JUDGMENT : Sanjay Kumar Jaiswal, J (1) Regard being had to the similitude of the question of facts and law involved and being arising out of a common impugned judgment dt. 21.10.2014, on the joint request of learned counsel for the parties, both these criminal appeals are clubbed together, heard together and being disposed of by this common judgment. (2) Invoking criminal appellate jurisdiction of this Court, two accused/appellants herein, namely, Virup Pal @ Veeru (A-1) and Smt. Monika Bareth (A-3) have preferred CRA-1324-2014 & CRA- 90-2015 under Section 374(2) of Cr.P.C. respectively, calling in question the legality, validity and correctness of impugned judgment of conviction and order of sentence dt. 21.10.2014, passed in Sessions Trial No.93/2013 (Virup Pal @ Veeru and others v. State of Chhattisgarh) by the 2 nd Addl. Sessions Judge, Korba (CG), whereby they both have been convicted and sentenced as under: Conviction Sentence U/s. 302/34 of IPC Imprisonment for life with fine of Rs.5,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 01 year. U/s. 201/34 of IPC Rigorous imprisonment for 05 years with fine of Rs.1,000/- and, in default of payment of fine amount, additional rigorous imprisonment for 01 year. [Both the sentences are directed to run concurrently] (3) The case of the prosecution, in short, is that on 17.06.2013, the two accused/appellants herein alongwith another co-accused (now dead) firstly shared common intention with each other and, in furtherance of their of, assaulted Mukesh Kumar Bareth (herein after referred to as the “deceased”) by means of bricks and tiles and caused his murder and, further, in order to screen themselves from prosecution, put the dead-body of the deceased in gunny bag and threw into Bade canal and, thereby, said to have committed the aforesaid offence. (4) It is further case of the prosecution that when the matter was reported to the police by Madan Das mahant (PW-02), dehati merg was registered vide Ex.P/34. Dead-body of the deceased was identified by Mohan Lal (PW-03) [brother of the deceased] vide identification panchnama (Ex.P/17). Merg intimation (Ex.P/35) and FIR (Ex.P/37) were also registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/15 and inquest proceedings were conducted vide Ex.P/16. Spot map was also prepared vide Ex.P/31. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Merg intimation (Ex.P/35) and FIR (Ex.P/37) were also registered and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/15 and inquest proceedings were conducted vide Ex.P/16. Spot map was also prepared vide Ex.P/31. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Deepak Singh Raj (PW-05) and, as per PM report (Ex.P/01), it has been opined that cause of death is head injury consist with compressive force applied over neck resulting in asphyxia and nature of death is homicidal in nature. The appellants-accused were arrested and their memorandum statements were recorded vide Ex.P/02 & Ex.P/04 respectively. Pursuant to the memorandum statements of the appellant- Virup Pal @ Veeru (A-1) tiles, mobile phone and scooter were seized vide Ex.P/05 & Ex.P/06, whereas, from appellant- Monika Bareth (A-3), tiles looks like brick were seized vide Ex.P/08. Thereafter, the seized articles were sent for chemical examination, but no FSL report has been brought on record for the reasons best known to the prosecution. After statements of witnesses were recorded and due investigation, the police filed charge-sheet against the appellants in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 41 documents, apart from Article-A1 to A4 and Article-A to D, whereas the appellant-accused in support of their defence, though not examined any witness, but exhibited 01 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offence under Section 302/34 & 201/34 of IPC and sentenced them as mentioned in Para-02 of this judgment, against which these appeals have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Praveen Dhurandar and Mr. Anurag Agrawal, learned counsel appearing for the appellants jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offences in question, as the prosecution has failed to prove the same beyond reasonable doubt. (7) Mr. Praveen Dhurandar and Mr. Anurag Agrawal, learned counsel appearing for the appellants jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offences in question, as the prosecution has failed to prove the same beyond reasonable doubt. They further argued that there is no legally admissible evidence available on record to hold the appellants herein guilty for the offence. The testimony of child witness, namely, Annu (PW-13) is not reliable, as she has not supported the case of the prosecution. Indeed, she is a tutored witness and was in custody of her uncle (father’s brother), namely, Vishnu Bareth (PW-08). Even otherwise, Annu’s statements under Sections 161 & 164 of CrPC have also not been recorded. Thus, conviction of the appellants cannot be based on the statement of said child witness that too in absence of any corroboration. As such, the learned trial Court is absolutely unjustified in convicting the appellants for the offence in question and, therefore, the present appeals deserve to be allowed and the appellants are liable to be acquitted of the said charges on the basis of benefit of doubt. (8) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellants for offence in question. Thus, both the appeals deserve to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (10) The first and foremost question is as to whether the death of the deceased was homicidal in nature or not, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/01), wherein it has been opined that death of the deceased has been opined to be head injury consist with compressive force applied over neck resulting in asphyxia and nature of death is homicidal in nature, which is duly proved by the statement of Dr. Deepak Singh (PW-05). Accordingly, taking into consideration the postmortem report (Ex.P/01) and the statement of Dr. Deepak Singh (PW-05). Accordingly, taking into consideration the postmortem report (Ex.P/01) and the statement of Dr. Deepak Singh (PW-05), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding. (11) Now, the next question would be whether the accused-appellants herein are the authors of the crime in question or not? (12) In the case at hand, the prosecution case is based on the testimony of child witness, namely, Annu (PW-13), who is said to have witnessed the incident and her statement is also partly supported by her uncle (father’s younger brother), namely, Vishnu (PW-08) with whom she was residing immediately after the incident. Therefore, in order to assess and scrutinize the testimony of child witness- Annu (PW-13), it would be appropriate to notice the law on the point, which is settled that the evidence of child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring and, as such, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. (See: Panchhi and others v. State of UP. , (1998) 7 SCC 177 followed in Digamber Vaishnav and another v. State of Chhattisgarh , (2019) 2 SCR 844). (13) Furthermore, the Supreme Court in the matter of Pradeep v. State of Haryana , (2023) 19 SCC 221 has laid down the principle of assessing the testimony of child witness by holding that the court must make careful scrutiny of the evidence of a child witness and observed in Para-12 & 13 as under: “12. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 13. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” (14) Finally, in the matter of State of Madhya Pradesh v. Balveer Singh , (2025) 8 SCC 545 their Lordships of the Supreme Court have summarized the principles of law for assessing the testimony of child witness, which states as under: “67. We summarise our conclusion as under: 67.1. The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence cannot be rejected outrightly. 67.2. As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the trial court to ascertain if the child witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him. 67.3. 67.2. As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the trial court to ascertain if the child witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him. 67.3. Before the evidence of the child witness is recorded, the trial court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion. 67.4. The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the trial court. The correctness of the opinion formed by the trial court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinising the preliminary examination conducted by the trial court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the trial court. 67.5. The testimony of a child witness who is found to be competent to depose i.e. capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence. 67.6. The trial court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others. 67.7. There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. 67.8. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. 67.8. Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard-and- fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case. 67.9. Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition. 67.10. The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication. (i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of the Evidence Act. (ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors has to be established being as under: Opportunity of tutoring of the child witness in question—whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient. Reasonable likelihood of tutoring—wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence-lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural. 67.11. 67.11. Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness. 67.12. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.” (15) Now, before we proceed to assess the testimony of Annu (PW-13) in light of the above principles of law, it would be profitable to notice some relevant facts which are necessary for proper adjudication of the matter: a) Incident in question is said to have taken place on 13.06.2013, which came into light on 17.06.2013 and the statement under Section 161 of CrPC of Vishnu (PW-08) [brother of the deceased] was recorded on 19.06.2013. b) From the statement of Mohanlal Bareth (PW-03) [elder brother of the deceased] [Para-26] it is quite clear that from 17.06.2013 till 22.01.2014, child witness-Annu (PW-13) used to reside with her grand-mother, namely, Nirala Bai (not examined). c) No statement of Annu (PW-13) was recorded under Section 161 of CrPC. A perusal of the charge-sheet would show that all in all list of 20 witnesses were cited by the prosecution, but the name of Annu (PW-13) was missing and, ultimately, on 18.09.2014, the prosecution declared its case closed. Thereafter, suddenly, on 23.08.2014, the prosecution filed an application stating there in that Annu (PW-13) is an eye-witness, she was enquired by the police and her statement under Section 161 of CrPC was not recorded. The said application was allowed by the learned trial Court on 04.09.2014 and, thereafter, Annu’s statement was recorded by the learned trial Court on 18.09.2014. Thereafter, suddenly, on 23.08.2014, the prosecution filed an application stating there in that Annu (PW-13) is an eye-witness, she was enquired by the police and her statement under Section 161 of CrPC was not recorded. The said application was allowed by the learned trial Court on 04.09.2014 and, thereafter, Annu’s statement was recorded by the learned trial Court on 18.09.2014. d) Furthermore, from the statement of Investigating Officer- S.K.Pathak (PW-11) it is also clear that statement of Annu (PW-13) was neither recorded under Section 161 of CrPC nor under Section 164 of CrPC for the reasons that she could not inform about the date of offence and place of offence. (16) The Supreme Court in the matter of Ram Lakhan Singh v. The State of Uttar Pradesh , (1977) 3 SCC 268 : AIR 1977 SC 1936 has clearly held that a witness who never figured during the investigation cannot be given any credence because he is giving statement for the first time in the Court and the accused is deprived of an opportunity of effective cross- examination and observed in Para-37 as under: “37. It is true that no enmity or grudge is suggested against this witness, but we find that this witness was not even examined by the police nor was he cited in the chargesheet. In a grave charge like the present, it will not be proper to place reliance on a witness who never figured during the investigation and was not. named in the chargesheet. The accused who are entitled to know his earlier version to the police are naturally deprived of an opportunity of effective cross-examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence. We cannot, therefore, agree that the High Court was right in accenting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps, the High Court felt unsafe to convict the accused. We cannot, therefore, agree that the High Court was right in accenting the evidence of this witness as lending assurance to the testimony of other witnesses on the basis of which alone perhaps, the High Court felt unsafe to convict the accused. ” (17) The above-quoted principle of law has further been followed with approval in the matter of Deepak Kumar Mishra v. State of MP (Now CG), 2011 SCC Online Chh 480 (18) As such, in light of the above facts coupled with the principles of law laid down by their Lordships of the Supreme Court in aforementioned judgment qua evidence of child witness, we shall not proceed to assess the testimony of child witness- Annu (PW-13). Though, in her examination-in-chief, Annu has answered the questions in favour of the prosecution by stating that two appellants herein alongwith another co-accused (now dead), namely, Virupal (A-1), Shankar (A-2) and Smt. Monika (A-3) all have committed murder of her father (deceased), but during her cross-examination, she has not at all supported the case of the prosecution. In para-27 of her cross-examination, she has clearly admitted that on the date of incident her father (deceased) and mother (Monika A-3) both were sleeping in separate rooms. She was sleeping with her father and her younger sister- Asha was sleeping with her mother in separate room. She also admitted that on the date of incident, she after having dinner slept and woke up in the morning and she has not seen in the incident in question. She came to the Court alongwith her grand-father- Suresh (not examined), grand-mother (not examined) and Vishnu (PW-08). Furthermore, in Para-28, she has also admitted that Vishnu (PW-08) [her father’s brother], her father’s elder brother and other members of the family told her what to say and make statement before the court and, on the basis of which, she is making statement in the court. She clearly admitted that she by herself has not seen any incident and she is being touted by her uncle (Vishu) and grand-father and, on which, she is making statement before the Court. Even, on a specific query made by the court, she stated that she has not seen anybody assaulting her father (deceased). She clearly admitted that she by herself has not seen any incident and she is being touted by her uncle (Vishu) and grand-father and, on which, she is making statement before the Court. Even, on a specific query made by the court, she stated that she has not seen anybody assaulting her father (deceased). (19) In view of the above, it is quite clear that: (i) on the date of offence, Annu (PW-13) [child witness] slept after having her dinner and woke up in the morning and she has not seen the incident in question; (ii) Annu (PW-13) came to the court for recording her evidence alongwith her uncle (Vishnu), grand-father (Suresh) and grand-mother and she was being tutored by Vishnu (PW-08) [her father’s brother], her father’s elder brother and other members of the family as to what to say and make statement before the court and, upon which, she is making statement in the court; (iii) She has clearly admitted that she by herself has not seen the incident and, even on being asked by the Court, she clearly stated that she has not seen anyone assaulting her father (deceased); (iv) according to the statement of Mohanlal Bareth (PW-03) [elder brother of the deceased] [Para-26], from 17.06.2013 till 22.01.2014, since Annu (PW-13) was residing with her grand-mother, namely, Nirala Bai (not examined), they would have complete opportunity of tutoring her; (v) at the relevant point of time, Annu (PW-13) was only aged about 04 years and (vi) Statements of Annu (PW-13), neither under Section 161 of CrPC nor under Section 164 of CrPC was recorded for the reasons that she could not inform about the date of offence and place of offence according to IO- S.K. Pathak (PW-11). As such, in light of the aforesaid reasons, the learned trial Court is absolutely unjustified in relying upon the statement of child witness- Annu (PW-13) to hold the appellants herein guilt for the offences in question that too in absence of any corroboration. We hereby hold accordingly. As such, in light of the aforesaid reasons, the learned trial Court is absolutely unjustified in relying upon the statement of child witness- Annu (PW-13) to hold the appellants herein guilt for the offences in question that too in absence of any corroboration. We hereby hold accordingly. (20) Further, in shape of corroboration, though it is the case of the prosecution that pursuant to the memorandum statement of the appellant- Virup Pal @ Veeru (A-1) tiles, mobile phone and scooter were seized vide Ex.P/05 & Ex.P/06, whereas, from appellant- Monika Bareth (A-3), tiles looks like brick were seized vide Ex.P/08, but there is no evidence available on record to show that the said seized articles were used in commission of offence by the appellants in any way. Even otherwise, though it is also the case of the prosecution that in the tiles/bricks seized from the appellants, stains of blood were found, but no FSL report has been brought on record to show that the said blood is of the same blood group to be that of the deceased only and nobody else. However, the Supreme Court in the matter of Raja Nayka v. State of Chhattisgarh , 2024 SCC Online SC 67 by relying upon its earlier decision rendered in the matter of Mustkeen @ Sirajudeen v. State of Rajasthan , (2011) 11 SCC 724 has held that sole circumstance of recovery of blood-stained article cannot form the basis of conviction unless the same is corroborated with other piece of incriminating circumstances. Consequently, the recovery of aforesaid article is of no help to the prosecution. We hereby hold accordingly. (21) The last piece of evidence that has been projected by the prosecution and relied upon by the learned trial Court to hold the appellants herein guilty for the offence is motive of the offence that the appellant- Virup Pal (A-1) was having illicit relationship with appellant Smt. Monika (A-3) [wife of the deceased]. We hereby hold accordingly. (21) The last piece of evidence that has been projected by the prosecution and relied upon by the learned trial Court to hold the appellants herein guilty for the offence is motive of the offence that the appellant- Virup Pal (A-1) was having illicit relationship with appellant Smt. Monika (A-3) [wife of the deceased]. However, the aforesaid aspect has been found proved by the learned trial Court on the basis of memorandum statements of the appellants herein, which, in light of the decision of the Supreme Court in the matter of Babu Sahebagouda Rudragoudar v. State of Karnataka , (2024) 8 SCC 149 is inadmissible in evidence for the reason that the Supreme Court has clearly held that confessional part of an accused in inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence, as laid down in State of UP v. Deoman Upadhyaya , AIR 1960 SC 1125 . As such, motive of the offence is also not found established/proved. We hereby hold accordingly. (22) In view of the aforesaid discussion, we are unable to hold that the prosecution has been able to prove its case beyond all reasonable doubt and, in absence of which, the appellants are entitled to get benefit of doubt. The learned trial Court is unjustified in convicting and sentencing the appellants herein for offences under Sections 302/34 & 201/34 of IPC. Accordingly, the conviction and their respective sentences of both the appellants for offences under Sections 302/34 & 201/34 of IPC, as imposed upon them by the learned trial Court, are hereby set aside. They are acquitted of the said charges on the basis of benefit of doubt. Since the appellants are already on bail, they need not to surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. (23) Consequently, both the criminal appeals are allowed to the extent indicated herein-above. (24) Let a certified copy of this order alongwith original record be transmitted to the trial Court for necessary information and action, if any.