JUDGMENT R. P. Shukla, J. 1. Kurrahwa alias Sitaram and seven other appellants have been found guilty under Section 302 IPC and various other offences and have been convicted and sentenced to life imprisonment and various otter terms of imprisonment by the then Third Additional Sessions Judge, Fatehpur by his order dated 13-8-1977, in Sessions Trial No. A-76 of 1977. Aggrieved by the said order, they have preferred this Criminal Appeal No. 1750 of 1977. 2. On 2-7-1976, at 10.00 a. m. one Devi Dayal lodged a first information report at Police-station Asothar of district Fatehpur, alleging that Kurrahwa alias Sitaram of his village Kauhan took his nephew Chandra Bhushan Singh in the morning of 2nd July, 1976, on the pretext of sucking mangoes in Chandra Bhushan Singh's own grove. Amar Singh, Kallu Singh sons of Sagar Singh, Sulkhey Singh and Surya Bhan Singh sons of Sailani Singh of village Kauhan were sitting, since before the arrival of Chandra Bhushan Singh and Kurrahwa alias Sitaram armed with lathis, in the said grove sucking mangoes. When Chandra Bhushan Singh reached there, he also sat with them and started sucking mangoes as he was asked by Amar Singh. Getting this opportunity, Sulkhey Singh gave a lathi blow on the face of Chandra Bhushan Singh who fell down flat. Kurrahwa flung himself on the chest of Chandra Bhusan Singh. Surya Bhan Singh and Amar Singh pressed their lathis against his neck. Kurrahwa got up from the chest and cried that chance like this will never come again come, he has been over-powered. ON this cry of Kurrahwa, Sudesh Singh, Brij Mohan Singh of village Kauhan armed with country-made pistols, Banku of village Kansapur and Ram Murat of village Saibani armed with guns, came there from a hut in the east of the said grove. Sudesh Singh said that he (Chandra Bhusan Singh) appeared against us in the murder case of Jaipal Singh as witness and did the Pairvi of that case and hence he should not be left alive. ON Sudesh Singh's saying this, Sudesh Singh and Brij Mohan armed with country-made pistols ; Barku and Ram Murat armed with guns, fired on the face of Chandra Bhusan Singh. This happened at about 8.00 a.m. on 2-7-76. Indrapal Singh, Surya Bhan Singh of village Kauhan, Gulab Singh of village Arwa, Km. ON Sudesh Singh's saying this, Sudesh Singh and Brij Mohan armed with country-made pistols ; Barku and Ram Murat armed with guns, fired on the face of Chandra Bhusan Singh. This happened at about 8.00 a.m. on 2-7-76. Indrapal Singh, Surya Bhan Singh of village Kauhan, Gulab Singh of village Arwa, Km. Suman daughter of the informant Devi Dayal Singh and Devi Dayal himself witnessed this occurrence as they were all picking mangoes in the said grove. Out of fear of the fire-arms, they did not go near, but they did ask the appellants not to kill Chandra Bhusan Singh. After having killed Chandra Bhusan Singh, the assailants went towards the east. Devi Dayal Singh left the dead body of Chandra Bhusan Singh in the supervision of his family members and the village Chaukidar and he himself went to police-station, where he lodged the aforesaid written report (Ext. Ka-2). This is the gist of the prosecution case. ON the basis of this report (Ext. Ka-3), check report was prepared and the investigation was taken up by Pratipal Singh, the then Station Officer, Asothar. He reached the scene of occurrence on the same day at about 1.00 p.m. There, he prepared the inquest report (Ext. Ka-1) and sent the dead body to mortuary for post-mortem through constable Sheo Shanker and village Chaukidar Pahalwan and completed other formalities of the investigation. In the mean-time, he was transferred and the investigation was taken up by Bhushan Singh who completed the investigation and submitted charge-sheet against all the named accused except Ram Murat. The post-mortem on the dead body of Chandra Bhusan Singh was conducted by Dr. P. S. Misra (PW 5) who found the following ante-mortem injuries :- 1. Gun shot wound of entrance 1 1/2" x 1" x oval cavity deep on the central of chin going upward and towards right side. Margins were inverted. 2. Gun shot exist 1. 1/2" x 2" x oval cavity deep. Margins were everted and lacerated. 3. Gun shot wound of entrance 1" x 1" x brain cavity deep on the left side temporal region going upward and towards left side. 4. Gun shot exit on the top of skull 2" x 2 1/2" upto brain cavity. 5. Contusion 2" x 1" on the lower part of neck. 6. Contusion 4" x 1." on the left side chest wall upper part. 7. 4. Gun shot exit on the top of skull 2" x 2 1/2" upto brain cavity. 5. Contusion 2" x 1" on the lower part of neck. 6. Contusion 4" x 1." on the left side chest wall upper part. 7. Contusion 3 1/2" x 1" on the left side chest below nipple. 8. Abrasion 2" x 1" on the back of left elbow joint. 9. Abrasion 1 1/2" x 1" on the back of the left wrist joint. 10. Contusion 2" x 1/2" on the back of left hand. 11. Abraded contusion 2 1/2" x 1" on the wrist joint. 12. Mark of multiple contusion on face. The diameter could not be measured due to deformity on the face. Cause of death, according to the doctor, was shock and haemmorrhage due to injuries. 3. On internal examination, the doctor found digested fluid present in the stomach. 4. To prove its case, the prosecution examined as many as seven witnesses, out of whom Devi Dayal (PW 2) and Km. Suman (PW 6) are the eye witnesses of the occurrence. The rests are formal witnesses. The defence has assailed prosecution case on the grounds that independent witnesses were available, but only partisan witnesses have been examined. The testimony of the eye witnesses is in conflict with the medical evidence and that the witnesses are not reliable. 5. Devi Dayal (PW 2) is uncle of the deceased. He has stated that appellants Sudesh Singh and Brij Mohan Singh with their country made pistols, appellant Barku and one Ram Murat with their guns fired on Chandra Bhusan Singh (deceased). Sudesh Singh fired on the chin of the deceased and the rest three fired on the head of the deceased from the left side. The deceased was lying flat facing upward when he was fired at by the assailants and these four assailants, who fired at him, were standing. Naturally, the barrels would be pointing at him downwards but the two fire arm injuries, that had been caused on the chin and on the left side temporal region, have their directions upwards. Thus, the directions of these injuries belie the statement of Devi Dayal Singh. Another important circumstance, in this connection, is that, according to Devi Dayal Singh, four persons shot at Chandra Bhusan Singh (deceased) from point blank range, but only two gun shot wounds have been found by Dr. Thus, the directions of these injuries belie the statement of Devi Dayal Singh. Another important circumstance, in this connection, is that, according to Devi Dayal Singh, four persons shot at Chandra Bhusan Singh (deceased) from point blank range, but only two gun shot wounds have been found by Dr. P. Misra during the post-mortem. The Investigating Officer has found no marks of gun shot on the ground where the dead body was found by him i.e. the alleged place of occurrence. This again militates against the statement of Devi Dayal Singh (PW 2). In the first information report, Devi Dayal Singh has named Kallu Singh, but he has not said that Kallu Singh also attacked and assaulted the deceased, but, in his statement before the trial court, he said that Kallu Singh also beat the deceased. This witness moved an application supported by an affidavit on 4-10-1976 to the Superintendent of Police, Fatehpur, saying that he had wrongly named Ram Murat and Barku as the assailants of his nephew in the first information report. He has further said in the application and the affidavit that he was being pressed to depose against them, but he was not prepared to tell lie. When he was cross-examined with respect to this application, he flatly refused to have moved any application to the Superintendent of Police after the murder of his nephew ; but, when the application and the affidavit were shown to him, he admitted his signature, but denied to have moved the same to the Superintendent of Police. He also denied to have filed any affidavit ; but, when the same was shown to him, he admitted his signature on it. It appears that this witness has no respect for truth. He named Barku and Ram Murat in the first information report and then moved an application supported by an affidavit saying that they were not among the assailants and again he has named them as assailants of his nephew in the trial court. In our opinion, a witness like him, who changes his statement every now and then and whose testimony does not find support from the medical evidence, is not worthy of reliance. In our opinion, a witness like him, who changes his statement every now and then and whose testimony does not find support from the medical evidence, is not worthy of reliance. It is in evidence that Chandra Bhusan Singh (deceased) appeared as a witness against Sudesh Singh appellant in a murder case and the other appellants, according to Devi Dayal (PW 2), belonged to the party of Sudesh Singh. Thus the nephew of this witness was inimical to the appellants. He, being the uncle of the deceased, cannot be said to have no grudge against the appellants. Sudesh Singh was tried for the murder of Jaipal Singh who belonged to the same village Kauhan, to which the witness belonged, and, according to this witness all the appellants belonged to one party and it, therefore, naturally follows that the deceased and other witnesses of the case belonged to a party opposed to the party of Sudesh Singh appellant. Therefore, this witness is not only inimical to the appellants, but is a partisan witness and the medical evidence contradicts him on a very major point suggesting that he did not witness the occurrence. 6. Km. Suman (PW 6), another eye witness, is the daughter of Devi Dayal Singh (PW 2) and cousin of the deceased. She has given her age as seven years on 6-8-1977 when she was examined as a witness before the trial court. She was about six years at the time of occurrence. We have already disbelieved Devi Dayal Singh (PW 2), the father of this witness. So, we are left only with the evidence of this child witness. The children, particularly of this age group, have good memory and no conscience. They can be easily taught stories which they believe to be true. They often 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 of notoriety. While considering evidence of a child witness, these considerations should not be lost sight of. She has stated that she had gone in the grove before the sun rise. She has also blurted out that she reached the village a little before sun-rise. While considering evidence of a child witness, these considerations should not be lost sight of. She has stated that she had gone in the grove before the sun rise. She has also blurted out that she reached the village a little before sun-rise. She has also stated that the marpit took place for about two hours and that she did not go near her brother even after the assailants left the place. According to the statement of PW 2, the said grove is about two furlongs from the village, and, according to the site-plan, it is about four furlongs from the village. It does not appear to reason that a child of five or six years would go in a grove at a distance of two to four furlongs from the village before sun-rise. According to the case of the prosecution, the appellant Amar Singh is alleged to have been armed with a lathi and he pressed his lathi against the neck of the deceased, but this witness has, at one stage, stated that Amar Singh pressed his lathi against the neck of the deceased 'and, at another stage, she has stated that Amar Singh had a country made pistol and he fired at the deceased with his country made pistol. Considering her statement, as a whole, we find that, in all probability, she was not in the grove at the time of the occurrence. Her statement appears to be the result of influence of her father on her. The counsel for the appellants has placed reliance on the decision of the Supreme Court in State of Bihar v. Kapil Singh, ATR 1.969 SC 53, wherein the Hon'ble Supreme Court has held that there is always the danger in accepting the evidence of such witness who, under influence, can be coached to give out a version. We are of the opinion that this witness is giving statement as couched by her father Devi Dayal Singh. The other circumstances, which belie the statement of Devi Dayal Singh, also operate against her evidence. Another important aspect of this case is that Suryabhan, Indrapal and Gulab have been named in the first information report as witnesses of the occurrence. Devi Dayal Singh (PW 2) has also stated before the trial court that Suryabhan Singh and Indrapal had seen the occurrence, but the prosecution has not examined them. Another important aspect of this case is that Suryabhan, Indrapal and Gulab have been named in the first information report as witnesses of the occurrence. Devi Dayal Singh (PW 2) has also stated before the trial court that Suryabhan Singh and Indrapal had seen the occurrence, but the prosecution has not examined them. The witnesses examined by the prosecution in this case are partisan and interested witnesses and independent witnesses were named, but have not been examined. 7. When independent witnesses are available but they are not examined and the only interested and partisan witnesses are examined, there will be adverse inference against the prosecution. 8. Considering the totality of circumstances and unreliable witnesses that had been examined by the prosecution, we conclude that the prosecution 'has failed to prove its case beyond reasonable doubt. In the result, the appeal succeeds and is allowed. The conviction and the sentences awarded to the appellants are set aside. They are on bail. Their bail bonds are cancelled. Appeal allowed.