Judgment S.K.Chattopadhyaya, J. 1. These two appeals have been heard together and are being disposed of by this common judgment as both the appeals arise out of the same judgment and order. The appellants have impugned the judgment of conviction and order of sentence dated 17.7.1986 passed by the learned 3rd Additional Sessions Judge, Nalanda, Biharshariff, in Session Trial No. 177/28 of 1985. 2. In Criminal Appeal No. 353 of 1986 there are two appellants, namely, Sukhu Mahton and Jageshwar Mahton, who are brothers. In Criminal Appeal No.361 of 1986, there are nine appellants, namely, Bakhori Mahto, Chamaru Mahto, Arvind Mahto, Bullu alias Brij Kishore, Nawal Mahto, Vijoy Mahto Shiban Mahto, Bina Mahto and Balgobind Mahto. All these appellants were proceeded on the charge for committing the offence under Sec. 302 read with Sec. 149 of the Indian Penal Code for committing the murder of one Shiban Mahton. They were further charged for the offence under Sec. 201 of the Indian Penal Code and accused Chamaru Mahton was further charged for the offence under Sec. 323 of the Indian Penal Code for having assaulted the Informant Manju Kumari by means of a Kakut (chopper). 3. Badri Narain Prasad (P.W. 1) lodged an information before the police on 27.5.1994 at 7 hours stating therein that on the proceeding night at about 8 p.m. a person of village Makdumpur informed him that his cousin brother (Phuphera brother) was murdered by somebody at 5.30 on the previous evening in south PAIN (canal) of the village and the deceaseds head was traceless. Mother of Shiban took the dead body and kept in her house. While has was coming to the police station for informing about the same, he met with the Chaukidar, to whom he narrated the facts. He also informed the police that about the occurrence mother and sister of Shiban Mahton would give details. On the basis of this first information report, investigation was started and after completion of the same, charge-sheet was submitted and subsequently the appellants were put on trial. 4. To prove its case, the prosecution examined nine prosecution witnesses, out of which P.W. 1 Badri Narayan Prasad is the informant, P.Ws. 1 to 4 and 9 are formal and P.W. 7 was tendered P.W. -3, Tetri Devi is the mother of the deceased, whereas P.Ws. 4. To prove its case, the prosecution examined nine prosecution witnesses, out of which P.W. 1 Badri Narayan Prasad is the informant, P.Ws. 1 to 4 and 9 are formal and P.W. 7 was tendered P.W. -3, Tetri Devi is the mother of the deceased, whereas P.Ws. 5 and 6, Dharmshila Kumari and Manju Kumari respectively are the daughters of the deceased Shiban. Dr. Anil Verma is P.W. 4, who performed post-mortem examination on the dead body of Shiban. Ram Khelawan Prasad (P.W. 9) is the compounder, who proved the injury report of P.W. 6. The Investigating Officer in this case is P.W. 8, Bimalapati Singh. Some of the documents were admitted in evidence without objection but injury report of P.W. 6 (Ext. 6) was admitted with objection. 5. The prosecution has mainly based its case on the evidence of P.W. 6, Manju, the sole eye-witness in the case. At the time of deposition on 30th November, 1985, her age was assessed by the Court as 10 years. To corroborate her evidence, evidence of P.Ws. 3 and 8 were relied by the prosecution. It is an admitted fact neither any independent nor any natural witness was examined by the prosecution. However, the learned trial Court on the basis of evidence on record has found that the prosecution has been able to prove it case beyond all reasonable doubt and convicted the appellants under the aforementioned sections. Having found them guilty, all of them were sentenced to undergo rigorous imprisonment for life on all counts and appellants Chamaru has further been sentenced to six months rigorous imprisonment for the charge under Sec. 323 of the Indian Penal Code. 6. The informant (P.W. 1) has deposed about an unknown informing him about the murder of his brother and taking away the cut head of the deceased. The name of unknown person has not come in evidence, though according to P.W. 1, the said person had no relation in Chaknirpur. This person stayed in the night with P.W. 1 but even then did not disclose the names of the assailants. That person neither accompanied the informant to the police station nor the informant tried to find out the same person later on. This person stayed in the night with P.W. 1 but even then did not disclose the names of the assailants. That person neither accompanied the informant to the police station nor the informant tried to find out the same person later on. Due to night he could not dare to go to the police station on the same day and on the next day at 7 a.m. he reached at the police station for loading the information. While going to police station first of all he narrated the entire matter to the Chaukidar, Sheodhar, whom he met on the way but the Chaukidar also did not accompany him to the police station. However, when the informant and the police officer were proceeding towards the village Makdumpur, the said Chaukidar arrived at the police station. The said Chaukidar of the village Makdumpur also did not disclose any name and on enquiry he flatly refused to divulge the names of the assailants. The informant resides in village Chaknirpur, which is at a distance of about 4-5 miles west from Madkumpur and he had never visited Makdumpur since 10 years before the date of occurrence. On getting the information of murder of Shiban, he had a discussion with his another cousin Krishnadeo Prasad (P.W. 2), who also did not go to the police station with him. He had no knowledge as to in how many cases Shiban Mahton was an accused and went to jail inasmuch as he was not frequently visiting the said village. 7. P.W. 2, Krishnadeo Prasad, is also a cousin brother of the deceased Shiban. He is a witness on inquest report and seizure list. According to him, the Investigating Officer collected blood from the place of occurrence. In cross-examination he deposed that on reaching the village before the Investigating Officer he went to the house of Shiban. where he had a talk with the wife and children. None of the villagers had come to the Investigating Officer but the Dafadar and Chaukidar were present. P.W. 7, Kishori Prasad is his own brother, whereas P.W. 1, the informant, is his cousin. This Kishori Prasad has been tendered by the prosecution. 8. From the deposition aforesaid, one thing is clear that though P.Ws. None of the villagers had come to the Investigating Officer but the Dafadar and Chaukidar were present. P.W. 7, Kishori Prasad is his own brother, whereas P.W. 1, the informant, is his cousin. This Kishori Prasad has been tendered by the prosecution. 8. From the deposition aforesaid, one thing is clear that though P.Ws. 1 and 2 were relatives of the deceased and had gone to the house of the deceased and had a discussion with Manju (P.W. 6), Tetri (P.W. 3) and Dharmshila (P.W. 5), they had the earliest opportunity to know the names of the assailants. But even then the F.I.R. was lodged against unknown. The prosecution has not explained as to why these two witnesses were not informed by P.Ws. 3, 5 and 6 about the real assailants and spelt out the names only before the Investigating Office while giving their statements. This conduct of eye witnesses is most unnatural which creates suspicion. 9. The prosecution has mainly relied on the evidence of Manju (P.W. 6). the alleged eye witness, who had alleged to have gone with her father for purchasing some Kakri (a kind of fruit). On the date of her deposition before the Court on 30.11.1985 she was aged about 10 years, meaning thereby, on the date of occurrence(26.5.1984) she was below 9 years of age. It is well settled that in view of Sec. 118 of the Evidence Act, the competency of a child witness to testify as a witness is a condition precedent to the administration to him of an oath or affirmation and is a question distinct from that of his credibility when he has been so sworn or affirmed. Unfortunately, the learned trial Court has not bothered to test the competency of his witness before placing reliance on her evidence. Though the defence has put some questions to her about south direction and she replied correctly but she could not indicate about North and East. Similarly she could not say about twelve months of a year. All these do not indicate that the Court was satisfied with the requirement of Sec. 118 of the Evidence Act. The questions and answers show that P.W. 6 did not know what was truth and what was falsehood. She did not also know that a man is liable to punishment for deposing falsely. All these do not indicate that the Court was satisfied with the requirement of Sec. 118 of the Evidence Act. The questions and answers show that P.W. 6 did not know what was truth and what was falsehood. She did not also know that a man is liable to punishment for deposing falsely. Above all, she did not also know that it was wrong to speak false. In this regard I may usefully referred to the observation made by Dr. Hans Gross in his book, "Criminal Investigation". 1934 Edition, about the nature and character of evidence given by the children. According to Dr. Gross, in one sense the best witnesses are children of seven to ten years of age as at that time love and hatred, ambition and hypocrisy, considerations of religion, rank, etc., are yet unknown to them. He has, however, pointed out the great drawbacks which have made men distrustful of the capacity of children. They are apt to say much more from imagination than they actually know. To quote his words: the child, as yet devoid of principles, places great faith in the words of grown up people; so if a grown up person brings influence to bear on it, especially some time after the occurrence, the child will imagine it has really seen what it has been led to believe. At another place the eminent author has remarked as follows- The result is the same, when the influence is undesigned. An important event happens; it is naturally much talked of, all sorts of hypothesis are started, there is gossip of what others have seen or might in certain circumstances have seen. If a child, which has itself seen something of the occurrence, hears these conversations, they become deeply engraved on its own mind, and ultimately it believes it has itself seen what the others have related. 10. A Division Bench of this Court in a decision reported in Jalwanti Lodhin V/s. The State -- , inter alia, has observed that "it is well settled that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. There should be closer scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law. 11. The trial Court, in my opinion, has failed to appreciate this principle while giving his findings. There should be closer scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law. 11. The trial Court, in my opinion, has failed to appreciate this principle while giving his findings. Apart from this legal infirmities, the learned trial Court has failed to consider that so far place of occurrence is concerned, the description given by P.W. 6 is quite different from that of given in the first information report. Whereas according to the first information report murder was committed on the south canal of the village but P.W. 6 in her deposition has belied the same. According to her when her father had gone to take some vegetable from his field, she accompanied him for purchasing Kakri. She used to accompany her father occasionally for getting some articles. On that day she had gone with her father to purchase Kakri from one Peru and when Peru had gone to bring Kakri, both the father and daughter sat on a cot. Further, according to her, Sahab and Rahman also used to sell Kakri in the village. Peru did not return with Kakri because by that time the mob arrived and started assaulting her father. She admits that he had not shown the place of occurrence to the Investigating Officer. Where they were sitting on a cot there was a well and around the same there were some residential houses. P.W. 8, the Investigating Officer said to have gone to the place of occurrence with Tetri and Manju. According to the Investigating Officer, the place of occurrence is a different road in south of Makdumpur Village. On north-west and east house of one Kalandar Manjhi is situated. He collected blood stained earth. He recovered the cut head of the deceased from 300 yards from the place from where he collected the said blood. However, he did not find any blood within this 300 yards. He also did not find the cot in which P.W. 6 alleged to have seated with her father. Surprisingly, the informant (P.W. 1) neither accompanied the Investigating Officer to the place of occurrence nor stated in this regard in his statement. Thus, it is clear that the prosecution has tried to conceal the actual place of occurrence without any cogent reason. 12. Surprisingly, the informant (P.W. 1) neither accompanied the Investigating Officer to the place of occurrence nor stated in this regard in his statement. Thus, it is clear that the prosecution has tried to conceal the actual place of occurrence without any cogent reason. 12. So far identification of the accused in dock is concerned, only nine accused, out of ten were in the dock. She pointed to appellants Jageshwar as Sukhu, though on that day Sukhu was not in the dock as being represented. This, in my view, the deposition of so called eye witness, namely, Manju (P.W. 6) is suspicious and not above board. 13. P.W. 3 Tetri is the mother of the deceased. According to her on the date of occurrence the deceased and P.W. 6 had gone to bring vegetables but they were late in returning and in the meantime some Hulla was heard from south of the village. She met P.W. 6 on the way, who told her that the assailants have murdered her son. When P.W. 3 reached the place of occurrence, she found that the assailants were trying to take away the dead body but on their arrival they left the same. She further stated that the appellant Nawal Mahto took the cut head by wrapping it in a Gamachha. She, with the help of Jagwa Mushhar and two grand daughters, carried the dead body to her house. She took the Investigating Officer to the place of occurrence. She denied the suggestion that her deceased son had any criminal antecedent. She even denied the suggestion of having knowledge that her two sons, namely, deceased Shiban and Shadhu were accused in a dacoity case, which was committed in the house of Lakhan Pandit of her village. She also denied the fact that her aforesaid two sons were convicted in that case and were sent to jail. She further denied the suggestion that there was long standing litigation between them and the appellant Chamaru Mahto. She lived mostly with her daughter and son-in-law and, as such, she had no knowledge that her sons Shiban and Shadhu were involved in another case of assault. Though she admits that her other son Sadhu is in jail but she denied that her deceased son Shiban was involved in several criminal cases and in some cases he was conviction and sentenced to punishment. Though she admits that her other son Sadhu is in jail but she denied that her deceased son Shiban was involved in several criminal cases and in some cases he was conviction and sentenced to punishment. Shiban used to live mostly outside the village and on the day of occurrence he had gone to have some vegetables with P.W. 6. After half an hour she heard some Hulla of some people but according to her at that time the people residing by the side of the place of occurrence were not present in the village as they all had gone for their livelihood. When she reached near the house of Kalander Manjhi with her other grand daughter, Dharmshila (P.W. 5), she found that the accused were taking away the dead body. At that time the head of Shiban had already severed. She met P.W. 6 near the house of Rahman, which is very near to her house. The dead body was kept by the assailants by the side of the field of said Mian. After the occurrence, according to her, the Chaukidar had visited her house. The Chaukidar informed this witness that he was going to inform the police and, as such, she narrated the entire incident to this Chaukidar, Sheodhar, who is the resident of her village. While carrying the dead body of Shiban, her cloth was not smeared with blood. She could not say whether at that time blood was trickling out or not. She also did not notice as to whether in her house any blood was there or not where the dead body was kept. She further stated that on the date of occurrence itself the wife of Shiban was admitted in Parwalpur Hospital for delivery and having got the information she went to Parwalpur Hospital, which is at a distance of eight miles from her village. She went on foot in the early morning and returned by 2 Oclock. She denied of having stayed at Parwalpur, where her daughter-in-law was admitted in the clinic of Dr. Om Prakash. She denied the suggestion that he son being a dacoit was murdered during the same. 14. From her deposition it is apparent that she was not an eye witness of actual murder as she was informed by P.W. 6 near the house of Rahman that Shiban was being assaulted. Om Prakash. She denied the suggestion that he son being a dacoit was murdered during the same. 14. From her deposition it is apparent that she was not an eye witness of actual murder as she was informed by P.W. 6 near the house of Rahman that Shiban was being assaulted. What she found was that the accused were taking away the dead body and Nawal took the cut head. Here also she is not consistent because in her statement before she said that Rabindra Mahto, son of Bihari Mahto, was also carrying the dead body. This Rabindra Mahto is not an accused. From her evidence another fact reveals that she narrated the entire incident to Chaukidar Sheodhar, of her village, who had gone to inform the police, but this Sheodhar had not been examined by the prosecution for the reasons best known to it. The fact that Sheodhar had gone to the police station for giving information is contradicted by the P.W. 1 as seen above. This circumstance raises suspicion, which cannot be lightly ignored. Apart from this, the deposition of P.W. 3, that she was not aware of the fact that the deceased was involved in a number of criminal cases, is belied by the evidence of the Investigating Officer (P.W. 8), who had found from the police record that the deceased Shiban was involved in as many as 18 criminal cases and was also convicted in a case under Sec. 395 of I.P.C. and sentenced to undergo imprisonment for seven years. The Investigating Officer was also found that Shiban was involved in the cases of 302 and 307 etc. of the I.P.C. Thus, it cannot be said that P.W. 3 is a truthful witness. 15. Dharmshila Kumari (P.W. 5) is another alleged eye-witness, who is the daughter of the deceased Shiban. She was 14 years of age on the date of her deposition on 23rd November, 1985. Though she has corroborated the statement of her grand mother (P.W. 3) to certain extent but miserably failed to identify the individual accused in the dock. Pointing out Jageshwar, she named him as appellant Sukhu, though on that date Sukhu was not present in Court as was being represented. This witness, however, does not say that on hearing Hulla of P.W. 6, she along with P.W. 3 had rushed to the south of the village. Pointing out Jageshwar, she named him as appellant Sukhu, though on that date Sukhu was not present in Court as was being represented. This witness, however, does not say that on hearing Hulla of P.W. 6, she along with P.W. 3 had rushed to the south of the village. She had gone to the well for bringing water and at that time hearing Hulla he rushed and met P.W. 6 on the way and could know that the accused persons were assaulting their father. On her arrival on the spot the found carrying away the dead body and on her Hulla they kept it on the canal. Appellant Nawal took away the head. She with her grand mother (P.W. 3) and one Jugwa Mushhar of that village took the dead body to her house. The pant and banyan of P.W. 6 were smeared with blood and her pant and banyan were given to the Investigating Officer. Thus. This witness also is not an eye witness to the actual murder. She specifically stated in her statement that blood was there where the accused kept the dead body. However, it would be evident from the deposition of the Investigating Officer that he did not found any blood either in the canal or in the field by the side of Rahmans house. The blood stained earth, which was recovered was about 300 yards from the house of the deceased Shiban and in between these 300 yards the Investigating Officer did not find any blood. She also denied the fact that she along with her sister (P.W. 6) and her grand mother (P.W. 3) were present in Parwalpur on the day of occurrence. 16. These are the evidence on record on which the learned trial Court has relied and convicted the appellants. In my. view the very approach of the trial Court in appreciation of evidence in a criminal case is not correct. From the evidence aforesaid, it is crystal clear that none of the witnesses, namely, P.Ws. 3, 5 and 6 can be said to be the eye-witness to the actual murder. P.W. 6 on getting some assault left the place with fear She did not actually saw as to which of the appellants cut the head of her deceased father. From the evidence aforesaid, it is crystal clear that none of the witnesses, namely, P.Ws. 3, 5 and 6 can be said to be the eye-witness to the actual murder. P.W. 6 on getting some assault left the place with fear She did not actually saw as to which of the appellants cut the head of her deceased father. Though all these three witnesses are consistent at one stage in their statement that appellant Nawal was carrying the cut head, but only this statement cannot help the prosecution. Admittedly, deceased Shiban was having criminal antecedents as he was involved in several cases under Secs. 395, 302 and 307 of the Indian Penal Code and there is no reason to disbelieve that for this act of Shiban, he might have some enemies. Most surprisingly, the material witnesses, namely, Chaukidar, Sheodhar Mahto, Jagwa Mushhar and Mathura were not examined by the prosecution, who could have thrown some light on the case. According to P.W. 3, before the Chaukidar had gone to the police station for informing about the occurrence, she disclosed every thing to him but according to P.W. 1 (the informant) the Chaukidar did not disclose the names of the assailants, nor had gone, to the police station. Similarly, according to P.W. 6, Mathura had helped them for taking the dead body from the place of occurrence to their house but on the contrary, according to P.Ws. 3 and 5, it was one Jagwa Mushhar along with them took the dead body to their house. This very fact also contradicts the respective statements of the so-called eye-witnesses. It this Jagwa and Mathura would have been examined by the prosecution along with the Chaukidar, the trial Court would have been in a better i.osition to scrutinize the evidence of P.Ws. 3, 5 and 6. This having not been done, in my view, the prosecution has deliberately suppressed this fact and got the conviction of the appellants on the evidences, which are not beyond any reasonable doubt. Similarly, the deposition of the Investigating Officer also suggests that the aforesaid three P.Ws. were not stating truth and for some reason or other tried to indicate appellants by suppressing material facts. It is surprising that even the Investigating Officer did not care to record the statement of either Chaukidar, Sheodhar or Mathura or Jagwa Mushhar. Similarly, the deposition of the Investigating Officer also suggests that the aforesaid three P.Ws. were not stating truth and for some reason or other tried to indicate appellants by suppressing material facts. It is surprising that even the Investigating Officer did not care to record the statement of either Chaukidar, Sheodhar or Mathura or Jagwa Mushhar. He also did not send the blood stained earth for forensic examination. The Investigating Officer deposed that Dharmshila (P.W. 5) did not had over blood stained banyan and pant of P.W. 6 to him, which belies the statement of P.W. 5 itself. He admits that the first information report was lodged against unknown and during the investigation the name of the assailants were revealed and they were charge-sheeted. However, it is not very clear from his evidence that actually from whom the Investigating Officer got the name of each of the appellants. His evidence is silent in this regard. Another suspicious circumstance is non-examination of the Dr. Dayanand Prasad of Parwalpur State Dispensary, who is said to have examined the injuries on the person of P.W. 6. The injury report was proved by Ram Khelawan Prasad P.W. 9), a compounder of the said hospital. According to him, in 1986 Dr. Dayanand Prasad was posted at Simaria State Dispensary in the district of Hazaribagh, which is not very far away from Biharshariff, where the trial was held. There is no explanation whatsoever as to why this doctor was not examined by the prosecution to prove the injury report of P.W. 6. 17. It is well settled that in a criminal case it is the duty of the prosecution to establish its case beyond all reasonable doubt and it is sufficient for the defence to raise a mere suspicion in the mind regarding truthfulness of the allegation levelled against it. In the facts and circumstances of the case, I am of the view that the prosecution has utterly failed to prove its case beyond all reasonable doubts and, as such, the appellants are entitled to get benefit of doubt. 18. In the result, this appeal is allowed. The judgment of conviction and order of sentence passed by the learned trial Court in Session Trial No. 177/28 of 1985 are set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds. N.N.Singh, J. 19 I agree.