B. N. DASH, J. ( 1 ) THE accused-appellant Pankaj Naik has been convicted under Section 364, I. P. C. and sentenced to undergo rigorous imprisonment for 4 years by the learned First Additional Sessions Judge, Cuttack. ( 2 ) THE prosecution case, shortly stated, is that on 16-4-1990 at about 7 p. m. while Sanjaya Kumar Sahu, a boy aged about 9 years (P. W. 3) was going to witness 'ramleela' that was going to be staged in a rostrum located in the midst of his village Gholpur, the accused- appellant met him near a half constructed house of one Prafulla Raut and directed him to bring seven china roses (Mandar flowers) kept there and on his refusal to go there, the accused-appellant physically lifted and took him inside the said house, gagged his mouth and pressed his neck. On hearing the cry of P. W. 3 many villagers assembled at the spot and found the accused-appellant running away after scaling over a half constructed window of that house leaving P. W. 3 who was unconscious. Some villagers took P. W. 3 to his parents house whereas some others chased and apprehended the accused-appellant who thereafter was left in charge of the Gramarakshi of the village ( not examined ). On the next day i. e. , 17-4-1990 at about 1p. m. in the afternoon Kulamani Sahu (P. W. 2), the paternal uncle of P. W. 3 went along with P. W. 3 to Banki Police Station and lodged the First Information Report, Ext. 1/1. The police arrested the accused-appellant who was produced at the Police Station by the Gramarakshi and sent P. W. 3 and also the accused-appellant for medical examination inasmuch as both had sustained injuries on their persons. During investigation it came to light that at the instance of his coaccused Kishore Patnaik, the accused-appellant, for monetary gain, had kidnapped P. W. 3 in order that he may be sacrificed before a deity on some future date and accordingly after completion of investigation charge-sheet having been placed the accusedappellant faced trial for the offences punishable under Sections 364 and 307, I. P. C. , whereas his co-accused Kishore Patnaik was tried for the offences punisnable under Sections 364, 307 read with Section 109, I. P. C. ( 3 ) THE defence was one of complete denial. According to the accused-appellant, the case had been falsely foisted against him out of his previous enmity with villagers. No witness was, however, examined in support of the defence plea. ( 4 ) AT the trial, the prosecution examined as many as 6 witnesses out of whom P. Ws. 2 and 3 have already been introduced above; P. Ws. 1and 4 are said to be the immediate post occurrence witnesses and P. Ws. 5 and 6 are respectively the Medical Officer and the Investigating Officer. On a consideration of the entire evidence on record, the learned First Additional Sessions Judge believed the prosecution case in part mainly relying on the evidence of the victim P. W. 3 which, according to him, had been duly corroborated by the evidence of P. Ws. 1 and 4 and also the medical evidence. He recorded a finding that there was absolutely no evidence against the co-accused of the appellant and that the evidence against the accused-appellant that he attempted to commit murder of P. W. 3 was highly inadequate. Accordingly, while acquitting the co-accused of the appellant of both the charges and the accused-appellant of the charges under Section 307, I. P. C. , he convicted the accused-appellant under Section 364, I. P. C. and sentenced him as stated above. ( 5 ) MR. B. K. Nanda, the learned counsel for the appellant has contended that on the evidence on record, the accused could not be convicted for the offence punishable under Section 364, I. P. C. According to the learned counsel, the F. I. R. . Ext. 1/1 has not been proved and out of the witnesses named in the F. I. R. who arrived at the spot immediately after the alleged occurrence, two namely Kalamani Nath and Lakshman Behera were withheld from the witness box for no rhyme or reason and P. W. 4 Gundican Behera who was not named as a witness in the F. I. R. was examined. It is also pointed out by him that the learned First Addl. Sessions Judge had administered oath to the child witness (P. W. 3) without recording his observation that the witness understood the implication of oath and as such, the evidence of P. W. 3 should not be acted upon unless the same is thoroughly trustworthy and is corroborated by other evidence on material particulars. Sessions Judge had administered oath to the child witness (P. W. 3) without recording his observation that the witness understood the implication of oath and as such, the evidence of P. W. 3 should not be acted upon unless the same is thoroughly trustworthy and is corroborated by other evidence on material particulars. It is further pointed out by him that regard being had to the distance of the rostrum where Ramleela was scheduled to be staged which is hardly 100 feet and also to the fact that there were several houses nearby, the commission of the offence of the type alleged against the accused-appellant is not liable to be believed. With all these submissions, the learned counsel has strenuously urged for the acquittal of the accused-appellant. The learned Addl. Standing Counsel, on the other hand, supports the impugned judgment. ( 6 ) AS regards the proof of the F. I. R. , Ext. 1/ 1, it is seen that while the informant (P. W. 2) has stated that he verbally reported the incident to the police who reduced the same into writing, the evidence of the Investigating Officer (P. W. 6) is to the effect that a written report, Ext, 1/1 was produced before him True it is, that the author of the written report Ext. 1/1 has not been examined and as such the F. I. R. has not been duly proved. It is however, seen that the written report Ext. 1/1 has been admitted in evidence without any objection from the side of the defence. Ii view of that position, the defence cannot possibly take advantage of want of formal proof of the F. I. R. and contend that the prosecution case is liable to be disbelieved for non-proving of the F. I. R. ( 7 ) COMING to the direct evidence of P. W. 3, the victim, it is seen that at the time of his examination in Court he was aged 9 to 10 years and as such, a child witness. Before his examination the learned Addl. Sessions Judge has given a certificate after recording some answers to the questions put by him that the witness was able to understand the implication of the questions and was given rational answers. Before his examination the learned Addl. Sessions Judge has given a certificate after recording some answers to the questions put by him that the witness was able to understand the implication of the questions and was given rational answers. After recording such observation, oath ,was allowed to be administered to the witness without recording further observation that the witness was able to understand the duty of speaking the truth. In the case of Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547), it has been laid down by the Apex Court that oath is to be administered to child witness after recording an observation that the witness understood the implication of the questions and his duty of speaking the truth. When no such certificate has been given by the learned Addl. Sessions Judge, the statements of P. W. 3 recorded in Court cannot be treated as statements on oath, while assessing the statements of a child witness recorded in Court, care and caution have to be exercised by the Courts because such witness is apt to give statements as tutored by others. Such statements can. only be relied upon provided the same is corroborated by other evidence on material particulars. Keeping this principl in the background, let us examine the statements of P. W. 3 in Court. He has deposed that on the date and time in question while he was going to witness Ramaleela that was scheduled to be staged on a rostrum on the midst of his village, the accused-appellant asked him to go to a near by half constructed house to bring seven china roses (Mandar flowers) kept there and on his refusal to go there, the accused-appellant physically lifted and took him inside the half constructed house. He further goes on to say that the accused apellant gagged his mouth , pressed his neck and threw him there and then at the sight of many villagers coming towards that house the accused escaped through a half constructed window. Those persons who came there took him to his house. In his cross-examination it has been elicited that the witness is fond of Rasagolla and before coming to Court his lather and other family members gave him a Rasagolla which he ate and told him about the occurrence. Those persons who came there took him to his house. In his cross-examination it has been elicited that the witness is fond of Rasagolla and before coming to Court his lather and other family members gave him a Rasagolla which he ate and told him about the occurrence. If the witness was himself the victim, there was no necessity for his father and other family members to remind him about the alleged occurrence and as such, the statements given by this witness cannot be said to be free and voluntary. It is then to be found out how far the evidence of this witness has been corroborated by P. Ws. 1 and 4 as observed by the learned Addl. Sessions Judge. P. W. 1 had been named in the F. I. R. , Ext. 1/1 as a witness. He was a college student and was having tuition in his village. He has not supported the prosecution case for which he has been declared hostile by the prosecution and leading questions were put to him. His only evidence in support of the prosecution ease is that while returning from his tuition about eight months back he found that the accused Pankaj had been tied near the Dolabedi of his village and many persons have gathered there. His evidence does not disclose that he made inquiries from the villagers to know about the reason for tying the accused. From such evidence alone it can scarcely be said that his evidence corroborates the evidence of P. W. 3. P. W. 4 had not been cited as a witness in the chargesheet and he has not supported the prosecution case for which he has been declared hostile by the prosecution. His only evidence is that on the date and at the time in question while he was fixing electric bulbs near the rostrum where Ramaleela was scheduled to be staged, he heard somebody crying inside the half constructed house of Prafulla Kumar Rout and on hearing such cry, he along with many other villagers went there and found P. W. 3 lying inside a room in senseless condition. His further evidence is that the villagers brought P. W. 3 and handed him over to his father. His further evidence is that the villagers brought P. W. 3 and handed him over to his father. His evidence is that he saw P. W. 3 lying in a senseless condition cannot be believed because P. W. 3 has himself not stated that he became senseless as a result of the alleged action of the accused - appellant. It is, thus, seen that the evidence of P. Ws, 1 and 4 do not lend corroboration to the evidence of P. W. 3. ( 8 ) IT is then to be examined how far the evidence of P. W. 3 is corroborated by the medical evidence of P. W. 5. According to P. W. 5, he examined P. W. 3 on 17. 4-90 at 5. 40 P. M. on police requisition and found one bruise, 2" x 2'', on his left shoulder and another bruise, 2'' x l'', on the left side of the neck. The injuries were simple in nature, their age was within 24 hours at the time of his examination and the same was possible in case of fall and strangulation by hand. P. W. 3 has not deposed as to how his neck had been caught when the same was allegedly pressed. If it is taken that his neck had been held by more than one fingers, it is but natural for one to expect that he should have received injuries on both sides of his neck instead of one side as deposed to by the medical officer. So, in my opinion, the medical evidence also does not corroborate the evidence of P. W. 3. ( 9 ) HAVING discussed as to how the evidence of P. W. 3 has not been corroborated either by P. Ws. 1 and 4 or by the medical evidence, I find that there are broad probabilities which strongly militate against the prosecution case. It is clear from the evidence of the Investigating Officer (P. W. 6 that the rostrum on which the Ramaleela was scheduled to be staged on that evening was hardly 100 feet away from the half constructed house where the alleged occurrence took place and there were the residential houses of Chandramani Das, Rabi Das and Golakh Betal adjoining the half constructed house. It is also seen from the evidence of P. W. 3 that many persons were coming on the road to witness the Ramaleela. It is also seen from the evidence of P. W. 3 that many persons were coming on the road to witness the Ramaleela. When all these facts are taken into consideration, it is idle to expect that the accused-appellant should have selected that place to kidnap P. W. 3 to that half constructed house when there was every possibility of his evil design being foiled by the villagers on hearing alarm of P. W. 3 which he must have expected. This is the first telling circumstance. The second circumstance is that if according to the prosecution, P. W. 3 was to be sacrificed some days later, there was no justification for the accused-appellant to behave in the way he has allegedly behaved. The last circumstance is furnished by the evidence of P. W. 2, the uncle of P. W. 3. His evidence is that on the date and time in question while he was returning to his house after his days' work he found his co-villagers talking about the incident, but curiously enough he has candidly admitted that on his return to the house he did not ask anything about the incident to P. W. 3. This conduct of P. W. 2 rather suggests that because nothing untoward happened to P. W. 3 he did not ask anything about the incident to him. ( 10 ) IN view of the above, I am unable to agree with the learned First Additional Sessions Judge that the evidence of P. W. 3 is trustworthy and his evidence finds corroboration from the evidence of P. Ws. 1 and 4 and the medical evidence. On the other hand, in view of the circumstances militating against the prosecution case and also the fact that the evidence of P. W. 3 which is itself not trustworthy has not been corroborated by other evidence on material particular, I hold that the prosecution has failed to prove his case beyond all reasonable doubt. The ultimate conclusion of the learned First Additional Sessions Judge has become erroneous for his having failed to take note of the aforesaid salient features in the evidence on record. ( 11 ) IN the result, the appeal is allowed, the order of conviction and sentence passed against the accused-appellant is hereby set aside and he is acquitted. The bail-bond filed by the appellant stands cancelled. Appeal allowed. .