JUDGMENT 1. . - These two appeals are directed against judgment dated 31.10.03 passed by the Sessions Judge, Nathdwara in Sessions Case No. 11/03, whereby the appellant-Bhanwar Singh (Appeal No. 6/04) and the appellant-Smt. Nandu Bai (Appeal No. 326/10) have been convicted and sentenced as under :302/34 I.P.C. Both to suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer imprisonment for six months. 201 I.P.C. Both to suffer imprisonment for 5 years with fine of Rs. 2,000/- ; In default, to further suffer imprisonment for two months. 2. Precisely the prosecution case is that on 1.1.03 at 11.45 a.m., the informant-Lehar Nath (P.W. 9) submitted a written report (Ex. P/25) at Police Station, Khamnor with the averments that his younger brother Bhanwar Nath, engaged as driver on the truck owned by Bhanwar Singh Rajput (appellant herein), was residing at Charano Ki Madar for the last 3 years. About 10-11 months back, Bhanwar Nath came to village Kamol and apprised informant Lehar Nath that his wife Nandu Bai (appellant herein) has developed illicit relations with his 'seth' (the employer) Bhanwar Singh. Bhanwar Nath advised his wife Nandu Bai not to continue with the relationship and asked Bhanwar Singh not to come to their house in his absence, upon which Bhanwar Singh threatened to kill him. On the informant-Lehar Nath advising his brother-Bhanwar Nath to leave the village Charano Ki Madar and return to his native village, he replied that he intends to come but his wife is not willing. Bhanwar Nath told that he has no other source of livelihood and therefore, as and when he will be able to search on other job, he will bring his wife to stay at the village (Kamol). After a lapse of 5-6 months, when the informant-Lehar Nath went to the village-Charano Ki Madar, his brother-Bhanwar Nath was not available at home. On being asked, Nandu Bai apprised that he had gone out with the vehicle. 3-4 months thereafter, when informant-Lehar Nath again went to the village Charano Ki Madar, but Bhanwar Nath was not available, however, his wife (Nandu Bai) informed that he has gone out. Again, 11/2 months thereafter, the informant-Lehar Nath went to Charano Ki Madar, Bhanwar Nath was still not available and on being asked, his wife again reiterated that he has gone out. Again, 11/2 months thereafter, the informant-Lehar Nath went to Charano Ki Madar, Bhanwar Nath was still not available and on being asked, his wife again reiterated that he has gone out. However, on enquiry being made from the villagers, it was revealed that Bhanwar Nath has not been seen for the last 5-6 months. Thereupon, when the complainant-Lehar Nath asked Bhanwar Singh about the whereabouts of Bhanwar Nath, he informed that his truck has already been taken away by the financier and Bhanwar Nath is engaged on some other vehicle, which created suspicion in the mind of the informant-Lehar Nath about some untoward incident having been occurred with his brother-Bhanwar Nath. In the written report (Ex. P/25), it was further stated that 3-4 days back when informant's wife, his younger brother-Prabhu Nath and brother-in-law-Prakash Nath came to Charano Ki Madar, they did not find anybody at Bhanwar Nath's house. On enquiry being made, it was revealed that Bhanwar Nath's wife Nandu Bai (the appellant) is residing in a rented house in the village. When they went to the said house, the same was found bolted from inside and on the door being knocked, Nandu Bai opened the door. Bhanwar Singh was sitting there have in liquor. On enquiry being made about Bhanwar Nath, Nandu Bai stated that he has not returned as yet. The report was filed as aforesaid by the informant-Lehar Nath suspecting that his brother-Bhanwar Nath has been killed by Bhanwar Singh and Nandu Bai on account of illicit relationship between them. 3. On the basis of the written report submitted as aforesaid, the police registered an FIR for offences under sections 302, 201/34-120-B I.P.C. and the investigation commenced. The accused Bhanwar Singh, Nandu Bai, Pushkar Lal and Bhagwati Lal were arrested. During the investigation, at the instance of the accused Bhanwar Singh, Nandu Bai, Pushkar Lal and Bhagwati Lal, the police recovered the skeleton of the deceased, a ring and the cloths in dilapidated conditions, kept in an iron drum, buried under the ground at the boundary between the agriculture fields of deceased-Bhanwar Nath and accused-Bhanwar Singh, vide recovery memo Ex. P/ 15. A steel bowl alleged to have been used to administer poison to the deceased-Bhanwar Nath was recovered at the instance of accused Nandu Bai vide recovery memo Ex. P/2. P/ 15. A steel bowl alleged to have been used to administer poison to the deceased-Bhanwar Nath was recovered at the instance of accused Nandu Bai vide recovery memo Ex. P/2. That apart, a 'gets' and two spades used to dig up the pit were recovered at the instance of accused Bhanwar Singh and Pushkar Lal. Necessary memos were drawn and the statement of witnesses were recorded. The skeleton and other remains of the dead body were examined by the medical board. The bones of the deceased were sent for examination to State Forensic Science Laboratory, which submitted its report Ex. P/72. After conclusion of the investigation, the police filed charge-sheet against the appellants Bhanwar Singh and Smt. Nandu Bai for offence under sections 302/34, 120-B I.P.C. and as against co-accused Pushkar Lal and Bhagwati Lal for offence under section 201 I.P.C. The charges were framed by the Trial Court against the appellants Bhanwar Singh and Nandu Bai for offence under sections 120-B, 302/34 and 201 I.P.C. and as against co-accused Pushkar Lal and Bhagwati Lal for offence under section 201 I.P.C. The accused denied the charge and claimed trial. 4. During the trial, the prosecution got examined 17 witnesses and the documentary evidence produced was exhibited as Ex. P/ 1 to Ex. P/72. The accused were examined for the purpose of enabling them to explain the circumstances appearing against them in terms of provisions of section 313 Cr. P.C. The accused did not lead any evidence in defence. 5. After due consideration of rival submissions and the evidence on record, the Trial Court convicted the appellants Bhanwar Singh and Nandu Bai for the offence under sections 302/34 and 201 I.P.C and sentenced as indicated above. The co-accused Pushkar Lal and Bhagwati Lal were acquitted of the charge for offence under section 201 I.P.C. 6. learned Counsel for the appellants submitted that the testimony of child witness Kana Ram (P.W. 8) has been disbelieved by the Trial Court being a tutored witness and therefore, the prosecution story rests on the circumstantial evidence. The co-accused Pushkar Lal and Bhagwati Lal were acquitted of the charge for offence under section 201 I.P.C. 6. learned Counsel for the appellants submitted that the testimony of child witness Kana Ram (P.W. 8) has been disbelieved by the Trial Court being a tutored witness and therefore, the prosecution story rests on the circumstantial evidence. Learned Counsel submitted that the face turn of the poison being administered to the deceased by the accused Bhanwar Singh and Nandu Bai is not proved by the prosecution by producing any evidence on record, Learned Counsel submitted that the testimony of the child witness Kana (P.W. 8) being disbelieved and in absence of any evidence of the poison being administered, the recovery of the steel bowl at the instance of Nandu Bai is hardly of any relevance. Learned Counsel submitted that informant Lehar Nath has identified the skeleton to be of his brother deceased-Bhanwar Nath on the basis of a silver ring and the cloths which were admittedly in dilapidated condition. Learned Counsel submitted that the ring which is easily available in the market cannot be treated to be a sufficient evidence for identify the skeleton to be of deceased-Bhanwar Nath and therefore, the recovery of the skeleton allegedly at the instance of the accused cannot be treated to be a circumstance conclusively indicating towards the guilt of the appellants herein. In this regard, learned Counsel has relied upon a Bench decision of this Court in . Accordingly, it is submitted that the appellants deserve to be acquitted of the charges. 7. On the other hand, learned Public Prosecutor supporting the judgment of the Trial Court submitted that the accused Bhanwar Singh and Nandu Bai were having illicit relationship which stands proved by the testimony of Lehar Nath (P.W. 9), Prakash Nath (P.W. 10) and Tulsi (P.W. 17). It is submitted that the recovery of the skeleton and the bowl used to administer the poison to the deceased are the strong circumstances which conclusively prove the guilt of the appellants. Learned Public Prosecutor submitted that the Trial Court has erred in discarding the testimony of the child witness Kana (P.W. 8), who was eye-witness of the incident. 8. We have heard the learned Counsel for the parties, considered that rival submissions and scanned the evidence on record thoroughly. 9. Learned Public Prosecutor submitted that the Trial Court has erred in discarding the testimony of the child witness Kana (P.W. 8), who was eye-witness of the incident. 8. We have heard the learned Counsel for the parties, considered that rival submissions and scanned the evidence on record thoroughly. 9. Undoubtedly, the law recognises the child as competent witness and his evidence is not liable to be discarded if the same is found to be otherwise 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. Vide " Panchi v. State of U.P. (1998) 7 SCC (177 ) . The testimony of child eye-witnesses would not lose credibility merely because they are children of the deceased. But then, it also stands well settled that the evidence of the child witness must find adequate corroboration before it is relied on. 10. In Savia and another v. State of Rajasthan, 1985 RCC 65 , a Bench of this Court while considering the law governing the reliability of testimony of child witness observed: " 19. A child of tender age in raw and influence easily work on him. As such his evidence can be easily shaped and moulded and he can be tutored to state what he is made to state by the persons who exercised influence on him. It is why the Courts hesitate to base the conviction on the testimony of a solidary child witness. The Courts, therefore, look for corroboration in such cases where the conviction is sought on the basis of testimony of a solitary child witness. Corroboration from independent source in such a case is required by way of caution and prudence and not as a rule of law." 11. In the instant case, the child witness Kana (P.W. 8) in his statement before the Trial Court deposed that he used to stay with his aunt (Bhuwa). On the fateful day, he was sleeping and when he got up, accused Bhanwar Singh and Nandu gave a tablet mixed in vegetable and bread to his father. Two sweepers were also there. They put his father in a sum and buried it in a pit dug up at the field. On the fateful day, he was sleeping and when he got up, accused Bhanwar Singh and Nandu gave a tablet mixed in vegetable and bread to his father. Two sweepers were also there. They put his father in a sum and buried it in a pit dug up at the field. However, in his cross-examination, he admitted that when his father had his meal, he was sleeping. He has also stated in unequivocal terms in his cross-examination that he was tutored by his uncle and aunt (Bhuwa) to give the statement. He also accepted the suggestion that his elder mother (P.W. 9-Tulsi) tutored him outside the Court to give the statement. It is pertinent to note that the child witness who was staying with his aunt had close association with his relatives but there is no explanation as to why he did not apprise the family members about the incident for about 5 months. Having gone through the statement of the child witness Kana (P.W. 8) in its entirety and objectivity, we are firmly of the opinion that the said child witness appears to be a tutored witness and cannot be considered to be eye witness of the incident and therefore, his testimony cannot be relied upon. 12. The testimony of the child witness being found unreliable, now the prosecution case rests on the circumstantial evidence i.e. the alleged illicit relationship of Nandu Bai with Bhanwar Singh, them having been found staying together in a rented house at village Charano Ki Madar about 5 months after the alleged killing of Bhanwar Nath and the recovery of the skeleton at the instance of inter alia the appellants herein which is identified by Lehar Nath (P.W. 9) to be of his deceased brother Bhanwar Nath on the basis of a silver ring and the cloths found in a drum buried under the ground. 13. It is to be noticed that in the written report Ex. P/25, which is alleged to be in hand writing of the informant-Lehar Nath (P.W. 9), it is stated that 10-11 months back when the deceased, Bhanwar Nath came to his native village Kamol, he apprised the informant-Lehar Nath (P.W. 9) that his wife. Smt. Nandu Bai had developed illicit relationship with. P/25, which is alleged to be in hand writing of the informant-Lehar Nath (P.W. 9), it is stated that 10-11 months back when the deceased, Bhanwar Nath came to his native village Kamol, he apprised the informant-Lehar Nath (P.W. 9) that his wife. Smt. Nandu Bai had developed illicit relationship with. Bhanwar Singh and Bhanwar Nath advised his wife Nandu Bai not to continue with the relationship and asked Bhanwar Singh not to come to their house in his absence, upon which Bhanwar Singh threatened to kill him. However, Lehar Nath (P.W. 9) in his statement before the Trial Court recorded on 1.8.03, deposed that 14-15 months back when Bhanwar Nath met him at Chetak Bus Stand, Udaipur, he apprised him that his wife intends to stay with Bhanwar Singh at Charano Ki Madar. In the written report, it is averred that when the informant went to the village Charano Ki Madar and inquired about his brother Bhanwar Nath from the accused Nandu Bai, she replied that he has gone out with the vehicle whereas, in his deposition before the Trial Court, Lehar Nath (P.W. 9) has stated that on enquiry being made, Nandu Bai informed that Bhanwar Nath had eloped with a 'Bhilan' (a woman belonging to Bhai1 community). In the written report, it is averred that finally when the informant's wife Tulsi, younger brother Prabhu Nath and brother-in-law Prakash Nath came to village Charano Ki Madar then, it was revealed that Smt. Nandu Bai is staying in a rented house in the village and when they went to the said house, and knocked the door, Nandu Bai opened. The door and Bhanwar Singh was also present there having liquor. However, in his deposition before the Trial Court, Lehar Nath (P.W. 9) has stated that on the third occasion, he had sent his wife and Prabhu Nath to the village Charano Ki Madar where Nandu Bai and Bhanwar Singh were found having liquor and eating meat. It is to be noticed that Prabhu Nath has not been examined by the prosecution as witness rather, Praicash Nath (P.W. 10), the brother-in-law of the informant-Lehar Nath (P.W. 9) has been examined as witness. Lehar Nath (P.W. 9) has been examined as witness. Lehar Nath (P.W. 9) further stated that he identified the Skeleton recovered to be of deceased-Bhanwar Nath on the basis of the ring and the clothes. 14. Lehar Nath (P.W. 9) has been examined as witness. Lehar Nath (P.W. 9) further stated that he identified the Skeleton recovered to be of deceased-Bhanwar Nath on the basis of the ring and the clothes. 14. Prakash Nath (P.W. 10) has deposed that 22-33 persons including him had gone to the house where Bhanwar Nath was residing, however, the same was found locked and it was revealed that Nandu Bai was staying in a rented house belonging to Bheru Singh. In the said house, he found Bhanwar Singh having liquor and one or two tribal's were also there. Nandu Bai was cooking the food. On being asked about Bhanwar Nath, Nandu Bai replied that he had eloped with a woman. 15. Tulsa (P.W. 17) has stated that 3-4 months before the recovery of skeleton, Bhanwar Nath met her at Udaipur and apprised her that his wife Nandu Bai has developed illicit relationship with Bhanwar Singh. After meeting at Udaipur, Bhanwar Nath went to Charano Ki Madar and thereafter, he went missing for 6 months and therefore, she along with her brother and brother in law went to Charano Ki Madar where they found Nandu Bai staying with Bhanwar Singh who was having liquor and eating meat. 16. Having closely scrutinised the testimony of the aforesaid witnesses, we are of the considered opinion that the same suffer from contradictions and embellishments and their testimony in no manner can be considered to be sufficient to draw a conclusion that Nandu Bai had developed illicit relationship with Bhanwar Singh and therefore, Bhanwar Nath has been done away with by them. 17. Coming to the recovery of skeleton, it is pertinent to note that the remains of the body of the deceased i.e. bones were found in disarticulated and decomposed state and when the bones were assembled, it was found to be a human skeleton. The skeleton was identified by Lehar Nath (P.W. 9) to be of his brother-Bhanwar Nath on the basis of the silver ring and the clothes found in the drum recovered. The skeleton was identified by Lehar Nath (P.W. 9) to be of his brother-Bhanwar Nath on the basis of the silver ring and the clothes found in the drum recovered. Deceased-Bhanwar Nath and the informant-Lehar Nath were residing in different villages and it is not the case of the prosecution that they used to meet often and therefore, solely on the basis of the silver ring and the clothes which were admittedly found in dilapidated condition, the identification by Lehar Nath (P.W. 9) of the skeleton being of deceased Bhanwar Nath, cannot be considered to be a conclusive evidence of the fact that the skeleton recovered was in fact that of the deceased-Bhanwar Nath. 18. There is yet another aspect of the matter. The prosecution has come with the case that Bhanwar Nath was killed by the appellants by administering poison but there is no evidence worth the name to prove the fact that Bhanwar Nath had died on account of poison being administered by the appellants herein. To the contrary, as per the FSL report (Ex. P-72), the chemical examination of the bones has given negative test for poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilisers and insecticides. Suffice is to say that the prosecution has also not been able to prove that the skeleton recovered was of a person who died of homicidal death. 19. In view of the discussion above, in considered opinion of this Court, on the facts and in the circumstances of the case, on the basis of alleged recovery of the human skeleton at the instance of the appellants which is not conclusively proved to be that of the deceased-Bhanwar Nath and/or of a person who died of homicidal death and in absence of any other circumstances or chain of events suggesting the involvement of the appellants in the commission of crime, they cannot be held guilty. In other words, the circumstances relied upon by the prosecution are not found proved beyond reasonable doubt and the same taken cumulatively do not satisfy the legal requirement of case based on circumstantial evidence. In other words, the circumstances relied upon by the prosecution are not found proved beyond reasonable doubt and the same taken cumulatively do not satisfy the legal requirement of case based on circumstantial evidence. It is well settled that the suspicion however strong cannot take place of proof and therefore, without there being any cogent evidence that could conclusively establish the guilt of the appellants, on the basis of the probability and suspicion, the liability to commit clime cannot be fastened on them and therefore, they are entitled to the benefits of doubt. 20. In the result, we allowed the appeals of the appellants Bhanwar Singh and Nandu Bai and acquit them of the charges under sections 302/34 and 201 I.P.C. The appellants who are in jail shall be set at liberty forthwith, if they are not required to be detained in any other case.Appeals allowed *******