ORDER 1. The sole appellant Jetha Munda has preferred this Jail Appeal against the judgment and order of conviction and sentence dated 6th February, 1996 and 9th February, 1996, passed by Smt. Shakuntala Sinha, learned Additional Judicial Commissioner, Khunti, in Sessions Trial No. 412 of 1992, arising out of GR No. 247 of 1991, whereby and whereunder, the learned Court below has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default whereof to further undergo rigorous imprisonment for two years. 2. The informant Sanika Munda (PW 1) in his fardbeyan (Ext. 2), recorded on 14.5.1991 at 10.00 hours by Sri M. Prasad, Officer-in-Charge, Karra Police Station, at Village-Dumargarhi Bantoli, Police Station-Karra, District-Ranchi, has alleged that on 13th May, 1991 while he was sleeping in his house, appellant Jetha Munda went to him and informed that he had assaulted his brother Bhutia Munda and bhabhi Etwari Devi with lathi, resulting their death, PW 2 Juhi Mundain, wife of the informant (PW 1), also heard that appellant had caused murder of his elder brother and bhabhi at 10.00 p.m. night. The informant went to the house of the appellant where he saw the dead bodies of Bhutia Munda and Etwari Devi. Both the deceased had bleeding injuries on their heads. PW 4 Karma Munda, aged about 8 years, son of deceased, was also present there, who informed the informant that Jetha Munda had assaulted his parents with lathi to death. The alleged occurrence took place only due to distribution of lac, which was being reared in their joint plum tree, The another reason was the death of two sons of the appellant due to illness, as the appellant had suspected his bhabhi Etwari Devi to have played witch craft on his sons, resulting their death. The informant remained throughout near the dead bodies, guarding them. In the morning he sent the village chowkidar Oriya Oraon (PW 5) to inform the police. In the meantime, the Officer-in-Charge, Karra Police Station, came to the village, who recorded his fardbeyan on which he gave this LTI. 3. The prosecution could not examine the doctor, namely, Dr. S.K. Sinha, who conducted autopsy on the dead bodies of both the deceased, as he died after his transfer from Khunti Sub-Divisional Hospital to Itki. PW 3 Dr. In the meantime, the Officer-in-Charge, Karra Police Station, came to the village, who recorded his fardbeyan on which he gave this LTI. 3. The prosecution could not examine the doctor, namely, Dr. S.K. Sinha, who conducted autopsy on the dead bodies of both the deceased, as he died after his transfer from Khunti Sub-Divisional Hospital to Itki. PW 3 Dr. Sudhir Kumar Sandilya, Medical Officer, has proved the Post Mortem Reports (Ext. 1 and 1/1), prepared in the pen and signature of Dr. S.K. Sinha (now dead). Investigating Officer of this case has also not been examined. PW 6 Banwari Lal Jaiswal, a formal witness, has proved the fardbeyan (Ext. 2), recorded in the pen and signature of Manohar Prasad, Officer-in-Charge, Karra Police Station, and formal First Information Report (Ext. 3). He has also proved the inquest reports (Exts. 4 and 4/1), prepared by the Officer-in-Charge, Karra Police Station. 4. The learned Court below having relied the evidence of the informant Sanika Munda (PW 1), Juhi Mundain (PW 2) and Karma Munda (PW 4), the sole child eyewitness and the son of the deceased, convicted and sentenced the sole appellant under Section 302 of the Indian Penal Code. 5. Mr. Praveen Kumar, learned Amicus Curiae, while assisting the Court has submitted that due to non-examination of the Investigation Officer and the doctor, the appellant was highly prejudiced. The village consists of other villagers, having their houses nearby the houses of the appellant and deceased. At night none of the independent witnesses of the village came to support the prosecution case. The sole eye-witness is Karma Munda (PW 4), aged about 8 years, whose evidence remained uncorroborated. The learned Additional Judicial Commissioner, Khunti, has wrongly placed reliance on the evidence of Sanika Munda (PW 1), Juhi Mundain (PW 2) and Oriya Oraon (PW 5) before whom the appellant is alleged to have made his extra-judicial confession that he assaulted his elder brother and bhabhi with lathi resulting their death and the dead bodies were lying in front of their house. It was also assailed that the sole child eye-witness did not inform the villagers rather he went to inform his elder brother at night, who lives 2 kosh (5 Kms.) away from the PO village, and in the morning he came to the PO Village. It was also assailed that the sole child eye-witness did not inform the villagers rather he went to inform his elder brother at night, who lives 2 kosh (5 Kms.) away from the PO village, and in the morning he came to the PO Village. He never informed any villagers rather it was the appellant, who informed the informant and his wife. The village chowkidar (PW 5) did not take the appellant to the Police Station at night rather they were at the village itself. Even the chowkidar or the informant did not inform any of the villagers at night. It, was also submitted that there are contradictions in the statement of sole child eye-witness Karma Munda (PW 4) and hence his evidence can not be relied to convict this appellant, who deserves acquittal, giving him the benefit of doubt. 6. Mr. Vijay Gopal, learned APP, in course of his argument has submitted that PW 4 Karma Munda went along with his parents when called by his uncle Jetha Munda for distribution of lac. He saw that appellant took out one lathi from the sahan and gave four lathi blows on the head of his father. When his mother, who was having a child on her back, tried to save his father, she was also given three lathi, blows on her head. Both his parents fell down and died at the spot. The doctor, who conducted autopsy on the dead bodies, could not be examined as he died and hence the Post Mortem Reports (Exts. 1 and 1/1) are admissible in evidence. PW 3 Sudhir Kumar Sandilya was posted along with Dr. S.K. Sinha, who has proved the Post Mortem Reports, issued in the pen and signature of Dr. S.K. Sinha (now dead). Hence being an expert witness, the evidence of PW 3, Dr. Sudhir Kumar can not be discarded. It was also submitted that the appellant made his extra-judicial confession before PW 1 Sanika Munda, PW 2 Juhi Mundain and PW 5 Oriya Oraon. Karma Munda (PW 4) had also informed these witnesses that his uncle Jetha Munda had assaulted his father and mother with lathi, resulting their death. The injuries sustained on the heads of the deceased were also found by the Investigating Officer, who prepared inquest reports (Exts. 4 and 4/1) in respect of the dead bodies of Etwari Devi and Bhutia Munda. The injuries sustained on the heads of the deceased were also found by the Investigating Officer, who prepared inquest reports (Exts. 4 and 4/1) in respect of the dead bodies of Etwari Devi and Bhutia Munda. Thus, the inquest reports and the ocular evidence of Karma Munda (PW 4) stand corroborated to lead to the conclusion that this is the sole assailant responsible for causing murder of his elder brother and bhabhi by assaulting them with lathi on their heads. On these grounds it was submitted that the learned Court below having considered all the evidence, oral and documentary, has rightly convicted the sole appellant under Section 302 of the Indian Penal Code and sentenced him thereunder. 7. The death of Bhutia Munda and his wife Etwari Mundain is not in dispute, which gets supported by the inquest reports (Exts. 4 and 4/1) and Post Mortem Reports (Exts. 1 and 1/1). The cause of death was the shock and haemorrhage, due to assault by hard and blunt object within 24 hours from the time of Post Mortem examination on 14.5.1991 in between 6.00 to 6.30 p.m. The appellant has denied his involvement in assaulting both the deceased with hard and blunt object. There is only eye-witness Karma Munda (PW 4), who is son of the deceased, aged about 10 years on the day of his deposition i.e. on 8th November, 1995 whereas the alleged occurrence took place on 13.5.1991. When the age of sole eye-witness Karma Munda is assessed at the time of the alleged occurrence, he must be in between 6 to 8 years. He was tested by the learned Court below, who found him capable to answer the questions with full understanding. PW 4 Karma Munda has stated that he followed his parents up to the door of his uncle Jetha Munda (appellant). By that time they had not taken their meal. He claimed to have seen his uncle Jetha Munda taking out lathi from the sahan of his house and giving four lathi blows on the head of his father Bhutia Munda and three lathi blows on the head of his mother Etwari Devi. At that time one child was in the lap of his mother. This witness has not stated anything about the milk shucking child as to what happened to him. At the time of the alleged occurrence no villager went there. At that time one child was in the lap of his mother. This witness has not stated anything about the milk shucking child as to what happened to him. At the time of the alleged occurrence no villager went there. He has deposed that the informant Sanika Munda (PW 1) came to his house in the morning to whom he disclosed the entire incident that his uncle (appellant) had assaulted his parents with lathi resulting their death. The house of one Gone Munda is adjacent to the house of the appellant. However, he also did not come out of his house to witness the alleged occurrence. PW 4 at night did hot inform any of the villagers rather he was weeping. At that very night he went to Margo Tangratoli to inform his elder brother, which is at a distance of 2 kosh (5 Kms.). At night the child of 6 to 8 years did not inform anyone in the village, which consists of 40 houses but dared to go 5 Kms. away to village-Margo Tangratoli to inform his elder brother. Neither his elder brother came nor was examined by the prosecution. PW 1 Sanika Munda on the contrary has not come out of his house to witness the alleged occurrence. PW 1 Sanika Munda, on the contrary, has deposed that appellant Jetha Munda informed him in presence of his wife PW 2 Juhi Mundain that he assaulted his elder brother and bhabhi with lathi, resulting their death in the courtyard of their house. PW 1 the informant has deposed that he went there and remained throughout the night guarding the dead bodies. The village chowkidar Oriya Oraon (PW 5) took the appellant Jetha Munda to the Police Station but PW 5 Oriya Oraon has not deposed that he took Jetha Munda (appellant) to the Police Station rather the police came to the village and recorded the statement of Sanika Munda (PW 1). Thereafter, the IO also prepared inquest reports in presence of the village witnesses. PW 1 has deposed that there are 100 houses in the village. However, he did not narrate the entire story of the alleged occurrence to the mukhia of the village. Even he did not inform any of the villagers at night. Thereafter, the IO also prepared inquest reports in presence of the village witnesses. PW 1 has deposed that there are 100 houses in the village. However, he did not narrate the entire story of the alleged occurrence to the mukhia of the village. Even he did not inform any of the villagers at night. He had not stated before the IO that PW 4 Karma Munda has informed him that his uncle Jetha Munda (appellant) assaulted his parents with lathi to death. 8. PW 5 Oriya Oraon has also deposed that appellant Jetha Munda made extra- judicial confession before him to the extent that he assaulted his elder brother and bhabhi with lathi to death and asked him to take him to the Police Station. This witness (PW 5) was also Informed by PW 1 Sanika Munda that appellant Jetha Munda assaulted his elder brother and bhabhi with lathi to death. 9. When considered the evidence of Karma Munda PW 4, the sole child eye- witness, I find that he first saw Sanika Munda (informant) in the morning. Although he is an eye-witness, he did not inform any of the villagers at night rather he went to informant his elder brother at village-Margo Tangratoli, 5 Kms. Away. On the other hand, the informant PW 1 has deposed that oh information, given by the appellant, he went to the courtyard of the appellant and the deceased and saw the dead bodies of Bhutia Munda and his wife Etwari Devi. Even then he did not inform the villagers at night, although he claimed that he remained near the dead bodies throughout the night, guarding them. Thus, the evidence of PW 4 does not get corroborated by the evidence of PW 1 informant. 10. The learned Amicus Curiae in course of his argument has submitted that evidence of the child witness (PW 4), aged in between 6 to 8 years at the time of the alleged occurrence, has to be approached with great caution. PW 4 Karma Munda, a child eye-witness, is the only eye-witness of the occurrence. When the evidence of PW 4 is carefully considered, I find that his evidence can not be accepted as it remained uncorroborated and there are several contradictions from which his evidence suffers, such as, at night he was not at his home village rather he went to village-Margo Tangratoli, without informing any of the villagers. When the evidence of PW 4 is carefully considered, I find that his evidence can not be accepted as it remained uncorroborated and there are several contradictions from which his evidence suffers, such as, at night he was not at his home village rather he went to village-Margo Tangratoli, without informing any of the villagers. His elder brother did not turn up to be examined. He has also not given any statement as to what happened to his milk shucking brother, who was in the lap of his mother at the time of the alleged occurrence. PW 1 Sanika Munda when informant, went to the place of occurrence and remained there throughout the night but PW 4 has deposed that Sanika Munda (PW 1) reached at the place of occurrence in the morning. None of the villagers has come forward to support the prosecution case. Even if it is assumed that PW 4 was at his home, his fardbeyan must have been recorded by the IO out in the fardbeyan of PW 1 Sanika Munda, there is no mention about the presence of PW 4 at the place of occurrence, when the fardbeyan was recorded. On this point, he has relied a case, reported in AIR 1977 SC 135 , Caetano Piedado Fernandes and Anr. v. Union Territory of Goa. He has further relied a case, reported in 1998 (2) East Cr C 924 (SC) : (1998) 7 SCC 177 , Panchhi and Ors. v. State of Uttar Pradesh, and has submitted that. The law is that the 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." 11. When considered the evidence of PW 4 Karma Munda, a child eye-witness, I find that his evidence could not be corroborated even by the informant rather it was contradicted about his presence at night at the place of occurrence. It is more a rule of practical wisdom than of law." 11. When considered the evidence of PW 4 Karma Munda, a child eye-witness, I find that his evidence could not be corroborated even by the informant rather it was contradicted about his presence at night at the place of occurrence. It is only because PW 4 Karma Munda, a child eyewitness, himself was away at night from his village and he came in the morning, which shows that actually PW 4 Karma Munda, a child witness, on 13.8.1991, when the alleged occurrence took place, must have been sleeping and to my mind, it creates doubt as to whether he is the eye-witness or not as PW 1 has not whispered about his presence at night nor PW 4 has deposed regarding the presence of PW 1 at night. 12. In that view of the matter, I feel difficulty in relying the evidence of the sole child eye-witness, as it remained uncorroborated. 13. Now the question arises as to whether the extra-judicial confession, made by the appellant Jetha Munda before the informant Sanika Munda (PW 1), Juhi Mundain (PW 2) and Oriya Oraon (PW 5) can be taken into consideration to hold him guilty for the charge under Section 302 of the Indian Penal Code. The learned Amicus Curiae in course of his argument on this point has relied a case, reported in AIR 1974 SC 1545 , Jagta v. State of Haryana, wherein, it has been held that "the evidence of extra-judicial confession is in the nature of things a week piece of evidence. If the some is lacking in probability, there would be no difficulty in rejecting it. Further, the attempt of the. investigating agency to introduce a false story about the removal of the ornaments of the deceased and their recovery from the accused would also affect the credibility of the evidence regarding the extra-judicial confession, alleged to have been made by the accused." 14. In the present case, the appellant in his examination under Section 313, Cr PC has denied to have made any confessional statement before PWs 1, 2 and 5. The genesis of the alleged occurrence was regarding distribution of lac, reared on their joint plum tree. The another genesis was that two sons of the appellant Jetha Munda died due to illness. The genesis of the alleged occurrence was regarding distribution of lac, reared on their joint plum tree. The another genesis was that two sons of the appellant Jetha Munda died due to illness. He suspected his bhabhi Etwari Devi and her husband Bhutia to have played witch craft, resulting death of his two sons. The prosecution although alleged two reasons of the alleged assault, but they have not been supported by any other witness. He has totally denied regarding any extra-judicial confession, made before the village chowkidar (PW 5), informant (PW 1) and his wife (PW 2). In this case the Investigating Officer has not been examined, which has caused prejudice to the appellant, as he could not take the contradictions about any extra-judicial confession made by him before PW 1, PW 2 and PW 5. Due to non-examination of the Investigating Officer, it also creates doubt about the weapons of assault, used by the appellant, as the inquest repot of Etwari Devi contains so many cuttings and over-writings. The prosecution has failed to explain the reasons as to whether the means of assault was some weapon or hard and blunt object. 15. When these evidence are considered. I find that the extra-judicial confession, made by this appellant, can not be the sole criteria to convict him under Section 302 of the Indian Penal Code. 16. Having considered all the pros and cons of the prosecution case, I find contradictory statements in the evidence of the witnesses, especially PW 1 and PW 4. Moreover the fact that the appellant was handed over by PW -1 Sanika Munda to PW 5 Oriya Oraon to take him to the Police Station, is also not supported by PW 5 Oriya Oraon. At the time of the alleged occurrence it was quite dark, as deposed by PW 4 and due to darkness no one went there. Even the child witness Karma Munda (PW 4) did not raise any hue and cry to attract the attention of the villagers. He was weeping but no one went there, having heard his cry. All these creates doubt in my mind as to who is the assailant of Bhutia Munda and his wife Etwari Devi. The means of assault was also not seized nor it was traced out. Due to non-examination, of the Investigating Officer, the reality as to who is the assailant of two persons, remains suppressed. All these creates doubt in my mind as to who is the assailant of Bhutia Munda and his wife Etwari Devi. The means of assault was also not seized nor it was traced out. Due to non-examination, of the Investigating Officer, the reality as to who is the assailant of two persons, remains suppressed. The learned Court below did not consider these aspects and circumstances minutely and arrived erroneously at a conclusion, while convicting the appellant, which can not be sustained in view my above reasonings. 17. In the result, I find merit in this Criminal Appeal, which succeeds and is hereby allowed. The judgment and order of conviction and sentence, passed by the learned Additional Judicial Commissioner, Khunti, in sessions trial No. 412 of 1991, arising out of GR No. 247 of 1991, is hereby set aside and the appellant is acquitted of the charges. As the appellant is in custody, he is ordered to be released forthwith from custody, if not wanted in any other case. S.J. Mukhopadhaya, J. 18. I agree.