Judgment Lakshman Uraon, J.-The appellants lave preferred this appeal against the judgment and order of conviction and sentence dated 24.6.1997, passed by Shri J. Tiru, earned Additional Sessions Judge, Simdega, in Sessions Trial No. 250 of 1993, convicting both the appellants under Sections 302/34 and 201 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for life for the offence under Section 302 I.P.C. and further to undergo rigorous imprisonment for seven years for the offence under Section 201 I.P.C., directing both the sentences in respect of both the appellants to run concurrently. 2. The prosecution case is based on the first information, given by the informant Sudan Singh, son of deceased Ragho Singh of Village-Aling Garh (Pahartoli), alleging therein, that his father Ragho Singh on 27.4.1983 at 8.00 a.m. left home for fishing, taking fishing rod to Nakul Bandh, Behra Toli. His elder brother Madan Singh (PW 8) had gone towards Nakul Bandh to plough his field. He himself had gone to Bolwa Market and returned home at 5.00 p.m. When he did not find his father, he' enquired about him. His brother Madan Singh (PW 8) informed that their father was fishing at Nakul Bandh. He along with his brother left home at 9.00 p.m. in the night towards Nakul Bandh in search of his father. Flashing torch they went to the place where Ragho Singh was fishing. They saw the fishing rod in the water and the dead body of their father was also drown in the water. Both of them started weeping. They brought out the dead body of their father from the water and laid on the rock. They saw injuries on both sides of upper eyes and also on the cheek, cut with knife and abrasion on the right arm. The right arm pit was cut with bleeding injury. Both the brothers went to Behra Toli and informed the villagers. They asked the villagers to watch the dead body and both the informant and his brother went to Village and returned again back to Nakul Bandh at about 10.30 p.m. along with the villagers, namely, Lalan Singh (PW 2), Shiv Prasad Singh (PW 9) and others. None of the villagers of, Behra Toli informed as to who assaulted their father, resulting his death. None of the villagers of, Behra Toli informed as to who assaulted their father, resulting his death. In the morning at 4.30 a.m. on 28.4.1993 informant along with Lalan Singh went to the police station, Blowa, and lodged the First Information Report on which he and Lalan Singh signed (Exts. 1 and 1/1 respectively). On that basis, a formal First Information Report (Ext. 2) was registered and the I.O. (PW 15) took up investigation. In course of investigation he was informed about the complicity of both these appellants and one Mathura Singh. Mathura Singh absconded whereas both these appellants were apprehended. Charge sheet was submitted against these appellants, showing Mathura Singh absconder. 3. After framing of charges, the prosecution produced altogether fifteen• witnesses in order to substantiate the charges, levelled against these appellants. PW 1 Sudan Singh, the informant, and PW 8 Madan Singh are the sons of deceased Ragho Singh. They are not the eye witnesses, rather PW 1 was informed by Shiv Prasad Singh (PW 9) and Lalan Singh (PW 2). Moreover PW 1 claims that he was also informed by one Chandrapal Singh the names of the assailants. PW 2 Lalan Singh is the Fufa of the informant and is a seizure list witness in respect of the seized blood stained soil, who was also informed by Ghandrapal Singh• that these appellants murdered Ragho Singh. PW 3 Jyoti Lakra, a child witness, is the only eye witness examined in this case, whose statement (Ext. 5) was also recorded under Section 164 Cr.P.C. PW 4 Bikram Singh is a formal witness. PW 5 Emil Kullu and PW 6 Gregory Barla are the witnesses on inquest report on which they signed (Exts. 1/4 and 1/5 respectively). PW 7 Kailash Munda has simply carried the dead body from the place of occurrence. PW 8 Madan Singh, son of the deceased, is also a hearsay witness. PW 9 Shiv Prasad Singh remained watching the dead body throughout the night along with others. PW 10 Dr. Sudhir Mahto has conducted the autopsy on the dead body of Ragho Singh and prepared Post Mortem Report (Ext. 3) in his pen and signature. PW 11 Lajrus Kujur is also a hearsay witness. PW 9 Shiv Prasad Singh remained watching the dead body throughout the night along with others. PW 10 Dr. Sudhir Mahto has conducted the autopsy on the dead body of Ragho Singh and prepared Post Mortem Report (Ext. 3) in his pen and signature. PW 11 Lajrus Kujur is also a hearsay witness. PW 12 Anthony Tete of Village-Aling Garh, Pandra Pani, saw Kapildeo Singh and Gobardhan Singh (both appellants), Mathura Singh (absconder), Chandrapal Singh (not examined by the prosecution, who is alleged to have died) and Jamuna Singh near his house cooking meal, having wine and chicken. When informant and his brother Madan Singh went to him, Gobardhan Singh alias Gobra and Kapildeo Singh fled away. PW 13 Ram Chandra Singh is amongst the persons, who chased the appellants and apprehended who made extra-judicial confession before them and the Chowkidar that both of them caused murder of Ragho Singh. PW 14 Parsuram Singh, who is related with these appellants did not support the prosecution case and was declared hostile and PW 15 Bindeshwari Jha is the I.O. of this case, who recorded the First Information Report, prepared inquest report (Ext.4) and took up investigation. 4. The learned Additional Sessions Judge mainly relied on the evidence of the sole child eye witness Jyoti Lakra (PW 3) who was also fishing at Nakul Bandh where Ragho Singh was fishing with the fishing rod. The learned Additional Sessions Judge relied the evidence of the sole child eye witness finding that it gets corroborated by the evidence of PW 10 Dr. Sudhir Kumar Mahto, who found injuries as narrated by the child witness (PW 3) and also the extra-judicial confession made by these appellants before the villagers and Chowkidar, convicted the appellants and sentenced them thereunder for the charges levelled against them. 5. Learned counsel for the appellants have argued that the informant (PW 1) was informed by Chandrapal Singh (not examined) the names of the appellants at the very night of 27.4.1993 at Nakul Bandh when the informant, his brother and Chandrapal Singh had gone there. Next morning i.e. on 28.4.1993 at 4.30 a.m. the first information was lodged at the police station against unknown. The informant did not disclose the names of the assailants in the F.I.R. as to who caused murder of his father. Next morning i.e. on 28.4.1993 at 4.30 a.m. the first information was lodged at the police station against unknown. The informant did not disclose the names of the assailants in the F.I.R. as to who caused murder of his father. One Jamuna Singh, who would have been the independent witness, has not been examined in this case. Although Chandrapal Singh has not been examined in this case by the prosecution, but his statement (Ext. 5/1) was recorded under Section 164 Cr.P.C. after fifteen days of the alleged occurrence wherein he has stated that appellant Kapildeo Singh threw Ragho Singh on the ground, appellant Gobardhan Singh alias Gobra pressed the neck and absconder accused Mathura Singh stabbed with knife, resulting death of Ragho Singh. Thereafter they threw the dead body into the water, threatening him not to disclose otherwise he would also be killed. The I.O. who went to Nakul Bandh on 28.4.2003 saw the dead body laid on the rock. There is no evidence to show that who took out the dead body out of the water and laid it on the rock. PWs 1 and 8, who are sons of the deceased and are most interested witnesses have also contradicted their statements, by stating that at night when they, in course of search, went there, they saw the dead body of their father into the water having sustained bleeding injuries. They took out the dead body from the water and kept it on the rock. At the same breath the informant has deposed that in the morning the dead body was taken out of the water when the villagers assembled there. Chandrapal Singh, whose statement (Ext.5/1) was recorded under Section 164 Cr.P.C. has not stated that at Nakul Bandh Jyoti Lakra was also catching fish. Similarly Jyoti Lakra in her statement (Ext. 5) recorded under Section 164 Cr.P.C. did not mention the name of Chandrapal Singh as he was also passing through the Nakul Bandh and saw the alleged assault on Ragho Singh by these appellants. Their statements were recorded under Section 164 Cr. P.C. after 15 days, giving a concocted prosecution case. Similarly Jyoti Lakra in her statement (Ext. 5) recorded under Section 164 Cr.P.C. did not mention the name of Chandrapal Singh as he was also passing through the Nakul Bandh and saw the alleged assault on Ragho Singh by these appellants. Their statements were recorded under Section 164 Cr. P.C. after 15 days, giving a concocted prosecution case. Jyoti Lakra (PW 3) a child witness, who claims to be an eye witness and was acquainted with the appellants, who are co-villagers, did not inform at night the informant, his family members or evan she did not narrate the occurrence to her parents or any other villager, as it was not so dark at that time. The I.O. has not produced the seized material i.e. blood stained soil. Near the house of PW 12 Antony Tete, these appellants along with absconder accused Mathura Singh, Chandrapal Singh. and Jamuna Singh were cooking meal having wine and chicken. Chandrapal Singh, who is n.ow dead, informed the informant and his brother at Nakul Bandh that these appellant saw PW 1 and PW 8, they fled away whereas Mathura Singh, Jamuna Singh and Chandrapal Singh remained there. It was argued that it is alleged that Mathura Singh is the main assailant, who stabbed with knife repeatedly on the person of Ragho Singh, resulting his death as deposed by the only eye witness PW 3. In that situation blood must have been found on the clothes of Mathura Singh. At that very night at 10.00 p.m. Mathura Singh and others were cooking along with these appellants. At that time they did not see any blood stain on the cloth of Mathura Singh nor they saw any blood stain knife which could not be seized. The conduct of Mathura Singh shows that he is innocent. However, later on all the three accused managed to flee away. PW 3 the only eye witness has deposed that Ragho Singh was fishing at Nakul Bandh with fishing rod prior to the arrival. She also started catching fish. Thereafter, these appellants along with absconder Mathura Singh having fishing net went there and demanded fish from Ragho Singh, which he had caught. On refusal Ragho Singh was laid down by appellant Kapildeo Singh and his neck was pressed by appellant Gobra. Mathura Singh (absconder) stabbed Ragho Singh with knife repeatedly, 7 to 8 times, resulting his death. Thereafter, these appellants along with absconder Mathura Singh having fishing net went there and demanded fish from Ragho Singh, which he had caught. On refusal Ragho Singh was laid down by appellant Kapildeo Singh and his neck was pressed by appellant Gobra. Mathura Singh (absconder) stabbed Ragho Singh with knife repeatedly, 7 to 8 times, resulting his death. The motive of these appellants was not to cause murder rather their motive was only fishing and to demand fish from Ragho Singh. Moreover these appellants have simply pressed the neck and laid down Ragho Singh on the ground whereas allegation is only against the absconder accused Mathura Singh to have caused stab injuries, causing death of Ragho Singh. In absence of any intention or mens rea to cause murder of Ragho Singh, these appellants can not be saddled for the charges under Section 302/34 of the Indian Penal Code. On this point, learned counsel for the appellants has relied upon a case reported in 2003 Cr.L.J. 2425 (Shankarrao Bhimrao Sarnaik V5. State of Maharashtra). It was further argued that these appellants were not knowing regarding possession of knife by the absconding accused Mathura Singh and hence they can not be convicted with the aid of Section 34 I.P.C. The learned counsel have further relied upon the cases, reported in 2003(3) Est. Cr.C. 541 (Pat) (Munna Sao alias Munna Kumar alias Kalia VS. State of Bihar and 2001 S.A.R. (Cr.) 16 (Saju VS. State of Kerala). It was also argued that only PW 3 a child witness claims herself to the eye witness. Her statement could not be corroborated by any other circumstantial or medical evidence and, as such, her evidence can not be relied upon and have relied upon the cases reported in 2003 S.A.R. (Cr.) 741 (State of Karnataka VS. Amajappa & Ors.), 2000 S.A.R. (Cr.) 344 (State of U.P. VS. Ashok Disxit & Anr.) and 2003 Cr.L.J. 1262 (Bhagwan Singh & Ors. VS. State of M.P.). It was further submitted that the other witnesses are hearsay witnesses whose evidence could not be corroborated by any interested witness or independent witness directly or indirectly and hence their evidence can not be relie(j upon and have placed reliance on the cases reported in 2003 Cr.L.J. 3552 (Pawan .Kumar VS. State of Haryana) and 2003 Cr.L.J. 2543 (Joseph @ Jose VS. State of Kerala). State of Haryana) and 2003 Cr.L.J. 2543 (Joseph @ Jose VS. State of Kerala). There is no allegation against these appellants to have given any blow either with hard and blunt substance or with knife and hence action of co-accused Mathura Singh, who stabbed with knife resulting death of Ragho Singh can not be used against these appellants and has relied upon a case, reported in 2001 S.A.R. (Cr.) 16 (supra). 6. learned A.P.P. submitted that the only eye witness (PW 3), who is a child witness, has narrated the manner of the alleged occurrence that these appellants along with Mathura Singh (absconder) caused murder of Ragho Singh and threw his dead body into the water only because he did not give fish to these appellants on demand. Another eye witness Chandrapal Singh whose statement (Ext. 5/1) was recorded under Section 164 Cr.P.C. could not be examined only because he died since thereafter. The I.O. found the dead body at Nakul Bandh on a rock. Dr. Sudhir Kumar Mahto (PW 10) found three incised wounds and four abrasions and opined that the cause of death was three incised wounds, caused by knife. On these grounds, it was submitted that the learned Additional Sessions Judge, Simdega, having relied on the evidence of the child witness, corroborated by the evidence of the doctor (PW 10) and the objective findings of the I.O. (PW 15), rightly convicted these appellants for the charges levelled against them. 7. The informant Sudan Singh (PW 1) and his brother Madan Singh (PW 8) are not the eye witnesses. On the alleged day of occurrence, Sudan Singh had gone to Bolwa market whereas his brother Madan Singh (PW 8) had gone to plough his field towards Nakul Bandh, on which side their father Ragho Singh had gone for fishing at Nakul Bandh. Early in the morning at 8.00 a.m. Ragho Singh left for fishing. When he did not return home till 5.00 p.m., both these witnesses, who are sons of late Ragho Singh, went in search of their father, having torch. Madan Singh had seen his father sitting while fishing and, as such, they went there and found half portion of the dead body into the water, having sustained bleeding injuries on 'his cheek and by the side of the eyes. They also saw black ligature mark on the neck. In the First Information Report (Ext. Madan Singh had seen his father sitting while fishing and, as such, they went there and found half portion of the dead body into the water, having sustained bleeding injuries on 'his cheek and by the side of the eyes. They also saw black ligature mark on the neck. In the First Information Report (Ext. 2) the informant has stated that he and his brother Madan Singh (PW 8) went to Nakul Bandh at about 10.30 p.m. and took out the dead body from the water and kept it on the rock. Thereafter they went to the nearby village-Behra Toli and informed the villagers and asked them to watch the dead body and they went to village and informed Lalan Singh (PW 2), Shiv Prasad Singh (PW 9) and others. In course of evidence, PW 1 informant Sudan Singh has deposed that he saw the dead body lying into the water. First he went to village-Pandri Pani and informed the villagers. Thereafter, he went to his village and again came back and as informed by Chandrapal Singh, they saw the dead body. Chandrapal Singh had informed that appellants Gobardhan Singh alias Gobra and Kapildeo Singh along with Mathura Singh (absconder) murdered their father at Nakul Bandh. The dead body remained into the water throughout the night. Although he claims that he named the assailants before the I.O. but the F.I.R. does not find mention the names of the assailants, rather it is against unknown. PW 8 Madan Singh had gone to Nakul Bandh along with his brother PW 1 Sudan Singh. They met Chandrapal Singh, Mathura Singh and Gobardhan Singh alias Gobra. They asked about their father on which Chandrapal Singh took them to Nakul 3andh where they saw the dead body of Ragho Singh. Chandrapal Singh remained here watching the dead body. This witness PW 8 and his brother PW 1 went to Behra Toli. The villagers of Behra Toli also went here and watched the dead body through but the night. Next morning PW 1 Sudan 3ingh went to lodge information to Bolwa Police Station. Chandrapal Singh had not informed this witness (PW 8) the names of he assailants rather he simply informed hat his father was fishing at Nakul Bandh. The villagers of Behra Toli also went here and watched the dead body through but the night. Next morning PW 1 Sudan 3ingh went to lodge information to Bolwa Police Station. Chandrapal Singh had not informed this witness (PW 8) the names of he assailants rather he simply informed hat his father was fishing at Nakul Bandh. Thus, the evidence of PW 1 gets contradicted by the evidence of his full brother Madan Singh (PW 8) that when they first vent they saw the dead body in the water of Nakul Bandh and thereafter, they brought out the dead body and kept it on the rock. PW 1 in court has deposed that the dead body remained in the water throughout the night and in the morning it was brought out of the water. PW 8 has deposed that the dead body remained into the water. At that time whether Chandrapal Singh disclosed the names of the appellants is no known to this witness. Chandrapal Singh along with Mathura Singh (absconder) and both these appellants Kapildeo Singh and Gobardhan Singh alias Gobra were together. Out of them Chandrapal Singh took them to Nakul Bandh and pointed out the dead body. This statement is also contradicted as PW 1 has deposed that at 9.30 p.m. on 27.4.1993 he and his brother Madan Singh (PW 8) alone went to Pindra Pani and informed the villagers. PW 9 Shiv Prasad Singh, who was also amongst the villagers, watching the dead body throughout the night at Nakul Bandh, saw the dead body lying into the water, having injuries. PW 2 Lalan Singh has also deposed that the dead body was into the water. He was also informed by Chandrapal Singh that these appellants and Mathura Singh murdered Ragho Singh on the seizure list in respect to the seized blood stained soil (Ext. 1/2) and also fishing rod with thread and fishing hook on which he also signed (Ext. 1/3). PW 5 and PW 6 Emil Kullu and Gregray Barla claimed that they saw the dead body on the rock when they went there at 10.00 p.m. on 27.4.1993. They are the witnesses, who signed on the inquest report (Exts. 1/4 and 1/5 respectively. The informant PW 1 had not disclosed the names of the assailants to them. 1/3). PW 5 and PW 6 Emil Kullu and Gregray Barla claimed that they saw the dead body on the rock when they went there at 10.00 p.m. on 27.4.1993. They are the witnesses, who signed on the inquest report (Exts. 1/4 and 1/5 respectively. The informant PW 1 had not disclosed the names of the assailants to them. PW 12 Anthony Tete has deposed that at 10.00 p.m. on 27.4.1993 at a distance of 50 yards from his house at VillageAling Garh, Pandra Pani, appellants Kapildeo Singh, Gobardhan Singh, Mathura. Singh (absconder): Chandrapal Singh and Jamuna Singh were cooking, having chicken and wine with them. Both Sudan Singh PW 1, his brother Madan Singh PW 8 and Lakhan Singh (not examined) went to the house of this witness Anthony Tete and informed that some one had murdered their father Ragho Singh at Nakul Bandh. In the meantime, both the appellants Gobardhan Singh and Kapildeo Singh fled away whereas Mathura Singh, Chandrapal Singh and Jamuna Singh remained at the place of cooking. Chandrapal Singh took the three brothers, Sudan Singh (PW 1), Madan Singh (PW 8) and Lakhan Singh to Nakul Bandh. They returned from Nakul Bandh and thereafter, they returned to the house of Anthony Tete (PW 12) and informed that the dead body of their father was found. The evidence of this witness also does not corroborate as to whether the informant Sudan Singh and his brother Madan Singh (PW 8) had first found the dead body of their father at Nakul Bandh into the water, which they brought out and kept on the rock or whether they went to Nakul Bandh and saw the dead body of their father when pointed out by Chandrapal Singh. From there they again came back and informed PW 12 Anthony Tete, who had seen both these appellants along with Mathura Singh (absconder), Chandrapal Singh and Jamuna Singh. Jamuna Singh has not been examined by the prosecution. Amongst them, Chandrapal Singh had informed the place where Ragho Singh was fishing. It is also contradictory as to whether he disclosed the names of the assailants to PW 1 at Nakul Bandh when he came to know the names of the assailants as the First Information Report, lodged in the next morning, IS silent about the names of the assailants, rather it has been lodged against unknown. It is also contradictory as to whether he disclosed the names of the assailants to PW 1 at Nakul Bandh when he came to know the names of the assailants as the First Information Report, lodged in the next morning, IS silent about the names of the assailants, rather it has been lodged against unknown. It is quite unnatural that after the alleged murder, these appellants along with Mathura Singh, Chandrapal Singh and Jamuna Singh were cooking meat, having wine at a distance of 50 yards from the house of Anthony Tete (PW 12). Chandrapal Singh, who pointed out the place where Ragho Singh was fishing at Nakul Bandh was also with the appellants while cooking at 10.00 p.m. in the night on the same day. Mathura Singh is alleged to have stabbed 7 to 8 times but no blood stained cloth was seen on his person nor he fled away when Gobardhan Singh and Kapildeo Singh fled away. PW 13 Ram Chandra Singh claims that the villagers chased and both these appellants were apprehended by the villagers, who confessed their guilt before the Chowkidar. The Village Chowkidar before whom extra-judicial confession was made in presence of the villagers has also not been examined. 8. Now I take up the evidence of PW 3, the only child eye witness, as to whether her evidence can be relied upon or not. She has deposed that at 3.00 p.m. on Tuesday she had gone to catch fish at Nakul Bandh. Ragho Singh was also fishing with fishing rod at Nakul Bandh. At that time Kapildeo Singh, Gobardhan Singh and Mathura Singh went there with fishing net. Kapildeo Singh demanded fish from Ragho Singh, which he refused and then appellant Gobardhan Singh climbed on the chest and pressed the neck of Ragho Singh. Mathura Singh (absconder) stabbed near both the eyes and on the head 7 to 8 times and threw the dead body into the water. Her statement (Ext. 5) was also recorded under Section 164 Cr.P.C. on which she had given her L.T.1. She has deposed that appellant Gobra had simply climbed on the chest but had not assaulted Ragho Singh. She has not alleged against appellant Kapildeo Singh that he also took any part in assaulting Ragho Singh. However, in her earlier statement under Section 164 Cr.P.C. (Ext. She has deposed that appellant Gobra had simply climbed on the chest but had not assaulted Ragho Singh. She has not alleged against appellant Kapildeo Singh that he also took any part in assaulting Ragho Singh. However, in her earlier statement under Section 164 Cr.P.C. (Ext. 5) she has deposed that Kapildeo Singh laid down Ragho Singh on the ground and then Gobardhan Singh pressed his neck and Mathura Singh stabbed with knife. Her statement could not be corroborated even by the interested witnesses i.e. PWs 1 and 8. There is also contradictions regarding the dead body having been found on the rock, as this witness has deposed that all the three accused including both these appellants threw the dead body into the water. PW 10 Dr. Sudhir Kumar Mahto on 28.4.1993 at 3.30 p.m. conducted autopsy on the dead body of Ragho Singh and found the following ante-mortem injuries on his person : Rigor mortis was present only on the lower limbs with bleeding from mouth and nostrils. On his person, he found three incised and penetrating wounds (i) on the right cheek, just below the right orbit -2" x 1" x 4" (ii) on the left cheek, just below the left orbit - 1 1/2" x 3/4" x 3" and (iii) on the left side of frontal bone of skull 2 inch above the left orbit - 2" x 1" x deep to brain matters. 4th injury was bruise on the left cheek near the left angle of mouth - 2" x 2". 5th injury was one abrasion on the left side of scapula region - 1" x 1" x skin deep and 7th injury was one abrasion .on the left side of thigh of medial size - 1" x 1/2" x skin deep. He also found the fracture of frontal bone (left) of skull with laceration of margins and brain matters. There was inter cerebral haemorrhage on brain surface. He found fracture of maxillary bones of both sides. Right side of eye ball was lacerated. The doctor (PW 10) opined that injury 10S. 1, 2 and 3 were caused by sharp cutting weapon, may be possible by Chhura and were grievous in nature. The rest four injuries were caused by blunt weapon, possibly by small or big Lathi or handle of 'Jhhura, which were simple in nature. Right side of eye ball was lacerated. The doctor (PW 10) opined that injury 10S. 1, 2 and 3 were caused by sharp cutting weapon, may be possible by Chhura and were grievous in nature. The rest four injuries were caused by blunt weapon, possibly by small or big Lathi or handle of 'Jhhura, which were simple in nature. He opined that time elapsed since death was 36 hours from the time of the post mortem examination. The death was caused due to coma, followed by head injuries and excessive haemorrhage. Ext. 3 is the Post Mortem report in his pen and signature. He further opined that the death is possible "as a result of injury nos. 1 to 3, causing immediate death of the injured. 9. PW 15 Sindeshwari Jha (I.O.) has recorded the first information of Sudan Singh on 28.4.1993 at 4.30 a.m. On that basis formal F.I.R. was drawn and thereafter, he proceeded to the place of occurrence, which is Nakul Sandh, at a distance of 100 yards from Pandri Pani Tola. He saw the dead body on a rock near the water. He prepared inquest report (Ext. 4) in presence of the witnesses, who signed on it and sent the dead body for post-mortem examination to Simdega. He apprehended both these appellants. Thereafter, statements of Jyoti Lakra and Chandrapal Singh were recorded under Section 164 Cr.P.C. by the learned Magistrate. The informant Sudan Singh had not informed him the names of these appellants and one absconding accused Mathura Singh as assailants. Subsequently PW 1 has stated to this witness that these appellants along with Mathura Singh (absconder) caused murder of his father. PW 13 Ram Chandra Singh has not stated before him that he was informed by informant Sudan Singh and his brother Mathura Singh that their father was murdered by these appellants and absconding accused Mathura Singh, thereafter threw the dead body into the water rather both these appellants when apprehended by the villagers, they confessed their guilt before the Chowkidar. PW 12 Anthony Tete has not stated before the I.O. that in the night of the alleged occurrence i.e. 27.4.1993 Madan Singh, Sudan Singh and Lakhan Singh had gone to his house and named the assailants. Thus, the evidence of the witnesses PW 12 and PW 13 is a subsequent development in the court. 10. The inquest report (Ext. PW 12 Anthony Tete has not stated before the I.O. that in the night of the alleged occurrence i.e. 27.4.1993 Madan Singh, Sudan Singh and Lakhan Singh had gone to his house and named the assailants. Thus, the evidence of the witnesses PW 12 and PW 13 is a subsequent development in the court. 10. The inquest report (Ext. 4) shows that the dead body was on the rock at Nakul Sandh. There were bleeding injuries on his head near the cheek and blood was oozing out from the mouth. The Post Mortem Report (Ext. 3) shows that the post-mortem examination was conducted on 28.4.1993 at 3.30 p.m. Column 21 of the Post Mortem Report shows that the doctor (PW 10) found undigested food materials and Haria present whereas in his opinion time elapsed since death from the time of post-mortem examination was 36 hours. When this Post Mortem Report (Ext. 3) is considered, the F.I.R. regarding the time of murder i.e. in between 3.30 p.m. to 6.00 p.m. on 27.4.1993 Games to 24 hours whereas the doctor, who conducted the post-mortem examination at 3.30 p.m. on 28.4.1993 has given the probable time of death to be 36 hours. Moreover the deceased Ragho Singh had left his house on 27.4.1993 at 8.00 a.m. and there is no evidence on record to show that he has taken food and Haria. Even if he had taken food and Haria, then by the time the alleged occurrence took place i.e. at about 3.30 p.m., his stomach would not have contained undigested food. There is also no evidence on record where he took Haria. On the other hand, small intestine, as mentioned in column 22 of the Post Mortem Report (Ext. 3) was found with digested food materials and gas. 11. PW 3, the only child eye witness, who had gone to catch fish at Nakul Bandh at 3.00 p.m. claims to have seen the alleged occurrence. She has not alleged any overt act against Kapildeo Singh. On the other hand, she has alleged that Gobardhan singh alias Gobra had climbed on the chest of Ragho Singh but he did not assault him (Pr. 8). The doctor (PW 10) has found seven injuries on the person of deceased Ragho Singh, out of them 3 were incised wounds, caused by sharp edged jointed weapon i.e. Chaku. On the other hand, she has alleged that Gobardhan singh alias Gobra had climbed on the chest of Ragho Singh but he did not assault him (Pr. 8). The doctor (PW 10) has found seven injuries on the person of deceased Ragho Singh, out of them 3 were incised wounds, caused by sharp edged jointed weapon i.e. Chaku. These injuries 10 not corroborate the manner of the alleged occurrence, as deposed by the only child witness PW 3 that Mathura Singh stabbed 7 to 8 times with knife on both sides of eyes and fore-head. On the other hand, out of the remaining four injuries, injury no. 4 is lacerated and the rest other injuries i.e. 5, 6 and 7 are abrasions, caused by big or small Lathi as deposed by PW 10 Dr. Sudhir Kumar Mahto. This also does not find corroborated as to who had possessed Lathi, as the specific evidence of PW 3 is that although Gobardhan Singh had climbed on the chest, but he did not assault Ragho Singh. On the other hand, there is no allegation of any overt act against appellant Kapildeo Singh as deposed by PW 3. Injury Nos. 4 to 7, as deposed by PW 10, may be possible by the handle portion of knife. This can be possible only when the sharp edged weapon will be caught with hand and with its butt's end the injured is thrashed or assaulted. In that position, the hand of the assailant must have been injured causing bleeding injury. Thus, this hypothesis that Ragho Singh might have been assaulted with back portion of Chhura is not convincing to me. 12. The only eye witness PW 3 when saw the alleged occurrence on 27.4.1993 at about 3.00 p.m. went to her village. At village she remained mum. She did not inform even her parents what to say to the informant and his brother or his family members. She is acquainted with the informant's family and the appellants, who are co-villagers. The informant returned home at 5.00 p.m. and went in search of his father along with his brother Madan Singh PW 8. At village she remained mum. She did not inform even her parents what to say to the informant and his brother or his family members. She is acquainted with the informant's family and the appellants, who are co-villagers. The informant returned home at 5.00 p.m. and went in search of his father along with his brother Madan Singh PW 8. In the morning the informant lodged the F.I.R. but did not disclose the names of the assailants, although at that very night i.e. 27.4.1993 when he along with his brother (PW 8) had gone to Village-Pandra Pani, Behra Tala, they met one Chandrapal Singh, who disclosed the names of the assailants and also took them to Nakul Bandh where the dead body was found. There is contradictory statements as to whether the informant and his brother first met Chandrapal Singh, who led them to Nakul 8andh, leading towards discovery of the dead body of Ragho Singh or both the brothers i.e. PWs 1 and 8 first went taking torch to Nakul Bandh and saw ~he dead body to which they brought out of the water and kept on the rock or when they went to nearby village Pandra Pani and informed the villagers, who went there and saw the dead body. The time of the alleged occurrence is also not corroborated by the time, as opined by the doctor, who conducted autopsy on the dead body of Ragho Singh. There is difference of 12 hours of the time of death, as alleged by the informant (PW 1), his brother (PW 8) and the only child eye witness (PW 3). PW 3 Jyoti Lakra, if out of fear, did not disclose the names of the assailants on 27.4.1993, then what was the cause that Chandrapal Singh, who pointed Out the dead body and had named the assailants at Nakul Bandh in presence of PW 1 Sudan Singh and his brother Madan Singh (PW 8), did not inform his villagers or went to inform the informant and other villagers rather he remained present at a distance of 50 yards away from the house of Anthony Tete (PW 12) and was cooking meal, having chicken and had also taken wine there both these appellants were also there and So also the absconding accused Mathura Singh along with Jamuna Singh. The silence of Chandrapal Singh also creates doubt as to whether he had disclosed the names of these appellants to PW 1 Sudan Singh at Nakul Bandh. At Nakul. Bandh, PW 8 Madan Singh was also there who has not deposed that Chandrapal Singh disclosed the names of these appellants and one Mathura Singh, alleging that they caused injuries to Ragho Singh, resulting his death. Even if the evidence of sale child witness (PW 3) is believed then also there is no averment in her deposition that appellant Kapildeo Singh had taken any part in assaulting- Ragho Singh. On the other hand, she has alleged that appellant Gobardhan Singh had climbed on the chest of Ragho Singh but he did not assault Ragho Singh, as deposed in paragraph no. 5 of her deposition in court. Thus, there is contradiction in her earlier statement (Ext. 5), recorded under Section 164 Cr.P.C. regarding the manner of occurrence. The evidence of the only child eye witness could not be corroborated by any of the witnesses including the time of occurrence, which gets contradicted by the evidence of Dr. Sudhir Kumar Mahto (PW 10). When considered the entire prosecution case and the evidence adduced by the witnessed in totality I find that the testimony of the eye witness is not trustworthy as it could not be corroborated by any other circumstantial or direct evidence, including the objective finding of the I.O. and the Post Mortem Report, conducted by PW 10 Dr. Sudhir Kumar Mahto. Both these appellants, even if were present as per the evidence of PW 3, and appellant Gobardhan Singh had climbed on the chest of Ragho Singh, then Mathura Singh (absconder) stabbed with Chhura causing three incised penetrating wounds on both sides of cheek near eyes and front of skull, resulting death of Ragho Singh, shows that the other four injuries caused by hard and blunt substance i.e. big or small Lathi or butt's end of the Chhura remained unexplained as to who caused those injuries. As deposed the dead body _ of Ragho Singh was kept on the rock at 10.30 p.m. on 27.4.1993 itself by PWs 1 and 2. who first went there. As deposed the dead body _ of Ragho Singh was kept on the rock at 10.30 p.m. on 27.4.1993 itself by PWs 1 and 2. who first went there. The statements of other witnesses, including the witnesses of inquest report and seizure list witnesses that the dead body was found into the water and next morning i.e. on 28.4.1993 when the police went there, it was brought out of the water is also not corroborated as the inquest report does not show that the clothes or wearing apparels were wet with water. Moreover the inquest report and the Post Mortem Report (Exts. 4 and 3 respectively) are very clear that the blood was oozing out from the mouth and nostrils, meaning thereby that there was no clotting of blood, which is possible only when the dead body will be taken out of the water. Column 21 of the Post Mortem Report (Ext. 3) shows that in the stomach undigested food materials and Haria were also present. This shows that the deceased might have taken food and drinks within three hours prior to his death. The time elapsed since death also does not correspond the time of murder, as alleged by the witnesses. The doctor (PW 10), who conducted the autopsy has opined that injury nos. 1 to 3 would have caused instantaneous death as the injuries were incised penetrating wounds. The appellants along with absconding accused Mathura Singh had gone to Nakul Bandh having fishing net and in course of fishing both these appellants were unarmed. They had no knowledge as to whether co-accused Mathura Singh had possessed any knife. There is no evidence that their intention was common in furtherance of their all to cause murder of Ragho Singh to attract Section 34 of the Indian Penal Code. Their intention was only to get the fish, which Ragho Singh had fished out with fishing rod. 13. When considered all the pros and cons of the prosecution evidence, I find hat the learned Additional Sessions Judge Simdega, has erroneously relied on the evidence of Jyoti Lakra (PW 3), a child witness, who has claimed herself to be an bye witness as her evidence itself is contradictory regarding the manner of the alaged occurrence and the part played by these appellants in causing murder of Ragho Singh. Her silence during the entire light of 27.4.1993 and not disclosing what she saw at Nakul Bandh is also quite unnatural. She is in between the age group of 10 to 11 years. The confessional statements, made by these appellants before the villagers and Chowkidar has also not been corroborated. The intention to cause murder by these appellants in furtherance of their common intention also does not find corroborated by any other evidence. The evidence of other witnesses, who are hearsay witnesses, including PWs 1, 8 and other witnesses, who are independent witnesses, is contradictory to each other, regarding the conduct of the appellants and the absconding accused Mathura Singh. There is no recovery of the means of assault also. The inquest report does not show that the clothes were wet nor it shows that the dead body was in the water of Nakui Bandh. On the other hand, the dead body was found on the rock. At that very night PWs. 1 and 8 took out the dead body from the water and kept it on the rock. But they have also contradicted as to whether the dead body remained in the water throughout the night and was brought out of the water in the morning and was kept on the rock or whether the dead body was brought out of the water in the night itself and was kept on the rock. The bleeding from the nostrils and mouth in the morning of 28.4.1993 shows that the dead body was brought out of the water recently as there was no clotting of blood. The stomach which was found containing undigested food with Haria is also a mystery as the deceased left his house early in the morning at 8.00 a.m. and at 3.00 p.m. on the same day he was assaulted resulting his death. The Post Mortem Report also does not corresponds the time of assault on Ragho Singh, causing his immediate death. Chandrapal Singh who claims to be the eye witness could not be examined as he died but his statement under Section 164 Cr.P.C. (Ext. 5/1) could not be corroborated even by PW 3, another child eye witness, who has also contradicted her• statement (Ext. Chandrapal Singh who claims to be the eye witness could not be examined as he died but his statement under Section 164 Cr.P.C. (Ext. 5/1) could not be corroborated even by PW 3, another child eye witness, who has also contradicted her• statement (Ext. 5), recorded under Section 164 of the Code of Criminal Procedure, in her evidence in court regarding the part played by these appellants in causing injuries to Ragho Singh, as she has averred that Ragho Singh was assaulted with knife by Mathura Singh, since absconding, whereas appellant Gobardhan Singh had simply climbed on the chest but he did not assault Ragho Singh. She has not alleged anything against appellant Kapildeo Singh to have even touched the body of Ragho Singh, contradicting her statement, recorded under Section 164 Cr.P.C. It is only because her statement under Section 164 Cr.P.C. was recorded after 15 days of the alleged occurrence whereas her statement under Section 161 Cr.P.C. was recorded on the following day i.e. on 28.4.1993 by the I.O. (PW 15). 14. Viewed thus, I find that there is legal infirmity in the impugned judgment and order of conviction and sentence, passed by the learned court below, only because the evidence of child eye witness is itself contradictory as discussed in the above paragraphs by me. The intention of these appellants was not to cause murder of Ragho Singh as they were unarmed and there is no any overt act alleged against them. There is no recovery of any arm from their possession. The alleged extra judicial confession made by them before the village witnesses and the Chowkidar also could not be corroborated, which is unreliable. The manner towards recovery of the dead body of Ragho Singh is also contradictory. The conduct of these appellants that they were cooking at about 10.00 P.m. on 27.4.1993 near the house of Anthony Tete (PW 12) where Chandrapal Singh was also present also stands contradicted as PW 12 Anthony Tete has not deposed before the I.O. under Section 161. 15. When considered meticulously all these facts, circumstances and evidence on record, I find that the prosecution has failed to prove its case against both the appellants beyond all shadow of reasonable doubts for the charges, levelled against them i.e. Sections 302/34 and 201 of the Indian Penal Code. 15. When considered meticulously all these facts, circumstances and evidence on record, I find that the prosecution has failed to prove its case against both the appellants beyond all shadow of reasonable doubts for the charges, levelled against them i.e. Sections 302/34 and 201 of the Indian Penal Code. In that view of the matter, the judgment and order of conviction and sentence, passed by the learned court below can not be sustained. In the result, I find merit in this Criminal Appeal, which accordingly succeeds and is hereby allowed. The judgment and order of conviction and sentence passed by the learned court below against these appellants is hereby set aside. Appellant no. 1 Gobardhan Singh alias Gobra, who is in custody, is ordered to be released forthwith from the custody, if not required in any other case whereas appellant no. 2, namely, Kapildeo Singh, who is on bail, is discharged from the liability of his bail bonds. S.J. Mukhopadhaya, J.-I agree.