of P.W.2 in his statement before the committing court that it was this Mukhiya and Sarpanch who told him to file this case. In these facts and circumstances, the defence version regarding P.W.2 and P.W.3 playing into the hands of this Mukhiya and sarpanch and of P.W.2 being tutored at their instance. as contended on behalf' of the appellant, stands more or less probabilised. 12. Apart from the requirement of section 118 of the Evidence Act, it is well settled that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. I am tempted in this connection to quote a passage from "The outlines of Criminal Law", page 386, by Dr. 12. Apart from the requirement of section 118 of the Evidence Act, it is well settled that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. I am tempted in this connection to quote a passage from "The outlines of Criminal Law", page 386, by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University; "Children are a most untrustworthy class of witnesses, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repent 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 of notoriety." Shortly after the occurrence, P.W 8 goes, to the place of occurrence, but P.W.2 or P.W. 3 does not disclose the name of the appellant to him. According to P.W.8, a Jamadar accompanied him to the place of occurrence shortly after the recording of the Sanha, and, there, the Assistant Sub• Inspector of Police wanted to take down the statement of P.W. 3. As be tells us, she did not make any statement. There is evidence to show that a large number of persons of the village, the number of which bas been given by P.W.8 as 200 or 250, assembled at the place of occurrence after the occurrence. This assemblage took place before P.W.2 was taken to the Monghyr Hospital where he lodged the fardbeyan. None out of these villagers, except P.Ws 1 and 3 has come to furnish corroborative evidence. In case the name of the appellant was disclosed on that occasion, some of these persons would have been material witnesses to support the same but no such witness is forthcoming, and I find P.W.2 giving out the name of the appellant as an assailant for the first time at 6.30 A.M, while getting recording Ext.3 which in the circumstances stated above, cannot but be said to have been recorded in somewhat suspicious circumstance's. Ail these aspects apart, the material inconsistencies and patent improbabilities in the evidence of P.W.2 make his evidence unfit for reliance. 13. 13. Learned Counsel for the State, while fairly conceding that the prosecution cannot be said to have succeeded in establishing the charge under section 302 of the Indian Penal Code against the appellant, faintly argued that the appellant should be convicted under section 326 of the Indian Penal Code on the sole evidence of P.W.2. This argument must be rejected, It is true that the maxim falsus in unofalsus in omnibus cannot be blindly invoked and effects should be made in appropriate cases to separate chaff from the grain, but where truth and falsehood are inextricably mixed up, polluting beyond retinement the entire fabric of tile narration given by a witness, that the court might be justified in rejecting his evidence in toto. The position in the instant case is one which entails the rejection of the evidence of P.W. 2 in toto. The appellant is an agnatic relation of the deceased and is a close neighbour. Neither the fardbeyan nor the evidence adduced disclosed any genesis or motive for the occurrence. It is true that motive by and large is not necessary for a crime, though when the prosecution alleges motive and establishes it, it lends colour to the prosecution case. But when the crime is a serious one and false implication at the instance of others is alleged and is probabilised, one becomes inclined to know whether the prosecution has alleged any genesis or motive, as one of the factors for considering truth or falsehood of the prosecution case, particularly when the whole prosecution case hinges on the sole and corroborative testimony of a child witness as P.W. 2 The fact that the appellant was found absconding from his house when the investigating officer had gone to his house cannot take us further as we are aware that even innocent persons for fear of being sent to jail takes to absconding on the slightest information about his being kept in jail. 14. The trial court in its rather lengthy judgment has not approached the case in its correct perspective. It has acted on surmises and conjectures and bas tried to give benefit of doubt to the prosecution instead of to the accused. The trial court has forgotten to notice that between 'may' and 'must', there is a long distance to travel and the whole distance has to be travelled by the prosecution by unimpeachable evidence. It has acted on surmises and conjectures and bas tried to give benefit of doubt to the prosecution instead of to the accused. The trial court has forgotten to notice that between 'may' and 'must', there is a long distance to travel and the whole distance has to be travelled by the prosecution by unimpeachable evidence. Thus, like the charge under section 302 of the Indian Penal Code, the charge under section 326 of the Indian Penal Code framed against the appellant must also fail. 15. The result is that the appeal is allowed; the conviction and sentence of the appellant are set aside; and allowing him the benefit of doubt be is acquitted of be charges framed against him and is ordered to be set at liberty if not otherwise required in any other case. It is really unfortunate that a serious crime like toe one under consideration is going unpunished; but in the facts and circumstances of this case there is no way out. I agree. Appeal allowed.