Judgment Anil Kr.Sinha, J. 1. Both the appeals were heard together and are being disposed of by this common judgment. Both the appellants have been convicted under section 302/34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. They have further been convicted under section 201/34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each. 2. According to the fardbeyan of Baleshwar Mali (P.W.5) which was recorded at his house at 7.15 A.M. on 31.13.1997(sic), the case of the prosecution is that when the deceased, namely, Devan Malkar who happened to be the brother of the informant, did not return back home till 4.00 A.M., the informant enquired from his nephew Raju Kumar (P.W.4) about the whereabouts of his father. Raju Kumar disclosed to him that in the preceding night his father took his meal and at about 8.00 P.M. the appellant Anita Devi, wife of Anil Rajak, came to his house and his father went with her and since then he has not returned back. The informant became suspicious and started searching his brother along with his family members and in course of search the dead body of his brother was found near the pond at Naya Tola. The informant also noticed that blood was oozing out from the mouth and nostril of the deceased and there was black mark of swelling on his neck. The informant suspected that his brother was murdered and dead body was thrown. He also suspected that the appellants may have hands in the murder of his brother because the deceased had gone with the wife of Anil Rajak on being called by her and there was some dispute regarding money transaction between his brother and Anil Rajak. It has been alleged that due to the aforesaid dispute both the appellants might have committed the murder of the deceased and threw away his dead body near the pond. 3. On the basis of the fardbeyan of the informant a case under sections 302, 201/34 of the Indian Penal Code was registered against the appellants and charge- sheet was submitted against them after completing the investigation. The case was committed to the court of sessions for trial. 4. 3. On the basis of the fardbeyan of the informant a case under sections 302, 201/34 of the Indian Penal Code was registered against the appellants and charge- sheet was submitted against them after completing the investigation. The case was committed to the court of sessions for trial. 4. In order to prove the charges the prosecution examined altogether seven witnesses, including the doctor (P.W.6) who conducted the postmortem examination on the dead body of the deceased and the investigating officer (P.W. 7). The remaining five witnesses are the family members of the informant. Inasmuch, as P.W.1 Munni Malakar and P.W. 3 Vijay Malakar are own cousin brothers of the deceased. P.W. 2 Sheo Balak Malakar and P.W. 5 Baleshwar Mali are the own brothers of the deceased and P.W. 4 Raju Kumar who is a child witness is the son of the deceased. 5. Admittedly, there is no eye witness to the alleged occurrence and the appellants have been convicted on the basis of pertain circumstantial evidence and according to the trial court those circumstances are as follows :- 1. There is strong motive for the murder of the deceased by the appellants. 2. There was some dispute with regard to money matter between the deceased and the appellant Anil Rajak for which a quarrel had also taken place between them. 3. The deceased was seen last in the company of appellant Anita Devi who called him from his residence and both went away. 4. The I.O. searched the house of the accused and a blood stained brick concealed in the stack of bricks was seized. 5. The Kachha floor of the house of the accused was washed away by fresh cow dung and some scratch mark on earth were also noticed by the investigating officer. 6. On seeing the investigating officer the appellant Anil Rajak started running away from his house. 7, The doctor found injury on the forehead of the deceased which may be caused by brick. 8. The appellant Anil Rajak confessed his guilt before the I.O. and on his disclosure the blood stained brick was recovered from the stack of bricks by the I.O. 6. The learned trial court did not rely upon the alleged confessional statement recorded by the I.O. (Ext. 8. The appellant Anil Rajak confessed his guilt before the I.O. and on his disclosure the blood stained brick was recovered from the stack of bricks by the I.O. 6. The learned trial court did not rely upon the alleged confessional statement recorded by the I.O. (Ext. 7) and was of the view that the alleged confessional statement cannot be regarded as a disclosure statement made by appellant Anil Rajak leading to recovery of blood stained brick from the house of the appellants. The trial court rightly disbelieved the alleged confessional statement made by appellant Anil Rajak before the police as it is inadmissible piece of evidence. Moreover, P.W. 1 Muni Malakar who is a witness on the seizure-list (Ext. 8) has not stated that on the disclosure made by Anil Rajak the I.O. had recovered the brick containing blood stains. P.W. 7 Sanjay Kumar Jha (I.O.) has also not stated that he recovered the brick with blood stains on being pointed out by Anil Rajak. P.W. 7 also admitted that he did not send the brick for chemical examination so as to ascertain that whether there was any human blood on the brick which he seized. The brick was also not produced in court and no satisfactory explanation has been rendered for its non production. Therefore, some of the important circumstance relied upon by the prosecution that the brick having blood mark had been concealed by the accused in his house has not been proved by the prosecution. 7. P.W. 5 has clearly admitted in his cross-examination that except the dispute regarding money transaction between the deceased and appellant Anil Rajak there was no other dispute or enmity between them. As such, the only motive attributed against the appellants for the commission of alleged crime is that there was dispute with regard to money transaction between the deceased and Anil Rajak. There is no documentary evidence to show that any such monetary transaction had taken place between the deceased and Anil Rajak. The evidence on record goes to show that the deceased was fruit seller in the village whereas appellant Anil Rajak used to do the work of a tailor. 8. P.W. 2 has stated that the deceased brother had given a sum of Rs. 5000/- as loan to Anil Rajak for which a quarrel had taken place. The evidence on record goes to show that the deceased was fruit seller in the village whereas appellant Anil Rajak used to do the work of a tailor. 8. P.W. 2 has stated that the deceased brother had given a sum of Rs. 5000/- as loan to Anil Rajak for which a quarrel had taken place. It looks highly improbable that the deceased who was a poor fruit seller in village would have advanced a sum of Rs. 5000/- to Anil Rajak without executing any document in that regard. The fact remains that the money was not advanced in presence of the witnesses examined by the prosecution. P.W.4 Raju Kumar is the son of the deceased, he has given a different version that his father had given a sum of Rs. 500/- to Anil Rajak five months before the alleged occurrence. At the time of the alleged occurrence the age of P.W. 4 was less than six years and it is not expected from a child of six years that he will remember about the money transaction between his father and accused Anil Rajak and it appears that he has given a tutored statement that five months prior to the alleged occurrence his father had given a sum of Rs. 500/- to Anil Rajak and he also remembered the denomination of the notes which according to him was of 100 and 50 rupees notes. As such the evidence of P.W. 4 that his father had given Rs. 500/- to Anil Rajak 5 months before the alleged occurrence does not inspire confidence to believe. Therefore, I am of the view that the prosecution has not established the important fact that the deceased had advanced money to Anil Rajak. 9. So far the alleged quarrel which took place between the deceased and Anil Rajak regarding the money transaction is concerned, P.W. 1, P.W. 2 and P.W. 5 have stated that a day prior to the alleged occurrence a quarrel had taken place on account of the money transaction between the deceased and Anil Rajak. But their statements have been contradicted by P.W. 4 who has stated that the quarrel had taken place three days before the alleged occurrence. 10. But their statements have been contradicted by P.W. 4 who has stated that the quarrel had taken place three days before the alleged occurrence. 10. P.W. 5 has stated that the quarrel had taken place eight days prior to the alleged occurrence and at the time Tulsi Halwai and Yogendra Sah were also present but they have not been examined by the prosecution to testify about the quarrel which took place between the deceased and appellant Anil Rajak. No information was either given to the police or the Mukhiya and Sarpanch of the village regarding the quarrel. l therefore, find that the prosecution story that the quarrel had taken place on account of the monetary transaction between the deceased and Anil Rajak a day prior to the alleged occurrence has not been satisfactorily proved in view of the inconsistent statements made by the witnesses on this point. As such, it cannot be safely concluded that the prosecution had proved the alleged motive behind the occurrence beyond all reasonable doubts and as already stated above there was no other enmity of dispute between the deceased and appellant Anil Rajak except the money transaction between them. 11. P.W. 2 Sheo Balak Malakar who is own brother of the deceased has stated that there is no house between his house and the house of the deceased. P.W. 4 who is the son of the deceased has stated that besides him his younger sister Renu Kumari and cousin brother were present in the house and his mother and other brothers and sisters had gone to his maternal grand fathers place situated at village Ganga Bigha. P.W. 4 has stated further that the wife of Anil Rajak came to his house at about 8.00 P.M. and called his father who went away with her and thereafter his father did not return back. The question arises that in normal course when his father did not return back, P.W. 4 must have informed his uncle (P.W. 2) whose house was situated next to his house as there was no adult member in the house and he being the child aged six years must have felt scared in absence of any adult members during the night hours and in all probabilities P.W.4 must have informed P.W.2 but he did not do so. P.W.4 has also not stated a word that when the wife of Anil Rajak came to his house to call his father what did she say to his father regarding the purpose of calling him. P.W. 4 has simply stated that the wife of Anil Rajak came to call his father who went away with her. If actually the wife of appellant Anil Rajak had gone to the house of the deceased to call him she must have disclosed the purpose for which the deceased was called. P.W. 4 must have heard the conversation but P.W. 4 is conspicuously silent on that point and there is no other witness who saw the deceased going with the wife of Anil Rajak. It has come in evidence that there are several houses in the vicinity but nobody saw the deceased going with the wife of Anil Rajak which also looks quite improbable. Since, somebody must have seen them going together specially when it was a densely populated village. It would thus appear that the statement made by P.W. 4 who is a child witness and son of the deceased that Anita Devi came to his house and called his father who away with her on the alleged date of occurrence has not been corroborated by any other independent witness of the village and the prosecution version regarding the deceased seen last in the company of accused Anita Devi is based only on uncorroborated testimony of P.W. 4 who was a child aged less than six years on the alleged date of occurrence. lt may be stated that when the attention of P.W.4 was drawn to the statement made by him before the police he has stated that he made statement before the police that on the alleged date of occurrence the appellant Anita Devi came to his house at 8.00 P.M. and called his father and his father went away with her. But the I.O. has denied that P.W. 4 had made such statement before him. 12. The learned counsel appearing for the appellants contended that the evidence of a child witness must find adequate corroboration before it is relied upon. In the present case there is complete absence of any corroboration of the evidence given by P.W. 4. On the contrary the evidence of P.W. 4 suffers with various infirmities and improbalilities. 12. The learned counsel appearing for the appellants contended that the evidence of a child witness must find adequate corroboration before it is relied upon. In the present case there is complete absence of any corroboration of the evidence given by P.W. 4. On the contrary the evidence of P.W. 4 suffers with various infirmities and improbalilities. In support of his contention the learned counsel relied upon a decision in the case of Panchhi and others vs. The State of U.P. reported in (1998) 7 SCC 177 wherein the apex court has held as hereunder: "It is not the law that even the evidence of a child witness shall be rejected if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law." 13. Relying upon the aforesaid decision it was contended that P.W. 4 is a tutored witness and his evidence is full of improbabilities inasmuch, as he cannot say that when the wife of Anil Rajak came to call his father, what did she say about the purpose of calling his father. He has also not stated anything that when his father did not return back home he made any effort to inform his uncles whose houses were situated in the same neighbourhood. It was pointed out that normal conduct of P.W. 4 would have been that he must have informed the uncles or tried to know about the whereabout of his father in the night itself which he did not do. P.W. 4 has stated that the wife of Anil Rajak came to call his father at 8.00 P.M. It was pointed out that P.W. 4 was aged about 5 to 6 years and it is not expected from a child of his age to know the exact time when his father was called by the wife of Anil Rajak and this circumstance shows that he has been totured to say like that. It was submitted that P.W. 4 has stated in his cross-examination that there are ten houses of Rajaks in his village but he could not say the names of male of female members of those houses. He has stated that he only knows the wife of Anil Rajak because only she was introduced to him by his father. According to the learned counsel this circumstance also looks quite doubtful inasmuch as there was no special reason for the deceased to introduce his son with the wife of Anil Rajak. It was further submitted that tutoring of RW. 4 will further be manifested from the facts that he also claims to be a witness of money transaction between the deceased and Anil Rajak which is not worth belief. The learned counsel submitted that it is most unnatural that a boy aged six years can be a witness to such money transaction and shall give the details about the transaction. So, this circumstance also shows that he has been tutored to say so. 14. It was lastly contended that this case is based on circumstantial evidence and the law is well settled that when a case is based on circumstantial evidence, such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. A.I.R. 1982 Supreme Court 1157 relied upon. 15. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. A.I.R. 1982 Supreme Court 1157 relied upon. 15. In view of the aforesaid settled principle of law it was submitted that the chain of circumstance is not complete in the instant case and the possibility can ot be ruled out that the deceased who as a man of bad reputation and character might have been killed by somebody else and after detection of his dead body the appellants were implicated in the case and P.W. 4 was set up to say that deceased had gone with the wife of Anil Rajak in the previous night at 8.00 P.M. and so the deceased must have been murdered by Anil Rajak in conspiracy with his wife. It was submitted that there is no evidence on record which may show that anybody claimed to have seen the wife of Anil Rajak going with the deceased. As such, it was submitted that the important link in the chain of the circumstances have not been established by the prosecution so as to come to a conclusive finding that the deceased was murdered by the appellants. 16. Regard being had to the facts and circumstances of the case and the materials available on record, l am of the view that the prosecution had failed to establish the chain of circumstances consistent with the guilt of the appellants and inconsistent with their innocence and the possibility cannot be ruled out that the deceased might have been done to death by someone else. Therefore, l find and hold that the learned trial court was not justified in convicting the appellants and at any rate the appellants deserve at least the benefit of doubts. Accordingly, the order of conviction and sentence recorded by the trial court are set aside. The appellants are held not guilty to the charges levelled against them and are acquitted of the same. 17. In the result, therefore, both the appeals are allowed. The appellant Anil Rajak who is in custody is directed to be released forthwith, if not wanted in any other case. The appellants are held not guilty to the charges levelled against them and are acquitted of the same. 17. In the result, therefore, both the appeals are allowed. The appellant Anil Rajak who is in custody is directed to be released forthwith, if not wanted in any other case. The appellant Anita Devi is ordered to be discharged from the liability of her bail bonds. B.K.Jha, J. 18 I agree.