Judgment DHARMPAL SINHA and SHAMIM AHSAN JJ. 1. This appeal is directed against the judgment and order, 1-8-1984 passed by Shri H. K.Verma, 2nd Additional Sessions Judge, Bhagalpur, in Session Trial No. 224 of 1978, whereby the appellant has been convicted of the offences punishable under Sections 364 and 302 of Indian Penal Code and sentenced to undergo Imprisonment for life under each count with a direction that run the sentences shall sum concurrently. 2. The case of the prosecution may briefly be stated as follows : "On 12th November, 1977 at about 4 PM the appellant came to the house of the informant, Budhu Harijan (PW 3) situated in village Manihara, P. S. Banka. The informant and his wife were out of the house at that time and only their daughter Geeta Kumari (PW 1) and a son Dilip, a boy aged about four years (the deceased) were only present at that time. The appellant suggested the boy for going to see a fair and PW 1 Geeta Kumari after some hesitation clothed him properly and the boy went away with the appellant. Later when the informant and his wife came back to cheir house in the evening, they found their son, Dilip, absent and made enquiry from Geeta about him. He learnt from her (PW 1) that the appellant had taken him away for seeing a fair. When the appellant returned alone, some enquiries were made from him. He denied to have taken away the boy. It was also said by the appellant that the boy had returned from half of the way. After pursuation and further enquiry the appellant stated allegedly in a trance that five dieties had killed the boy. A search was made for the boy in the night, in the company of the appellant, by the informant and some other persons of the village, but at that time the boy was not found. Next day in the morning when search was again made the dead body of the boy was found on a ridge. Thereafter the informant went to the police station and lodged the FIR at 2 PM on 13-11-1967. The investigating officer (PW 8) took up the investigation, made inquest, sent the dead body for postmortem examination and after investigation he submitted the charge sheet. 3. The defence of the appellant was complete denial by him that he had committed any offence. Thereafter the informant went to the police station and lodged the FIR at 2 PM on 13-11-1967. The investigating officer (PW 8) took up the investigation, made inquest, sent the dead body for postmortem examination and after investigation he submitted the charge sheet. 3. The defence of the appellant was complete denial by him that he had committed any offence. There was also suggestion that he was implicated falsely because of enmity. 4. The prosecution, in support of its case, produced before the trial court in all eight witnesses. Out of them, as indicated above, PW 1 is the sister of the victim, PW 3 the informant is the father of the victim and PW 2 Lakhia is the mother of the victim. PW 4, Bhasso Das, is the uncle of the victim who deposed only about holding of inquest on the dead body of the deceased by the investigating offieer. PW 5 Mishri Yadav and PW 6 Lal Mohar Sah, are co-villagers and they had deposed about seeing the appellant in the company of the victim. PW 7, Sasho Harijan, did not support the prosecution case and was declared hostile. PW 8 is the investigarng officer who investigated into the case. The doctor who held the postmortem examination on the dead-body of the victim was examined as court witness No. 1. 5. Learned court below after considering the evidence had found the appellant guilty and has convicted and sentenced him as already indicatedabove. 6. Mr. Ajay Mukherjee, learned counsel appearing on behalf of the appellant, has raised broadly two contentions. In the first place he has contended that the evidence in support of the prosecution case could not be considered sufficient and satisfactory to establish the charge against the appellant. He elaborated his argument by stating that there is only circumstantial evidence and that is also not satisfactory and pointing only to the guilt of the appellant. Secondly, he contended that the appellant was merely a child on the date of the alleged occurrence and so he could have been tried by a child court/Juvenile court and trial of the appellant by the Additional Sessions Judge is without jurisdiction. On these contentions, the learned counsel for the appellant has contended that the appellant should be acquitted and this appeal should be allowed. 7. Mr. Ashwani Kumar Sinha, Addl. On these contentions, the learned counsel for the appellant has contended that the appellant should be acquitted and this appeal should be allowed. 7. Mr. Ashwani Kumar Sinha, Addl. P.P. appearing on behalf of the State has tried to support the findings of the court below rather half-heartedly. 8. The points that arises for decision in this appeal is, first, whether the finding of conviction of the appellant is proper or justified on the evidence on the record and secondly whether the trial of the appellant by the Additional Sessions Judge can be held to be without jurisdiction in view of the contention that he was juvenlie at the time of the alleged commission of the offence. 9. A perusal of the evidence on record would show that PW 1 who was aged about 13-14 years (according to the court estimate) on the date of deposition in the year 1980, deposed to the effect that the appellant had come to her house and suggested Dilip to go to see the fair and though this witness initially said that she would not allow Dilip to go to see the fair, but later she got him ready. According to her, the appellaat took away Dilip in the after-noon and in the evening when her parents came and enquired about Dilip she told them about the appellant taking Dilip away. Her cross-examination shows that 20 to 25 persons were living in the same courtyard. At one place she stated that Sobin, the appellant, had returned at noon on that day. Later she said that he returned when it had become dark. Her attention was drawn to her previous statement before the police and it appears from the evidence of the investigating officer that she had not stated before him that she had asked the appellant not to take away Dilip. She had also not stated before the investigating officer that she told her parents when they had returned that the appellant had taken away Dilip for seeing the fair. So it appears that there is deviation at least in some respects from what she stated earlier during the investigation and the fact that she did not state before the investigating officer that she had told to her parents on their return that the appellant had taken away Dilip is quite significant. 10. So it appears that there is deviation at least in some respects from what she stated earlier during the investigation and the fact that she did not state before the investigating officer that she had told to her parents on their return that the appellant had taken away Dilip is quite significant. 10. PW 2 and PW 3, the parents of the victim, have not stated anything about seeing the appellant and the victim going together. Their evidence shows that when they returned to their house they did not find Dilip and made euquiry about him. The evidence of the informant indicates that the appellant had also been assaulted. It is further indicated from the evidence that this appellant had state in a trance that five dieties had killed the boy. It is also indicated that in the night some search had been made by the informant for Dilip and the appellant was also in the company of those who were making the search, but they could not trace out the dead body in the night. It further appears that on the next day when the informant in the company of some others again searched for the boy, his dead body was found. It is indicated that when the search was done on the next morning the appellant was not in the company of the searching party. This fact indicates that the dead body was not recovered on the pointing out of the appellant. PW 4 is witness only on inquest. PW 5 stated to have seen the appellant and Dilip going at 2 Oclock when he was present towards the south of his village and, PW 6 stated that he had seen the two together at 3 PM. None of these wituesses has given any details about the place where they had seen the appellant and Dilip and whether they were going in the direction of Mela or in the direction in which the dead body was found. 11. The evidence of the investigating officer (PW 8) indicates that when he held inquest on the dead body of the child who wes aged about 4 or 5 years he saw some blood on eyes, mouth and nose and some black spots on the body. It however appears that the doctor who was examined as CW 1, who stated that the cause of the death to be asphyxia. It however appears that the doctor who was examined as CW 1, who stated that the cause of the death to be asphyxia. He had also seen legature mark on the left side of the neck and so he was of the opinion that the death had been caused by throttling. 12. Obviously there is no direct evidence against the appellant. There is nothing in the evidence to show that this appellant had any motive for killing Dilip. A motive was sought to be later introduced by stating that previously an amount of Rs. 10 of one Bhairo had been stolen away and the appellant who was presumably supposed to have some mystic power had made a forecast that within eight days, the thief or his father would die it could only be surmised that if he had made forecast like that he just killed the boy to convince the people that his forecast proved to be correct There is no mention about this story in the F.I.R. There is nothing to indicate that the boy Dilip was suspect to have stolen the money. There also appears to be some motive for falsely implicating the appellant., because from the evidence it appears that in a matter relating to a theft, some recovery had been made from the house of the informant at the instance of the mother of the appellant. The informant was put some question in this regard and it appears that he gave evasive answers. He said that he did not know if Sobins mother (the appellants mother) had got some recovery made from his house. He further stated that he did not know if some stolen articles of one Banarsi had been recovered from his house. If a question was put to him whether any recovery was made from his house he should have categorically stated in the affirmative or negative. But.his evidence in this regard is simply evasive. 13. He further stated that he did not know if some stolen articles of one Banarsi had been recovered from his house. If a question was put to him whether any recovery was made from his house he should have categorically stated in the affirmative or negative. But.his evidence in this regard is simply evasive. 13. Apart from all this, even if it is taken to be established that the appellant had sometimes in the afternoon of the 12th November, 1977 taken away the boy Dilip from the house of the informant for seeing a fair and they were seen together in the company at 2 or 3 p.m. that circumstance by itself, in our opinion, cannot be considered to be sufficient to lead to the only inference that the appellant had kiiled the boy, particularly when there seems to be no motive for that. In our opinion the learned court below has not properly appreciated this appect of the matter and seems to have reached at a wrong finding that the prosecution had established ths charges against the appellant for offences punishable under Sections 302 and 364 of Indian Penal Code beyond all reasonable doubt. We are of the considered opinion that the appellant on the evidence should have been given at least benefit of reasonable doubt. The first point for decision in this appeal it accordingly decided in favour of the appellant. 14. Now as regard the contention that the appellant was a child/ juvenile at the time of commission of the offence it appears that the learned court below gave the age of the appellant in the year 1984 to be 20 years though the appellant himself had stated to be 15 years. It appears that a doctors report was called for in this appeal and he submitted a report in the year 1984 and he assessed the age of the appellant on the date of examinntion at 18 years. So in any view of the matter the appellant was definitely below 16 years at the time of alleged commission of the offence. So he should have been tried by a Children/Juvenile court, but since we have come to a finding that the appellant should have been given benefit of reasonable doubt, this aspect of the matters need no further consideration. So he should have been tried by a Children/Juvenile court, but since we have come to a finding that the appellant should have been given benefit of reasonable doubt, this aspect of the matters need no further consideration. The learned counsel for the appellant has cited, during the course of argument, a Full Bench decision reported in AIR 1989 Patna 217:1989 PLJR 507 (FB) in the Krishna Bhagwan V/s. State of Bihar. Some observation in this decision would suggest that the matter could be sent to the Juvenile court for proceding aocording to law, but only if we would have been satisfied that the finding of the learned court below is correct. 15. In the light of discussions made and reasons indicated above and our finding on the first point for decision in this appeal, this appeal is allowed and the findings of conviction and sentence passed against the appellant by the judgment and order under appeal are set aside. We acquit the appellant of the charges of the offences punishable under Sections 302 and 364 of Indian Penal Code. The appellant is on bail and he is discharged from the liabilities of the bail bonds.