JUDGMENT : D.P. Choudhury, J. This Jail Criminal Appeal is filed by the appellant from Jail assailing the judgment of conviction and sentence passed under Sections 302 and 377 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Ad hoc Additional Sessions Judge, Jeypore in Criminal Trial No.58 of 2004 sentencing him to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.10,000/-in default to undergo R.I. for one year for the said offence and further to undergo R.I. for three years and to pay a fine of Rs.3,000/-for the offence under Section 377 IPC in default to undergo R.I. for six months for the said offence. Both the sentences were directed to run concurrently. 2. The adumbrated facts leading to the case of prosecution is that on 04.10.2012 at about 4.30 PM, the deceased being seven years old boy, was playing with P.W.5, the accused-appellant came and called the deceased-boy to give him chocolate. After the accused-appellant took the boy, the deceased did not return to the village. On the next day, the dead body of boy was found in the well. On the report of one Hebal Garada, U.D. Case No.18/02 was registered on 06.10.2002 and police proceeded with inquiry. After one month on 06.11.2002, again one written FIR was submitted by the same informant upon which the police registered the case and proceeded with investigation. During inquiry in the U.D. Case, inquest over the dead body of the deceased-boy was made and doctor conducted post mortem examination. Police seized the wearing apparels of the deceased-boy and sent the same for chemical examination. Thereafter, he submitted the final report on 07.01.2003. But during the investigation upon the FIR lodged on 06.11.2002, police examined witnesses, visited the spot and arrested the accused-appellant. Police also made seizure of the properties and after completion of the investigation, charge sheet was submitted. 3. The plea of the accused-appellant, as revealed from his examination under section 313 Cr.P.C. and suggestions made to the prosecution witnesses during cross-examination that he has been falsely implicated in this case. He has taken further plea that as he has got previous quarrel with the material witness (P.W.1), she is deposing falsely against him. 4. 3. The plea of the accused-appellant, as revealed from his examination under section 313 Cr.P.C. and suggestions made to the prosecution witnesses during cross-examination that he has been falsely implicated in this case. He has taken further plea that as he has got previous quarrel with the material witness (P.W.1), she is deposing falsely against him. 4. The prosecution, in order to prove its case, has examined nine witnesses out of which P.W.1 is a witness to the extra judicial confession of the accused-appellant, P.Ws.2, 3 and 4 are post occurrence witnesses. P.W.5 is the child witness, P.W.6 is a seizure witness, P.W.7 is the doctor and P.Ws.8 and 9 are the I.Os. The defence examined none. 5. Learned Trial Court, after analyzing the evidence of each witness, came to a conclusion that it is the accused-appellant who is the perpetrator of the crime and cause death of the deceased-boy after committing carnal intercourse with him. As such, he convicted and sentenced the accused-appellant as stated above. 6. Mr.Pani, learned counsel for the accused-appellant strenuously urged that the extra judicial confession made by the accused-appellant cannot be relied on as it is the plea of the appellant that P.W.1 falsely stated against him because of previous enmity with him. According to him, P.W.5 is a child witness and his evidence also cannot be relied on as he has been tutored by the family members of the deceased-boy to depose against the accused-appellant. Moreover, he submitted that there is no eye witness in this case and the circumstances have not been proved to make a chain of circumstance against the accused-appellant to prove him guilty. He also submitted that the FIR was lodged on 06.11.2002 which is one month after the occurrence and for such unexplainable delayed FIR, the case of the prosecution should be saddled with doubt. Since the prosecution falls sort of clear, cogent and consistent evidence, learned trial Court has erred in law in finding the accused-appellant guilty and as such, the conviction and sentence against the accused-appellant should be set aside. 7. Mr.Samantray, learned Additional Standing Counsel submitted that there is clear evidence of P.W.1 that the accused-appellant made extra judicial confession as to killing of the deceased-boy by him. The defence has not proved any plea either by adducing evidence or through the cross-examination made to the prosecution witnesses. 7. Mr.Samantray, learned Additional Standing Counsel submitted that there is clear evidence of P.W.1 that the accused-appellant made extra judicial confession as to killing of the deceased-boy by him. The defence has not proved any plea either by adducing evidence or through the cross-examination made to the prosecution witnesses. According to him, the evidence of P.W.5 is equally encouraging and lack of any embellishment after due cross-examination. He further submitted that on 06.10.2002, the FIR was lodged by none other than the uncle of the deceased-boy for which it cannot be said that there is delay in lodging information before police by the informant. 8. Mr.Samantray, learned Additional Standing Counsel further stated that the statement of the doctor is clear to show that there was sodomy caused to the victim boy with injury on the anus and death of the deceased-boy was due to drowning. According to him, there is chain of circumstances proved by the prosecution unerringly go against the inconsistent plea of innocence of the accused-appellant. On the other hand, he submitted that the chain of circumstances unerringly point out the guilt of the accused-appellant. Hence, he thoroughly supported the judgment of conviction and sentence passed by the learned trial Court and prayed to confirm the same by dismissing the present jail criminal appeal. 9. On collating the evidence available on record, it appears that there is no direct evidence in this case but the case is based on circumstantial evidence. The principle of circumstantial evidence has been reiterated by the Hon’ble Supreme Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir, (2002) 8 SCC 45 , wherein the Hon’ble Supreme Court, at paragraphs-10 and 11, quoted number of judgments and held as under:- “10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 , Eradu v. State of Hyderabad AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi(1985) Suppl. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99 , Eradu v. State of Hyderabad AIR 1956 SC 316 , Earabhadrappa v. State of Karnataka (1983) 2 SCC 330 , State of U.P. v. Sukhbasi(1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 , wherein it has been observed thus: (SCC pp. 206-07, para 21) “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” With due regard to the aforesaid ratio decided as expounded by the Hon’ble Supreme Court, let us find out whether the prosecution has proved each and every circumstance to complete a chain of circumstance against the accused-appellant. It is no more res integra that the Appellate Court has to re-appreciate the evidence on record and come to a conclusion whether it affirms the conclusion arrived at by the trial Court or not. 10. The evidence of P.W.2 reveals that in his presence, police recovered the dead body of the deceased-boy from the well. P.W.3, who is the informant, has stated that after hearing about the missing of the deceased-boy, he informed the police. 10. The evidence of P.W.2 reveals that in his presence, police recovered the dead body of the deceased-boy from the well. P.W.3, who is the informant, has stated that after hearing about the missing of the deceased-boy, he informed the police. According to him, on a Sunday, police recovered the dead body of the deceased-boy in a naked condition from a well at Lingaraj Nagar (Irrigation Colony). Police sent the dead body for post mortem examination. The statement of P.W.4 shows that in his presence, police recovered the dead body of the deceased-boy from the well at Lingaraj Nagar (Irrigation Colony) and sent the same for post mortem examination. P.W.8 is the Investigating Officer, who has stated that he made the inquest over the dead body. On perusal of the inquest report (Ext.5), it appears that the deceased-boy was in naked condition and died due to drowning. 11. The evidence of the doctor (P.W.7) is reproduced below for better appreciation: “On that day being identified by C/116 K.C.Pradhan, I conducted autopsy over the dead body of Saleem Gorada at about 9.42 AM. Rigor mortise were absent. The age of the male child would be around seven years. There was only injury I found was one laceration at the external sphincter of the anus. The injury was ante mortem in nature. In my opinion, the same is possible by sodomy. In my post mortem report, I have mentioned such injury as post-mortem in advertently. In fact the same is ante mortem in nature. Such type of injury cannot be post mortem injury. The cause of death was due to drowning. I found on dissection that the lungs were filled with water and the stomach was also filled with water. Time since death was 24 hours to 36 hours at the time of my examination. Ext.3 is the said P.M. report and Ext.3/1 is my signature.” In cross-examination, P.W.6 clearly admitted that injury found on the anus of the deceased-boy is not possible by fall. On perusal of the post mortem report (Ext.3), it appears that he has seen one lacerated wound at the external sphincter of the anus. He has opined that such injury is ante mortem in nature but during trial, he had stated that inadvertently he has maintained such as post mortem in nature, but actual it is ante mortem in nature. On perusal of the post mortem report (Ext.3), it appears that he has seen one lacerated wound at the external sphincter of the anus. He has opined that such injury is ante mortem in nature but during trial, he had stated that inadvertently he has maintained such as post mortem in nature, but actual it is ante mortem in nature. Mr.Pani, learned counsel for the accused-appellant submitted that due to such diabolical statement of the doctor, it cannot be said that the accused-appellant is guilty of sodomy. When the doctor has corrected his opinion during trial, particularly during cross-examination, he also denied the suggestion made to the defence that he has stated so to help the prosecution, the contention of the learned counsel for the accused-appellant remained as untenable. However, the doctors should be cautious while preparing the P.M. report. However, when there is clear-cut consistent report that cause of death was due to drowning and the injury on the anus is not possible by fall, the opinion of the doctor during examination revealed that it is ante mortem in nature has to be accepted. It is also trite in law that the post mortem report itself is not a sacrosanct to prove the nature of injury but the examination of the doctor, who conducted the post mortem coupled with such post mortem report is an evidence of expert under Section 45 of the Evidence Act. When the opinion of the doctor (P.W.7) coupled with the post mortem report (Ext.3) are read together, without any sort of doubts it can be concluded that the sodomy was caused to the deceased-boy after which he died due to drowning in well. However, the prosecution has well proved that the death of the deceased was homicidal in nature. 12. The statement of P.W.1 shows that after 15 to 20 days of the occurrence, i.e., on 28.10.2002 at about 1.30 PM, the accused-appellant came to her house and talked with her. He stated before her that he has committed mistake by killing the deceased-boy and asked her not to disclose the same to anybody. She stated to have narrated the said fact to her husband, uncle and mother of the deceased and others. In cross-examination, it is revealed that her house and the house of accused-appellant and deceased are located in one village and she had no any dispute with the appellant. She stated to have narrated the said fact to her husband, uncle and mother of the deceased and others. In cross-examination, it is revealed that her house and the house of accused-appellant and deceased are located in one village and she had no any dispute with the appellant. Although she has acquaintance with the appellant previously but he was not coming to her house. On that day, he only came to her house to narrate the incident. During cross-examination, she reiterated that she has narrated the confession of the accused-appellant to other witnesses. Denying the suggestion of the defence, she stated to have mentioned before the police that she narrated the confession made by the appellant to her husband and the appellant confessed before her that he has killed the deceased. However, the Investigating Officer, in his examination, has affirmed such statement of P.W.1 before him, but denied about the statement that she narrated about the confession of the appellant to her husband. It is well settled in law that every omission does not amount to contradiction and only material omission merits consideration. 13. When the statement of P.W.1 is consistent to show that the appellant made extra judicial confession about killing the deceased-boy, the omission as to narrating about the confession of the appellant to her husband is not a material omission. Apart from this, there is no suggestion to this witness by the defence that she being in inimical terms of the appellant, has adduced such evidence against him. On the other hand, her evidence is consistent, clear and cogent to prove that the appellant made extra judicial confession as to killing the deceased-boy. Of course the manner of killing the boy has not been disclosed by the appellant but when he has admitted to have killed the boy is enough to show that it is a clear voluntary confession by the appellant before P.W.1. 14. P.Ws.2, 3 and 4 clearly disclose that they have heard about the extra judicial confession of the accused-appellant from P.W.1. When P.W.1 has stated that she had narrated about the extra judicial confession of the accused-appellant before other witnesses, such statement of P.Ws.2, 3 and 4 as to extra judicial confession cannot be lost sight of. Hence, the statements of P.Ws.1, 2, 3 and 4 amply corroborate P.W.1 prove extra judicial confession voluntarily made by appellant before P.W.1. When P.W.1 has stated that she had narrated about the extra judicial confession of the accused-appellant before other witnesses, such statement of P.Ws.2, 3 and 4 as to extra judicial confession cannot be lost sight of. Hence, the statements of P.Ws.1, 2, 3 and 4 amply corroborate P.W.1 prove extra judicial confession voluntarily made by appellant before P.W.1. This is one of the circumstance against the accused-appellant. 15. P.W.5, is a minor child of six years old. An evidence of a child witness is to be tested with caution. His evidence is reliable under Section 118 of the Evidence Act, which is reproduced below for reference: “118-Who may testify. —All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” It is aptly quoted at page 2968 in sixth edition of Law of Evidence by P.M.Bakshi in the following manner: “14.Child Witness:-Children of six or even five years of age have been allowed to testify, upon the Court being satisfied as to their capacity to give rational testimony. R. –V-Holmes, 2 F & F. 788 ; R. –V-Perkins, 2 Moody C.C. 135 ; Shewring –V-Shewring, (1892) Times, Nov. 11 ; R –V-Braiser, 1 East P.C. 443” After reading the provisions and the comment of the learned author followed by the decision of the Courts, it is clear that before explaining the testimony of a child of six years old, the Court has to test to the capacity to give rational testimony. 16. Further, in the above book, the Author has commended in the following manner at page 2971: “The evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality of such evidence and reliability bases the conviction of accepting the deposition of the child witness. In the instant case, the said witness fortunately could hid himself in a Kotha and got the opportunity to see the murder of all six persons one after another from a close quarter. There is no manner of doubt that the said child had suffered a great trauma. In the instant case, the said witness fortunately could hid himself in a Kotha and got the opportunity to see the murder of all six persons one after another from a close quarter. There is no manner of doubt that the said child had suffered a great trauma. But it cannot be reasonably contended that he failed to see how and by whom the murder has been committed. He has given a clear and straight forward account of the murders of all the six persons in detail and has not been shaken even by the long cross-examination. The two Courts below accepted the deposition of the said child witness as fully convincing and convicted the appellants for the said offences. Their Lordships of the Supreme Court observed that although the murders had been committed in a premeditated and calculated manner with extreme cruelty and brutality for which death sentence will be wholly justified. In the special facts of the case, it will not be proper to award extreme sentence of death on the appellants. (Please see : Raja Ram Yadav V State of Bihar; AIR 1996 SC 1613 and Ram Lakhan V State of UP, 1996 (6) JT 629 )” 17. With due regard to the aforesaid pronouncement of the Hon’ble Supreme Court, the evidence of P.W.5 has to be tested. It appears that the trial Court first asked some questions to P.W.5 and after testifying himself that he has given rational answers, he recorded his statement. His statement shows that he was playing with the deceased-boy within Court premises in the afternoon and the appellant came and gave chocolate to the deceased-boy and took with him but thereafter he had never returned. In his examination in chief, he also stated to have acquaintance with P.W.2, who has got a tea stall in the Civil Court premises. In his cross-examination, he denied to have tutored by P.W.2. Moreover, in his cross-examination, it has been brought out that his house is near the Court premises. During further cross-examination, it is revealed that he and the deceased-boy were only playing and non-else. Nothing has been found from the cross-examination that P.W.5 being child was deposing being tutored by any relation of the deceased. But, it is clear from his cogent evidence that while he and the deceased-boy were playing, the accused-appellant came and gave chocolate to the deceased-boy and took him away. Nothing has been found from the cross-examination that P.W.5 being child was deposing being tutored by any relation of the deceased. But, it is clear from his cogent evidence that while he and the deceased-boy were playing, the accused-appellant came and gave chocolate to the deceased-boy and took him away. In terms of the above decision of the Hon’ble Supreme Court, the evidence of P.W.5, who is a child witness cannot be brushed aside to prove that the accused-appellant took the deceased-boy with him by giving chocolate and after that, the boy had never returned. This is one of the great circumstance against the accused-appellant. 18. The evidence of P.W.2 shows that he got a tea stall near the Court premises and one day after the occurrence, P.W.5 came to the spot and told that the appellant had come to this area and he might take him in the manner he took the deceased by giving chocolate while he was playing with him within the Court premises. Learned counsel for the accused-appellant submitted that this part of evidence cannot be taken as a circumstance against the appellant as P.W.5 has not stated to have narrated such fact to P.W.2. So, the evidence of P.W.2 is hearsay in this respect. Of course P.W.5 has not stated to have narrated P.W.2 about the fact of taking the deceased-boy by the appellant. In absence of such statement of P.W.5, the evidence of P.W.2 cannot be made admissible being hearsay. It is well settled in law that unless the evidence of hearsay witness is not corroborated by the person who has informed him, same is not admissible under Section 60 of the Evidence Act read with Section 6 of the Evidence Act. This is one of the factor where relevant fact can be proved or admissible through oral evidence. However, the evidence of P.W.5 is enough to prove that the accused-appellant has taken the deceased-boy with him after giving chocolate and thereafter the deceased-boy never returned alive. 19. As it appears from the evidence of P.W.5 and other witnesses including the mother of the deceased-boy (P.W.4) that after the deceased-boy had gone with the appellant had never returned which clearly shows that the deceased-boy was last seen with the appellant. The appellant has not given account as to why the deceased-boy has not returned. 19. As it appears from the evidence of P.W.5 and other witnesses including the mother of the deceased-boy (P.W.4) that after the deceased-boy had gone with the appellant had never returned which clearly shows that the deceased-boy was last seen with the appellant. The appellant has not given account as to why the deceased-boy has not returned. Thus, the circumstance of last seen is absolutely against the appellant. So, it is a link to the chain of circumstance against the appellant. 20. The statement of P.W.3 shows that after informing the police, they recovered the dead body. It is revealed from the statement of P.W.3, he has lodged FIR vide Ext.1 on the next day of the occurrence after which the dead body was recovered and post mortem was made. About 20 to 25 days thereafter, they heard from P.W.1 about the extra judicial confession of the accused-appellant although gathered information from the statement of P.W.5 that the appellant took the deceased-boy with him by giving chocolate. After that, he lodged the FIR vide Ext.1. It is not known as to why the prosecution has not proved the information which has lodged just after the occurrence. Mr.Pani, learned counsel for the appellant submitted that there is delay in lodging Ext.1 and no explanation has been given by the prosecution. 21. The evidence of P.W.8 shows that he has received the FIR on 06.10.2002 and then U.D. Case No.18/02 was registered by the police vide Ext.4. On going through Ext.4, it appears that P.W.3 has lodged information but it was registered as a U.D. Case. When the dead body has been recovered in a naked condition and also report of the doctor received, police should have registered the case as a case of murder on 06.10.2002. When P.W.8 has arrayed such report as a FIR, it cannot be assumed to register the same as a U.D. Case. Moreover, P.W.8 stated to have been done a part of the investigation by examining witnesses, visiting the spot and sending the dead body for post mortem examination. Of course on 28.10.2002, the extra judicial confession came out before P.W.1. So, the I.O. made flaw in investigation to register U.D. Case. However, after ascertaining about the fact, again on 06.11.2002, police registered FIR on the report of P.W.3. Of course on 28.10.2002, the extra judicial confession came out before P.W.1. So, the I.O. made flaw in investigation to register U.D. Case. However, after ascertaining about the fact, again on 06.11.2002, police registered FIR on the report of P.W.3. When the investigation was going on, it was not necessary to lodge a second FIR but it could have been recorded as further statement of informant under Section 161 Cr.P.C. However, P.W.9 has stated have led the investigation and after investigation, charge sheet was submitted. Even if there is flaw in the process of investigation but it does not create any doubt over the case of the prosecution. 22. In the case of C. Muniappan and others –V-State of Tamil Nadu; (2010) 9 SCC 567 , Hon’ble Supreme Court, at paragraph-55, have observed in the following manner: “There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant Luxman –V-State of Maharashtra, Karne; (1974) 3 SCC 626 , Karnel Singh –V-State of M.P; (1995) 5 SCC 518 , Ram Bihari Yadav –V-State of Bihar; (1998) 4 SCC 517 , Paras Yadav – V-State of Bihar; (1999) 2 SCC 126 , State of Karnataka –V-K.Yarappa Reddy; (1999) 8 SCC 715 , Amar Singh –V-Balwinder Singh; (2003) 2 SCC 518 , Allarakha K. Mansuri –V-State of Gujarat; (2002) 3 SCC 57 and Ram Bali –V-State of U.P.: (2004) 10 SCC 598 )” With due regard to the aforesaid decision, it must be held that for such flaw in investigation, the case of the prosecution can be doubtful as there is convincing, cogent evidence of the prosecution witness to prove its case well. On the other hand, there is no delay in lodging the FIR by P.W.3 and for that the case of the prosecution cannot be doubted with tinted glass. So, the contention of the learned counsel for the appellant in this regard falls sort and the same is indefensible. 23. The appellant had got opportunity to lead evidence but he has not led any evidence. Moreover, nothing has been elicited during cross-examination to prove his innocence, rather answered during examination under Section 313 Cr.P.C. that he has a quarrel with P.W.1’s husband and eight years back, he was acquitted in a case filed by her husband. Neither such case has been proved nor such plea has been suggested to P.W.1. So, the defence has not proved his plea. When the appellant has not proved his plea, the same is an additional link to the chain of circumstance adduced by the prosecution against the appellant. 24. After analyzing the evidence on record at length, we are of the view that there is chain of circumstances proved by the prosecution and the same are inconsistent with the innocence of the appellant. Thus, the leaned Ad hoc Additional Sessions Judge, Jeypore has rightly come to a conclusion that the accused-appellant is the perpetrator of the crime for which he found him guilty for the offence under Sections 302/377 of IPC. Accordingly, we do not find any reason to differ from his view. Thus, the leaned Ad hoc Additional Sessions Judge, Jeypore has rightly come to a conclusion that the accused-appellant is the perpetrator of the crime for which he found him guilty for the offence under Sections 302/377 of IPC. Accordingly, we do not find any reason to differ from his view. In the result, the JCRLA is dismissed and the judgment of conviction and sentence passed under Sections 302 and 377 of I.P.C. by the learned Ad hoc Additional Sessions Judge, Jeypore in Criminal Trial No.58 of 2004 is confirmed. The LCR be sent back immediately.