( 1 ) THE present appeal is directed against the order of conviction and sentence dated 16-6-80 recorded by the IInd Additional Sessions Judge, Nainital, in S. T. No. 296 of 1979, the learned trial Court found the two appellants guilty for an offence under Sections 302/34, I. P. C. and sentenced them to life imprisonment. On presentation of the appeal the appellants were released on bail by this Court by an order dated 19-6-80. ( 2 ) THE case was initiated when Case Crime No. 32 of 1979 under Section 302, I. P. C. was lodged through an F. I. R. dated 2-5-79. The incident alleged in the F. I. R. took place at village Kusumkhera, police station Haldwani, district Nainital, at about 7. 00 p. m. The report was made same night at 12. 15 and in the F. I. R. the distance of the place of the occurrence was shown as 7 kilo meters from the police station. The two appellants were named in the F. I. R. It was stated in the F. I. R. that Kanti Ballabh, the son of the complainant, had some enmity with the appellant Ganga Singh since some time past. Kanti Ballabh was a student in Gandhi Inter College, Haldwani, and so was Ganga Singh, Rivalry developed in the school itself. On the date of the incident, Kanti Ballabh had gone to Haldwani Bazar on a cycle for delivering milk. Normally he used to go by that time and used to come back by 6. 00 p. m. When he did not return within the usual time his father along with one Keshav Dutt, Up-Sabhapati of the Panchayat, came out in search of Kanti Ballabh. When they reached near Kusum Khera, they saw Kanti Ballabh being assaulted by Ganga Singh and his brother Kheem Singh with stones. Kanti Ballabh was found in a pool of blood on the ground. The complainant and Keshav Dutt raised alarm. Kesher Singh and Laxhmi Dutt of Kushumkhera reached the spot. These two persons also saw the assault on Kanti Ballabh by Ganga Singh and Kheem Singh by means of stone. Thereafter Ganga Singh and Kheea Singh fled away. Kanti Ballabh was found dead. The cycle was standing near by with the milk cans. This report was written by Laxmi Dutt and was signed by Narain Dutt. These two persons also saw the assault on Kanti Ballabh by Ganga Singh and Kheem Singh by means of stone. Thereafter Ganga Singh and Kheea Singh fled away. Kanti Ballabh was found dead. The cycle was standing near by with the milk cans. This report was written by Laxmi Dutt and was signed by Narain Dutt. He was asked at the time of the lodging the F. I. R. as to when the incident had happened, the time was given as 7. 00 p. m. He was asked as to why there was a delay in lodging the F. I. R. It was stated that conveyance was not available and arrangements were to be made for keeping watch on the dead body and that had caused the delay. ( 3 ) THE Investigating Officer proceeded to the spot, took charge of the cycle and the case, made a panchayatnama, sent the deadbody for post mortem examination, visited the spot and made a site plan, seized the blood-stained earth, clothes and stones and went to the house of the accused Ganga Singh and arrested him. A confession was allegedly made before him by Ganga and on his further question Ganga indicated to him the place where his own clothes were concealed and he took them out and stated that these were the clothes he was wearing at the time of the incident. The clothes allegedly bore blood marks. The blood-stained articles were sent for chemical examination and the Chemical Examiner confirmed presence of blood thereon. Witnesses were examined and charge sheet was submitted and the accused persons were committed to the Court of Session. ( 4 ) TO prove the case, the prosecution had examined 12 witnesses. P. W. 1 was Keshav Dutt. According to the F. I. R. this witness had accompanied the complainant to search out Kanti Ballabh. This witness had stated in Court that on the relevant date, at about 8. 30 p. m. the complainant had called him and he informed him that his son had not come back and on his request he went to search Kantiballabh along with Narain. When they reached near the field of Brij Mohan they found the deadbody of Kanti Ballabh in a pool of blood on the kaccha road. The witness stated that he did not see the assault or the assailants. When they reached near the field of Brij Mohan they found the deadbody of Kanti Ballabh in a pool of blood on the kaccha road. The witness stated that he did not see the assault or the assailants. He denied to have made any statement to police under Section 161, Cr. P. C. He has further stated that after seeing the deceased, they had raised an alarm which attracted other persons. The witness was declared hostile. ( 5 ) THE second witness is the complainant, Narain Dutt. He supported the F. I. R. version and stated that he had called Keshav Dutt and both had gone out in search of Kanti Ballabh. It was 7. 00 p. m. when they saw two accused persons assaulting Kanti Ballabh with stones. The victim was lying on the ground. On the alarm of Narain and Keshav, Laxmi Dutt and Kesher Singh arrived there and they had also seen the assault. The report was written through Laxmi Dutt and was read over to Narain who signed on it and then took it to the police station. As an explanation for the delay it was indicated in the statement of the witnesses in Court, that as he was not feeling well, there was the delay in lodging the F. I. R. His cross-examination indicated that Haldwani was only 31/2 kilometers from the place of the incident. It was only 7. 00 p. m. and it was a summer day of May. It was not impossible, therefore, to have day light of the setting sun at that point of time. He claims to have seen the incident from a distance of 25 to 30 steps. He had stated that stones were not pelted at this son, rather the accused persons were holding stones to hit on him. He stated that he lost consciousness looking to the ghastly incident. The report was written at the spot itself and after about two hours when he regained consciousness he went to the police station on a tractor. ( 6 ) P. W. 3 is an eye-witness Navin Chandra, who was aged about 9 years on the date of his examination on 1-4-1980. He should have been aged about 8 years on the date of the incident. He had stated on 1/05/1979, at about 7. 00 p. m. he was coming back to village Charail after delivering milk at Haldwani. He should have been aged about 8 years on the date of the incident. He had stated on 1/05/1979, at about 7. 00 p. m. he was coming back to village Charail after delivering milk at Haldwani. He claim that he saw the accused persons assaulting Kanti Ballabh with stones on his head. Due to fear he went away but the accused persons went on assaulting him. His evidence indicates that Kanti Ballabhs house was 10 to 11 huts away from his. It took him 15 minutes to reach home on a cycle from the place of the occurrence. He did not meet anybody on the way. At home also he did not narrate the incident even to his parents for four days. He claims that about 20 blows were given to the victim in course of two minutes for which he had seen the incident. ( 7 ) P. W. 4 was a formal witness on the point of Panchayatnama. P. W. 5, Manorath, was a witness of arrest of Ganga Singh, he spoke of the alleged confession before the police by Ganga, on questions by the Investigating Officer. He also spoke about recovery of blood-stained clothes of Ganga at his pointing out. P. W. 6, Tula Ram, is a witness on the point of seizure of blood-stained stone pieces from the spot. ( 8 ) P. W. 7, Laxmi Dutt, was a witness named in the F. I. R. of his having come to the spot and having seen the incident. This witness, however, stated that he did not see the assault. According to him at about 9. 00 p. m. he went to the spot on hue and cry and found Narain Dutt and his wife crying and their son was lying dead. He has proved the written report that was lodged at the police station, he was declared hostile and was confronted with his previous statement. ( 9 ) P. W. 8, Dr. S. P. Mittal, held the postmortem examination on the deadbody of Kanti Ballabh. There were 12 injuries noted by him and he opined that the two stones seized by the police at the spot, could be the weapons of assault and if the head was hit by these stones, death was possible. The injuries No. 3 to 12 were simple and not on vital parts. The injuries Nos. There were 12 injuries noted by him and he opined that the two stones seized by the police at the spot, could be the weapons of assault and if the head was hit by these stones, death was possible. The injuries No. 3 to 12 were simple and not on vital parts. The injuries Nos. 1 and 2 were on the head and death was due to shock, haemorrhage and coma caused by the head injury. P. Ws. 9, 10 and 11 were again formal witnesses. P. W. 12 was the Investigating Officer, he proved the panchayatnama the factum of seizure and arrest and recovery. He also proved the previous statements of the two hostile witnesses Keshav Dutt and Laxmi Dutt. ( 10 ) THE accused persons were examined under Section 313, Cr. P. C. and it was stated that they were falsely implicated. ( 11 ) THE learned trial Court had no doubt wrongly allowed the evidence of confession before the police to come on record but the judgment makes it clear that he had rightly discarded this evidence as inadmissible. The evidence that have been brought on record are the statements of Narain and Navin and the alleged recovery on the statement of Ganga Singh which the learned Court below had relied on under Section 27 of the Evidence Act. The learned Court below had also wrongly opined that the blood found on the stones etc. and the clothes of Ganga was of human origin. The chemical examiners report simply stated that marks were of blood but there was no indication that it was human blood. ( 12 ) SO far two eye-witnesses are concerned, we may take up the evidence of the child witness P. W. 3, Navin Chandra, he was not named in the F. I. R. as a witness. He was a boy from village Charail and so was the complainant. According to him he saw the incident at about 7. 00 p. m. and he proceeded towards Charail. The complainant was also approaching the place of the occurrence at about 7. 00 p. m. It was not necessary that the complainant and this witness should have seen the incident at the same time, but when both of them claim to be near the spot at about 7. 00 p. m. and he proceeded towards Charail. The complainant was also approaching the place of the occurrence at about 7. 00 p. m. It was not necessary that the complainant and this witness should have seen the incident at the same time, but when both of them claim to be near the spot at about 7. 00 p. m. , it was but natural that Navin should have been seen moving towards village Charail when Narain and Keshav were approaching the place of the incident. Naving Chandra clearly stated in his deposition that while going home after the incident he did not meet anybody on the way. He was a boy of eight and it is uncommon that a boy of such tender age would be allowed to go on a cycle to a distant. Bazar to deliver milk. It is true that the nature of the incident would certainly frighten him, but the natural course of conduct should have been that on reaching home he would narrate about this unusual incident to his parents. He clearly admitted that for four days he kept mum and did not tell even his parents about the incident. He told about the incident to the police even two days thereafter. A Court must always be very careful to deal with a child witness. It is a common knowledge that a child may be tutored in a manner to state about fact as if he had seen it. The evidence must be cross checked with the attending circumstances and one of them is that he did not meet even Narain and Keshav who were appraoching the place of the occurrence from the village and he did not narrate about the incident even to his parents. It would have been most natural for him to have told about the incident to his parents as Kanti Ballabh was a neighbour living a few huts away. ( 13 ) SO far the complainant, Narain Datt, is concerned it was natural for him to be anxious when his son did not return by the usual time. But it appears to be a strange coincidence that the assailants would wait for his arrival till 7. 00 p. m. The son was already delayed and the assault could not be the intervening factor for which delay was caused. But it appears to be a strange coincidence that the assailants would wait for his arrival till 7. 00 p. m. The son was already delayed and the assault could not be the intervening factor for which delay was caused. According to him, he went along with Keshav Dutt at about 7. 00 p. m. and Laxmi Dutt also came there on their alaram. Keshav Dutt fixes the time on arrival at 8. 30 p. m. and Laxmi Datt fixes the time at 9. 00 p. m. When he had gone there. Laxmi Dutt goes further to say that when he had gone both Narain and his wife were there at the spot. Although Laxmi Dutt and Keshav Dutt had been declared hostile their versions appear to be probable. Had they gone at 7. 00 p. m. they must have met the boy Navin Chandra on the way. Moreover, the assailants would not have waited for the witnesses to come. It rather appears plausible that the parents of Kanti Ballabh, on information of his murder had gone to the spot. It is not impossible that some unknown persons had killed Kanti Ballabh and a known enemy has been named. One other factor is also relevant in this connection. The cycle was found in a standing position near the deadbody as per the F. I. R. If he was coming on a cycle and was suddenly attacked by two miscreants, normally the cycle would have fallen on the ground and the cans scattered. The fact that the cycle was kept standing suggests that it was intentionally kept in that position and the genesis of the trouble was otherwise then what was scribed in the F. I. R. ( 14 ) REGARDING the confession it can only be stated that the trial Court should not have accepted the evidence but in the judgment he has rightly denoted the same as in admissible. Regarding the statement under Section 27 of the Evidence Act, it is gathered that at first Ganga allegedly made a confession and then the Investigating Officer asked him about his dresses. He then told the Investigating Officer as to where the same was kept and then he took them out and made a further statement that these were the clothes which he was wearing at the time of the incident. He then told the Investigating Officer as to where the same was kept and then he took them out and made a further statement that these were the clothes which he was wearing at the time of the incident. Section 27 of the Evidence Act makes such statement by an accused before police admissible which relates distinctly to the fact discovered upon such statement. The first statement of confession was inadmissible the second statement was that he had kept clothe at a particular place. The third statement was regarding identity of the clothes. The third statement did not relate to any fact discoved thereupon. The only relevancy that could be given to the second statement that his clothes were concealed in a particular place. That alone does not connect the accused with the offence and moreso when the alleged stains could not be established as of human blood. ( 15 ) FOR all these reasons, we are of the view that the prosecution has failed to bring the charge against the two appellants. The appeal is, accordingly allowed. The appellants are acquitted of the charges. They are on bail and they are also discharged from their bail bonds. Appeal allowed. .