By Court. — This appeal has been preferred against the judgment of conviction and order of sentence dated 1.5.2001 passed by the 2nd Additional Sessions Judge, Seraikella in Sessions Trial No. 274 of 1996 whereby appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment.

2. The prosecution was launched on the basis of the fardbeyan of Jogai Mukhi (P.W.7), the husband of the deceased Kamali Mukhi.

3. The prosecution case, in brief, is that on 11.4.1996 the informant had gone to Village-Golo Kutumb at 9:00 a.m. to collect the price of beating drum. When he returned at 5:00 p.m. his eight years old daughter Nadi Mukhi told that at about 12:00 p.m., there was some quarrel between his wife and the appellant and in course thereof the accused appellant had given lathi blow on the chest of his wife. When he went inside, he found her wife lying dead on the ground. The reason for the incident was a quarrel between the informant and the accused about a week ago on apportionment of wages paid for cleaning latrine at Village-Haldipokhar. The accused appellant had earlier assaulted the informant's wife and had broken her tooth.

4. On the said fardbeyan, the police registered a case under Section 302 I.P.C against the appellant.

5. After investigation, the police submitted charge-sheet under Section 302 I.P.C.

6. The charge was framed against the appellant. He denied the charge and claimed to be tried. He was put on trial.

In his examination under Section 313 Cr.P.C., he denied to have committed any offence.

7. The prosecution in order to establish the charge against the appellant examined altogether 13 witnesses. P.W. 1 is the daughter of the informant aged about 10 years on the date of examination, P.W. 2 is the minor son of the informant aged about 5 years on the date of his deposition. These two witnesses are said to be eye witnesses. P.W. 3. P.W. 4, P.W. 5. P.W. 6 and P.W. 8, were co-villagers and were turned hostile. They did not support the prosecution version. P.W. 7 the informant Jogai Mukhi, is husband of the deceased. In his fardbeyan, he clearly stated that he was not present at the time of occurrence. The incident was reported to him by his daughter P.W. 1. P.W. 10 is another co-villager who was tendered. P.W. 9, P.W. 11 and P.W. 13 are the formal witnesses and they have formally proved some documents. P.W. 12 is the Doctor who had conducted autopsy on the dead body of the informant's wife.

8. Learned trial court on conclusion of the trial held the appellant guilty of committing murder of the informant's wife. Learned trial court heavily relied on the evidences of P.W. 1, P.W. 2 and P.W. 7 (informant) and the medical evidence of P.W.12.

9. Mr. Sen, learned counsel appearing on behalf of the appellant assailed the impugned judgment and conviction of the appellant on the following grounds:

(i) There is no credible and reliable evidence on record to prove the charges against the appellant.

(ii) P.W. 1 and P.W. 2 are minor children and it is evident from their statement that they were tutored. The P.W. 1 on the date of occurrence was aged about eight years and the age of P.W. 2 on the date of occurrence was about 2-3 years.

10. Learned counsel submitted that trial court even without testing the understanding and the capability of the children to testify, recorded their evidences and heavily relied on them. The said witnesses i.e. P.W. 1 and P.W. 2 who were the child witnesses are the only eye-witnesses and learned trial court has erroneously relied upon their testimony and convicted the appellant without properly testing their understanding and recording his observation to that regard. Court below has also relied upon the testimony of P.W. 7, the informant, who is a hearsay witness. He was not in the village at the time of occurrence and the incident was explained to him by the P.W. 1. The other independent witnesses P.W. 3, P.W. 4, P.W. 5, P.W.6 and P.W. 8, who are the co-villa