Judgment R.N.Sahay, J. 1. This appeal arises from Sessions Case No. 439 of 1982 decided by Additional Sessions Judge Munger on 1st April, 1986 in which 12 accused persons were placed on trial. Out of 12 appellants. appellant No.1 Chamru Yadav. Appellant No.2 Gulo Yadav and appellant No.3 Doman Yadav were convicted under Sec. 302. IPC and sentenced to imprisonment for life. They were further convicted under Sec. 201. IPC and sentenced to three years imprisonment. Appellant Nd. 3 Doman Yadav was also convicted under Sec. 27. Arms Act and sentenced to three years imprisonment. Sentences were to run concurrently. Rest of the appellants namely appellant Nos. 4 to 12 were convicted under Sec. 201. IPC and sentenced to three years imprisonment. 2. An affidavit has been filed on behalf of the appellants to the effect that appellant No.2 Guloo Yadav appellant No. 4 Bhadai Yadav and appellant No. II Pratap Yadav died during the pendency of this appeal. The details of death are given in the affidavit. However, no document in support of the death has been filed. 3. On 29-9-1980 at 7.30 a.m. Basistha Narayan Singh the then officer-in-charge of Khagaria Police Station got a telephonic message which was not quite phonic message which was not quite audible that some miscreants had taken the deceased Babuan Yadav of village Gangia towards Khagaria. He recorded this message in the station Diary vide Entry No. 597 dated 29-91980 and proceeded to Gangia at 8.30 a.m. with armed party. He arrived at village Gangia at 9.00 a.m. without first ascertaining the fact from any body he is said to have searched the kidnapped man. At 9.30 a.m. he recorded fardbeyan of Malick Yadav PW 6. This witness disclosed that he had gone near the Bandh. His brother Babuan Yadav had gone ahead at the Bandh side to answer the call of nature. When this witness reached there he found him sitting at the bandh. A short while, appellant Gulo Yadav was seen going near Babuan. He sat by the side of Babuan Yadav. The informant at that time was south to the Bandh where he was turning hemp for green manuring in his field. Thereafter appellant Chamru Yadav and Doman Yadav came from the west and stopped there. A short while, appellant Gulo Yadav was seen going near Babuan. He sat by the side of Babuan Yadav. The informant at that time was south to the Bandh where he was turning hemp for green manuring in his field. Thereafter appellant Chamru Yadav and Doman Yadav came from the west and stopped there. The informant saw Gulo Yadav pushing down Babuan Yadav and other accused persons named in the FIR started beating with lathi bhala and chhura. Appellant Doman Yadav shot at the abdomen and chest of Babuan. Appellant Chamru Yadav caused injury on the neck by knife. The remaining accused persons came to the spot armed with lathi bhala and pistol and they also started beating Babuan. Babuan fell down. The informant raised alarm when Doman rushed towards him with pistol in his hand. 4. All the accused persons caught Babuan by legs and hands and dragged him towards east. A number of villagers whose names are mentioned in the fardbeyan out of whom three were not examined during trial responded and tried to save Babuan Yadav but the appellants threatened them brandishing pistols at the villagers. Admittedly more persons assembled there Appellant Doman Yadav fired with his pistol and then the villagers returned. It is further alleged that the accused persons dragged Babuan to Khand Diara, cut the dead-body into pieces and threw the same into the river Gandak. There was sign of dragging and trail of blood on the ground. 5. The Investigating Officer recorded. fardbeyan and started investigation and noticed that the place of occurrence was embankment of river Gandak 200 yards east to the village Gangia. He found blood marks on the southern end of the bandh and also mark of dragging and trail of bloods from that place to Khand Diara which is 1/2 kms. on the east. It was also noticed that there was mark of dragging and trail of blood upto river Gandak which was swollen and flowing at a distance of 24-25 yards away and there was also mark of throwing dead-body in river Gandak. 6. On the third day of occurrence the dead-body was located near Kothia Bridge. On receipt of information Dharmdeo. Rai PW 10 an Assistant Sub-Inspector of Police went to Rothia Bridge. The decomposed body was identified by PW 2 and PW 5. The deadbody was found on the Khatia. Head was severed from the trunk. 6. On the third day of occurrence the dead-body was located near Kothia Bridge. On receipt of information Dharmdeo. Rai PW 10 an Assistant Sub-Inspector of Police went to Rothia Bridge. The decomposed body was identified by PW 2 and PW 5. The deadbody was found on the Khatia. Head was severed from the trunk. 7. On. 2-10-1980 Dr. Om Prakash Sinha Medical Officer, Khagaria. (PW 8) held autopsy on the deadbody which was identified to be that of Babuan Yadav. The Surgeon noticed jive antemortem injuries. Neck was cut through separating the head from the trunk. There was incised wound over the neck edge of the wound was covered with blood clots. There was other incised would on the right parital region of the head. The third injury was also cut injury on the right parital region of the head and below the second injury. There was circular wound 1/2" in diameter on the left side of the chest and the last one was also a circular wound 3/4" in diameter on the lateral size of the chest two circular wounds were contiguous one. On dissection blood clots were found in sub-conteneous tissues. The surgeon, however, could not give any exact opinion regarding weapon used as the body was in advanced stage of decomposition. The death had occurred 3 to 4 days prior to the time of autopsy. 8. In their defence the appellants pleaded that most likely the crime was committed by unidentified enemy of the deceased who was used to steal and sell aluminium electric conductors and cattle and had also land dispute with other persons. 9. During trial as many as 10 witnesses were called by the prosecution to establish the charges against the appellants. According to the prosecution, occurrence was witnessed by five persons including the informant. These witnesses are Dinesh Yadav (PW 1), Shiv Nandan Pd. Yadav (PW 2), Rain Swamp Yadav (PW 3), Ratan Yadav (PW 5) and the informant (PW 6). 10. The trial Judge noticed that according to the evidence occurrence was divided into two parts in the first part the deceased Babuan Yadav was assaulted and in the second part his body was dragged to the river Gandak 1-1/2 kilometer downward and dumped in the water. 11. According to the fardbeyan (Ext. 10. The trial Judge noticed that according to the evidence occurrence was divided into two parts in the first part the deceased Babuan Yadav was assaulted and in the second part his body was dragged to the river Gandak 1-1/2 kilometer downward and dumped in the water. 11. According to the fardbeyan (Ext. 1/ 1), the deceased was murdered on the embankment of the river Gandak and his dead-body was dragged towards the river Gandak near bathan of Panchu Yadav of Khand Diara. The Investigating Officer had found blood marks on southern end of the embankment. He found dragging mark from the place to the bathan of Panchu Yadav of village Khand Diara. The Investigating Officer also noticed dragging marks upto the river Gandak which is at a distance of 20-25 yards from the bathan of Panchu Yadav. There was trail of blood marks. 12. The most important witness, according to the trial Judge, was PW 1 Dinesh Yadav who is son of deceased Babuan Yadav. He was aged about 13 years on 5th March. 1984, the date he deposed in Court. According to his statement under Sec. 164. Cr. P.C. (Ext. F) his age was recorded as seven years. This witness was 7 to 9 years at the time of occurrence. His evidence was that the deceased was sitting on the embankment. The deceased asked him to tie the legs of more. In the meantime Gulo Yadav came there and sat by the side of his father and in the meantime Chamru Yadav. Doman Yadav. Rajdeep Yadav also came there and stood behind his father and after some time remaining accused persons came there. First of all Gulo Yadav pushed down the deceased and when he wanted to get up then he twisted the neck of the deceased. Doman Yadav fired at him Chamru Yadav gave him dagger blow. The boy started weeping. It was morning time and there were several villagers in the vicinity who had gone there to answer the call of nature. All the accused persons are said to have aragged the deceased and then they murdered the deceased. This witness went home weeping but he was unable to say whether he met anybody in the way. Only when he reached home he met several persons and narrated the occurrence. It is ordinarily unsafe to act on the testimony of the child witness. This witness went home weeping but he was unable to say whether he met anybody in the way. Only when he reached home he met several persons and narrated the occurrence. It is ordinarily unsafe to act on the testimony of the child witness. There are several other infirmities also. 13. Sheo Nandan Prasad Yadav (PW 2) is an important witness. His evidence is that he had seen the occurrence from beginning to end. He deposed that on the day of occurrence at 7.00 a.m. he had gone to answer the call of nature at the Bandh. He saw Babuan Yadav sitting at the Bandh. In the meantime he saw appellant Gulo Yadav (now dead) who sat near Babuan Yadav. After sometime; Chamru Yadav. Doman Yadav and Rajdeep Yadav also came there. Thereafter some more accused persons came. All of a sudden they started assaulting Babuan Yadan Rajdeep assaulted him with lathi. Therefore, it is alleged the accused persons dragged Babuan Yadav. This witness. However, has been found to be truthful by the trial Judge. Malik Yadav (PW 6) is also witness to the occurrence. He stated that he had seen the accused persons while he was turning Sanai in the pond. He is brother of the deceased. According to his version. Gulo Yadav came and sat near his brother Babuan. Soon thereafter, Doman Chamru and Rajdeep stood behind his brother. Gulo Yadav pushed his brother. Other accused persons assaulted him with lathi bhala and pistol. Some more accused persons came and they also assaulted Babuan. The statement of this witness in the fardbeyan is totally different from what he said in Court. The trial Court noticed the contradiction and held that this witness had not seen the occurrence of assault: He has only seen dragging of the deceased. 14. Learned trial Judge has based his entire finding on the evidence of child witness Dinesh Yadav (PW 1), who was a kid at the time of occurrence. I have already held that it is not safe to rely on the testimony of this witness. He did not tell any body about the occurrence. Two witnesses were declared hostile. Learned trial Judge did not place reliance of two important witnesses. He relied on the evidence on PW 1, who was aged about 5 or 6 years. I am not inclined to act on his uncorroborated testimony. 15. He did not tell any body about the occurrence. Two witnesses were declared hostile. Learned trial Judge did not place reliance of two important witnesses. He relied on the evidence on PW 1, who was aged about 5 or 6 years. I am not inclined to act on his uncorroborated testimony. 15. For the reasons stated above. I hold that the evidence is not strong enough to sustain the conviction of the appellants. This appeal is accordingly allowed, the conviction of the appellants is set aside and the appellants are acquitted of the charges giving them benefit of doubt. All the appellants are on bail. They are discharged from the liability of their bail bonds.