Judgment DHARAMPAL SINHA and P.K.SARIN JJ. 1. By the judgment and order dated 7-7-1993 passed by Sri Akhilesh Chandra, 11th Additional Sessions Judge, Gaya, in Sessions Trial No. 331 of 1991/111 of 1992 the sole appellant, Kapil Deo Prasad alias Mithilesh Prasad of Cr Appeal No. 329 of 1993 has been convicted under Sections 302, 201 and 307 of the Indian Penal Code (hereinafter referred to as the Code). For the offences punishable under Section 302 of the Code he has been sentenced to capital punishment, for the offences punishable under Section 201 of the Code he has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000 (one thousand) and in default of payment thereof to undergo rigorous imprisonment for a further period of six months and for the offences punishable under Section 307 of the Code to undergo rigorous imprisonment for life. The 11th Additional Sessions Judge has made a reference (D.R. 5 of 1993) for confirmation of the sentence of death and the convict has preferred the appeal being Cr Appeal No. 329 of 1993 against the judgment. Both have been heard analogoushand this judgment will govern both the cases. 2. It appears that the case had been initiated on the basis of Fardbeyan which had been recorded on the statement of a Chaukidar, Rameshwar Paswan (PW 1;. According to the prosecution case, five persons of the same family, namely, Ram Prasad, bis wife Sita Devi, his mother Sona Devi, his daughter Baby Kumari and son Sanjiv Kumar, were done to death by mean6 of sword when they were sleeping in their house situated at village Kumbhi, Police Station-Roshanganj, in the district of Gaya, at about midnight in the night between 3rd and 4th April, 1990, and and the house was also set on fire. During the occurrence Pradeep Kumar, another son of Ram Prasad, had also been given blows with sword several times but he could escaDe. It was said that this appellant, who happens to be the brother of Ram Prasad, had some land dispute with his brother Ram Prasad, due to which he had caused the death of five members of Ram Prasads family and injured Pradeep Kumar by means of sword. 3. It was said that this appellant, who happens to be the brother of Ram Prasad, had some land dispute with his brother Ram Prasad, due to which he had caused the death of five members of Ram Prasads family and injured Pradeep Kumar by means of sword. 3. A Chaukidar, PW 1 on hearing commotion about fire, had gone to the place of occurrence and found that the house had been put on fire and some persons of the village had extinguished the same. Pradeep Kumar who could escape death, was there. Prardeep was later treated of his injuries at a hospital. On the basis his Fadbeyan recorded on the statement of the Chaukidar the first information report was recorded and the Police took up investigation and eventually submitted charge sheet against the appellant. The appellant was then put on trial and it appears from the lower court records that the trial had a chequered history. At first three witnesses had been examined by the prosecution, namely, Rameshwar Paswan, the Chaukidar who is informant in this case, one Mohammad Islam and Govind Mistry, both of whom did not support the prosecution case and declared hostile. Later, however, the trial court throught it necessary to bring on record the evience of some other witnesses. It appears that later Pradeep Kumar was examined as Court witness No. 1, one Baijnath Mahto as court witness No. 2, Jagdish Mahto as Court witness No. 3 and Barhan Parswan as court witness No. 4. Subsequent to that other two witnesses, who are doctors, namely. Dr. Mukti Nath Singh and Dr. Yadu Nandan Prasad Sinha, had been examined as court witnesses No. 5 and 6. Out of the court witnesses examined, CW 3 and CW 4 did not support the prosecution case and were declared hostile. Out of the two doctors, CW 5 had done post mortem examination on the dead bodies of the five deceased and had prepared post mortem reports which are Exhibit 2 series. CW 6, the other doctor, had examined Pradeep Kumar of his injuries and had prepared the injury report which is Exhibit 3. 4. CW 1, Pradeep Kumar, supported the prosecution came against this appellant and figured as an eye-witness of the occurrence. CW 2, Baijnath Mahto, figured as a witness of seizure of some articles. CW 6, the other doctor, had examined Pradeep Kumar of his injuries and had prepared the injury report which is Exhibit 3. 4. CW 1, Pradeep Kumar, supported the prosecution came against this appellant and figured as an eye-witness of the occurrence. CW 2, Baijnath Mahto, figured as a witness of seizure of some articles. The learned trial court, after considering the evidence and mainly relying on the evidence of PW 1 Chaukidar, the evidence of CW 1, Pradeep Kumar, and the two doctors, CW 5 and CW 6, came to the finding that the appellant had been responsible for the killing of the five persons and injuring Pradeep Kumar and the appellant had also put the house on fire^in order to conceal his guilt and, accordingly, the learned trial court had convicted the appellant for the offences and passed sentences as already indicated above. 5. During the hearing of the reference case and the appeal it has not been disputed that the five persons had been killed while they were in the house of Ram Prasad at the alleged time and there is also ample evidence of fact as disclosed from the evidence of CW 5 and CW 6 and the post mortem reports prepared by him, Exhibit 2 series. From the evidence and the report, it would appear that the ante-mortem injuries found on the dead bodies were incised wound and were possible by means of sword. The evidence of the other doctor, CW 6, ard injury report, Exhibit 3, would also indicate that six injuries had been caused on the person of Pradeep Kumar, The doctor has described the injuries on him as follows : "(1) one incised wound on right side of the face cutting skin muscles and mandible bone 8 cm X 3 cm X bone deep. (2) One incised wound on left side of face 6 cm X 2 cm X bone deep. (3) One incised wound on chin 4 cm X 1 cm X muscle deep. (4) One incised wound on left check 10 cm X 3 cm X 3 cm cutting pinna. (5) One incised wound on left fore-arm 10 cm X I cm X skin. (6) One incised wound on left writs 10 cm X 2 cm X skin." 6. (3) One incised wound on chin 4 cm X 1 cm X muscle deep. (4) One incised wound on left check 10 cm X 3 cm X 3 cm cutting pinna. (5) One incised wound on left fore-arm 10 cm X I cm X skin. (6) One incised wound on left writs 10 cm X 2 cm X skin." 6. In view of this evidence on the record neither side had disputed the fact that the murderous attempt had been done on Pradeep Kumar by sharp edged weapon and five persons had been done to death by use of sharp edged weapon. 7. Mr. Anjana Prakash, appearing amicus curiae and the learned counsel for the appellant, have assailed the finding of the trial court hold- the appellant guilty of the offence punishable under Section 302 of the Code by raising several contentions;. In the first place, it has been pointed out that the Fardbayan recorded on the statement of the Chaukidar, PW 1, has not been brought on record, and so the first version of the occurrence has not been made available to the Court, Another contention of learned counsel is that because of non-examination of the Police Officer, who investigated into the case, great prejudice has been caused to the appellant inasmuch as some ficts, that the investigating Offieer had found, at the place of occurrence, would appeal to be such as could falsify some part of the statement made by child witness, Pradeep Kumar. Another contention of the learned counsel and strong contention is that the evidence of Pradeep Kumar, who is sole eye-witness of the occurrence, is not fully reliable and it is not of such a quality as would justify conviction on sole basis of testimony, particularly when there is absolute lack of corroboration from any other evidence regarding his evidence, implicating the appellant in the occurrence. These contentions have been some what elaborated by making references to some aspects or the other of the case, to be noticed later. 8. On the other hand, the learned counsel appearing on behalf of the prosecution, has contended that Pradeep Kumar undoubtedly was the eye-witness of the occurrence and had himslf been injured when he was present in the house in which the occurrence had taken place and there is no reason why he will falsely despose against his own uncle, the appellant. On the other hand, the learned counsel appearing on behalf of the prosecution, has contended that Pradeep Kumar undoubtedly was the eye-witness of the occurrence and had himslf been injured when he was present in the house in which the occurrence had taken place and there is no reason why he will falsely despose against his own uncle, the appellant. It is also submitted that due to non-examination of the Police Officer, wno investigated into the case, no prejudice can be said to have been caused, because there is nothing in the evidence of Pradeep Kumar to show that he had been confronted with his earlier statement before the Police which was contrary to the statement made by him before the court. 9. The point that arises for consideration in this appeal, in view of the contentions raised, is whether or not the finding of the learned trial court holding the appellant, Kapildeo Prasad alias Mithlesh Prasad, guilty for the offences punishable under Sections 302, 307 and 201 of the Code is proper and justified on the evidence on the record. 10. The most crucial evidence in this case obviously is of Pradeep Kumar and it is, therefore, worthwhile to notice here what Pradeep Kumar had stated before the trial court. He stated that his father, mother, sister, brother and also his grand-mother had been killed about two years (before he had deposed) and the time of killing was night He was sleeping in the house with his parents and all others who had been killed. He said that his mother, father and brother slept in separate rooms but later he said that his father was sleeping in a Dhaba (verandah) and it was a day of Ramnavmi. According to him, he woke up on hearing the shout of his sister and then he saw his uncle that is the appellant, K lpildeo Prasad alias Mithlesh Prasad (who happens to be the full brother of Ram Prasad, the father of the witness) assaulting his father with sword. According to this witness, his uncle killed his mother by sword and also killed his elder sister named Baby and younger brother, and all with sword. This witness stated that he was seeing this from Dhaba. His evidence indicates that he was sleeping in Dhaba with his grand-mother. According to this witness, his uncle killed his mother by sword and also killed his elder sister named Baby and younger brother, and all with sword. This witness stated that he was seeing this from Dhaba. His evidence indicates that he was sleeping in Dhaba with his grand-mother. Hit; evidence further shows that he himself was also assaulted by his uncle, Kapildeo Prasad alias Mithlesh Prasad, with sword ; and his grand-mother was also given blow of sword, according to this witness, by the appellant. 11. His further evidence is to the effect that this witness concealed himself in a Choraon which is behind the house. Ha could not recall how many times he had been struck with sword by the appellant and, according to him, his uncle had covered him with a gendra (a sort of bedding). We further find from his evidence that when his uncle (appellant) went away he got out from the hidden place (choraon) and went to the door of an agnetic grand-mother (Chacheri Dadi) and from there he went to Barhi whereafter his Mama (maternal uncle) carried him to Sherghati for treatment and thereafter to maternal grand mothers place. His evidence show that some stichinjg of his wound had been done and some injections had also been given during the course of his treatment in the hospital where he remained for one month. After discharge from that place, he according to his evidence, webt to his Nanis place. 12. It appears that he was recalled for re-examination by the prosecution and during this re-examination he said that with the appellant there were three more ersons, two of whom were flashing torch and the third one was carrying an axe. Only the uncle of this witness, according to his evidence, was, hpwever, the assailant. His evidence, after recall, indicate that he had also become unconscious and his body had become drenched with blood. His evidence further show that he could see only his agnetic grand-mother in the morning and no other neighbour, according to his evidence, had come. His evidence further show that he had been completely frightened due to assault and, therefore, he had hidden himself in Choraon. He could not give the duration in which the occurrence had taken place. His evidence further show that he could see only his agnetic grand-mother in the morning and no other neighbour, according to his evidence, had come. His evidence further show that he had been completely frightened due to assault and, therefore, he had hidden himself in Choraon. He could not give the duration in which the occurrence had taken place. His cross-examination shows that he had been sleeping with his grand-mother in the house and he remained in the Dhaba during the whole of the period of assault. At the end of his cross-examina- tion he 6eems to have stated that he could not say whether the appellant had covered his face or not (at the time of occurrence). 13. Before commenting on evidence of this witness in the light of contentions raised, mention may be made of the evidence of Chaukidar, PW 1, who is the only witness who ciaims to have gone the place of occurrence in the night of occurrence, though, after the occurrence of assault and setting the house a fire. The evidence of the Chaukidar, PW 1, indicates that he was the Chaukidar, and village Kumbhi was witnin the area of territorial limits of his Chaukidari. He deposed that when he was on round he heard the alarm of Mukhiya to the effect that in village Kumbhi a house had been put on fire. This Chaukidar claimed to have gone to village, Kumbhi, along with Mukhiya and others and found that the house of Sheobrat Mahto (father of the appellant and deceased Ram Prasad) was ablazed and people were extinguishing the fire. The witness says that after the fire was extinguished he along with others entered into the house and then they saw the deadbodies of Ram Prasad, and the wife, daughter, son and mother (of Ram Prasad). According to him, there were marks of cut with some weapon on the dead bodies. This Chaukidar has further deposed that a json of Ram Prasad was also injured but he had run away from the house and he was found near a pyne (water reservior). This witness had stated that he had gone to the Police Station to lodge information and a Sub-Inspector of Police came and before him he gave his statement. This Chaukidar has further deposed that a json of Ram Prasad was also injured but he had run away from the house and he was found near a pyne (water reservior). This witness had stated that he had gone to the Police Station to lodge information and a Sub-Inspector of Police came and before him he gave his statement. The evidence of this Chaukidar shows that Ram Prasad and the appellant were brothers and some dispute relating to some property was going between them. He has further deposed that people of Kumbhi were talking amongst themselves that Kapildeo might have caused the death. His cross-examination shows that there was no case instituted relating to the dispute between the appellant and Ram Prasad and he himself had not seen aniy quarrel between them. His evidence only show that some others) of the village had been talking about the dispute. No other person, however, had been examined to say that there was a dispute between the appellant and Ram Prasad. It may be mentioned here that the Fardbayan, which is said to have been recorded on the basis of the information lodged by the Chaukidar, has not been brought on the record. 14. As regards the other evidence, which has been brought on the record, it appears that PW 2, Md. Islam, and PW 3, Gobind Mistry were declared hostile and the prosecution did not place any reliance on them. CW 2, Baijnath Mahto, is a witness of seizure of some articles. This evidence indicates that after occurrence of killing of the parents and brother, sister and grand-mother of Pradeep, the Sub-Inspector of Police had seized some burnt articles and a two-cell torch and prepared a seizure list on which this witness along with others had put their signatures. His cross-examination shows that his signature on the seizure list had been obtained the Police Station. In any case his evidence does not indicate anything to show as to who had been responsible for setting fire to the house. CW 3, Jagdish Mahto, and CW 4, Barhan Paswan, were also declared hostile. His cross-examination shows that his signature on the seizure list had been obtained the Police Station. In any case his evidence does not indicate anything to show as to who had been responsible for setting fire to the house. CW 3, Jagdish Mahto, and CW 4, Barhan Paswan, were also declared hostile. It is sufficient to mention here that except that of Pradeep (CW 1) the evidence of none of the witnesses examined either as the prosecution or as a court witness, throws any light as to who had been responsible for the ghastly acts of causing death of so many persons and injuring Pradeep Kumar. Only the evidence of Pradeep Kumar appears to tt late to the question as to who has been responsible for causing the death and injuring the Pradeep Kumar. As noticed above, it is indicated from what Pradeep Kumar has deposed that the appellant had been responsible for causing the death of all the deceased and injuring Pradeep Kumar and the crucial question is whether the evidence of this witness, Pradeep Kumar, can be said to be fully reliable and of such standard as would justify holding the appellant guilty of the offences punishable under Section 302 of the Code for causing death of five persons or under Section 307 of the Code for attempting to cause death of Pradeep Kumar as has been held by the trial court. 15. On a careful consideration of the evidence and the submissions, we are definitely of the opinion that there are certain such infirmities in the evidence which, in our opinion, taken together would at least justify giving a benefit of reasonable doubt to the appellant. In the first place, it is not stated by Pradeep Kumar if he had disclosed to any one either his agnetic grand mother, whom he first met or his maternal uncle or maternal grand mother, to whom he met later about the appellant causing the death of his parents and his brother, sister and grand mother. No other witness has come forward to say that Pradeep Kumar had disclosed the name of the assailant to him immediately or soon after. The Chaukidar, no doubt, had said that one son of Ram Prasad had been injured but according to him he had escaped away towards pyne. 16. No other witness has come forward to say that Pradeep Kumar had disclosed the name of the assailant to him immediately or soon after. The Chaukidar, no doubt, had said that one son of Ram Prasad had been injured but according to him he had escaped away towards pyne. 16. We may notice, in this connection, the learned counsel for the appellant pointed out that in the Fardbayan, which has not been brought on the record, a different story had been given by the Chaukidar and since the Fardbayan has not been brought on the record the defence could not be able to show that what Pradeep Kumar had stated as to what he had done, Soon after the occurrence is different from what the Chaukidar had given in his Fardbayan. In any case, since the Fardbayan has not been brought on the record, we are inplined to accept the contention that initial version of the occurrence, as disclosed, is not before the court and this is also an infirmity in the prosecution evidence, may be a serious lacuna. The evidence of Pradeep Kumar further shows that it was a dark night. In the dark night it was not possible for him to see the various assaults allegedly made by the appellant on the different victims of the occurrence. His evidence before the recall indicates that only one person, the appellant, was involved in the occurrence but from his evidence after recall it appears that three other persons were there ; two of whom were flashing torch. Even assuming that some others were flashing torch even then it was not probable for Pradeep Kumar to see the assault on all the persons allegedly done by the appellant because, according to the evidence of Pradeep Kumar, some of the the victims had been sleeping in separate rooms while this witness remained in the Dhaba throughout and he was sleeping in the Dhaba with his grand mother, per his evidence. 17. In this connection, it has been pointed out by the learned counsel for the appellant that from description of the place of occurrence given by the Investigating Officer it would have appeared that some of the dead bodies, namely, the dead body of the brother and sister of Pradeep Kumar were found in a room by the Investigating Officer, when he had visited that place. According to the contention of the learned counsel if the Investigating Officer would have been examined, the defence could be able to show that what Pradeep Kumar said about seeing assault by this appellant on brother and sister was not probable as he could not have been able to see assault on them when they were in room and Pradeep was in Dhaba and in that way this witness could be discredited. According to the contention prejudice in this regard has been caused to the defence for non-examination of the Investigating Officer. We think there is some force in this contention. 18. As regards motive of the occurrence there appears to be no evidence to show that there was enmity between the appellant, on one hand, and his brother, Ram Prasad, the deceased, on the other. Of course the Chaukidar had stated about it but he definitely admitted that he himself did not see any quarrel between them and that there was no case between them. According to them some other had been talking about this but none other had been examined on that point which could show that there was dispute between the appellant and Ram Prasad. 19. We may notice also, in this connection, that apart from lack of motive it is not quite understandable as to why the appellant would have killed even his mother, who was one of the victims of the occurrence. So, besides the lack of proof of motive there is also some improbability in the evidence of Pradeep Kumar in this regard. 20. It may also be noticed that no person of the neighbourhood had come forward even to support the story given by Chaukidar that the house was on fire and some persons had extinguished the lire whereafter the dead bodies were seen. Significantly, Pradeep Kumar has not stated a word about setting of fire or that the house was ever put on fire. To us, it appears that the evidence of Pradeep Kumar cannot be given credence for this reason also. It is not also clear from the evidence as to when Pradeep Kumar had been examined by the Investigating Officer. The evidence of Pradeep Kumar does not show that he was ever examined by the Police Officer. To us, it appears that the evidence of Pradeep Kumar cannot be given credence for this reason also. It is not also clear from the evidence as to when Pradeep Kumar had been examined by the Investigating Officer. The evidence of Pradeep Kumar does not show that he was ever examined by the Police Officer. His evidence only shows that after escaping from the house and concealing himself in the Choraon he left the place, after departure of the culprits, and went to his agnetic grand-mother and from there to Barhi and then to the hospital. There is no indication in his evidence that he was examined by the Investigating Officer and on what time. Of course, if one will look into the case diary it will appear that he was examined after about four weeks, but that case diary cannot be part of the record, and belated examination of such a witness who was the only survivor among the occupants of the house, will itself show an impropriety in the investigation. 21. So it appears that the evidence Pradeep Kumar the solitary child witness in this case, suffers from so many infirmities and there is absolute lack of corroborating from any other evidence on the record. As regard child witness, we may notice here observation, made in the case of Jalwanti Lodhin V/s. State, AIR l953 Pat 246 in which the proposition laid down in a previous case have been quoted with approval, which reads as follows : "It may be that according to the provisions of Section 118, Evidence Act, she was a competent witness to give evidence in court, as, it appears from her deposition, she could understand the questions put to her and give rational answers thereto, but it has justly been laid down in Darpan Patdarnin V/s. Emperor, AIR 1938 Pat 153, that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. I would rather go further and advise closer scrutiny of the evidence of child witnesses before the same is accepted by a court of law. I would rather go further and advise closer scrutiny of the evidence of child witnesses before the same is accepted by a court of law. Kenny has observed in his outlines of Criminal Law at page 420 (1952 edition) that children are a most untrustworthy class of witnesses, and it is found from common exprience that they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, although intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy. His observations have been adopted by a Division Bench of the Lahore High Court in Abbas Ali V/s. Emperor, AIR 1933 Lah 667. Children, in the age of about seven are in a stage of maturation when the higher mental process are forming. They are then creatures of will, motion and action and some times subjected to hallucinations and illusions. Karl Buhler in bis book, The Mental Development of the Child, has said at page 85 : The fibs of childhood are known to every one. A little mite of 3 or 4 will tell us in all seriousness that he has met a bear on his walk and the like. These things must not be regarded as serious moral lapses, for the child has a vivid imagination and often cannot distinguish memories from events which have been merely imagined." 22. Since, in this case so far as the implication of the appellant is concerned, there is solitary evidence of Pradeep Kumar, a child witness, as we have noticed above and since his evidence appears to suffer from infirmities pointed out above. We are inclined to hold that he is not fully reliable witness and his evidence cannot be considered to be of such standard or quality as would justify holding the appellant guilty of the offences on which the trial court has convicted him. We are definitely of the view that the appellant must be given at least benefit of reasonable doubt. We are definitely of the view that the appellant must be given at least benefit of reasonable doubt. Accordingly, we decide ihe point in favour of the appellant, holding that the finding of the trial court holding the appellant guilty of the offence punishable under Sections 302, 307 and 201 of the Code is not justified and the convictions as well as the sentences of hanging him by neck for the offence punishable under Section 302 of the Code as also the sentences passed for the latter offence have to be set aside. We, accordingly, allow this appeal and set aside the findings of the trial court. The appellant is hereby acquitted of all the charges. The reference of the trial court for confirming the sentenee of death is not accepted. The appellant shall be set at liberty at once unless wanted in any other case. Reference rejected and appeal allowed.