JUDGMENT : SACHIN SINGH RAJPUT, J. 1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.) has been preferred by the appellant being aggrieved by judgment dated 31.03.2005 passed by the First Upper Sessions Judge, Surajpur, District Surguja (C.G.) in Sessions Case No. 89 of 2004. By the impugned judgment the appellant has been convicted for an offence under Section 307 of Indian Penal Code, 1860 (in short “IPC”) and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 500/- in default of payment of fine, to further undergo rigorous imprisonment for 2 months. 2. The case of the prosecution in nutshell is that on the date of incident, in the morning i.e. 19.05.2003, father of Sonu (victim) namely- Moharlal (PW03) was digging a ditch for latrine with the permission of the Municipal Council. At that time, father of the appellant namely- Umashankar Sahu (PW12) raised a dispute with him. The father of the victim, Moharlal and his wife had gone to SDM Court to attend the hearing and when he was proceeding back to his home, he received an information that his son i.e. Sonu (Victim) fell into the well and he was taken to hospital. Moharlal (PW03) saw him in the hospital. His Children Radha (PW05) and Anil (PW06) informed that the appellant took Sonu near the house and in order to kill him, threw him in Bittu's well. Later on, Sonu (victim) was taken out by Umashankar Sahu (PW12) and Triloki Soni (PW07). Thereafter, an FIR Ex. P/1 was lodged. The victim was medically examined, spot map Ex. P/5 was prepared by the Police and Ex. P- 8 was prepared by the Patwari. After investigation, chargesheet was filed before the Additional Chief Judicial Magistrate, Surajpur and after committal, the case was received by the trial Court for its trial and the learned trial Court framed charge under Section 307 of IPC. The appellant denied the charge and prayed for trial. 3. Prosecution examined as many as 13 witnesses and exhibited 9 documents in order to prove its case. Statement of the accused person under Section 313 of Cr.P.C. was also recorded in which he pleaded his innocence and false implication on account of a dispute took place between the family members of the appellant with the mother of the victim. 4. Prosecution examined as many as 13 witnesses and exhibited 9 documents in order to prove its case. Statement of the accused person under Section 313 of Cr.P.C. was also recorded in which he pleaded his innocence and false implication on account of a dispute took place between the family members of the appellant with the mother of the victim. 4. The learned trial Court after hearing the parties and going through the evidence adduced before it convicted and sentenced the accused/appellant herein as described above. Hence this appeal. 5. Ms. Mukharjee, learned counsel appearing for the appellant submits that conviction of the appellant is erroneous, contrary to the evidence on record and is bad in law. She further submits that the learned trial Court has not appreciated the evidence in its proper perspective. She submits that there is no eyewitness to the fact that Sonu (Victim) was thrown by the appellant into the well. Conviction is based only on the testimony of two child witnesses namely- Radha (PW05) and Anil (PW06) and from cumulative assessment of their testimony, it is evident that they are the tutored witness. They are speaking as tutored by their mother. It is also proved from record that earlier a report was lodged against the mother of the victim by the family members of the appellant and in order to save themselves from it, a false report has been lodged against the appellant. She further submits that there is nothing on record to suggest that the well was covered with the wall and, as such, there is all possibility that the victim might have fallen into the well and a false story has been created that the appellant has thrown the victim into the well. She submits that Moharlal (PW03) has admitted that the report was lodged in order to save themselves from the report lodged by mother of the appellant, therefore, the prosecution has not been able to prove its case beyond reasonable doubt and the conviction of the appellant is liable to be set aside by acquitting the appellant of all the charges by allowing this appeal. 6. Per contra, Ms. Sonkar, learned Panel Lawyer appearing for the State supports the impugned judgment. 6. Per contra, Ms. Sonkar, learned Panel Lawyer appearing for the State supports the impugned judgment. She submits that though there is no eyewitness to the incident but the victim was seen to have been taken by the appellant and this fact is apparent from the statements of Anil (PW06) and Radha (PW 05) and later on, the victim was found floating in the well and therefore a safe inference can be drawn that it is the appellant who threw the victim into the well. She further submits that on the date of incident, in the morning, there was a quarrel between the father of the appellant with the father of the victim and just to take revenge, the appellant committed said crime therefore, there is no illegality or infirmity in the judgment impugned warranting interference by this Court. 7. I have heard learned counsel for the parties, considered their rival submissions and perused the record. 8. The learned trial Court basically relied upon the statements of two child witnesses namely- Radha (PW05) and Anil (PW06). From perusal of their statements, it appears that they were playing in front of the house alongwith the victim and according to them the appellant asked the victim to go for fishing and when he (victim) refused, he took him for fishing and the victim was found in the well and later on was taken out by Umashankar Sahu (PW12) and other witness Triloki Soni (PW07). As there is no eyewitness to the incident and conviction rests upon the statements of the child witnesses. The statements of the child witnesses are required to be examined with great caution and care. 9. Hon’ble Supreme Court in the matter of Arbind Singh Vs. State of Bihar , 1995 Supp (4) SCC 416 in paragraph 3 has followed the parameters to ascertain the testimony of the child witness as they are always found to tutoring which reads as under: “3. The entire case hinges on the evidence of the child witness PW 2 Roopam Kumari, the daughter of the deceased and appellant Arbind Singh. The incident occurred late in the night and she claims she was awakened by the noise of quarrelling. She further claims to have seen her father tying and nailing her mother before hanging her. At the date of the incident she was aged about 5 years. The incident occurred late in the night and she claims she was awakened by the noise of quarrelling. She further claims to have seen her father tying and nailing her mother before hanging her. At the date of the incident she was aged about 5 years. When her evidence was recorded she was aged about 9 years. The learned trial Judge did not undertake a 'voir dire' before recording her evidence on oath although he notes that she was capable of understanding and answering the questions. Be that as it may, the fact remains that there was a gap of 4 years between the incident and the date on which her evidence was recorded. Immediately after the incident she was interrogated but as she was weeping her statement was not recorded. Thereafter her statements were recorded on 25th October, 1984, 28th October, 1984 and 5th November, 1984, the last being under Section 164 of the Criminal P. C. In her first statement she did not say that her mother was hanged. Subsequently she said she was hanged by electric wire. She later said she was hanged with the help of a jute string. In her statement recorded under Section 164 of the Criminal P.C. on 5th November, 1984, she stated that her father had thrown a jute string around the neck of her mother and killed her. It will, therefore, appear from these statements that she has not been consistent in her version. That apart, we have carefully perused the evidence of this witness and we find traces of tutoring on certain aspects of the case. It appears from her evidence that she was very close to her maternal uncle with whom she was living when her mother had gone to Deoghar for training. Immediately after the incident she was taken away by her maternal uncle who happens to be a fairly important figure. In her evidence she stated that there used to be quarrels between her father and mother and the former used to ill-treat the latter without any rhyme or reason. Then she adds that her father wanted to remarry and, therefore, he was ill treating her mother. Now the case put up was that the husband was ill treating the wife as he wanted to sell her jewellery to purchase a scooter. Then she adds that her father wanted to remarry and, therefore, he was ill treating her mother. Now the case put up was that the husband was ill treating the wife as he wanted to sell her jewellery to purchase a scooter. Therefore, the statement made by PW 2 that her father was ill-treating her mother because he wanted to remarry could only be the result of tutoring. She also tried to involve all the other family members including her uncle Shambhoo whom she could not even recognize in the dock. This she could have done only at the behest of someone else. She also stated that neither her father nor her grandfather met her mother's expense at Deoghar, a fact of which ordinarily a child under five years of age would not be aware. She even tried to involve her father's sister whose name she had not mentioned earlier. There are also certain other statements made in the course of her deposition which would suggest that possibility of tutoring could not be ruled out. Having taken a careful look at the evidence of this child witness we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence. It is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that the appellant No. 1 was entitled to benefit of doubt.” 10. Hon’ble Supreme Court in the matter of Dattu Ramrao Sakhare and Others Vs. State of Maharashtra , (1997) 5 SCC 341 in paragraph 5 has held as under: “5. The entire prosecution case rested upon the evidence of Sarubai (P.W.2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record……………...” 11. Hon’ble Supreme Court in the matter of Panchhi and Others Vs. State of U.P. (1998) 7 SCC 177 in paragraphs 11 and 12 has held as under: “11. Shri RK Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW1 being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy credence. Bu we do not subscribe to the view that the evidence of a child witness would always stand irretrievable stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is a found 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 toll them and thus a child witness is an easy prey to tutoring. 12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law [vide Prakash and another vs. State of Madhya Pradesh, (1992) 4 SCC 225 ; Baby Kandayanathil vs. State of Bihar, 1993 Supp (3) SCC 667, Raja Ram Yadav Vs. State of Bihar, (1996) 9 SCC 287 and Dattu Ramrao Sakhare and Others Vs. State of Maharashtra , (1997) 5 SCC 341 .” 12. State of Bihar, (1996) 9 SCC 287 and Dattu Ramrao Sakhare and Others Vs. State of Maharashtra , (1997) 5 SCC 341 .” 12. Thus, a child witness is competent to provide valuable testimony in a given case. However, their testimony is required to be scrutinised more closely with great care and caution being susceptible to influence and tutored. Court must carefully conduct a preliminary examination of the child witness to assess their understanding and ability to communicate effectively. 13. Ku. Radha was examined as PW05 and after putting a question by the learned trial Court with regard to her general understanding, she appears to answer it quite vividly and after ascertaining her capacity to give evidence, her evidence was recorded by the learned trial Court. In her statement in examination in chief, she states that the incident occurred in the afternoon when they were playing on the road at that time, the appellant came and asked his elder brother to accompany for fishing at the well which was denied by him. Later on he took her younger brother i.e. victim for fishing which was objected by her, still he took the victim. She further deposed that the appellant took victim towards the well and pushed him into the well and also assaulted with stone and brick, they shouted at that time, their uncle Umashankar Sahu (PW12) and Triloki Soni (PW07) came there and took out the victim from the well. As the victim fell into the well, victim sustained injuries on his head and thereafter, he was taken to hospital. She also stated that the appellant had a quarrel with her parents, therefore, the victim was thrown into the well. In her cross examination, she stated that when Sonu (victim) fell down in the well they went towards other side for playing. She also admitted that on being shouted by Surya Bai, Umashankar Sahu (PW12) and Triloki Soni (PW07) got down in the well and they took out the victim from the well. This witness came to give evidence alongwith her mother. She also admitted that Umashankar Sahu (PW12) is the father of the appellant and on the date of incident, in the morning there was a quarrel between Umashankar Sahu (PW12) and her father. This witness came to give evidence alongwith her mother. She also admitted that Umashankar Sahu (PW12) is the father of the appellant and on the date of incident, in the morning there was a quarrel between Umashankar Sahu (PW12) and her father. She also admitted that her mother had a quarrel with her elder mother (Badi Maa) and she (Badi Ma) had gone to the Police Station for lodging the report. On analysis of this witness, it appears that initially she claims herself to be an eyewitness who has seen the incident of appellant pushing the victim into the well but later on in her cross-examination, she stated that when he fell down they went to other side to play. 14. The other witness to the incident is Anil (PW06) and after ascertaining his capability to depose, his statement was recorded by the learned trial Court. In his examination-in-chief, he states about the dispute between his father and the father of the appellant which occurred on account of digging a ditch for the purposes of latrine and therefore, the appellant threw his brother i.e. victim into the well. He also stated that on the date of incident, they were playing near the house alongwith her sister Radha and Sonu (Victim). He further deposed that the appellant asked his brother (victim) for fishing and thereafter threw him into the well. He also stated that when he came to know that his brother has fallen down in the well, they started weeping and many people came there and thereafter, Umashankar Sahu (PW12) and Triloki Soni (PW07) got down and took out the victim from the well due to which he sustained head injuries and thereafter he was taken to the hospital. In his cross-examination, he admitted that when his brother fell down in the well at that time he alongwith his sister were playing in front of the house. In his cross-examination, he stated that his mother told him that “he has to go to the Court for giving statement” . He also admitted that what his mother tutored, he is deposing before this Court. He also admitted that there was a quarrel, which took place between his mother and mother of the appellant. He also stated that the mother of the appellant had lodged the report against his mother in the Police Station. He also admitted that what his mother tutored, he is deposing before this Court. He also admitted that there was a quarrel, which took place between his mother and mother of the appellant. He also stated that the mother of the appellant had lodged the report against his mother in the Police Station. He also stated that his mother told him that we have to save ourselves from the report which was lodged by the mother of the appellant. He also admitted that the well is open and there is no boundary wall around the well. He also admitted that after hearing the cries of one Surya Bai, they went near the well and saw his brother in the well. Now analysis of this witness clearly goes to show that he appears to be a tutored witness. He also happens to admit that there was some dispute between his mother and the mother of the appellant and he is making statement before the Court as tutored by his mother. He also admits the fact that earlier a report was lodged against his mother and his mother wanted to save herself from the said report. 15. Moharlal (PW03) is also an important witness who is the father of the victim. This witness has lodged the FIR Ex. P/1. He has stated in his evidence that earlier a report was lodged by the mother of the appellant against his wife (mother of victim). He also admitted that in order to save his wife from the said report, he has lodged the report against the appellant. 16. Bifaiya (PW04) is also a witness to the fact that the victim who is aged about 5 years had fallen into the well and by the time she reached near the well, Neeraj, Anil and Radha were not there. She further stated that well is not covered with any boundary wall. 17. Dr. Sashi Tirki (PW09) has examined the victim and found the following injuries:- “The injuries were simple in nature and could be caused by hard and blunt object which could be 5 to 6 hours old and cured within 7 to 10 days. He gave his report Ex. P/3.” In cross-examination, this witness states that he has not examined the victim with regard to water in his stomach as the stomach of the victim was not swollen. He gave his report Ex. P/3.” In cross-examination, this witness states that he has not examined the victim with regard to water in his stomach as the stomach of the victim was not swollen. He also admitted that the injuries which were sustained by the victim on his head and forehead could be caused if he falls on hard surface and the injuries were simple in nature. 18. Mr. J.N. Pandey, (PW13), who is Investigating Officer, has supported the case of the prosecution and deposed that he has not recorded the statement of the victim as he is four years old child. The spot map Ex. P/8 has been prepared in presence of the witnesses. This witness has denied the fact that as Sonu victim was four years old, therefore, he prepared the spot map without enquiry from him and did the whole investigation on his own. 19. From the evidence collected by the Prosecution the following facts emerges on record: • A quarrel had taken place in the morning between the father of the appellant and the father of the victim on account of digging of a ditch for latrine • A report was also lodged by the mother of the appellant against the mother of the victim. • The two child witnesses gave different descriptions as to the manner in which the incident occurred. Radha (PW 05) says that Neeraj initially asked Anil to accompany for fishing and on refusal he took the victim for fishing and then she became an eyewitness who saw the incident but later on does not appear to be present at the scene of occurrence. She said that when they shouted then people came there. On the contrary Anil (PW06) has stated that the appellant asked the victim for fishing and took the victim with him and later on, admitted the dispute between the families, lodging of report against his matter and making of the statement on tutoring of his mother. 20. Of course it is not expected from the child witnesses to explicitly give the description of the incident but at the same time, such glaring discrepancies may be fatal to the prosecution. Moharlal (PW03) also admitted the fact that the report was lodged by him only at the instance of his wife to save from the report lodged by the mother of the appellant. Moharlal (PW03) also admitted the fact that the report was lodged by him only at the instance of his wife to save from the report lodged by the mother of the appellant. The child witnesses have stated that they went to the spot and shouting and after hearing, people came to spot and Umashankar Sahu (PW12) and Triloki Soni (PW07) took out the victim from the well whereas Bifaiyya (PW04) makes a contradictory statement that when she alongwith other people reached near the well, she heard the sound of splashing of water in the well and saw the boy floating in the well, however, at that time, Neeraj, Anil and Radha were not there. 21. On a close scrutiny of the evidence of these witnesses, it is apparent that the presence of the child witnesses near the well becomes doubtful and their testimony cannot be said to be impeccable or said to be free from shadow of doubt and possibility of tutoring the witnesses and false implication of the appellant can not be ruled out. It is also an important factor that the witnesses have also stated that the well is not covered by any boundary wall and it is an open well, as such, there is all possibility that the victim might have fallen into the well. Therefore, it would not be safe to place reliance on the evidence of theses witnesses to sustain conviction. 22. Taking into consideration the facts and evidence led by the prosecution, the learned trial Court committed error in basing the conviction placing reliance on the statements of child witnesses. Therefore, in the opinion of this Court, the prosecution has not been able to prove its case beyond reasonable doubt and the appellant deserves to be given benefit of doubt. 23. Resultantly, the appeal is allowed and the impugned judgment is hereby set aside. He is acquitted of the charge under Section 307 of the IPC. He is reported to be on bail, his bail bond will remain in force for a period of six months in view of Section 481 of B.N.S.S. 2023. 24. A copy of this judgment alongwith records be sent back to the concerned trial Court for information and necessary compliance.