JUDGMENT RAJENDRA PRASAD, J.:- This Govt. appeal filed by the State of Bihar is directed against the judgment and order dated 2.12.1987 passed by Sri Ravi Nandan Sahay, Sessions Judge, Patna, in Sessions Trial no. 653/86, whereby and whereunder the learned Sessions Judge found and held all the six respondents accused entitled for benefit of doubt and, accordingly, acquitted them for the charges under Sections 302 and 201/34 I.P.C. levelled against them. 2. The prosecution story, as disclosed by informant Banke Bihari Tripathy (P.W.2) in his fardbeyan (Ext.4), in short, is that her daughter Partibha (deceased) was married to Kaladhar Choubey (respondent no.1), son of Shashi Bhushan Choubey (respondent no.4) of mohalla Talimpur, P.S. Barh, about nine years ago and thereafter daughter of informant gave birth to two sons aged 3 years and 7 years respectively. On 4.11.1985 informant had come for Rukshadi (taking) of his daughter Pratibha on the occasion of chat brat. When the informant reached the house of his son-in-law Kaladhar Choubey (respondent no.1) he came to know that last night on 3.11.1985 at about 12 hours in the night his son-in-law Kaladhar Choubey (respondent no.1) started assaulting his daughter Pratibha (deceased) with danta and lathi and when she became senseless Kaladhar Choubey (respondent no.1) pushed her from the roof (kotha) in the courtyard resulting her death. It is further stated that thereafter son-in-law of informant Kaladhar Choubey (respondent no.1) along with his father Shashi Bhushan Choubey (respondent no.2), Lakhy Chaubey (respondent no.5), Raju Chaubey (respondent no.2), Randdhir Kumar (respondent no.6), all of mohalla Talimpur, P.S. Barh and some other persons taking dead body of Pratibha to Satisthan, Barh cremated the dead body. All persons of nearby knew this fact. Informant has also stated that cause of occurrence was that daughter of informant was of shamli (dark) complexion and for that her husband always used to say to kill her. 3. As it appears on the basis of fardbeyan of informant (PW.2) Barh P.S. Case no. 274/85 as registered against five accused persons, namely, Kaladhar Choubey (respondent no.1), Shashi Bhushan Chaubey (respondent no.4), Lakhy Chaubey (respondent no.5), Raju Chaubey (respondent no.2) and Randhir Kumar (respondent no.6) but after investigation police submitted chargesheet against as many as six accused persons including one non-FIR accused Shakuntala Devi (respondent no.3 here). 274/85 as registered against five accused persons, namely, Kaladhar Choubey (respondent no.1), Shashi Bhushan Chaubey (respondent no.4), Lakhy Chaubey (respondent no.5), Raju Chaubey (respondent no.2) and Randhir Kumar (respondent no.6) but after investigation police submitted chargesheet against as many as six accused persons including one non-FIR accused Shakuntala Devi (respondent no.3 here). Thereafter cognizance of the offences against all the six respondents was taken and the case was committed to the court of sessions by Sri R.P. Gupta, learned A.C.J.M., Barh. 4. The trial of the case was taken up and as it appears the then learned Sessions Judge, Patna, Sri S.C. Mookherji framed charges under Sections 302/34 I.P.C. against all six accused respondents, under Sections 302 and 201 I.P.C. against accused respondent no.1 Kaladhar Choubey and under Section 201 I.P.C. against accused respondent nos. 2 to 6. The charges so framed were explained and read over in Hindi to all accused respondents to which they pleaded not guilty and claimed to be tried. 5. The defence, as it appears from trend of cross examination, suggestions, thrown to prosecution witnesses and the statements of accused respondents recorded under Section 313 Cr.P.C. was denial of charges and false implication by the informant on suspicion. The defence as regards death of deceased Pratibha was that she died of cholera. It was also the case of defence that Munna, son of deceased, who was examined as P.W.1 was living with the dormant and was not present on the alleged date and time of occurrence, so as to be an eye witness to the alleged occurrence. 6. In order to move and establish its case the prosecution has examined as many as eight witnesses. 7. P.W.3 Ahilya Devi, who appears to be neighbour of deceased Pratibha is a hostile witness but in her examination-in-chief she appears to have stated that Pratibha died of cholera. 8. PW.4 Narendra Kr. Singh, who is a resident of village of accused respondents, has also turned hostile and there is nothing in his statement so as to be taken into consideration. 9. PW.5 Chulahi Mullic appears to be a guard of Samsan ghat. It appears from his statement that on 4.11.85 he was present at Samsan ghat where the dead body of deceased is said to have been cremated. 9. PW.5 Chulahi Mullic appears to be a guard of Samsan ghat. It appears from his statement that on 4.11.85 he was present at Samsan ghat where the dead body of deceased is said to have been cremated. As per this witness on 4.11.85 at about 7 A.M. four dead bodies had come there and thereafter at 9.30 A.M. one dead body of Barh had come which was of a woman of village Talimpur, Barh. This witness stated that he was informed that the dead body was of daughter-in-law of one Bhushan (respondent no4) and 25-30 persons were with the dead body. As per this witness respondent no.4 had also come with the dead body and it took two hours to burn the dead body. This witness has been declared hostile and he was cross examined. On careful consideration of statement of this hostile witness it appears that the statement of this witness, even if it is taken as it is, it only supports that the dead body of deceased Pratibha was cremated at sati ghat in presence of this witness. 10. PW.6 Sri S.I. Doudi is Sub divisional Judicial Magistrate, Danapur and as it appears from his statement he had recorded statement of one Raju and he proved the same which was marked as Ext. 3. As per this witness Raju is an accused in this case. As per this witness on the same day he had also examined one boy, namely, Munna, who is a witness in this case but this witness does not appear to have proved the statement of the said boy Munna recorded under Section 164 Cr.P.C. 11. P.W. 7 Khurshid Hassan appears to be I.O. of the case. He has stated that on 4.11.85 he was officer-in-charge of Barh police station. On that day at 5.15 hours evening Bankey Bihari Tripathy (P.W.2) came to police station and gave information about the occurrence of murder. This witness directed Munsi Srivastava to record the statement of Bankey Bihari (P.W.2) who gave his statement in presence of this witness which was recorded by the said Munsi Srivastava. This witness put his signature on the statement and further proved the statement which was marked Ext. 4. This witness directed Munsi Srivastava to record the statement of Bankey Bihari (P.W.2) who gave his statement in presence of this witness which was recorded by the said Munsi Srivastava. This witness put his signature on the statement and further proved the statement which was marked Ext. 4. This witness also read over the statement of informant (P.W 2) to him and later on registered P.S. Case No. 274/85 under Sections 302 and 201, I.P.C. and took up investigation of the case and recorded further statement of the informant (P.W.2). This witness has further stated that at 17.30 hours he along with informant (P.W.2) went to house of Kaladhar Choubey (respondent no.1) situated at Talimpur mohalla, Barh. This witness met Lakhy Chaubey (respondent no.5) and Raju Chaubey (respondent no.2) and took their statement. The informant (P.W.2) took this witness to a room which was inspected by this witness. As per this witness, this room was on root and there was a window towards the west of the room which had no doors. There were two windows towards south of that room and wall towards east of the room. Towards north there were doors. There was a tank between two doors having bed over it. As per this witness he seized one quilt (razai), two leba, one pillow and one bedsheet which were marked material Exts. I to IV. A seizure list of the seized articles was prepared. in presence of witnesses Narendra Kumar and Rafa Kumar who had signed on the seizure list in presence of this witness. Seizure list was marked as Ext. 5. This witness further stated that he did not find any mark on bed. This witness did not mention this fact in case diary. Thereafter this witness took statement of witnesses Anita (not examined), Ahilya Devi (P.W.3), Narendra Kumar (P.W.4), Manju Devi (not examined), Urmila Devi (not examined) etc. Kaladhar (respondent no.1), Shashi Bhushan (respondent no.5) and Shakuntala Devi (respondent no.3) were not found there. This witness knew Kaladhar Choubey (respondent no.1) from before. This witness came back to police station at 10 P.M. in the night. This witness arrested Lakhy Chaubey (respondent no.5) and Raju Chaubey (respondent no.2). Next day Chulahi Mallick (P.W.5) came to police station and this witness recorded his statement. As per this witness, this witness had started investigation on 8.11.85 and before that the Superintendent of police had supervised the investigation. This witness arrested Lakhy Chaubey (respondent no.5) and Raju Chaubey (respondent no.2). Next day Chulahi Mallick (P.W.5) came to police station and this witness recorded his statement. As per this witness, this witness had started investigation on 8.11.85 and before that the Superintendent of police had supervised the investigation. The supervision report of Superintendent of Police was obtained by this witness on 24.11.85. On 28.11.85 this witness took statement of Munna (P.W.1). This witness further stated that Ahilya Devi (P.W.3) had stated before this witness that wife of Kaladhar Chaubey had fallen down from roof and was burnt at satisthan. As per this witness Ahilya Devi had not stated that Pratibha (deceased) died of cholera. As per this witness Nand Kumar had stated that he came to know that Kaladhar Chaubey (respondent no.1) had assaulted and pushed his wife from roof. He had also stated that Kaladhar (respondent no.1) did not like his wife as she was of dark complexion. Chulahi Mallick (P.W.5) had also stated that people were talking to burn the dead body quickly and taking fire from another dead body set the dead body of deceased on fire. This witness after completion of investigation submitted chargesheet. 12. This witness has also been cross examined at length and in his cross examination this witness has stated that he had taken statement of Munna (P.W.1) for the first time on 26.1.86. As per this witness he further stated that the informant after filing an application before court had got statement of Munna (P.W.1) recorded and such statement was not recorded by the court through this witness. Informant did not mention statement of Munna (P.W.1) in his further statement. This witness had not met Munna (P.W.1) at place of occurrence. As per this witness accused persons had hidden Munna (P.W.1). No mark of blood and also no mark of occurrence was found at the place of occurrence. This witness did not mention in case diary that how many rooms were inside the house except that two rooms were at ground floor and one room was above the ground floor. This witness though had seized quilt (razai) he did not mention to whom the seized quilt belonged. He further stated that Munna (P.W.1) had not stated that occurrence took place after 3-4 hours of sun set when he was at roof. This witness though had seized quilt (razai) he did not mention to whom the seized quilt belonged. He further stated that Munna (P.W.1) had not stated that occurrence took place after 3-4 hours of sun set when he was at roof. Munna (P.W.1) had also stated that dada, dadi, rani, fua, papa, chacha had climbed the roof and had surrounded his mother. He had also not stated that papa had tied the neck of his mother and pressed the same but he had stated that papa had pushed his mother from roof. Munna had also not stated when he started weeping his dadi had slapped him and confined him in a room. He has further stated that he had met Munna at 10.30 hours and Bankey Bihari had not stated that he had brought Munna to this witness on 6.11.85. Bankey Bihari had not also stated this witness to take witness Munna (P.W.1). This witness has denied that since son and nephew of Bankey Bihari are police officers on their efforts this witness submitted chargesheet. 13. P.W.8 Bishwanath Singh is Subdivisional Deputy Superintendent of Police. This witness has stated that on 4.11.85 and thereafter on 6.11.85 and 9.11.85 he had inspected Barh P.S. case no. 274/85 and on 6.11.85 he had inspected the place of occurrence. This witness found P.O. house vacant and articles removed from there and house being opened where no one was found. He took statement of informant Bankey Bihari Tripathy (P.W.2), Anita Devi (not examined), Ahilya Devi (P.W.3), Sanjeev Kumar (not examined, Manju Devi (not examined) Narendra Kr. Singh (P.W.4), Rajo Rai (not examined), Rita Kumari (not examined), Vijay Kumar (not examined), Smt. Chanda Devi (not examined), Damayanti Devi (not examined) and Chulahi Mallick (P.W.5). Chulahi Mallic (P.W.5) had stated before this witness that the people had come with wood and hurriedly prepared chita and kept dead body on chita. Dead body was kept by Kaladhar Chaubey, Bhushan Chaubey, Lakhy Chaubey and one another who had kept moustache on his face and kept dead body on chita without bathing the same. This witness further proved the supervision report. This witness has also been cross examined at length and in his cross examination this witness appears to have stated that at the time of supervision anybody named Munna was not present. This witness further proved the supervision report. This witness has also been cross examined at length and in his cross examination this witness appears to have stated that at the time of supervision anybody named Munna was not present. In his cross examination this witness appears to have remained consistent that he had supervised this case. 14. P.W.1 Munna aged seven years is son of Kaladhar Chaubey (respondent no.1). As it appears from his statement this witness was tested by the learned trial court and was found to have knowledge of right and wrong. This witness stated that his mother was killed whose name was Pratibha. He stated that his mother was killed ten months back in the month of Kartik in the Sunday night 3-4 hours after sun set. At the time of occurrence this witness was at roof. His mother (deceased) was also at the roof. The mother of this witness was teaching counting to this witness. At that time Dada. Dadi, Rani Fua. Raju Chacha, Papa climbed on roof and surrounded his mother. Papa assaulted his mother with danta of which his mother fell down and then his papa after putting napkin around neck of his mother pulled the same and thereafter pushed his mother from roof. When this witness started shouting his dadi slapped him twice and confined him inside room. This witness further stated that his dadi was telling to kill kalutia (dark complexioned), when dadi told his papa again started assaulting. This witness has further stated that when his mother was being assaulted he was at the roof. In the morning his mother was taken to Ganges on a khatia by Randhir; Ware dada, Lakhy, chachera dad and some other persons whose names this witness does not know. Raju and papa was standing aside. Papa had not taken his mother. He further stated that Shyamsundar, Jai followed his mother and this witness does not remember names who had also gone with his mother. He further stated later on his father had also gone and Raju had given fire to his mother. He further stated that friends of his dada and papa had also gone with the dead body of his mother. This witness further stated that his younger brother Briju aged 4-5 years was present in court. Briju had gone to Nana before seven days of the alleged occurrence. He further stated that friends of his dada and papa had also gone with the dead body of his mother. This witness further stated that his younger brother Briju aged 4-5 years was present in court. Briju had gone to Nana before seven days of the alleged occurrence. He further stated that the people who had taken his mother came back after two hours. This witness met his nana in the night of Monday who took this witness with him. This witness had also gone to Barh court. This witness further stated that his dada was present in the court and after killing his mother did not shave and so he is having beard. His father was also standing and Randhir was also standing beside my father. Lakhy Choubey and chacha Raju were also standing beside Randhir and my dadi was also standing in corner. This witness claimed to identify all accused persons in the court. This witness has also been cross examined at length. 15. P.W.2 Bankey Bihari Tripathy appears to be informant in this case. He has stated that Pratibha (deceased) was daughter of this witness who was killed on 3.11.85 on Sunday at about 12 hours in night. She was married nine years ago with Kaladhar Chaubey (respondent no.1), son of Shashi Bhushan Choubey (respondent no.4) who were present in court. His daughter was dark (Shamli) complexion and so Kaladhar Chaubey (respondent no.1) used to vex and assault her. He had met her daughter Pratibha (deceased) last on 29.10.85 at Barh when he had gone Barh for Rokhsodi (taking) for her daughter. He had met her daughter who was not suffering from any illness. This witness had two grandsons (nati) named Munna and Vishwajit alias Briju from his daughter. These two children were at Barh with their mother. His elder grandson (nati) was alright but younger grandson (nati) was ill. On 29.10.85 there was no Rokhsodi and samdhi Shashi Bhushan Chaubey (respondent no.4) and samdhin of this witness asked to do rukhsodi on 4.11.85. Pratibha (deceased) asked this witness to take younger grandson to Patna as he was not well and this witness took Vishwajit to Patna for treatment. On 30.10.85 this witness got his younger grandson (nati) treated by Children Specialist Dr. Uptal whose urine was tested on 1.11.85. This witness stated that he can prove the urine test. Pratibha (deceased) asked this witness to take younger grandson to Patna as he was not well and this witness took Vishwajit to Patna for treatment. On 30.10.85 this witness got his younger grandson (nati) treated by Children Specialist Dr. Uptal whose urine was tested on 1.11.85. This witness stated that he can prove the urine test. Again on 4.11.85 this witness went to Barh for rukhsodi for Pratibha (deceased) and reached there at 4 P.M. in the evening. He could not meet Pratibha (deceased) and stated that no one was present at house and there was silence there. When this witness reached house of Shashi Bhushan Chaubey (respondent no.4) there was complete silence there and he could not meet anyone there. This witness attempted to get knowledge from nearby persons and came to know from Narendra Singh (P.W.4) that on Sunday last night at about 12 hours Kaladhar Chaubey (respondent no.1) assaulted his daughter Pratibha (deceased) and after throttling her neck pushed her from roof. At the time of killing Shashi Bhushan Chaubey (respondent no.4), Shakuntala Devi (respondent no.3), Raju Chaubey (respondent no.2) and Rani Kumari were present. This witness also came to know that Kaladhar Chaubey along with his father Shashi Bhushan Chaubey, uncle Lakhy Chaubey, Raju Kumar, Randhir Kumar and others cremated the dead body of Pratibha at Barh Satighat. After knowing this witness came to Barh police station and got his statement recorded at the police station by Munsi. As per this witness statement was read over to this witness and this witness also signed the same. This witness further stated that Darogaji took further statement of this witness and after his further statement was recorded this witness along with Darogaji came to house of Shashi Bhushan Chaubey (respondent no.4) and this witness showed house of Shashi Bhushan Chaubey to Darogaji. This witness and Darogji searched Munna (P.W.1). As per this witness he met Munna (P.W.1) at 10.30 hours in the night after Darogji left. This witness saw Munna in anxiety in the state of fear and Munna was also not well. This witness carne with Munna to Khushrupur and asked him about the occurrence and Munna narrated everything about the occurrence. 6.11.85 this witness took Munna (P.W.1) to Barh Police Station and requested to record statement of Munna whereupon Darogaji asked that Munna was child and advised to get his statement recorded by the court. This witness carne with Munna to Khushrupur and asked him about the occurrence and Munna narrated everything about the occurrence. 6.11.85 this witness took Munna (P.W.1) to Barh Police Station and requested to record statement of Munna whereupon Darogaji asked that Munna was child and advised to get his statement recorded by the court. Statement of Munna was recorded in court by the Magistrate and after Munna recorded his statement in court he went with his Nani. Thereafter this witness went to house of Shashi Bhushan Chaubey and met him there. As per this witness when he asked about his daughter from Shashi Bhushan Chaubey he told this witness that Pratibha had jumped from roof and died. Thereafter this witness went to D.S.P. and complained against Darogaji that Darogaji had not recorded statement of Munna. This witness had also filed an application against Darogaji in the court. This witness was never given information as to death of Pratibha. This witness denied that Munna used to stay and study at the house of this witness. This witness identified accused persons in the court. 16. In his cross examination this witness has stated that he had not gone to Barh on the date of occurrence but had gone Barh on next day of occurrence. He has further stated that after three days of occurrence this witness got statement of Munna recorded under Section 164 Cr.P.C. and explained that because of ill health of Munna his statement was not recorded earlier. He had not got treated Munna by any doctor though there was doctor at Khushrupur. He has further stated that he used to write letters to his daughter. This witness has proved some of the letters written by him to his daughter which were marked as Ext. A/1 and A/2. This witness denied that Munna used to live with him and Munna used to live and study with him. As per this witness Munna always lived with his mother and at the time of occurrence Munna was not a student of Class I. He has further stated that on 6.11.85 when he had gone to Barh he had knowledge that Munna was an eye-witness. As per this witness Munna always lived with his mother and at the time of occurrence Munna was not a student of Class I. He has further stated that on 6.11.85 when he had gone to Barh he had knowledge that Munna was an eye-witness. In the night of 4.11.1985 itself this witness had come to know that Munna was an eye-witness to the occurrence and this witness knew about the occurrence from Munna on 4.11.85 at 12 hours in the night at Barh Station. This witness appears to have denied that he had complained against D.S.P. wrongly that Darogaji did not want to record statement of Munna and does not remember whether this witness had taken Munna to D.S.P. This witness has further denied that he had never taken Munna before D.S.P. or Investigating Officer of this case. He also denied that he had not met Munna at 10.30 hours at night after Darogaji had left. This witness further stated that he had filed application before the court for getting statement of Munna recorded under Section 164 Cr.P.C. and his Lawyer was Arjun Sharma. He has further denied that Munna did not use to live with his mother at Barh and 3-4 days of the occurrence after tutoring Munna this witness placed Munna as an eye-witness. There is nothing more worth consideration in cross examination of this witness. 17. The prosecution also proved some documents which are signature of Bankey Bihari Tripathy on fardbeyan (marked Ext.1), signature of Narendra Kumar Singh on seizure list (marked Ext. 2), signature of Raka Kumar on seizure list (marked Ext.2/1), statement of accused Raju recorded by Sri S.I. Doudi, J.M. Barh on 6.11.85 (marked Ext.3), F.I.R. (marked Ext. 4), seizure list (marked Ext.5), copy of supervision note of D.S.P. P.W.8, (marked Ext.6), certified copy of ordersheet of bail petition no. 3655/85 (marked Ext.7) and certified copy of ordersheet of Cr. Misc. No.10345/85 (marked Ext. 7/1), besides proved some material exhibits which are Rajaee, Gendra (two in number) (marked Exts. II & II/1). Takia (marked Ext. III) and Chadar (marked Ext. lV). 18. As against this, defence also examined one Ram Jatan Prasad, D.W.1, who had proved three letters in the writing of informant Bankey Bihari Tripathy (marked Exts. Misc. No.10345/85 (marked Ext. 7/1), besides proved some material exhibits which are Rajaee, Gendra (two in number) (marked Exts. II & II/1). Takia (marked Ext. III) and Chadar (marked Ext. lV). 18. As against this, defence also examined one Ram Jatan Prasad, D.W.1, who had proved three letters in the writing of informant Bankey Bihari Tripathy (marked Exts. A.A/1 and A/2), a petition in the writing of one Arjun Sharma (marked Ext.B), letter written by wife of Bankey Bihari Tripathy (marked Ext.C) and letter written by Babli, daughter of Bankey Bihari Tripathy (marked Ext.C/1). 19. Mr. Shyameshwar Dayal, learned A.P.P. appearing on behalf of appellant-State of Bihar, submitted and contended that the judgment of acquittal passed by the learned trial court is based on mere conjecture and surmises and the same is bad both on facts and law. Referring the statement of P.W.1 Munna, son of respondent no.1 Kaladhar Chaubey, aged about seven years and the statement of P.W.2 Banke Bihari Tripathy, father-in-law of respondent no.1, learned A.P.P. pointed out that P.W.1 Munna though aged about seven years was tested by the learned trial court and was found fit to depose and so the statement of this eye-witness should not have been brushed aside and disbelieved as being a son of respondent no.1 Kaladhar Chaubey this witness would not have implicated his father falsely. Similarly, the statement of P.W.2, who happens to be father-in-law of respondent no.1 Kaladhar Chaubey should have not been brushed aside and disbelieved. Learned A.P.P. further submitted and contended that as the deceased was living with respondents and P.W.1 Munna claimed to have seen the respondents committing murder of deceased learned trial court should have taken into consideration this factual aspect of prosecution story and should have believed the statement of P.W.1 Munna and P.W.2 Banke Bihari Tripathy. Learned trial court should have also taken into consideration the evidences on record that on the alleged date of occurrence Munna was living with his mother and so he had all the occasion to see the alleged occurrence. Learned A.P.P. lastly submitted and contended that the learned trial court should have taken into consideration the statement of P.W.1 Munna and P.W.2 Banke Bihari Tripathy on the background of facts and circumstances of the case and should have recorded judgment and order of conviction against all the six respondents. 20. As against this, Mr. Binod Kumar Ambastha. Learned A.P.P. lastly submitted and contended that the learned trial court should have taken into consideration the statement of P.W.1 Munna and P.W.2 Banke Bihari Tripathy on the background of facts and circumstances of the case and should have recorded judgment and order of conviction against all the six respondents. 20. As against this, Mr. Binod Kumar Ambastha. learned counsel for the respondents submitted and contended that the learned trial court on the basis of not only direct evidences on record but also after taking into consideration the facts and circumstances in which offence alleged is said to have been committed came to a right conclusion and rightly recorded judgment of acquittal against all the six respondents giving them benefit of doubt. Learned counsel for the respondents further submitted and contended that from the statements of witnesses examined in this case it is evidently clear that out of eight witnesses examined in this case only P.W.1 Munna, who was aged about seven years on the date of his examination as a witness and so aged about six years on the date of occurrence is the only eyewitness in this case. Referring statement of this witness P.W.1 in his cross-examination learned counsel for the respondents pointed out that this child witness claiming to be an eye-witness was put several questions in cross examination not only by defence but also by the court itself and this witness appears to have maintained silence on many such questions indicating this child witness had not developed so as to present events in its natural course. Contention of learned counsel for the respondents is that it was not safe for the learned trial court to convict the respondents on the statement of sale child witness. Learned counsel for the respondents referring evidences on record also pointed out that the evidences on record are even not sufficient to establish that Munna was present at the place of occurrence as such evidences are also on record indicating that he (P.W.1 Munna) used to live with his nana (P.W.2). Learned counsel for the respondents also pointed out that as the dead body was not found and post mortem on dead body was not performed the absence of post mortem examination of dead body also do not prove and establish that the deceased was done to death in the manner as alleged. Learned counsel for the respondents also pointed out that as the dead body was not found and post mortem on dead body was not performed the absence of post mortem examination of dead body also do not prove and establish that the deceased was done to death in the manner as alleged. Learned counsel for the respondents also pointed out that there is contradictory evidence on the point whether the deceased died of cholera or done to death in the manner as alleged. On these contentions learned counsel for the respondents submitted that the learned trial court has rightly giving benefit of doubt recorded judgment of acquittal against all the six respondents. 21. The only point for consideration shall be as to whether the prosecution failed to prove and establish charges levelled against respondents-accused and the judgment and order of acquittal recorded by the learned trial court giving benefit of doubt to the respondents is based on proper consideration and appreciation of evidences brought on record. 22. On a careful consideration of all eight witnesses examined by the prosecution it appears that P.W.3 Ahilya Devi and P.W.4 Narendra Kr. Singh have turned hostile and their statements do not help prosecution rather P.W.3 Ahilya Devi, a neighbour of deceased appears to have stated that Pratibha died of cholera. Statement of P.W.5 Chulahi Mullic, a guard of Samsanghat, and in whose presence the dead body of deceased Pratibha is said to have been cremated has also been declared hostile by prosecution. There appears nothing in his statement so as to indicate circumstance that the dead body of Pratibha (deceased) was cremated in hurry. P.W.6 S.I Doudi, Subdivisional Judicial Magistrate, Danapur, appears to be only a formal witness who proved statement of one Raju recorded by him under Section 164 Cr.P.C. (Ext.3). Though this witness appears to have stated that he had also examined one boy, namely, Munna this witness had not proved such statement recorded by him under Section 164 Cr.P.C. P.W.7 Khurshid Hassan is Investigating officer of the case and it appears from his statement that he had investigated the case and after completion of investigation chargesheet was submitted. P.W.8 Bishwanath Singh is Subdivisional Deputy Superintendent of Police and as per his statement he had supervised the Barh P.S. case no. 274/85 on different dates and during supervision he had also inspected the place of occurrence. P.W.8 Bishwanath Singh is Subdivisional Deputy Superintendent of Police and as per his statement he had supervised the Barh P.S. case no. 274/85 on different dates and during supervision he had also inspected the place of occurrence. This witness appears to have given description of place of occurrence. However, this witness himself is not an eye-witness to the alleged occurrence. P.W. Munna, son of Kaladhar Chaubey (respondent no.1) aged about seven years appears to have claimed to see the alleged occurrence. P.W.2 Bankey Bihari Tripathy is the informant himself and it appears from his statement that he himself had not seen the alleged occurrence. 23. From the statements of all eight prosecution witnesses. discussed above, it is evident that out of eight prosecution witnesses examined P.W.3, P.W.4 and P.W.5 are hostile witnesses and there is nothing in their statements so as to help prosecution. P.W.6 is a formal witness. P.W.7 and P.W.8 are police officials, one of whom had investigated the case and other had supervised the case. P.W.2 Bankey Bihari Tripathy is informant of the case and as per. his statement he had not seen the alleged occurrence himself. 24. In the facts, prosecution is left with sole child eye-witness Munna (P.W.1), who is none but son of Kaladhar Chaubey (respondent no.1) and deceased Pratibha, aged about seven years, who claimed to have seen the alleged occurrence. 25. There appears no dispute that P.W.1 Munna was examined after about one year of the occurrence and on the date of his examination he was aged about seven years and so on the date of occurrence he was aged about only six years. It also appears that defence has disputed the very presence of this P.W.1 Munna at the place of occurrence on the alleged date and time and contending that P.W.1 Munna used to live with his nana P.W.2 Bankey Bihari Tripathy in support of its contention brought on record three letters which are Exts. A, A1 and A2. Ext.A dated 23.6.83 is addressed to deceased and is written by P.W.2 Bankey Bihari Tripathy. Ext. A 1 dated 23.6.83 is addressed to Samdhijee Shashi Bhushan Chaubey (respondent no.4) written by Bankey Bihari Tripathy, P.W.2. Similarly, Ext. A2 dated 27.8.82 is also addressed to Samdhijee (respondent no.4) by Bankey Bihari Tripathy, P.W.2. A, A1 and A2. Ext.A dated 23.6.83 is addressed to deceased and is written by P.W.2 Bankey Bihari Tripathy. Ext. A 1 dated 23.6.83 is addressed to Samdhijee Shashi Bhushan Chaubey (respondent no.4) written by Bankey Bihari Tripathy, P.W.2. Similarly, Ext. A2 dated 27.8.82 is also addressed to Samdhijee (respondent no.4) by Bankey Bihari Tripathy, P.W.2. On a bare reading of these three letters it can be seen that Munna often lived with his nana Bankey Bihari Tripathy, P.W.2. Though these letters appear to be written before the alleged occurrence yet these letters are suggestive that Munna often lived with P.W.2 and not at his father's village. Evidently, on the alleged dote and time of occurrence statement of P.W.1 Munna was not recorded but later on, that too, after three days of the alleged occurrence this P.W.1 Munna was taken to Barh police station by P.W.2 and the police had also refused to record his statement and so P.W.2 himself got his statement recorded by the Magistrate under Section 164 Cr.P.C. on the same day, i.e., on 6.11.85. The statement of P.W.2 has also not been proved and brought on record by the prosecution. The contention of learned counsel for the respondents is that these facts sufficiently create doubt as to whether the sole eye-witness P.W.1 Munna was present at the place of occurrence on the alleged date and time and that he had actually seen the occurrence. The other circumstances appearing from the facts on record and also the statement of prosecution witnesses are that though as per prosecution version the dead body of deceased was cremated in hurry but this fact does not find support from the statement of P.W.5 Chulahi Mallick who is said to be guard of Samsanghat where in presence of this witness P.W.5 Chulahi Mallic the dead body of deceased is said to have been cremated, inasmuch as this witness has turned hostile and there is nothing in his statement so as to indicate that the dead body of deceased was cremated in hurry. It is also not disputed that the occurrence took place in the house of respondents at 12 hours in the mid night. The statement of sole child witness P.W.1 Munna requires to be considered and appreciated in the background of above facts. It is also not disputed that the occurrence took place in the house of respondents at 12 hours in the mid night. The statement of sole child witness P.W.1 Munna requires to be considered and appreciated in the background of above facts. It is settled principle of law that conviction may be based on testimony of a single witness if the same is cogent consistent and trustworthy proving guilt of accused beyond shadow of reasonable doubt and so it is to be considered whether the statement of the sole eye-witness P.W.1 Munna may be relied upon. 26. Before taking into consideration the statement of P.W.1, the sole child eyewitness, I shall take into consideration the facts and evidences on record so as to find that Munna was actually present at the place of occurrence and had seen the occurrence. The facts and evidences on record discussed earlier clearly create doubt as to the presence of P.W.1 Munna at the place of occurrence on the alleged date and time, inasmuch as the letters of informant P.W.2 Bankey Bihari Tripathy addressed to his daughter and Samdhijee indicate that Munna often lived with him. I shall now consider whether P.W.1 Munna being aged only seven years on the date of his examination as prosecution witnesses and aged about only six years on the alleged date of occurrence had competence to narrate the manner of occurrence in natural sequence and competent to depose. This witness was put questions not only by defence but also by court and it appears from the statement of this witness in his cross examination that he did not answer many of the questions and maintained silence. In my view, such silence by a witness aged about seven years creates doubt that this witness had developed such understanding so as to narrate events seen by him before about one year in natural sequence. The contention of defence is that the deceased died of cholera but later on that too after three days of the alleged occurrence informant (P.W.2) persuaded P.W.1 and got his statement recorded by Magistrate under Section 164 Cr.P.C. At this stage, I shall also take into consideration the statement of sole eye-witness P.W.1 Munna. The contention of defence is that the deceased died of cholera but later on that too after three days of the alleged occurrence informant (P.W.2) persuaded P.W.1 and got his statement recorded by Magistrate under Section 164 Cr.P.C. At this stage, I shall also take into consideration the statement of sole eye-witness P.W.1 Munna. Even if the statement of this witness is taken as it, this witness appears to have made specific allegation against respondent no.1 Kaladhar Chaubey to the extent that papa (respondent no.1) assaulted his mother with danta on which his mother fell down and then papa after putting napkin around the neck of his mother pulled the same and thereafter pushed his mother from roof. This witness does not make such allegation against other co-accused Evidently, the occurrence is alleged to nave been committed in the mid night of 12 hours which creates doubt as to whether such child witness aged only six years was awaken at the time and had seen the occurrence. Besides, dead body was never recovered and no post mortem was held on the dead body of deceased and so in absence of post mortem of dead body it is not possible to ascertain that the murder was committed in the manner as alleged. 27. Taking into consideration the facts and circumstances in which the offence alleged is said to have been committed, the statements of prosecution witnesses particularly the statement of P.W.1 Munna the sale eye-witness, it is evidently clear that there are such facts and circumstances and also the statements of prosecution witnesses that create doubt as to presence of the sale eye-witness at the place of occurrence on the alleged date and time of the occurrence. Facts and circumstances of the case and the statements of witnesses including the statement of sale eye-witness P.W.1 Munna further create doubt as to whether the sale eye-witness aged seven years on the date of his examination and aged about only six years on the date of occurrence had competence to state events in its natural sequence and to depose. Even the statement of sole child witness P.W.1 does not inspire confidence that the alleged occurrence was committed in the manner as alleged. Even the statement of sole child witness P.W.1 does not inspire confidence that the alleged occurrence was committed in the manner as alleged. In my view, the facts and circumstances of the case and the evidences brought on record are sufficient to create doubt as to the presence of the sale eye witness at the place of occurrence on the alleged date and time of the occurrence as the sole child witness aged seven years on the date of his examination and aged only six years on the date of occurrence had developed no competence to be an eyewitness. There are also no other corroborative evidence on record. It will not be safe to record a judgment of conviction on the basis of doubtful presence of sale eye witness at the place of occurrence on the alleged date and time of the occurrence and further the competence of such sale child witness also being doubtful. 28. In the background of my discussion and appreciation of facts and circumstances of the case and also appreciation of statement of witnesses including sole child witness examined by the prosecution I come to the conclusion and hold that the prosecution failed to prove and establish charges levelled against the respondents accused beyond shadow of reasonable doubt and the learned Sessions Judge has rightly found and held all the six respondents accused entitled for benefit of doubt and acquitted them for the charges under Sections 302 and 201/34 I.P.C. 29. In the result, this Govt. appeal is dismissed. I agree.