JUDGMENT : Pritinker Diwaker, J. This appeal arises out of impugned judgment and order dated 04.08.1986 passed by II Additional Sessions Judge, Kanpur Dehat in Sessions Trial No. 292 of 1984, convicting the accused-appellants under Sections 302/34 and 201 of IPC and sentencing them to life imprisonment under Section 302/34 of IPC and further sentencing them under Section 201 of IPC for three years rigorous imprisonment. 2. As per prosecution case, about a month prior to the incident, cow of the deceased had entered the premises of accused-appellant Rajol for which he had abused the deceased and there was some verbal exchange between the two. It is said that on 14.07.1984, when deceased Gauri Shanker and his minor son Ganesh Shanker, aged 11 years were returning from their agricultural field, on the way, they saw the accused persons sitting near the 'Babool' tree and at the relevant time, accused Rajol and Mahboob were having axe with them, whereas the other accused Munia and Mukta were armed with clubs. Accused Rajol had asked the other accused persons that this is the best opportunity to ensure that the enemy may not escape from there and then all of them caused injuries to the deceased. Further case of the prosecution is that the incident has been witnessed by PW-2, Ganesh Shanker from 20-25 steps and hearing the cries of PW-2, his uncle PW-3, Radhey Shyam, who at the relevant time had gone to attend the nature's call also reached to the place of occurrence. Another eye witness PW-6, Surendra Singh is also alleged to have seen the incident but he has not supported the prosecution case and has been declared hostile. Further case of the prosecution is that after causing injuries to the deceased, accused persons lifted him and threw him in the canal. On 17.07.1984, the dead body of the deceased was found from the canal. In the meanwhile, on the basis of written report Ex.Ka-4 prepared and lodged by PW-2, Ganesh Shanker, a child witness, on 14.07.1984, FIR Ex.Ka-1 was registered on 15.07.1984 at 00:30 a.m. against the accused-appellants under Sections 302/201 of IPC. 3. Inquest on dead body of the deceased was conducted on 17.07.1984 vide Ex.Ka-6 and the body was sent for postmortem, which was conducted on 18.07.1984 by PW-4, Dr. Shashi Kumar Singh vide Ex.Ka-5. 4. 3. Inquest on dead body of the deceased was conducted on 17.07.1984 vide Ex.Ka-6 and the body was sent for postmortem, which was conducted on 18.07.1984 by PW-4, Dr. Shashi Kumar Singh vide Ex.Ka-5. 4. As per the postmortem report, following 13 injuries were noticed on the body of the deceased: "1. Incised wound 7 cm x 2 cm x bone deep left cheek left side mouth to right jaw. Jaw fractured. 2. Incised wound 9 cm x 1.5 cm x bone deep left cheek upper part of left neck maxila fractured. 3. Incised wound 9 cm x 1.5 cm x bone deep left cheek under left ear. Bone found cut and brain matter coming out. 4. Incised wound 5 cm x 1 cm x muscle deep on left lower side of neck. 5. Incised wound 5 cm x 1 cm x bone deep right chin to right side mouth. Jaw found cut. 6. Abrasion 9 cm x 8 cm on right cheek front. 7. Incised wound 10 cm x 2 cm x muscle deep at upper side of right side of neck. 8. Incised wound 7 cm x 2 cm x muscle at lower side of neck. 9. Lacerated wound 5 cm x 2 cm on right side of head 7 cm above right ear. 10. Incised wound 3 cm x 0.5 cm x muscle deep right side of scapula region. 11. Incised wound 9 cm x 2 cm x muscle deep right side of scapula region 9 cm above from Iliac bone and 7 cm right from middle line. 12. Multiple contusion in an area of 25 cm x 20 cm on back of abdomen over mid line size 5 cm x 1.5 cm to 12 cm x 2 cm. 13. Contusion 9 cm x 2 cm right buttock." According to autopsy surgeon, cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries. 5. While framing charge, the trial Judge has framed the charge against the accused persons under Sections 302/34 and 201 of IPC. 6. So as to hold accused-appellants guilty, prosecution has examined seven witnesses. Statements of accused-appellants were recorded under Section 313 Cr.P.C, in which they pleaded their innocence and false implication. 7. By the impugned judgment, the trial Judge has convicted all the accused persons and sentenced them as mentioned in paragraph no. 6. So as to hold accused-appellants guilty, prosecution has examined seven witnesses. Statements of accused-appellants were recorded under Section 313 Cr.P.C, in which they pleaded their innocence and false implication. 7. By the impugned judgment, the trial Judge has convicted all the accused persons and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence, this appeal. 8. Learned counsel for the appellants submits: (i) that the motive has not been proved by the prosecution. (ii) that the accused-appellants have been convicted mainly on the basis of statement of a child witness PW-2, Ganesh Shanker, who at the time of incident was 11 years of age. It has been argued that the statement of PW-2 does not inspire the confidence of this Court and he appears to be a tutored witness. Learned counsel submits that a very improbable story has been put forth by PW-2 Ganesh Shanker that he was going ahead of the deceased and after hearing the cries of deceased, when he turned back, he saw the incident from 20-25 steps. Learned counsel submits that normally in presence of a child, aged 11 years, if such brutal act is being done, instead watching the incident, he would run away from the spot. (iii) that as per PW-2, Ganesh Shanker, he prepared FIR at his home and thereafter, he has stated that the FIR was prepared at the place of occurrence. PW-2 has categorically stated that but for him, there was no other eye witness, who could see the incident. (iv) that the other eye witness PW-3, Radhey Shyam is a planted witness and actually, he had not seen the occurrence. (v) that in a case of child witness, if he does not inspire confidence of this Court, normally the Court would look for a corroborative piece of evidence but in the present case, no such other evidence is there. 9. On the other hand, supporting the impugned judgment, it has been argued by State counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same. He submits that in a case of eye witness, even if motive has not been proved by the prosecution, it will not dent the case of prosecution. He submits that in a case of eye witness, even if motive has not been proved by the prosecution, it will not dent the case of prosecution. He further submits that PW-2, Ganesh Shanker, the child witness, appears to be a very mature witness and in the Court but for minor contradictions, he remained firm. 10. We have heard counsel for the parties and perused the record. 11. Pw-2, Ganesh Shanker is the main witness of the prosecution, aged 12 years at the time of recording of his evidence, states that on the date of occurrence at about 4:00 PM, he had gone to his field along with his father and at about 06:00-06:30 p.m., when they were returning, he saw accused persons standing near the 'Babool' tree and at that time accused Rajol and Mahboob were having axe with them, whereas other two accused were carrying clubs with them. He states that he was going ahead of his father and near the 'Babool' tree, accused persons surrounded his father by saying that this is the best opportunity for them to ensure that their enemy may not escape and then they started beating his father. He immediately turned his face and then raised cries and upon hearing the same, PW-3, Radhey Shyam, Ram Swaroop (not examined), PW-6, Surendra Singh reached to the place of occurrence and they challenged the accused persons. After causing injuries to his father, accused persons dragged him to a canal and threw him in the water. After about five minutes, accused persons fled away from the spot. He has stated that the other eye witnesses to the incident reached to the place of occurrence after the accused persons had already left the place. In the canal, dead body of his father was searched and by that time, other villagers also reached there but they also could not get him. After reaching home, in a piece of paper, he prepared written report Ex. Ka-4 and then lodged the report. In the cross-examination, he has stated that after taking his bath, deceased was wearing clothes including drawers, however, when he was lifted and dragged by accused persons, he was naked. In paragraph no. 8 he has further stated that after hearing the cries of his father, when he turned back, his father was about 30-35 steps away and by that time, he had already fallen. In paragraph no. 8 he has further stated that after hearing the cries of his father, when he turned back, his father was about 30-35 steps away and by that time, he had already fallen. He has not said as to after sustaining injuries of which of the accused, his father fell nor he could see as to which weapon was used by which of the accused. He further states that after cries being raised by his father, he (this witness) also raised his cries but nobody could come near to him and his father and the other witnesses reached to the place of occurrence after the body of the deceased was thrown in the canal. He further states that before the body of his father could be thrown, no witness was present. He has again stated that he could not see as to how many injuries have been caused by the accused persons by using which weapon. He states that he saw the witness Surendra Singh from the distance of about 80-90 steps and likewise, the other eye witness to the incident PW-3, Radhey Shyam was standing about 70-80 steps from him. He further states that at the time of lodging the FIR, Surendra Singh and Ram Swaroop were with him and then he states that the FIR was reduced in writing at the place of occurrence in a lantern light. He further states that he brought pen and paper from his house and after preparing the report, he folded the same, kept in his pocket then had gone to police station on foot and it took about 2-2= hours to him to reach the police station. He further states that after two days of the incident, he came to know that the dead body of his father has been recovered. He further states that a question was put to this witness as to why he did not reduce the report in writing in his house, he replied that his uncle PW-3, Radhey Shyam and Ram Swaroop had asked him to prepare the report at the place of occurrence. 12. Pw-1, Anek Singh is a police constable, who registered FIR. 13. He further states that a question was put to this witness as to why he did not reduce the report in writing in his house, he replied that his uncle PW-3, Radhey Shyam and Ram Swaroop had asked him to prepare the report at the place of occurrence. 12. Pw-1, Anek Singh is a police constable, who registered FIR. 13. Pw-3, Radhey Shyam is a brother of the deceased and uncle of PW-2, Ganesh Shanker, states that at the time of occurrence, he had gone to attend nature's call and saw PW-2 running towards the village by raising cries. When he reached near PW-2 and inquired from him, PW-2 informed him that his father is being assaulted and then he (this witness) also started shouting, however, he did not reach near his brother. He states that he saw the accused persons beating his brother and then they dragged him to a canal and threw him in the same. The accused persons waited there for few minutes and then fled away from the spot. He further states that after cries being raised by him and his nephew, none of the villagers reached to the place of occurrence and they reached there after the incident. He further states that he saw the faces of the accused persons after 'maar-peet' had already taken place. 14. Pw-6, Surendra Singh, other eye witness to the incident, has not supported the prosecution case and has turned hostile. PW-4, Dr. Shashi Kumar Singh conducted postmortem on the body of the deceased. PW-5, A.V. Singh took the body of the deceased for postmortem. PW-7, Aadil Raseed is an Investigating Officer. 15. Close scrutiny of the evidence makes it clear that the entire case of the prosecution hinges upon the statement of a child witness i.e. PW-2, Ganesh Shanker, who at the time of occurrence, was about 11 years. It is a settled proposition of law that the conviction of an accused c be based solely on the statement of a child witness. However, the Court as a rule of prudence while considering such evidence is required to make close scrutiny of the said evidence and only on being convinced about the quality thereof and reliability can record the conviction, based thereon. 16. However, the Court as a rule of prudence while considering such evidence is required to make close scrutiny of the said evidence and only on being convinced about the quality thereof and reliability can record the conviction, based thereon. 16. In Panchi v State of U.P., (1998) 7 SCC 177 the Hon'ble Supreme Court, while dealing with the issue relating to the evidence of child witness, held as under:- ".....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, 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 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." 17. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 it was held as follows: (SCC p. 343, para 5) "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." 18. The position of law relating to the evidence of a child witness has also been dealt with by the Apex Court in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, (2008) 12 SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh, (2008) 4 Scale 569 . The position of law relating to the evidence of a child witness has also been dealt with by the Apex Court in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, (2008) 12 SCC 565 and Golla Yelugu Govindu v. State of Andhra Pradesh, (2008) 4 Scale 569 . In the case of State of UP vs Krishna Master & Ors., (2010) 47 OCR 263 (SC) the Hon'ble Apex Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. 19. If the above preposition of law is considered in the present case, though in the Court, PW-2, Ganesh Shanker has deposed against the accused persons but he is not consistent and reliable to the incident, where it can be said that he is not a tutored witness. As per his own saying, he was going ahead of his father and after hearing cries of his father, he turned back his face and saw the incident from 20-25 steps. He further says that when he saw his father, he was already lying on the ground and he could not see as to which weapon was used by which of the accused. He further states that upon hearing his cries, the other witnesses reached there but in the cross-examination, he has clarified that till the dead body of his father was thrown in the water and the accused persons fled away from the spot, no other witness reached to the place of occurrence. According to him, it is only he, who could see the incident and the other witnesses reached to the place of occurrence after the incident had already taken place. In respect of preparing the written report, he has given two different versions. According to him, it is only he, who could see the incident and the other witnesses reached to the place of occurrence after the incident had already taken place. In respect of preparing the written report, he has given two different versions. At one place, he states that after the incident, he had gone to his house, which as per evidence is about 200-250 steps away from the place of occurrence, prepared the written report in his house itself and then lodged the same, whereas in other place, he states that he brought pen and paper from his house and sat at the place of occurrence and in a lantern light, prepared the written report. It is relevant to note here that at the time of preparation of written report, apart from two other eye witnesses, PW-3, Radhey Shyam and PW-6, Surendra Singh, the other village members were also present but surprisingly, a child aged 11 years was allowed to prepare a written report in presence of all these persons. Further, PW-3 himself prepared the entire report, folded it, kept in his pocket and then had gone to the police station which is about 2-2= hours away from the place of occurrence. From the contents of the FIR, it becomes doubtful as to whether the same has been prepared by a child aged 11 years that too of a residence of a village. 20. Yet another important aspect of the case is that before recovering the dead body of the deceased, which was recovered on 17.07.1984, FIR was already registered against the accused persons under Sections 302/201 of IPC on the basis of written report Ex.Ka-4 and as per contents of FIR, after beating the deceased, accused persons lifted and dragged his body and threw him in a canal but how it was clear to the lodger of the FIR that the deceased has been killed specially when till registration of the FIR, his dead body was not recovered by the police. Contradictions in the statement of PW-2, Ganesh Shanker creates a doubt as to whether the FIR was prepared by him or not and as to whether he has been tortured or not. When the statement of PW-2 is not clinching and conclusive, we are required to see the other evidence available on record. Contradictions in the statement of PW-2, Ganesh Shanker creates a doubt as to whether the FIR was prepared by him or not and as to whether he has been tortured or not. When the statement of PW-2 is not clinching and conclusive, we are required to see the other evidence available on record. In the present case but for statement of PW-2, there is no other evidence, which can be relied upon by the Court. PW-3 Radhey Shyam has been examined as eye witness to the incident but PW-2 has categorically stated that at the time of occurrence but for him no one else was present. Once, the presence of PW-3, Radhey Shyam has been totally denied by PW-2, we find it difficult to accept the testimony of PW-3. The other eye witness to the incident i.e. PW-6, Surendra Singh has not supported the prosecution case and has turned hostile. Though the statement of PW-2 raises needle of suspicion on the accused persons but it is a settled preposition of law that suspicion howsoever grave it is, cannot take place of evidence. Recently in Devi Lal vs. State of Rajasthan, 2019 AIR SC 688 the Apex Court, while dealing with a case, observed as under: "On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof." 21. Taking cumulative effect of the evidence, we are of the view that the accused-appellants are entitled to get the benefit of doubt. In Kali Ram vs. State of Himachal Pradesh, (1973) AIR SC 2773, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under: "26. Taking cumulative effect of the evidence, we are of the view that the accused-appellants are entitled to get the benefit of doubt. In Kali Ram vs. State of Himachal Pradesh, (1973) AIR SC 2773, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under: "26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal. 27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. 27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr., AIR 1973 SC 2622 as is clear from the following observations: "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations." 22. In our considered view, on the basis of weak evidence adduced by the prosecution, the trial court was not justified in convicting the accused-appellants. 23. The appeal is allowed. The impugned judgment and order is set aside. The accused-appellants are reported to be on bail, therefore, no further order is required. 24. Let a copy of this judgment be sent to the concerned trial Court forthwith for compliance.