JUDGMENT Mr. G.D. Dubey, J. - This appeal arises from the judgment and order of Fifth Additional Sessions Judge, Shahjahanpur, convicting the appellant to imprisonment for life under Section 302, I.P.C. At the very outset, it must be mentioned that on the date of statement of the appellant under Section 313, Cr. P.C. i.e. 14.6.1979, the appellant was about sixteen years of age. This age was not challenged. The occurrence is said to have taken place in between 21st and 23rd May, 1978. Thus on the date of occurrence, the appellant was below sixteen years. He was a child within the meaning of Sub-section (4) of Section 2 of U.P. Children Act No.1 of 1952. According to the observations of Hon'ble the Supreme Court in Jayendra v. State of U.P., AIR 1982 SC 685 , the appellant could not have been convicted even if the offence was proved against him. 2. The prosecution started on the alleged report of Pyare Lal (P.W2) at 10.50 a.m. on 23.6.1978 at Police Station Jaitipur, district Shahjahanpur. Pyare Lal stated that his cousin brother's son Gauri Shanker was missing from 3.30 p.m. on 21.5.1978. He searched Gauri Shanker at several places. He thought that probably this Gauri Shanker had gone to his relatives. On the morning of 23rd May, 1978, Bhurey (P.W.6) informed that the dead body of Gauri Shanker was lying in a newly built well of Room Singh. His hands were tied with a rope. 3. The investigation was taken up by Sachidanand Misra (P.W.8) and concluded by Kunwarapal Singh, Sub-Inspector (P.W.9) who interrogated Puland (P.W.3), Roop Ram (P.W.4) and Ram Singh (P.W.5) who are alleged to have seen the deceased alongwith the appellant between 3.00 p.m. to 3.30 p.m, on 21.8.1978 at various time and places which we shall indicate while discussing the evidence of these witnesses. The appellant was charge-sheeted by the prosecution. 4. The prosecution had examined the witnesses mentioned above and Dr. A.P. Mishra (P.W. l) who had conducted the post-mortem of the dead-body of Gauri Shanker at 5.00 p.m. on 24th May. 1978, The doctor had found a ligature mark on the lower part of neck. The 5th, 6th and 7th ribs had fracture besides there were other injuries like abraded contusions and lacerated wounds. The doctor opined that the death had been caused about three days back. 1978, The doctor had found a ligature mark on the lower part of neck. The 5th, 6th and 7th ribs had fracture besides there were other injuries like abraded contusions and lacerated wounds. The doctor opined that the death had been caused about three days back. Thus, according to the doctor, the death of Gauri Shanker could have been caused near about at 5.00 p.m. on 24.5.1978. 5. The accused had pleaded not guilty to the charge. However, the learned Additional Sessions Judge found that the circumstance that the appellant was found in the company of the deceased between 3.00 p.m. to 3.30 p.m. at various places on 21.5.1978 leads to an irresistible conclusion that none else except him had committed the murder. 6. Learned Counsel for the appellant has drawn our attention to the statements of all the relevant witnesses. It was urged that even if the version of the examination-in-chief of the prosecution witnesses is accepted then the above offence is not made out against the appellant. 7. We have heard learned A.G.A. also. 8. Pyare Lal (P.W.2) had lodged a report. He stated that Gauri Shanker was about fourteen years of age. Dr. A.P. Misra has stated that the deceased was about sixteen years of age. In this way, the deceased and the appellant were of the same age. It has rightly been pointed out by learned Counsel for the appellant that for the purpose of tying the hands of the deceased and strangulating him to death more than one person would have been required. 9. Puland (P.W.3) has stated that he had been the appellant with the deceased in the Dhola where two boys were dancing on the tune of Dholak. He stated that there was some illicit relationship between the two. 10. Roop Ram (P.W.4) has stated that he had been the deceased at about 3.15 p.m. He was watching his fields of cucumber and onions. He had seen Gauri Shanker and appellant going towards south in a merry mood cutting jokes with each other. One hour thereafter the appellant came back. When enquired about Gauri Shanker the appellant informed that he had gone towards Madhi. 11. Room Singh (P.W.5) has stated that he was grazing his cattle at about 3.30 p.m. near the well of Ram Bharosey in his village. He had seen Gauri Shanker and Drigpal sitting near an Imli tree. One hour thereafter the appellant came back. When enquired about Gauri Shanker the appellant informed that he had gone towards Madhi. 11. Room Singh (P.W.5) has stated that he was grazing his cattle at about 3.30 p.m. near the well of Ram Bharosey in his village. He had seen Gauri Shanker and Drigpal sitting near an Imli tree. That well was under construction. It was stated that the dead-body of Gauri Shanker was found in this very well. 12. Bhurey (P.W.6) is a witness about the recovery of the dead-body. He had not stated any thing about the facts leading to an inference that the appellant had committed the crime. 13. Rajpal (P.W.7) had not stated any thing about the occurrence. 14. From the above evidence, it is apparent that till 3.15 p.m. on 21.5.1978, there was no animosity between Gauri Shanker and the appellant. They were in a happy mood. The witness Room Singh also does not say that he had been any action of the two i.e. Gauri Shanker and the appellant from which he could draw any adverse inference. Room Singh had tasted only a casual Glance on the two. 15. The above evidences do not form any chain of circumstances to lead to this irresistible conclusion that none else except the appellant would have committed the crime. 16. The evidence produced by the prosecution was quite week. The appellant could not have been held guilty of the offence under Section 302, Indian Penal Code. The evidence of Poland, Roop Ram and Room Singh appears to be cooked affair of the investigating agency. It is strange that these three witnesses were living in the same village in which the deceased and the maker of the report reside. They had not disclosed the facts at ratio by them in the Court to the maker of the report that they had seen the appellant with the deceased at different places and time. If they had actually seen, than this fact would have been disclosed to the maker of the report. This facts would have been then certainly stated in the report. 17. For the reasons mentioned above, we hold that the learned Sessions Judge has erred in convicting the appellant and holding him guilty of the offence punishable under Section 302, Indian Penal Code. 18. In the result, the appeal succeeds and is allowed. This facts would have been then certainly stated in the report. 17. For the reasons mentioned above, we hold that the learned Sessions Judge has erred in convicting the appellant and holding him guilty of the offence punishable under Section 302, Indian Penal Code. 18. In the result, the appeal succeeds and is allowed. The judgment and order of the lower Court are set aside. The appellant is acquitted of the charge. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.