JUDGMENT DK Sinha, J. -The present appeal arises against the impugned judgment of conviction for the charge under Section 302 I.P.C. and order of sentence dated 29.8.2000 passed by the Additional Sessions Judge, Simdega in Sessions Trial No. 139 of 1996 whereby the sole appellant Mukund Murari Singh @ Mangal Singh has been sentenced to undergo rigorous imprisonment for life. 2. The prosecution story as it stands narrated in the fardbayan (Ext.-3) of the informant Karma Sao (P.W. 2) was that his father Latu Sao (deceased) and mother Sita Devi (deceased) were living together by constructing a house at Village-Karamtoli much prior to the alleged occurrence whereas, their 3 sons including the informant were living in a different village namely Bokwa. On 30.6.1995, the informant came to learn from one Suleman Kharia (not examined) that his parents were lying dead in a pool of blood in their house at Village-Karamtoli and that both were killed with the sharp cutting weapon. On such information the informant along with his elder brother Nageshwar Sahu (P.W.5) and younger brother Mahavir Sao (P.W.3) went to the alleged place of occurrence and found their parents lying dead in the courtyard with the injuries on their head and neck appeared to have been caused with the help of axe by unknown culprit. The informant delivered his statement before the police on the same day on 30.6.1995 at about 17.30 hours in presence of the witness Mahavir Sao (P.W. 3) stating inter alia that his father, aged about 70 years and mother about 65 years had no enmity with anyone and therefore, motive behind their assassination could not be ascertained. The informant did not raise suspicion against anyone and even Suleman Kharia did not convey having seen the assailant. The F.I.R. was lodged against unknown but the police after investigation submitted charge sheet against the appellant Mukund Murari Singh @ Mangal Singh for the offence under Section 302 Indian Penal Code. The witnesses during investigation of the case were consistent that an identity-card and a wristwatch were collected by the police from near the dead bodies but the same neither could be brought on the record in course of trial nor its nexus could be proved with the appellant. 3. The witnesses during investigation of the case were consistent that an identity-card and a wristwatch were collected by the police from near the dead bodies but the same neither could be brought on the record in course of trial nor its nexus could be proved with the appellant. 3. Learned Counsel for the appellant, to begin with, submitted that though as many as 17 witnesses were produced and examined on behalf of the prosecution during trial but the appellant was convicted upon single uncorroborated testimony of a child witness P.W.4 Sunil Kondulna who was only 10 years old at the relevant time of alleged occurrence. 4. P.W. 1 Panchu Naik appears to be a chance witness who deposed that on the date of occurrence while he was returning from Kolebira market, witnessed crowd near the house of Latu Sao. He went there out of curiosity where he found the dead bodies of Latu Sao and his wife lying in the pool of blood. A wristwatch and an identity-card were seized by the police from near the dead bodies, accordingly, a seizure list was prepared and the witness admitted having put his thumb impression thereon. In the cross-examination he admitted having seen only three persons viz. Karma Sao (P.W.2), Biru Sao (not examined) and Nageshwar Sahu (P.W. 5) as also the police personnel. P.W.2 Karma Sao is the informant of the case. He testified by supporting his earlier version that he derived information from one Suleman Kharia about the assassination of his father and mother at Karamtoli and upon such information he went there with his brothers Mahavir Sao (P.W. 3) and Nageshwar Sahu (P.W. 5). Nevertheless, he made certain development by testifying that he witnessed the assailant Mukund Murari Singh @ Mangal Singh (appellant) running away after commission of murder to whom he identified when he arrived at the scene with his brothers. The informant P.W. 2 identified the appellant also in the dock. He found injuries on the dead bodies of his father and mother caused by sharp cutting weapon and testified that a wristwatch and an identity-card were also found there. The police in the meantime arrived and recorded his statement in presence of his younger brother Mahavir Sao. The informant P.W. 2 identified the appellant also in the dock. He found injuries on the dead bodies of his father and mother caused by sharp cutting weapon and testified that a wristwatch and an identity-card were also found there. The police in the meantime arrived and recorded his statement in presence of his younger brother Mahavir Sao. In the cross-examination, he admitted that he and his brothers were living at a different Village-Bokwa, at the distance of 1/2 k.m. from the Village-Karamtoli where his parents had settled down. This witness further made development by testifying that he was apprised by Suleman Kharia that altercation was going on there and that it took about 10 to 12 minutes in covering the distance from his village to the place of occurrence. Yet, on his attention being• drawn under cross-examination the witness insisted that it was not a fact that he had not stated before the police that he had seen the assailant running away but admitted having not seen the assailant assaulting his parents. P.W. 3 Mahavir Sao was the youngest son of the deceased who corroborated the statement of his elder brother informant and testified that he found the dead bodies of his parents lying in the courtyard at Village-Karamtoli in a pool of blood. He admitted seizure of a wristwatch and an identity card from the place of occurrence as also his signature or the seizure list prepared thereof by the police. 5. P.W. 4 Sunil Kondulna is the important and a child witness of the case who was only 10 years old at the alleged date and time of occurrence. He disclosed his age about 12 years at the witness box and introduced himself as shepherd. We have noticed that the Trial Judge without testing the intellect, maturity and rationale of the child witness allowed the prosecution to examine him. The witness testified that the occurrence took place about two years ago. He claimed to identify the assailant and in the same stretch he pointed out finger towards the appellant in the dock and stated that he was the assailant. The Trial Judge made endorsement to this effect. The witness testified that the occurrence took place about two years ago. He claimed to identify the assailant and in the same stretch he pointed out finger towards the appellant in the dock and stated that he was the assailant. The Trial Judge made endorsement to this effect. He was cross-examined at length and the witness admitted that his house was situated at a distance of about 6000 yards from the house of Latu Sao (deceased) and at the relevant time his oxen had been running away towards the field from the shed. In reply to a question put to him the witness stated that the house of Latu Sao was fenced by bamboo which was partly damaged. He affirmed that he was taking away the cattle to the grazing ground at the relevant time and that he had narrated the occurrence to his father on the same day and that he claimed having seen the act of assault. On a careful scrutiny, we find that the child witness claimed having seen the occurrence at a distance of 60/70 yards through the fencing of the courtyard of the deceased made by bamboo which was partly damaged while his cattles were running towards the grazing ground. In the next statement the witness testified that he spotted a person running away with the axe in his hand and therefore, we have reasons to believe that he would view only the back portion of the said person though his attention was on his cattles, which were running 'away from the shed. He had not even disclosed the features of that man to his father P.W. 17 at the first instance and on the basis of such statements, it can safely -be said that the prosecution failed to prove that this witness had seen the appellant committing murder of two persons. The child witness admitted before the Trial Court that the police had not interrogated him and therefore, his statement narrating the account of the alleged occurrence for the first time after two years may be presumed to be made after due deliberation and consultation. It is well settled that delay of a few hours/days in recording the statements of an eye-witness may not amount to a serious infirmity but inordinate delay of years together casts cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. It is well settled that delay of a few hours/days in recording the statements of an eye-witness may not amount to a serious infirmity but inordinate delay of years together casts cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. The identification of the appellant by the witness after two years of the alleged occurrence in the dock during trial puts a big question mark on its credibility and reliability which does not inspire confidence. In case of serious offence like one under Section 302 LP.C. burden lies heavy upon the prosecution to prove the charge beyond shadow of all reasonable doubts. 6. P.W. 5 Nageshwar Sahu, one of the sons of the deceased corroborated the statements made by the informant P.W. 2 Karma Sao and another brother Mahavir Sao (P.W. 3) on the point that he visited the place of occurrence and witnessed the dead bodies of his parents on the information having been received from one Suleman Khariya. 7. P.W. 6 Narayan Manjhi proved the formal F.I.R. Ext.-2. Signature of the Officer-in- Charge on the "Fardbayan" of the informant has been proved by P.W. 7 Lohru Singh. P.W. 8 Balgobind Singh has proved his signature Ext.-1/5 on the seizure list and the signature of another seizure witness Mukund Murari Singh Ext.-1/6 on the seizure list. P.W. 8 was consistent in his testimony that though he had put his signature on the seizure list but no seizure of any article was made in his presence and that he had put only when asked by the Assistant Sub-Inspector of police to do so. The witness was declared hostile as he had denied recovery of any axe, a full-pant and a printed bushirt with blood spots of the appellant Mukund Murari Singh @ Mangal Singh in his presence. Finally he deposed that he had signed on a blank sheet. P.W. 9 Duti Bhogtain was also declared hostile and nothing material could be elicited from her statement to show the nexus of the appellant with the' alleged murders. P.W. 10 Bhagirathi Sahu was the chance witness who testified having seen the deceased in a pool of blood and admitted having put his signature on the seizure list being prepared in relation to collection of blood stained earth from the place of occurrence. P.W. 10 Bhagirathi Sahu was the chance witness who testified having seen the deceased in a pool of blood and admitted having put his signature on the seizure list being prepared in relation to collection of blood stained earth from the place of occurrence. In the cross-examination, he admitted that he was not interrogated by the police in course of investigation. P.W. 11 Lore Kharia & P.W. 12 Susen Devi were also declared hostile. 8. P.W. 13 Dr. Arun Kumar Singh had held post mortem examination on the dead bodies of Latu Sao aged about 70 years and his wife Sita Devi on 1.7.1995 at the Primary Health Centre, Simdega. He found various injuries on the person of both the victims, incised in nature with different dimensions, assessed to be caused by sharp cutting weapon, possible by axe. He proved the post mortem reports of the deceased Exts.-2 & 2/1 P. W. 14 William Kerketta was the witness of the inquest reports of the deceased who proved his signatures on the inquest reports Exts-4 & 5 but in the cross-examination he admitted that the inquest reports were not prepared in his presence. P.W. 15 Arun Tirkey was also a formal witness who admitted having identified the signature of Rajendra Kumar Das, the then Officer-in-Charge of Kolebira Police Station on two separate seizure lists, but in the cross-examination he deposed that the seizure lists were not prepared in his presence. 9. P.W. 16 Dr. Nageshwar Manjhi tetified that on 4.7.1995 while he was posted as Medical Officer Incharge at the Kolebira Primary Health Centre, he had examined Mukund Manjhi @ Makun Mohan Singh and found pain and swelling in his left mendibular region. The Doctor assessed the age of the said swelling of about 72 hours. In his opinion, such swelling was caused by hard and blunt substance, simple in nature but could be possible by fall on the hard surface. 10. P.W. 17 Benetic Munda, an important witness being the father of the child witness Sunil Munda testified that some 4 years ago his son Sunil Munda had narrated that Latu Sao and his wife were done to death by an assailant with the help of an axe who he claimed to have identified and further that he had seen the culprit running away with the axe. 11. 11. The learned Counsel for the appellant assailed the impugned judgment of conviction on the ground that non-examination of the Investigating Officer of the case in the Trial Court has caused serious prejudice to the defence of the appellant being denied of the opportunity to cross-examine him on various issues including his objective finding when first visited the place of occurrence, recovery of identity-card and wristwatch from the place of occurrence as to whether these articles had nexus with the appellant or another and the compelling circumstances which led to incorporation of the name of child witness, Sunil Kondulna in the column of the witnesses in the charge-sheet after investigation though according to the said witness his statement was not recorded under Section 161 Cr.P.C. by the Investigating Officer. Yet, the Trial Court on erroneous consideration held that non-examination of the Investigating Officer, in the facts and circumstances, was of no consequence when the credibility of eyewitness has been proved and no material contradiction has been pointed out. 12. Advancing his argument, the learned Counsel reiterated that identification of the appellant by the child witness after two years of the alleged occurrence loses its reliability and credibility and no reliance can be placed upon such statement made after inordinate delay. Therefore, the judgment of conviction and order of sentence as recorded against the appellant by the Trial Court is bad in law and on facts which cannot be sustained. As a matter of fact, the learned Counsel added, that there was no legal evidence on the record for securing the conviction of the appellant for the charge under Section 302 LP.C. The conviction of the appellant on erroneous consideration therefore, is liable to be set aside and he may be set at liberty by acquitting him. 13. Upon careful consideration of the entire facts and materials on the record we observe that murder of an old man and old woman was committed in an extremely brutal grotesque, diabolical and dastardly manner so as to arouse intense and extreme indignation amongst the sons of the deceased and the society but in so far as requirement of law for securing the conviction of the appellant for the charge under Section 302 I.P.C., the material evidence lacks inherently in the instant case. The informant did not claim to be the eyewitness of the 'occurrence when he delivered his statement before the police but he made substantial development in his testimony during trial of the appellant claiming that he alongwith his brothers had seen the appellant running away with the axe in his hand. His statement has not been corroborated by his other two brothers in their testimonies during trial. Development made by the informant in his substantive evidence claiming identity of the appellant as the assailant of his parents for the first time in the dock after several years loses its credibility as at the first instance had not disclosed the name of appellant as the assailant of his parents in his "Fardbayan". 14. Much has been argued on behalf of the appellant assailing the testimony of the sole eye-witness P.W. 4 Sunil Kondulna and we find substance in the submission that the identification of an accused by a child witness in the dock for the first time after two years of the alleged occurrence is of no relevance as it loses its reliability when the statement of such witness was not earlier recorded by the Investigating Officer under Section 161 Cr.P.C. in course of investigation and we have thoroughly discussed this aspect. We further find substance that the appellant has been seriously prejudiced for non-examination of the Investigating Officer in the instant case, causing denial of opportunity to the appellant/accused to put certain questions as pointed out by the learned Counsel for the appellants in the foregoing paragraphs. No doubt murder of old man and woman in the evening hours was gruesome in nature but the material and evidence produced on behalf of the prosecution have been found inadequate for securing the conviction of the appellant for the charge under Section 302 LP.C. In other words we find that the prosecution failed to prove the charge against the appellant beyond shadow of all reasonable doubts and the Trial Court on erroneous consideration and without proper appreciation of the evidence held the appellant guilty which cannot be sustained. It is well settled that burden is proportionately heavy upon the prosecution to prove the serious charge like the one under Section 302 Indian Penal Code but in the instant case the prosecution has miserably failed to discharge its burden. 15. That being the situation, we find substance in the appeal. It is well settled that burden is proportionately heavy upon the prosecution to prove the serious charge like the one under Section 302 Indian Penal Code but in the instant case the prosecution has miserably failed to discharge its burden. 15. That being the situation, we find substance in the appeal. Accordingly, the appellant Mukund Murari Singh @ Mangal Singh is acquitted in Sessions Trial No. 139 of 1996 from his conviction under Section 302 I.P.C. arising out of Kolebira P .S. Case No. 19 of 1995 correspond111g to G.R. No. 142 of 1995 and he be set at liberty in the instant case at once if not wanted in any other case. 16. This Cr. Appeal is allowed.