Judgment ( 1. ) IN this appeal preferred under Section 374 (2) of the Code of Criminal Procedure (in short the Code) the accused/appellants (hereinafter referred to as the accused) have called in question the sustainability of the judgment of conviction and order of sentence dated 1-2-92 passed by the learned First Additional Sessions Judge, Sehore in Sessions Trial No. 149/91 whereby the learned Trial Judge has found the accused persons guilty of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (in short the IPC) and under Section 201 of the IPC and sentenced each of them to suffer imprisonment of life on the first count and rigorous imprisonment for three years on the second score with a stipulation that both sentences would be concurrent. ( 2. ) THE prosecution case, in brief, is that one month prior to 5-4-1991 the deceased, Bhagirath, after returning from a nearby jungle was sitting beneath a mango tree and, as alleged, the accused persons returned from the forest and the accused, Kamal Singh with an axe and accused-Mangilal with a stone inflicted injuries on the deceased, as a consequence of which he breathed his last on the spot. As the prosecution story proceeds, both the accused buried the dead-body of the deceased underneath a kurranch tree. On the date of occurrence the witness, namely, Devkaran (P. W. 1), the grand son of the deceased and Mangilal, the son of the accused, had seen the occurrence, but being threatened by the accused persons he did not inform anyone about the occurrence for a period of one month. After expiry of one month when a roving search was made to find out the whereabouts of the deceased/bhagirath, on being questioned by Balwan Singh (P. W. 4), Devkaran narrated the entire incident. Balwan Singh apprised his father, Siddhu, who enquired into the mystery of the murder and it got unfolded. Information was given to the police with regard to the missing of Bhagirath and thereafter the police arrived near the karranj tree and brought out the skeleton of the dead-body and seized it. The investigating agency after completing all other formalities placed the charge-sheet before the Competent Court, which in turn committed the matter to the Court of Session and eventually the matter was tried by the learned Trial Judge. ( 3. The investigating agency after completing all other formalities placed the charge-sheet before the Competent Court, which in turn committed the matter to the Court of Session and eventually the matter was tried by the learned Trial Judge. ( 3. ) THE accused persons abjured their guilt and pleaded innocence. ( 4. ) THE prosecution in furtherance of its case examined 12 witnesses. P. W. 1 is Devkaran, the grand son of the deceased; P. W. 2 is Phool Singh on whose intervention Devkaran was questioned; P. W. 3 is Dhokal; P. W. 4 is Balwan Singh who was informed about the incident by Devkaran; P. W. 5 is Siddhu who had done the inquiry to find out the fact from Devkaran; P. W. 6 to P. W. 9 are formal witnesses; P. W. 10 is G. S. Yadav, who had conducted the investigation; P. W. 11 is Divya Kishore Satpathy, Director and Medico Legal Institute, Bhopal and P. W. 12 is Prakash Narain Bajpai, Station House Officer of the police station concerned. ( 5. ) THE defence chose not to adduce any evidence. ( 6. ) MR. Rajendra Singh, learned Senior Counsel for the appellant assailing the conviction has submitted that the witnesses who have been examined by the prosecution have really proved that the dead-body was discovered from underneath the tree but there is no substantial material on record to connect the accused persons in the crime except the statement of Devkaran (P. W. 1), who had spoken about the incident after a lapse of one month and, therefore, on the sole testimony of the said witness, a child witness, it is not appropriate to sustain the conviction recorded by the learned Trial Judge the same being sensitively susceptible. It is canvassed by him that there is no substantial evidence on record to implicate the accused persons and the prosecution has placed reliance upon the hearsay evidence which is only reflected how other witnesses had asked Devkaran and come to know about the alleged act of the accused persons and such kind of interrogation or inquiry by others do not come in the realm of admissible evidence and in any case do not lend any corroboration to the prosecution story for finding the accused persons guilty. The learned Senior Counsel has contended that the version of the child witness is not worthy of credence and is not unimpeachable and when the law casts an obligation to scan and scrutinise the testimony of a child witness with due circumspection, the present case is not one where the child witness passed the said rigour and, ergo the learned Trial Judge has absolutely erred in law in recording conviction against the accused persons and, thus, they are entitled to an order of acquittal. To bolster his submission he has placed reliance on a Division Bench decision rendered in the case of Kana Majhi and Anr. v. The State, 1985 Cr. LJ 1876. ( 7. ) MRS. Chanchal Sharma, learned Panel Lawyer for the State, sounding a contra note, has supported the judgment of the learned Trial Judge. It is her proponement that Devkaran being the grand son of the deceased has no reason to falsely implicate the accused persons and, therefore, his testimony should be regarded beyond reproach and it should be held that the learned Trial Judge has passed the order of conviction which is indubitably impeccable. It is propounded by her that basic concept of obligation gets ostracised when a close relative though a child reveals the truth after a lapse of some time because certain aspects, namely, there was murder of his grand father, involvement of his father in the crime and eventually the call of conscience. The learned Counsel for the State has argued that the analysis of the learned Trial Judge does not suffer from any infirmity and there is no reason to regard the judgment passed by him as flawed or replete with faults. ( 8. ) THE fulcrum of submission of Mr. Singh, learned Senior Counsel for the accused is that the present is not a case where conviction could have been recorded on the basis of the testimony of the child witness. It is well settled in law that evidence of a child witness is not to be thrown overboard solely on the ground that he is a child witness or a related witness. It has been stated time and again that testimony of a closely related person of the deceased by itself can not be a ground for disbelief and discard in a murder case. It has been stated time and again that testimony of a closely related person of the deceased by itself can not be a ground for disbelief and discard in a murder case. In certain circumstances they are the most natural witnesses to the event and if the testimony is cogent, reliable and confidence-inspiring, it should not be discarded. However, it is worthwhile to note here the testimony of related witness should be examined by Court with due care and caution and if it is found to be trustworthy, it should be relied upon. The evaluation of the testimony of a child witness requires circumspection. Applicability of the real test is caution. It can not be rejected solely because the witness is a child. In this regard we may profitably refer to the decision rendered in the case of Panchhi and Ors. v. State of U. P. , (1998) 7 SCC 177 , wherein the Apex Court ruled thus :- " 11. . . . . . . It is not the law that if a witness is a child witness, his evidence shall be rejected, even if it is 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 tell him 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 that of law (vide Prakash v. State of M. P. ; Baby Kandayanathi v. State of Kerala; Raja Ram Yadav v. State of Bihar and Dattu Ramrao Sakhare v. State of Maharashtra ). " ( 9. ) IN this regard we may also profitably refer to the decision rendered in the case Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 , wherein it has been stated as under :- " the evidence of the child witness can not be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The fact that the witness being a child witness would require the Court to scrutinise here evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness can not be made the basis for discarding the testimony. Discrepancies in the deposition, if not in a material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. " (Quoted from the placitum) ( 10. ) IN the case of State of Rajasthan v. Om Prakash, (2000) 5 SCC 745, a two-Judge Bench of the Apex Court ruled that testimony of a child witness needs to be carefully evaluated and it must have adequate corroboration before it can be relied upon. ( 11. ) IN view of the aforesaid, what is to be seen whether the conviction in case at hand which is founded on the sole testimony of the child witness, P. W. 1, can really withstand scrutiny. ( 12. ) MR. Singh, learned Senior Counsel has proponed that the witness in question did not disclose the factum of occurrence immediately. It is canvassed by him that the delay in coming forward with real state of affairs creates an incurable doubt in the mind, which can not be easily brushed aside. Submission of the learned Senior Counselis that had the said witness disclosed the incident either immediately or within a reasonable or acceptable period of time, regard being had to his age, the Court possibly would have accepted his testimony. Submission of the learned Senior Counselis that had the said witness disclosed the incident either immediately or within a reasonable or acceptable period of time, regard being had to his age, the Court possibly would have accepted his testimony. To bolster his submission he has placed reliance on a Division Bench decision of the Orissa High Court rendered in the case of Kana Majhi (supra), wherein the Division Bench expressed thus:- ". . . . . . . . It has, however, been well settled that the evidence of a child witness is not to be rejected if his evidence has immediately been made available and before the chance of coaching or tutoring. In the instant case, there had been no delay in the disclosure by this witness about the occurrence. " ( 13. ) WE have referred to the aforesaid facet only to point out that Courts are required to be circumspect and cautious while appreciating the evidence of a child witness. Possibility of coaching and tutoring has to be seen through and the same can be scanned and conclusion can be arrived at if there is disclosure in quite promptitude. In the case at hand, there has been delay of one month when the child witness revealed the fact to other witnesses. There is no dispute with regard to the said aspect. ( 14. ) MRS. Chanchal Sharma, learned Panel Lawyer for the State has submitted that the child was scared and could not get out of shock and, therefore, there was delay and that should not be taken as a prime factor to disbelieve the case putforth by the prosecution. We are conscious that a child takes time to get out of the shock. A child can not be expected to act like an adult but we can not be oblivious of the fact that when a child sees a scene like the present one, it can not be said that he would not react at all and keep the whole thing within himself and disclose after a month. We may hasten to state here that all other witnesses have only stated what the child had told them after a month. The learned Counsel for the prosecution has rightly stated that the said evidence can not be pressed into service. Thus, what is left is the evidence of the child. We may hasten to state here that all other witnesses have only stated what the child had told them after a month. The learned Counsel for the prosecution has rightly stated that the said evidence can not be pressed into service. Thus, what is left is the evidence of the child. For the reasons stated hereinabove and taking the totality of the circumstances, we are unable to place reliance on his version to affirm the conviction recorded by the learned Trial Judge. It is so as the suspicion gets writ larger because of the conduct of the child which includes his reaction to the whole scene, his silence for a long period, and his revealing of the fact under different circumstances. The lapse of time, in our considered opinion, creates an incurable dent and unacceptable concavity in his deposition. In our considered view, his version would be hazardous to accept and, therefore, we have left with no option but to dislodge the judgment passed by the learned Trial Judge and accordingly we so do. ( 15. ) BEFORE parting with the case we may state here that the accused persons were enlarged on bail at the time of admission but later on when the matter was taken up for hearing, when they did not report, as directed by this Court, they have been taken into custody. We have been apprised at the Bar, that they are still in custody. ( 16. ) EX consequent, the judgment of conviction is set aside and as the accused persons are still in custody they may be set at liberty forthwith, if not required in any other case.