JUDGMENT : J.M. Mahapatra, J. - Both the appeals arise out of the common judgment dated 15-2-1986 of the learned Sessions Judge, Phulbani convicting the accused u/s 304, Part-lI, IPC though he was originally charged u/s 302, IPC. Government Appeal is preferred for enhancement of the sentence, while the Criminal Appeal has been preferred assailing the order of conviction and sentence. 2. Put briefly, prosecution case may be stated as follows: Both the parties belonged to one big family. The informant Byomakesh (PW 1), Hrushikesh and the deceased jagadish are three brothers. PWs 4 and 7 are respectively the son and daughter of Jagadish. Accused Ugresan is one of the four sons of Hrushikesh. The incident took place in the morning hours, at about 8.30 a, m. on 3-6-1985. The, deceased Jagadish had been to the nearby jagannath temple for Sevapuja and PW 7 Susama, her daughter went along with her father. At that time, PW 4 Binayak was playing with some boys in course of which he picked up quarrel with Umesh, the brother of the accused. Due to the quarrel Ramesh another brother of the accused chased PW 4 to assault, and out of fear PW 4 entered inside his house, Ramesh dragged him Outside and assaulted. On receipt of news of such an incident, the deceased who was in the temple returnel home followed by his daughter PW 7. It is alleged that thereafter jagadish the deceased being annoyed picked up . a Khata. Bahi (M. O. II) (a piece of sized wooden Bar), went to the house of Ramesh. and there the deceased challenged him-saying as to why he assaulted his- son-. On such challenge being given Ramesh came cut of his-house and there was altercation and exchange of hot words between both of them, It is alleged that at that point-of time, she accused Ugresan came cut with a. Khata Pua (M. O. I) from another, direction from behing the deceased), and dealt a blow on the back side of the head of the deceased; as a result off which the deceased fell down with bleeding injuries and" unconscious. The doctor, PW 6 of the Primary Health Centre Was sent for and he came, and saw the injured and advised him for removal to the Sub-Divisional Hospital, Sonepur. The doctor, PW 6 of the Primary Health Centre Was sent for and he came, and saw the injured and advised him for removal to the Sub-Divisional Hospital, Sonepur. The deceased was thereafter removed to Sonepur hospital, where be succumbed to the injuries at about 3 P.M. one the same day. Information was lodged by PW -1 at Manamunda P. s- PW 10 the Officer-in-charge, Manamunda P.S registered a case and took up investigation. He got news of the death of the deceased and proceeding to Sonepur hospital held inquest over the dead body of the deceased and des patched the dead body for post mortem examination. Next day, i. e. on 4-6-1985, at 5.30 A. M. he, visited the spot and took various steps in the investigation of the case including examination of the witnesses and seizure of blood stained and sample earth from the "spot and the weapon of offence. On completion of investigation, he submitted charge-sheet against the accused, who stood his trial for the offence under Sec 302, IPC for the murder of the deceased Jagadish. The learned Sessions judge, however, on consideration of the facts and circumstances, of the case and situation in which the incident took place, convicted the accused of the offence u/s 304, Part-lI, I P. C. and convicted him thereunder. 3. The plea of the accused, who was a college student at the material time, is one of total -denial. It is specifically pleaded that at the material time' he was not present at the spot and he knew nothing about the occurrence It is further stated that the deceased at the material time was suffering from high blood pressure. 4. The plea of the accused, who was a college student at the material time, is one of total -denial. It is specifically pleaded that at the material time' he was not present at the spot and he knew nothing about the occurrence It is further stated that the deceased at the material time was suffering from high blood pressure. 4. In support of its case prosecution has examined as many as ten witnesses of whom PW 1, the brother of the deceased is the informant, PWs 2 and 3, the labourers of the parties examined as eye witnesses, PWs 4 and 7 the son and daughter respectively of the deceased examined as eye witnesses to the occurrence, PW 5, the Assistant Surgeon, Sonepur hospital who conducted autopsy on the dead body of the deceased, PW 6, the doctor, Bausuni P. H. C. who was called in to see the injured immediately after the incident, PW 8 a seizure witness, PW 9 the constable carrying the dead body for post mortem examination, and PW 10 is the I. O. in the case. 5. As to the death of the deceased, the evidence of PW 5 is that he found two external injuries on the dead body of the deceased, namely : 1. Lacerated injury 1 cm. x 1/2 cm. x 2. 5 cm. behind left ear at the level of left upper eye brow. 2. Abrasion 4 cm. x 3 cm. mid-way between right ear lobule and the right lateral angle of eye. On dissection the doctor found fracture of parietal bone (Left) lower end behind the left ear multiple compressed fracture of temporal bone behind left ear, conjestion of membrance, laceration of all three membrances exposing brain matter 6 cm. x 1/2 cm. extending obliquely below the fractured pieces of skull bone of the left side, The cause of death according to him was due to fracture of the skull bone and laceration of brain' matter resulting in internal haemorrhage and shock. The doctor is of the further opinion that M. O. I could have caused the injury on the person of the deceased. In cross-examination it is elicited that the injury on the deceased was also possible by M. O. II. The doctor is of the further opinion that M. O. I could have caused the injury on the person of the deceased. In cross-examination it is elicited that the injury on the deceased was also possible by M. O. II. The further opinion elicited is that the fractured injury on the deceased was possible by fall against a hard substance with some-width and it depended on force of such tall and degree of violence. The medical evidence of PW 5 as discussed above thus (eaves no room for doubt that death of the deceased was homicidal. The learned counsel appearing for both parties have clearly accepted this position in course of hearing of the appeal. 6. The learned trial Court has based the conviction of the accused relying on the ocular testimony of PWs 4 and 7, the son and daughter respectively of the deceased. He has also relied on the facts, circumstances and broad probabilities of the case and incident Which preceded the assault. The various contentions now sought to be raised before me by the learned counsel for the accused were also raised before the learned Sessions Judge and he has repelled all those contentions, namely, non- mention of the names of the PWs 4 arid 7 in the F.I.R., delayed examination of PWs 4 and 7 by the I. O., lack of independent corroboration on the face of the evidence of child witnesses PWs 4 and 7 who are the only eye witnesses to the incident, and possibility of the injury being caused by fall against M. O. II and getting himself Severely injured resulting in death. The learned Sessions Judge placed implicit reliance on the ocular testimony of PWs 4 and 7 and considered their evidence, to be beyond reproach and relying on their testimony accepted the prosecution case that the accused by dealing a single fatal blow on the head of the deceased Jagadish caused his death. 7. The learned Sessions Judge placed implicit reliance on the ocular testimony of PWs 4 and 7 and considered their evidence, to be beyond reproach and relying on their testimony accepted the prosecution case that the accused by dealing a single fatal blow on the head of the deceased Jagadish caused his death. 7. Learned counsel for the accused while assailing the judgment of the Court below raised virtually the self-same contentions before me, while high-lighting the question of credibility of child witnesses particularly when they have not been named in the F. I. R. and when they were examined on the next day by the I. O. There is no quarrel over the proposition of law that the evidence of a child witness if found to be free from infirmity can be accepted to believe the prosecution case, in this case, however; two glaring features stand out which in my opinion make the evidence of these two child witnesses open to grave doubts. The informant, PW 1 is the brother of the decease. His version is that although he was not present at the material time, he was told about the incident by PWs 3, 4 nad 7, and thereafter he lodged the F. I. R., Ext. 1 at Manamunda P. S. In the F. I. R., it is stated that the occurrence had been witnessed by Suratha, Ugresan Mahakuda and (Uchhaba Dandapata and others of their village. It would be interesting to note that Suratha examined as PW 2 has not supported the prosecution case, and his only evidence is that he found the deceased lying injured, and he could not say how he sustained the injuries. Similar is the evidence of PW 3, a labourer thatching the roof of the cow-shed of the deceaseds The suspicious feature is that although PW 1, the informant came to know about the occurrence from PWs 4 and 7 amongst others, the names of PWs A and 7 are conspicuously absent in the F. I. R, lodged by PW 1. The omission to mention to names of PWs 4 and 7 would, therefore, leave ample room to entertain doubt as to whether PWs 4 and 7 were really present on the scene of occurrence and if they had really witnessed it. The omission to mention to names of PWs 4 and 7 would, therefore, leave ample room to entertain doubt as to whether PWs 4 and 7 were really present on the scene of occurrence and if they had really witnessed it. The next suspicious feature of the case is that both PWs 4 and 7 were examined by the I. O. about 12 hours after his arrival at the spot. The I. O.'s evidence is that he reached the spot at 5.30 a. m while he examined, PWs 4 and 7 at about 5 p.m. He has also admitted in cross-examination that till examination of PWs 4 and 7, he had no information that they were the eye witnesses. It is pertinent to mention here that by the time PWs 4 and 7 were examined by the I. O the informant of the case, PW 1 had already been examined and so also some other witnesses. In the facts, and circumstances of the case, the delay of about 12 hours in examining the two child witnesses, PWs 4 and 7 by the I. O. leaves ample room to entertain doubt about the credibility of these witnesses. One is left to infer that these two child witnesses might have been tutored or coached to speak about the prosecution case so as to support it. In this context their Lordships of the Supreme Court in the case of State of Assam v. Mafizuddin Ahmad, 1 83 CAR 129, have observed that the evidence of a child witness is dangerous unless immediately available and before any possibility of coaching and tutoring. As already indicated PWs 4 and 7 had not been examined by the I, O. until 12 hours of his visit to the spot and it is further elicited from the I. O. that until these two witnesses were examined by him, he did not know that they were eye witnesses. 8. The question arises whether in the background of infirmities seriously affecting the credibility of the eye witnesses, PWs 4 and 7, their ocular testimony, alone can be accepted to base the conviction of the accused when the independent eye witnesses PWs 2 and, 3 have turned hostile and did not support the prosecution case. 8. The question arises whether in the background of infirmities seriously affecting the credibility of the eye witnesses, PWs 4 and 7, their ocular testimony, alone can be accepted to base the conviction of the accused when the independent eye witnesses PWs 2 and, 3 have turned hostile and did not support the prosecution case. In the light of my discussions in the foregoing paragraphs as to non-mention of the names of PWs 4 and 7 in the F. I. R. and as to their delayed examination by the I. O., thereby leaving ample scope for coaching and tutoring the witnesses, I am not inclined to accept the testimony of these two child witnesses for holding that the accused was the author of the crime. It is needless to multiply authorities, but it has been held on high authorities that the evidence of child witness requires great scrutiny and, close circumspection to pass the test of credibility." The reason is on account of immature mind, the child witnesses are prone to depose to facts which they have heard front others, apart from what they have seen, and as a result of this there is likelihood of the facts seen by them and heard by them being mixed up so inextricably that it is not possible to know whether they have come forward with the true version of the case. To add to this, no explanation is available in the evidence of the I. O. as to, why he examined. PWs 4 and 7 and recorded their statements long after his arrival at the spot and particularly after examining other witnesses who are not very material for the case. These infirmities, in my view, would legitimately lead one to the conclusion that PWs 4 and 7 were subsequently got up and procured to support the prosecution case. It would thus be extremely unsafe and hazardous to rely on the evidence of PWs 4 and 7 to accept the prosecution case, 9. in the light of my foregoing discussions, I am constrained to hold that prosecution has failed to establish the charge and prove its case against the accused beyond all reasonable doubt. The accused Ugresan Mishra is, therefore, entitled to acquittal. The result, therefore, is that Govt. aopeal stands dismissed, while the Criminal Appeal is allowed. The conviction and sentence passed against the accused are set aside. Final Result : Dismissed