JUDGMENT T.P. Sharma, J: 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 23-3-2010 passed by the 3rd Additional Sessions Judge, Fast Track Court, Ambikapur in Sessions Trial No.251/2009, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for committing unnatural offence with a 5 years' aged child namely Neeraj, homicidal death amounting to murder of Neeraj and concealing the evidence of criminal case, convicted the appellant under Sections 302, 377 & 201 of the IPC and sentenced him to undergo imprisonment of life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo RI for one year; imprisonment of life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo RI for one year; and RI for seven years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo RI for six months, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted and sentenced the appellant and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 11-3-2009 at about 6 p.m. unfortunate deceased Neeraj went out from his house along with his six years' aged elder brother Yuvraj (PW-1), they were keeping Rs.50/-each. The appellant met them, he threatened Yuvraj and took Neeraj with him, thereafter, he committed unnatural offence with Neeraj and committed his homicidal death, and threw the dead body in the well with a view to conceal the evidence of criminal case. Yuvraj (PW-1) came back to his house, he was under fear and on being asked, he did not inform his father about the incident. He along with Jeevanlal (PW-2), father of the deceased, made search of small child Neeraj at night but to no avail. On second day morning mother of Jeevanlal (PW-2) informed that the dead body of Neeraj is lying in the well. Jeevanlal (PW-2) went to Police Station Rajpur and lodged morgue Ex.P-1 on 12-3-2009. 4. The Investigating Officer left for the scene of occurrence. After summoning the witnesses vide Ex.P-2, inquest over the dead body of the deceased was prepared vide Ex.P-3. Spot map was prepared vide Ex.P-5. Jeevanlal (PW-2) went to Police Station Rajpur and lodged morgue Ex.P-1 on 12-3-2009. 4. The Investigating Officer left for the scene of occurrence. After summoning the witnesses vide Ex.P-2, inquest over the dead body of the deceased was prepared vide Ex.P-3. Spot map was prepared vide Ex.P-5. Old shawl, half pant, one currency note of Rs.50/-, two bloodstained stones and one article guthwa kanta present on the back of head of the deceased were seized from the spot vide Ex.P-9. Dead body was sent for autopsy to Community Health Centre, Rajpur vide Ex.P-10. Dr. Pritam Ram (PW-8) conducted autopsy vide Ex.P-21 and noticed that the body was stained with mud & dust, there was one abrasion of 2 c.m. x 1 c.m. over right frontal region, clotted blood was present on nose & mouth, tongue was protruded, abrasion with contusion was present over right side of neck bluish in colour, swelling was present over right clavicle region, multiple abrasions with swelling present on left cheek, multiple abrasions present on back, and multiple abrasions & swelling present on both sides of chest. Injuries are ante-mortem in nature. Anus swollen. Rectum congested. Reddish colour liquid present inside the rectum. Fracture of 5th, 6th & 7th ribs of left side, 5th & 6th ribs of right side and that of right clavicle bone was found. Clotted blood was present inside the neck. Both lungs were ruptured. Two slides from rectum and one cotton swab were prepared, sealed and handed over to the police. Cause of death was syncope and nature of death was homicidal. Finally, FIR was lodged on 14-3-2009 vide Ex.P-12. Copy of the FIR was sent to the Court of Judicial Magistrate First Class, Ambikapur vide Ex.P-13. During the course of investigation, statements of the witnesses were recorded under Section 161 of the CrPC on 14-3-2009 and 21-3-2009. The appellant was taken into custody, he made disclosure statement of clothes which he was wearing vide Ex.P-8 and same were seized vide Ex.P-6 on the basis of disclosure statement of the appellant. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur vide Ex.P-19. Presence of blood over clothes found near the place of incident, clothes of the deceased, stones and slides taken was confirmed by the FSL vide its report Ex.P-24. Presence of sperm on the swab taken from rectum of the deceased was also confirmed vide Ex.P-24. Seized articles were sent for chemical examination to the Forensic Science Laboratory, Raipur vide Ex.P-19. Presence of blood over clothes found near the place of incident, clothes of the deceased, stones and slides taken was confirmed by the FSL vide its report Ex.P-24. Presence of sperm on the swab taken from rectum of the deceased was also confirmed vide Ex.P-24. 5. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur, two in turn, committed the case to the Court of Sessions Judge, Ambikapur from where the 3rd Additional Sessions Judge, Fast Track Court, Ambikapur received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as nine witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 7. We have heard learned counsel for the parties, perused the judgment impugned and records of the Courts below. 8. Learned Senior Advocate for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of child witness Yuvraj (PW-1), aged about 6 years, whose evidence does not inspire confidence and is not trustworthy. His sole evidence is not safe for conviction of the appellant that too for commission of heinous offence of murder and unnatural offence. Evidence of Yuvraj (PW-1) is not natural. As per his evidence, he was accompanying his younger brother deceased Neeraj, who was taken away by the appellant after giving threat to him. He came back to his house and on being asked by his parents, he did not tell about the incident, even he was accompanying his father in searching the deceased, but he did not tell the fact that the deceased was taken by the appellant. After recovery of dead body i.e. even after knowing the factum of death of his younger brother, this witness has not stated anything relating to such fact to his parents even at the time of lodging morgue Ex.P-1 on 12-3-2009 at about 10.30 a.m.. As per the evidence and Ex.D-1, first time he has disclosed the fact that the appellant had taken the deceased with him and has threatened him, therefore, he has not stated aforesaid fact earlier. As per the evidence and Ex.D-1, first time he has disclosed the fact that the appellant had taken the deceased with him and has threatened him, therefore, he has not stated aforesaid fact earlier. This statement contrary to the circumstances of normal conduct, does not inspire confidence and is not trustworthy. Although the child witness may be competent witness, but precaution is required to be taken for accepting his testimony. In case of child witness, courts are required to ask for corroboration before accepting it. Evidence of child witness does not find support from independent source or even from his previous and subsequent conduct, even from morgue recorded after recovery of dead body. Ex.P-1, morgue, did not disclose the fact that Yuvraj (PW-1) was accompanying deceased Neeraj and both went out from the house and they were keeping Rs.50/-each. Learned Senior Advocate further argued that evidence of Yuvraj (PW-1), child witness, is not safe to rely without further corroboration and in absence of any corroboration, conviction of the appellant is not sustainable under the law. 9. Learned Senior Advocate for the appellant placed reliance in the matter of The State of Bihar v. Kapil Singh AIR 1969 SC 53 in which the Supreme Court has held that in case a number of circumstances indicate that evidence of child witness is unsafe to rely, then the court should not rely upon the evidence without further corroboration from independent sources. Learned Senior Advocate further placed reliance in the matter of Bhagwan Singh and others v. State of M.P. 22003 AIR SCW 617 in which the Supreme Court has held that in case of evidence of child aged about 6 years, his evidence is required to be corroborated on material particulars. In absence of corroboration from independent sources, his evidence is not safe to rely. 10. Learned Senior Advocate for the appellant also argued that in absence of any corroboration, evidence of Yuvraj (PW-1), child witness of 6 years age, is not safe to rely. Except the evidence of Yuvraj (PW-1), the prosecution has failed to adduce any other evidence to connect the appellant with the crime in question. It is also pertinent to note that this is a case of unnatural offence against a 5 years' aged child i.e. sodomy by a fully grown up accused aged about 30 years. Except the evidence of Yuvraj (PW-1), the prosecution has failed to adduce any other evidence to connect the appellant with the crime in question. It is also pertinent to note that this is a case of unnatural offence against a 5 years' aged child i.e. sodomy by a fully grown up accused aged about 30 years. The doctor has noticed swelling of anus, congestion of rectum and presence of reddish liquid inside the anus of the child which are suggestive of the fact that unnatural offence has been committed against him. In case of such unnatural offence by a grown up man that too with a child aged about 5 years, injury upon the male part of the accused was natural. The accused was examined by the doctor, but the doctor has not noticed any injury over private part of the accused which also suggests that the appellant is innocent. 11. On the other hand, learned State counsel opposed the appeal and submitted that evidence of Yuvraj (PW-1) finds corroboration from the evidence of his father. As per his evidence, he was under threat, therefore, he has not stated the fact that Neeraj was taken by the appellant, for 2-3 days, but finally, he disclosed the fact on 14-3-2009 which finds support from his statement recorded under Section 161 of the CrPC as Ex.D-1. Silence of the witness for 2-3 days on account of threat is not unnatural, therefore, only on the ground that he has not disclosed the fact to his father or parents immediately or was silent for 3 days would not be considered as unnatural conduct of the witness and also not sufficient to discard his entire testimony. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13. In the present case, homicidal death as a result of injuries found over vital parts of Neeraj, aged about 5 years, has not been substantially disputed on behalf of the appellant, ever otherwise, same is established by evidence of Dr. Pritam Ram (PW-8) & autopsy report Ex.P-21 which clearly reveal that death of the deceased was as a result of multiple serious injuries and was homicidal in nature. 14. Pritam Ram (PW-8) & autopsy report Ex.P-21 which clearly reveal that death of the deceased was as a result of multiple serious injuries and was homicidal in nature. 14. In the present case, commission of unnatural offence against deceased Neeraj is also not disputed on behalf of the appellant, same is also established by evidence of Dr. Pritam Ram (PW-8) & autopsy report Ex.P-21 which show that the doctor has noticed swelling of anus, congestion of rectum and presence of reddish liquid inside the rectum of the deceased which he has taken and sent for chemical examination. As per FSL report, presence of human sperm has been confirmed in swab vide Ex.P-24 which are sufficient to establish the fact that Neeraj has been subjected to unnatural offence i.e. sodomy. After commission of aforesaid offence and murder, dead body has been thrown inside the well which by itself is the act of concealing the evidence of criminal case. 15. As regards the complicity of the appellant in the crime in question, the prosecution has examined material witness Yuvraj (PW-1), child witness, aged about 6 years. As per his evidence, after satisfying itself that the witness is in a position to answer the questions rationally, the trial Court has examined him. In view of rational answers given by this witness to the questions put to him in terms of Section 118 of the Indian Evidence Act, 1872, the trial Court has examined this witness. In his deposition, he has deposed that he along with his younger brother Neeraj left their house after taking Rs.50/-for purchasing colours on the eve of Holi. When they were going towards the shop, the appellant came and took his younger brother Neeraj with him towards the field. The appellant also threatened this witness that he will beat him, then he went to his house and on account of threat, he did not tell the truth to his father. 16. Jeevanlal (PW-2), father of the deceased & Yuvraj (PW-1), has deposed in his evidence that both his children were weeping, then his wife gave Rs.50/-each to them, both went out from the house at about 6-7 p.m., Yuvraj (PW1) came back, but Neeraj did not come back, on being asked, Yuvraj (PW1) did not inform anything, then he along with Yuvraj and other relatives went for search of his younger child Neeraj. He searched for Neeraj at night, but he did not find him. On second day, during the course of search, he was informed by his mother that dead body of Neeraj is lying inside the well, then he went to the police station and lodged morgue vide Ex.P-1. 17. In para 5 of his cross-examination, Yuvraj (PW-1) has admitted that when he came back alone, he was asked by his father about his younger brother, but he did not tell anything, even he accompanied his father in searching his brother, but he did not tell anything. He has denied the suggestion in para 7 that he was tutored by his parents and Advocates. However, he has admitted in para 3 of his cross-examination that before his evidence he met the Advocates, and their parents used to talk about the murder of his brother by the appellant. The police has recorded his statement Ex.D-1 on 14-3-2009. As per para 4 of his evidence, he stated to the police that on account of fear of the appellant, he has not stated the fact to his parents. In para 2 of his statement, he has specifically stated that the appellant threatened him that he will beat him, therefore, he was under fear and he did not tell the truth to his father. 18. Statement recorded under Section 161 of the CrPC can be used only for the purpose of omission and contradiction. The police has recorded the statement of Yuvraj (PW-1) under Section 161 of the CrPC as Ex.D-1 which reveals that on account of fear, he did not tell the truth to his father or to his parents, but it did not reveal that he was threatened by the appellant. Undisputedly, he is a child aged about 6 years. In case the appellant has not threatened him then there would be no occasion for suppressing the facts especially on account of fear. He was accompanying his father at the time of search of the deceased, but he has not disclosed aforesaid facts even after recovery of dead body of his younger brother. Ex.P-1 morgue does not corroborate the fact that Yuvraj (PW-1) informed his father even at the time of lodging morgue that the deceased was taken by the appellant. He was accompanying his father at the time of search of the deceased, but he has not disclosed aforesaid facts even after recovery of dead body of his younger brother. Ex.P-1 morgue does not corroborate the fact that Yuvraj (PW-1) informed his father even at the time of lodging morgue that the deceased was taken by the appellant. Ex.P-1 reveals that Jeevanlal (PW-2) gave Rs.50/-each to Yuvraj (PW-1) and deceased Neeraj, thereafter, Neeraj went out, he searched but did not find Neeraj. Morgue also does not disclose that Neeraj went along with Yuvraj (PW-1), but he did not come back and only Yuvraj came back. 19. As per medical evidence, this is a clear case of commission of unnatural offence and murder. In accordance with Section 27 of the Indian Evidence Act, 1872 only disclosure of fact and part of the statement given by the appellant or accused is admissible. 20. In the present case, the appellant has disclosed clothes vide Ex.P-8. As per FSL report Ex.P-24, same were not stained with blood or spermatozoa. Recovery of clothes by itself is not sufficient to connect the appellant with the crime in question, though other confessional part of the statement of the appellant recorded under Section 27 of the Indian Evidence Act, 1872 is not admissible in evidence and hit by Sections 25, 26 & 27 of the said Act, but as per inadmissible evidence and admission part of Ex.P-8, the appellant has made confession that on 11-3-2009 he killed deceased Neeraj, thereafter, threw the body inside the well i.e. he has not made any confession relating to commission of unnatural offence which would have been the main cause for causing murder of the deceased which also does not appear natural. 21. As held by the Supreme Court in Kapil Singh's case (supra), in case of child witness there is every likelihood of tutoring, even they do not understand the duty to speak truth, therefore, courts are required to take precaution in accepting the evidence of child witnesses and courts are required to ask for corroboration from independent sources or at least from their conduct. 22. 22. If we examine the evidence of Yuvraj (PW-1), a child of six years' age, in the light of aforesaid touchstone of law, it would be clear that as per Ex.D-1, the appellant has not threatened him, but as per his evidence he was threatened by the appellant. He has not disclosed the fact that the deceased was taken by the appellant when he was asked by his parents. He was accompanying his father, but he did not disclose aforesaid facts till the recovery of dead body. Even after recovery of dead body, he has not disclosed aforesaid facts on 12-3-2009. As per case of the prosecution, first time, he disclosed aforesaid facts on 14-3-2009, after three days of incident. 23. Emmanuel Lakra (PW-7), Investigating Officer, has specifically admitted in para 10 of his cross-examination that he was regularly interrogating Yuvraj (PW-1) till recording of his statement and as per para 9 of his cross-examination, he was regularly interrogating the appellant along with other persons of the village till 21-3-2009. If the factum of threat/fear is considered, it would be difficult to hold that on 14-3-2009, the witness was under fear and there was no specific occasion for removal of such fear thereafter. Even if the investigating agency came to know the fact on 14-3-2009 that the deceased was seen alive last time in the company of the appellant, then there was no occasion for interrogating other persons relating to commission of offence. 24. Child is also competent witness in terms of Section 118 of the Indian Evidence Act, 1872, if his evidence inspires confidence and is trustworthy. Considering the possibility of tutoring of child, Courts are expected to seek corroboration from independent source including previous and subsequent conduct of child witness. 25. Aforesaid circumstances clearly reveal that the sole evidence of child witness Yuvraj (PW-1), aged about 6 years, does not inspire confidence and is not trustworthy. His evidence without further corroboration from independent sources, especially in the light of his previous and subsequent conduct, is not safe to rely. 26. Suspicion howsoever grave cannot take the shape of legal evidence. Heavy duty was upon the prosecution to prove the case beyond the shadow of doubt. His evidence without further corroboration from independent sources, especially in the light of his previous and subsequent conduct, is not safe to rely. 26. Suspicion howsoever grave cannot take the shape of legal evidence. Heavy duty was upon the prosecution to prove the case beyond the shadow of doubt. In absence of any evidence relating to commission of offence by the appellant, no injury over private part of the appellant, infirm evidence of child witness Yuvraj (PW-1) without further corroboration and in absence of any other material connecting the appellant with the crime in question, conviction of the appellant under Sections 302, 377 & 201 of the IPC is not safe. 27. After appreciating the evidence available on record, the trial Court has convicted and sentenced the appellant in the aforesaid manner, but has not considered the uncorroborated infirm evidence of Yuvraj (PW-1), child witness, in aforesaid circumstances and thereby committed illegality. 28. Consequently, the appeal deserves to be allowed and is hereby allowed. Conviction & sentences of the appellant under Sections 302, 377 & 201 of the IPC are hereby set aside and the appellant is acquitted of the said charges. He be set at liberty at once. He be released, if not required in any other case.