JUDGMENT 1. - Dead body of Chandrakala, tied with rope, was found in a well on February 28, 2001. Her husband Bhawani Shankar and neighbour Kalawati, appellants herein, were indicted before the learned Additional Sessions Judge (Fast Track) No. 2, Kota, for having committed murder of Chandrakala. Learned Judge vide judgment dated December 20, 2001 convicted and 5 sentenced them as under : Bhawani Shankar U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer three months simple imprisonment. to Kalawati : U/s. 302/34 IPC : To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer three months simple imprisonment. Bhawani Shankar & Kalawati U/s. 201 IPC : Both to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer three months simple imprisonment. u/s. 120B IPC : Both to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months simple imprisonment. Substantive sentences were directed to run concurrently. 2. As per the prosecution story Jagan Nath, father of Chandrakala, after visiting Sasural (in-laws' house) of Chandrakala lodged a report at Police Station Itawa on January 11, 2001 that she was missing. Thereafter Shanti Bai, mother-in-law of Chandrakala, instituted another report on February 18, 2001 against Jagan Nath and his family members that they abducted Chandrakala. On that report case under section 366 IPC was registered and 15 investigation commenced. In the course of investigation i.e. on February 28, 2001 the information was received that dead body was lying in a well. The dead body led with rope was taken out of the well on March 1, 2001 and it was identified as of Chandrakala by the parents and brothers by the clothes and Chob fixed on her teeth. Autopsy on the dead body was conducted, necessary memos were drawn, statements of witnesses under section 161 Cr.P.C. were recorded and the appellants were arrested. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Kota. Charges under sections 120B, 302 alternatively 302/34 and 201 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Kota. Charges under sections 120B, 302 alternatively 302/34 and 201 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Having given our anxious consideration to the submissions advanced before us we notice that as per post modem report (Ex.P-7) the dead body was fully decomposed. Viscera was however sent to FSL. The FSL report (Ex.P-33) reads as under "On chemical examination portions of viscera (1-6) from two packets marked A and B gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides." 4. Dr. Sita Ram Verma (Pw.3), who conducted autopsy on the dead body, deposed that the dead body did not have any face and there was only skull. Eyes, nose and mouth got decomposed. There was fracture of femur bone lower ⅓ part. Brain and whole body got decomposed. Liver, intestines, lungs, spleen, parts of kidney were sent to FSL for examination. No opinion about the death could be given. 5. The prosecution case is founded on the sole testimony of Bablu (Pw.11), who was a child of seven years. In his deposition Bablu stated that his mother Chandrakala was murdered by the appellants. Liver, intestines, lungs, spleen, parts of kidney were sent to FSL for examination. No opinion about the death could be given. 5. The prosecution case is founded on the sole testimony of Bablu (Pw.11), who was a child of seven years. In his deposition Bablu stated that his mother Chandrakala was murdered by the appellants. Bablu deposed thus : " esjh eka dk uke pUnzdyk FkkA og ej pqdh gS mls ekj Mkyk gSA eq>s ;kn ugha fd fdrus lky igys ejh esjh eka fueM+h ds isM+ ds uhps cSBdj nokbZ yxk jgh Fkh rks esjs firk Hkokfu;k o ukbZu vkSjr us idM+dj ekjihV dj eqag esa ydM+h dk xqV`Vk Bwal fn;k vkSj tsoM+h ls uke ds isM+ ls cka/kdj cxyksa esa mls ydfM+;ksa ls ekjkA ydM+h Hkokuh 'kadj us ekjh ml oDr Hkh ukbZu Hkh ogka [kM+h FkhA ukbZu us ydM+h Hkokuh dks nh Fkh fQj Hkokuh us ekjk FkkA Hkokuh 'kadj esjs ikik gSaA " In his cross examination Bablu however admitted that initially police did not believe his statement and he was handed over to his Nana (Maternal grand father) : " eSa tc esjs ukuk ds ;gka jgus yxk rc eSaus ;g ckr esjs ukuk dks tkrs gh crk nh Fkh fd Hkokuh es esjh eka dks ekjk gSA iqfyl okyksa us esjs ukuk ls dgk Fkk fd 5&15 fnu vkids ;gka j[kks fQj tks Hkh ckr gksxh ;g lc crk nsxkA iqfyl okyksa us esjs c;ku ugha ekus Fks blfy, esjs ukuk ls dgk fd 5&15 fnu vius ikl j[kks fQj lkjh ckr lgh lgh crk nsxk fQj eq>s iqfyl okys bVkok ys x;s FksA " 6. Rajendra Singh SHO (Pw.16), who investigated the case upto March 5, 2001 did not record the statements of Bablu. Thereafter the investigation got transferred to Narendra Singh Meena DySP (Pw.17) on March 6, 2001 and on the said day he recorded the statements of Bablu. 7. Before analysing the testimony of Bablu we deem it appropriate to refer the relevant statutory provisions and case law. 8. Under section 118 of the Evidence Act all persons are competent to testify, unless the considers that by reason of tender years, extreme old age, disease, or infirmity, they are incapable of understanding the questions put to them and of giving rational answers. 8. Under section 118 of the Evidence Act all persons are competent to testify, unless the considers that by reason of tender years, extreme old age, disease, or infirmity, they are incapable of understanding the questions put to them and of giving rational answers. All grounds of incompetence have been swept away by this section, under which competency of witnesses is the rule and their incompetency is the exception. Admissibility of evidence is not solely dependent on competency of witness. A witness may be competent with section 118, yet his evidence may be inadmissible if he states his opinion or belief instead of facts within his knowledge or gives hearsay evidence. 9. Privy Council in Mohamed Sunal v. King, AIR 1946 PC 3 indicated thus : "In England where provision has been made for the reception of unsworned evidence, from a child it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But in Indian Acts there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence, can act upon it. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworned or unsworned, but this is a rule of prudence and not of law." 10. It is well settled that the testimony of a child witness should only be accepted after the greatest caution and circumspection. The rational for this is that it is common experience that a child witness is most susceptible to tutoring. Both on account of fear and inducement, he can be made to deposit about things which he has not seen and once having been tutored, he goes on repeating in a parrot like manner what he has been tutored to state. 11. In his book 'Outlines of Criminal Law' (Page 386) Dr. KENNY DOWNING (Professor of 'Laws of England' Cambridge University) stated as under : "Children are most untrustworthy class of witnesses, for whom of a tender age as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard of others and greatly influenced by fear of punishment, by hope of reward and desire of notoriety." 12. Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 the Apex observed that in the case of a child, it depends on the capacity of the child, his appreciation of the differences between truth and falsehood as well as his duty to tell the former. The decision of this question rests with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence. The trial Judge may resort to any examination which will tend to disclose the capacity and intelligence and in the case of an oath, his understanding of the obligation of an oath. 13. In Orsu Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 4961 where the accused was convicted by lower s relying on the evidence of children, their Lordships of the Supreme observed as under : (Para 11) "We are constrained to go into the matter in detail for the reason that the judgment of the High is sketchy and slipshod. What all has been said by the High is that the evidence of PWs 2 & 16 inspires confidence and their testimony remained unshaken in cross examination. It is further observed that the evidence of these witnesses is corroborated by medical evidence without appreciating the fact that PW-18 the doctor was unable to say from the ligature marks or other features, whether the death was suicidal or homicidal. There was no critical evaluation of the evidence of the two child witnesses and there was no consideration of material aspect bearing on the veracity of the version given by PWs 2 & 16. In these circumstances, we cannot put our seal of approval to the conclusions of the High though concurrently they are. True, the circumstances raise strong suspicion against the accused, but it is difficult to sustain the conviction, once the evidence of the alleged eye witnesses is discarded as unworthy of credence. This is a case in which benefit of doubt should have been given to the accused." 14. On a critical evaluation of the testimony of Bablu we find it unworthy of credence. Even his evidence was not believed by the Investigating Officer and his Nana was asked to tutor him further. He was available to police on the day when the dead body got recovered but the police did not choose to record his statement. On a critical evaluation of the testimony of Bablu we find it unworthy of credence. Even his evidence was not believed by the Investigating Officer and his Nana was asked to tutor him further. He was available to police on the day when the dead body got recovered but the police did not choose to record his statement. It was only on March 6, 2001 that new Investigating Officer got his statements recorded. It appears to us that he was under influence of his Nana and he was made to depose 45 about things which he had not seen and once having been tutored he went on repeating in a parrot like manner what he had been tutored to state. 15. In the ultimate analysis we find that the prosecution is not able to establish charges against the appellants beyond reasonable doubt. Learned trial Judge in our opinion has not properly appreciated the testimony of child witness and committed illegality in convicting and sentencing the appellants. 16. For these reasons, we allow the appeals and set aside the impugned judgment dated December 20, 2001 of Additional Sessions Judge (Fast Track) No. 2, Kota. We acquit the appellants Bhawani Shankar and Kalawati of the charges under sections 302, 302/34, 1208 and 201 IPC. Appellant Kalawati is on bail, she need not surrender and her bail bonds stand discharged. Appellant Bhawani Shankar, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.Appeal Allowed. *******