JUDGMENT : This criminal appeal is directed against the judgment of conviction dated 29th June, 2006 and order of sentence dated 30th June, 2006 passed by 1st Additional Sessions Judge, Gumla in Sessions Trial No. 150 of 1988, whereby the appellant having been found guilty of charges under Section 302 IPC has been sentenced to undergo imprisonment for life besides a fine of Rs.500/- and in default thereof, to further undergo simple imprisonment of six months. 2. The case of the prosecution in brief is that on 4.4.1988, the informant went to the house of his Sarhu Francis Beck, who took him and one co-villager Rimun Minz to the house of Bhakur Kharia (PW-4). It is disclosed that deceased Bartolmi Beck along with three others namely Binod, Alexander and one friend of Binod were taking liquor (Haria) from before in the house of Bhakur (PW-4). The informant and his companion also joined them. It is further alleged that during discussion, deceased Francis Beck gave two fist blows to Binod after which Binod left the place and proceeded towards the village. After sometime they also left the place for their home but on the way, Binod came running towards them and he was having Tabla in his hand. The informant apprehending danger started fleeing away. Thereafter Binod started assaulting the deceased (Francis Beck) with Tabla. After reaching the village, the informant raised Halla and then he along with the villagers again went to the place of occurrence, where he saw the neck of the deceased (Francis Beck) cut by Tabla and also saw that the mouth, head and throat of Bartolmi Beck (brother of deceased Francis Beck) cut and both were dead. The informant having come to know that the child Dablu is also seriously injured and shifted to hospital, went to the hospital. The informant has suspected that said Binod with the help of his aforesaid two friends might have committed the occurrence. On the basis of the aforesaid Fardbeyan, a formal FIR was registered for the offence under Section 302 of the Indian Penal Code against Binod and two unknown and after completion of investigation, chargesheet was submitted against the accused Binod Khakha and Fabianus Beck, the appellant herein. However, the learned Chief Judicial Magistrate, Gumla took cognizance of the offence under Section 302, 307 and 326/34 of the Indian Penal Code against both the accused. However, the learned Chief Judicial Magistrate, Gumla took cognizance of the offence under Section 302, 307 and 326/34 of the Indian Penal Code against both the accused. After commitment, the charges were framed which were read over and explained to the accused persons in Hindi, to which they pleaded not guilty. The defence version is completely denial of the charges levelled against them. 3. In order to prove the charges against the accused, the prosecution has examined altogether ten witnesses, including the doctor (PW-8), who conducted autopsy over the dead bodies of the deceased. The defence has also examined two witnesses. The trial court after going through the materials on record and also considering the evidence of the witnesses has convicted the present appellant for the offence under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default thereof, to further undergo simple imprisonment of six months. 4. Basing upon the evidence of PW-1(informant) and PW-7, who is a child witness, counsel for the appellant has assailed the judgment of the learned court below on the following grounds:- (I) No test identification parade was conducted by the Investigating Officer, inasmuch as the FIR was lodged against one named accused i.e. Binod and two unknown persons; (II) PW-1, the informant, at the first instance i.e. on 26.4.1989 could not identify the present appellant as an assailant and only on 11.5.1989 when the matter was adjourned for further examination, he could identify the accused in the dock. Moreover, he is not the co-villager of the deceased and there being material contradictions in the evidence of PW-1, he is not a reliable witness; (III) PW-7 Joseph Beck @ Dablu is a child witness, whose age is mentioned as 4 years in the statement recorded under Section 161 Cr.P.C. This witness himself has stated that he was in the lap of his uncle, while returning to his house along with his father. Thus, it is crystal clear that PW-7 is a child witness and though the trial court had given a certificate to that effect but has never tested him. This witness has stated that on the day of occurrence he along with his father and uncle had gone to Khira Khand for taking Haria, where other persons were also taking Haria, including the appellant. This witness has stated that on the day of occurrence he along with his father and uncle had gone to Khira Khand for taking Haria, where other persons were also taking Haria, including the appellant. He has further stated that while returning to his house along with his father and uncle, this appellant assaulted his uncle by Tangi and on the same breath he has stated that a Tangi blow was also given to him by the appellant. However, no injury report of this child witness i.e. PW-7 has been produced by the prosecution ; (IV) Investigating Officer has not been examined in this case and thus non examination of Investigating Officer has caused great prejudice to the defence, inasmuch as place of occurrence has not been proved in the present case. 5. Per contra, learned Additional Public Prosecutor, has vehemently opposed the contentions raised by the learned counsel for the appellant and submits that there is clinching evidence against this appellant to hold him guilty for the aforesaid offences. Learned A.P.P. submitted that evidence of PW-1 and PW-7 is clear, inasmuch as PW-7, the child witness, has specifically mentioned about the role played by the accused and he was testified and certified by the Court. Neither there is any improvement of the case by this child witness nor there is any dispute about the use of weapon in commission of the crime by the accused and the doctor, who conducted the autopsy over the dead bodies of the deceased, has also described the weapon as Tabla, a heavy sharp cutting weapon like tangi. On the basis of aforesaid submissions, learned Additional Public Prosecutor submitted that there being no infirmity in the impugned judgment of conviction and order of sentence, the findings arrived at by learned trial court do not require any interference by this Court. 6. We have heard learned counsel for both the sides and also perused the materials available on record. 7. PW-1 (Remish Tirkey), a relative of the deceased, is the informant in this case, who at one stage in his deposition recorded on 26.4.1989 has stated that he along with Bartolmi Beck, Francis Beck and Dablu was returning for Patra Toli after taking liquor. On the way, they saw one person following them having lathi in his hand. 7. PW-1 (Remish Tirkey), a relative of the deceased, is the informant in this case, who at one stage in his deposition recorded on 26.4.1989 has stated that he along with Bartolmi Beck, Francis Beck and Dablu was returning for Patra Toli after taking liquor. On the way, they saw one person following them having lathi in his hand. Francis gave two fist blows to the said person whereupon the said person said nothing and went ahead. Thereafter, one person came out from the bushes and assaulted Francis with Tabla, as a result of which he fell down. The said person also chased him, but he escaped. This witness has admitted that none of these two persons, who were in the dock, were involved in committing murder of Francis. This witness thereafter in his further deposition, recorded on 11.5.1989, has stated that the person who was coming behind them having lathi in his hand has assaulted Francis with Tabla, as a result of which he died. This witness by pointing towards Fabinus Beck (appellant), who was in the dock, has stated that this is the person, who has killed Francis by Tabla. He has further stated that due to fear on 26.4.1989 he did not identify the accused Fabianus Beck, though he was present in the court. In his cross-examination, this witness has stated that though after sunset it became dark but he could identify the accused-appellant since he had taken liquor along with him. He has further stated that he had not seen Bartolmi being assaulted. 8. PW-2, Remon Minz, is a hearsay witness, who had simply identified both the accused present in the dock. 9. PW-3 is Linus Ekka, who has stated that while he went for attending the call of nature, he heard the cry of a child and when he reached there, he saw two persons lying dead and the child in injured condition, to whom he brought to his house where his wife identified him to be the son of Bhartolmi. 10. PW-4, Bhakur Kharia, is the Haria vendor, who has stated that 7-8 persons including both the deceased had taken Haria on the day of occurrence and along with the deceased a small boy was also there. In his cross-examination, this witness has stated that he identifies Fabianus (appellant) by face. 11. 10. PW-4, Bhakur Kharia, is the Haria vendor, who has stated that 7-8 persons including both the deceased had taken Haria on the day of occurrence and along with the deceased a small boy was also there. In his cross-examination, this witness has stated that he identifies Fabianus (appellant) by face. 11. PW-5, Kripa Minz is a hearsay witness, who is mother of PW-7 Joseph Beck @ Dablu and widow of deceased Bartolmi. This witness has stated that on getting information about the killing of her husband and brother-in-law, she alongwith the wife of Francis went to the place of occurrence. She has further stated that she was informed by one Jyoti Prakash about the occurrence. 12. PW-6 Bhavan Lohra has proved his signature on both the inquest reports marked as Exts.1 and 1/1. 13. PW-7 Joseph Beck @ Dablu is a child witness, who was examined by the Court and it was certified that he understand the question and answer. However, no specific question was put to testify him and moreover when specific question was put to him that what was his age, he specifically stated that he cannot say his exact age but the court assessed his age as ten years old. This eye witness has stated that when he was returning with his father and uncle, Fabianus Beck, the present appellant, gave a Balia blow to his uncle, due to which he fell down. He further stated that it was the appellant, who killed his father also and the appellant also assaulted him and this witness shows the mark of injury present on his back. 14. PW-8, Dr. Chandra Bhushan, is the doctor, who had conducted the autopsy over the dead bodies of the deceased and found the following antemortem injuries :- Injury found on the person of deceased Francis Beck (i) Sharp cut injury on the left side of scalp just above the pinna of the ear, brain deep, size 4cm x 3cm x 3cm. (ii) Cut injury on parietal bone on the left side 2cm x 2 cm x bone deep. (iii) 6th and 7th cervical vertebrae had cut injury leading to spinal cord injury- all the muscles of the neck had got cut injuries on the left side. On dissection of injury no.1, the doctor found sharp cut injury to the scalp bone which was brain deep and spinal cord cut injury. (iii) 6th and 7th cervical vertebrae had cut injury leading to spinal cord injury- all the muscles of the neck had got cut injuries on the left side. On dissection of injury no.1, the doctor found sharp cut injury to the scalp bone which was brain deep and spinal cord cut injury. In the opinion of the doctor, the death was caused instantaneously due to injury no.(i), which was sufficient to cause the death in the ordinary course of nature. All the injuries were caused by sharp cutting weapon like Tabla. Injury found on the person of deceased Barthlomi Beck (i) Parietal bone on the left side had sharp cut injury, size 3cm x 2cm x 2cm, brain deep. The brain was damaged and blood clotings were found at the site of skull injury. (ii) 1st and 2nd Thoracic vertebrae had sharp cut injury on the left side leading to spinal cord damage. (iii) Larynx and Trachea had sharp cut and laceration upto oesophagus had also been severed, including all the structures above on the left side. In the opinion of the doctor, death was caused due to injury no.(i) and (iii). Both the injuries i.e. injury nos.(i) and (iii) were sufficient to cause death either singly or jointly. The time elapsed since death was 18 hours. The said injuries were caused by sharp cutting weapon like Tabla. 15. PW-9, Munu Singh, is an Advocate Clerk, who has proved the formal FIR marked as Ext.7. 16. Two witnesses were also examined by the defence. Out of them, DW-1 Shashi Kant Jha has stated that the age of PW-7 was 3 ½ years, at the time of occurrence, and this appellant has been falsely implicated due to land dispute between the family. DW-2 is Jakarius Kujur, who has also stated about the false implication of the appellant due to land dispute between the family. 17. From scanning the entire evidence, it appears that PW- 1, who is brother-in-law of the deceased, at the first instance i.e. on 26.4.1989, could not identify the accused-appellant as assailant and after a gap of 15 days, when he was again examined on 11.5.1989, he could identify the accused-appellant and thereby improved his version. Thus, from the conduct of this witness, it appears that he is not a reliable witness. Thus, from the conduct of this witness, it appears that he is not a reliable witness. PW-5 Kripa Minz, who is widow of the deceased- Bartolmi and mother of PW-7 Joseph Beck @ Dablu, has stated that she heard about the occurrence from one Jyoti Prakash, but surprisingly enough said Jyoti Prakash has not been examined by the prosecution. PW-7 Joseph Beck @ Dablu is a child witness. He was not testified by the Magistrate about his understanding but it was certified that he understands the question and answer. No certificate to that effect was produced by the prosecution. Further, the Investigating Officer, whose evidence is vital to prove the place of occurrence, has not been examined in the present case. 18. It is settled principles of law that when there are material contradictions in the evidence of eye witnesses (in the present case PW-1 and PW-7), it is the duty of the prosecution to examine the Investigating Officer, who can be confronted with the statement of other witnesses by the accused person. Thus non-examination of Investigating Officer has caused great prejudice to the defence and same is fatal to the prosecution. Moreover, the place of occurrence was not in the house of PW-4 Bhakur Kharia, who was selling Haria. In fact, the police took the injured child witness for his treatment to hospital but neither recorded his statement nor FIR was drawn on the same day, nor any entry was made in the Station Diary. Only on the next day, FIR was lodged and was registered and there is no explanation for the delay in lodging the FIR. 19. So far evidence of a child witness is concerned, it has been held by the Hon'ble Supreme in the case of Radhey Shyam vs. State of Rajasthan, reported in (2014) 5 S.C.C. 389 , that the 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. It has also been settled that the evidence of a child witness must find adequate corroboration before it is relied upon. The evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It has also been settled that the evidence of a child witness must find adequate corroboration before it is relied upon. The evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness' evidence. If found reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. 20. Thus, it is difficult to uphold the findings arrived at by the learned trial court, inasmuch as merely on suspicion, a person cannot be held guilty, as has been held by the Hon'ble Supreme Court in catena of decisions. 21. After considering the submissions of learned counsel for both the parties, this Court is of the view that the prosecution has not been able to prove its case beyond all reasonable doubt. As such, the instant appeal is allowed and the judgment of conviction dated 29th June, 2006 and order of sentence dated 30th June, 2006 is set aside. The appellant, who is in jail, shall be released forthwith, if not required in any other case. 22. The trial court shall also be intimated of the outcome of the instant appeal.