JUDGMENT PRITINKER DIWAKER, J. 1. This appeal arises out of the impugned judgment and order dated 01.05.2008 passed by the Additional Sessions Judge/Special Judge, EC Act, Fatehpur in Sessions Trial No.834 of 2006, convicting appellant no.1, Vinod Sonkar under Section 302 of IPC and sentencing him to undergo imprisonment for life and imposing fine of Rs. 10,000/-, in default thereof, to undergo 10 months additional simple imprisonment, under Section 498-A of IPC and sentencing to undergo two years rigorous imprisonment and imposing fine of Rs. 5000/-, in default thereof, to undergo five months additional simple imprisonment, under Section 3 of Dowry Prohibition Act and sentencing to undergo five years rigorous imprisonment and imposing fine of Rs. 15,000/-, in default thereof, to undergo one year and three months additional simple imprisonment, under Section 4 of Dowry Prohibition Act and sentencing to undergo six months rigorous imprisonment and imposing fine of Rs. 1000/-, in default thereof, to undergo one month additional simple imprisonment, and further, convicting appellant no.2-Dhunni under Section 498A of IPC and sentencing him to undergo two years rigorous imprisonment and imposing fine of Rs. 5000/-, in default thereof, to undergo five months additional simple imprisonment and under Section 4 of Dowry Prohibition Act and sentencing to undergo six months rigorous imprisonment and imposing fine of Rs. 1000/-, in default thereof, to undergo one month additional simple imprisonment. All sentences shall run concurrently. 2. In the present case, name of the deceased is Suman, wife of accused no.1-Vinod Sonkar. Accused no.2-Dhunni is brother-in-law (Jeth) of the deceased. It is an undisputed fact that both the accused persons were living separately, however, at times, accused no.2 used to visit his brother Vinod Sonkar. Marriage of the deceased and accused no.1 was solemnized on 6.6.1993. On 29.9.2006, at about 11:30 am, deceased suffered 95% burn injury when she was in her house, she was immediately taken to Hospital by accused no.1 where, at 3:15 pm, she expired. On 4.10.2006, FIR Ex. Ka.7 was lodged by (PW-1) Naresh Kumar Sonkar, brother of the deceased against the appellants under Sections 498-A and 302 of IPC and Section 3/4 of Dowry Prohibition Act. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.1 on 30.9.2006 and the body was sent for postmortem which was conducted on the same day, vide Ex.Ka.3 by (PW-3) Dr. B N Srivastava. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.1 on 30.9.2006 and the body was sent for postmortem which was conducted on the same day, vide Ex.Ka.3 by (PW-3) Dr. B N Srivastava. As per Autopsy Surgeon, the following injuries were sustained by the deceased: "Superficial to deep burn injury all over the body except (R) leg and both soles. Singeing of scalp hairs are present. Line of redness is present in all burnt areas of body." The cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem injuries caused by extensive burn. 3. While framing charge, the trial Judge has framed charge against accused no.1-Vinod Sonkar under Sections 498-A, 302 of IPC and 3/4 of Dowry Prohibition Act, alternate charge of Section 306 of IPC was also framed against him. Against accused no.2-Dhunni, charge was framed under Sections 498-A of IPC read with Section 3/4 of Dowry Prohibition Act. 4. So as to hold the accused persons guilty, prosecution has examined seven witnesses, whereas three defence witnesses have also been examined. Statements of the accused persons were also recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication. 5. By the impugned judgment and order, the trial Judge has convicted the appellants, as mentioned in paragraph 1 to this judgment. 6. Counsel for the appellants submits: (i) that the conviction of the appellants is mainly on the basis of the statement of (PW-2) Ekta Sonkar, daughter of accused no.1 and the deceased, aged 12 years. Ekta Sonkar, in her Section 161 of Cr PC statement dated 11.10.2006, has not stated that her mother was burnt by accused no.1. However, while improving in the Court, she has narrated so. (ii) that as per diary statement of Ekta Sonkar, at the time of occurrence, she was in her School; information was passed on to her and then she came running to her house, where she noticed the crowd and then she came to know that her mother has suffered burn injury. She stated in her diary statement that when she asked her mother as to how she suffered burn injury, it was informed by her mother that she suffered burn injury by Gas burner. She stated in her diary statement that when she asked her mother as to how she suffered burn injury, it was informed by her mother that she suffered burn injury by Gas burner. (iii) that the diary statement of Ekta Sonkar was recorded on 11.10.2006, i.e. after about 12 days of the incident and there is no justification for this delay. (iv) that from the beginning, Ekta Sonkar used to live with her maternal grandfather, maternal grandmother and maternal uncles and even after the incident, she was residing there. Learned counsel submits that in the given facts and circumstances of the case, it is apparent that she is a tutored witness and has falsely implicated the appellants. (v) that even otherwise, a very improbable story has been put forth by the prosecution which does not tally with surrounding circumstances. (vi) that no seizure of kerosene jerry can has been made from the spot. (vii) that the deceased either appears to have committed suicide or suffered accidental burn injury. (viii) that after seeing the smoke from the room of the deceased, it was noticed that the door was closed from inside, which was broke open by the neighbours and then the deceased was found in a burnt condition. (ix) that it is accused no.1-Vinod Sonkar who hospitalized the deceased. Had accused no.1 caused burn injury to the deceased, he would also have suffered some burn injury. (x) that no smell of kerosene oil has been noticed by Doctor, nor any such recovery of incriminating article has been made. (xi) that no specific role has been attributed to accused no.2-Dhunni, he was living separately and has been convicted only on the basis of bald statements of some of the witnesses. (xii) that even if the entire allegation made against accused no.2-Dhunni is accepted as it is, no offence whatsoever is made out against him. (xiii) that, at worst, accused no.1-Vinod Sonkar can be convicted under Section 498-A of IPC read with Section 3/4 of Dowry Prohibition Act, however, he has already served jail sentence of more then ten years and cannot be kept behind the bars any more. 7. On the other hand, supporting the judgment and order of the trial Court, it has been argued by the learned State Counsel: (i) that the conviction of the appellants is in accordance with law and there is no infirmity in the same. 7. On the other hand, supporting the judgment and order of the trial Court, it has been argued by the learned State Counsel: (i) that the conviction of the appellants is in accordance with law and there is no infirmity in the same. (ii) that (PW-2) Ekta Sonkar, daughter of accused no.1 and the deceased, has deposed against the appellants and has categorically stated as to the manner in which, her mother was burnt. (iii) that normally a daughter would not falsely implicate her father unless there is some involvement of her father in commission of offence. (iv) that in the case of a child witness, her/his statement has to be evaluated minutely and as (PW-2) Ekta Sonkar was terrified, she kept quiet for about ten days and her conduct appears to be natural. 8. We have heard learned counsel for the parties and perused the record. 9. (Pw-1) Naresh Kumar Sonkar, is a brother of the deceased, he is also the first informant. He states that the marriage of the deceased was solemnized with accused no.1-Vinod Sonkar on 6.6.1993 and at the time of marriage, sufficient dowry was given to the couple. He states that from the beginning, the accused persons used to make demand of Rs. 3 lakhs for purchasing a house at Kanpur and the registry of the said house was done in the name of the deceased. He further states that even after the birth of (PW-2) Ekta Sonkar, accused persons used to demand money. He further states that on several occasions, he had gone to the house of the accused persons to make them understand, a Suit for maintenance was also filed by the deceased, which was later compromised and thereafter, accused no.1 was living separately along with the deceased. He states that on the date of incident, he came to know that his sister suffered burn injury. 10. (Pw-2) Ekta Sonkar, is a child witness, aged 12 years. She is also the daughter of accused no.1-Vinod Sonkar and the deceased. She states that on 29.9.2006 from the morning, accused no.1 was quarreling with the deceased and at about 11:30 am, her father poured kerosene oil on her mother and set her ablaze. Her father had threatened her for not disclosing the incident to anyone, otherwise same treatment would be given to her also. Upon hearing this, she got scared and kept quiet. Her father had threatened her for not disclosing the incident to anyone, otherwise same treatment would be given to her also. Upon hearing this, she got scared and kept quiet. After much insistence of the neighbours, accused no.1 took her mother to the hospital, where she expired. After leaving the deceased as it is in the hospital, accused no.1 fled away from the spot and despite search, he could not be traced. In cross-examination, (PW-2) Ekta Sonkar admits that most of the times, she and her mother used to reside with her maternal grandfather, maternal grandmother and maternal uncles. She states that there were two rooms in the house where her parents were residing and one room was being used as kitchen also, where her mother used to cook food on Gas burner. She further states that accused no.1 used to go to his School on his bicycle and likewise, she also used to go to her School on her bicycle. She further states that the kerosene jerrycan was of 5 liters, but she is not sure as how much kerosene was there in the said jerrycan. When she was confronted from her diary statement, she has stated that she did inform the Police that her mother was burnt by accused no.1 and, if the said fact is not recorded by the Police, she could not tell the reason. She further states that she never informed the Police that at the time of incident, she was in her School where she was informed by her teacher and a peon about any such incident. She further states that she never informed the Police that when she returned from her School, she noticed number of persons standing near her house and that her mother was in a burnt condition and she also did not inform the Police that her mother disclosed that she suffered accidental burn injury by Gas burner. She states that the fact that a demand of Rs. 2 lakhs was made by accused no.2 Dhunni and her father was also informed to the Police, but if the same is not recorded, she could not tell the reason. She has admitted the fact that she grew in the house of her maternal grandfather, maternal grandmother and maternal uncles, she believes them a lot and whatever they say, she takes it as a truth. She has admitted the fact that she grew in the house of her maternal grandfather, maternal grandmother and maternal uncles, she believes them a lot and whatever they say, she takes it as a truth. She states that even on the date of recording her statement in the Court, she has come along with her maternal grandmother and maternal uncles and whatever was told by her maternal grandmother, she is narrating. She states that when her mother suffered burn injury, all the doors of her house were closed and her mother never raised any cries after being burnt. She states that she did not disclose the incident to her neighbours. 11. (Pw-3) Dr B N Srivastava, has conducted the postmortem on the body of the deceased. 12. (Pw-4) Rajendra Prasad Ojha, is a witness of Inquest. 13. (Pw-5) Rajender Prasad, registered the FIR. 14. (Pw-6) Baldhari Singh, is the Investigating Officer. He has stated that (PW-2) Ekta Sonkar never informed him that the deceased was burnt by accused no.1, or that she was ever threatened by accused no.1 that she too would be burnt. He states that PW-2 has informed him that, at the relevant time, she was in her School and she came to know about the untoward incident from her teacher and a peon and when she reached to her house, she noticed number of persons around her house and found her mother in a burnt condition, who disclosed her that she suffered burn injury from the Gas burner. He states that PW-2 further informed him that after the incident, accused no.1 reached there along with some teachers (his colleagues) and then, he took the deceased to the hospital. 15. (Pw-7) Dr B K Gupta, initially examined the deceased. 16. (Dw-1) Raghuraj Singh, is the Principal of the School where (PW-2) Ekta Sonker was studying. He has stated that on 29.9.2006, (PW-2) had attended her School and there an information was received that her mother has suffered burn injury; she was immediately taken from School by one of the teachers to her house. 17. (Dw-2) Satya Prakash Tiwari, is a teacher, who took (PW-2) Ekta Sonkar from School to her house. 18. (Dw-3) Dr Shyam Narayan, is the Principal of the School, where accused no.1-Vinod Sonkar was working as a teacher. 17. (Dw-2) Satya Prakash Tiwari, is a teacher, who took (PW-2) Ekta Sonkar from School to her house. 18. (Dw-3) Dr Shyam Narayan, is the Principal of the School, where accused no.1-Vinod Sonkar was working as a teacher. He stated that on 29.9.2006, accused no.1 attended the School and the School hours were from 10:00 AM to 4:00 PM. 19. Close scrutiny of the evidence makes it clear that the entire prosecution case is based on the statements of (PW-2) Ekta Sonkar, a child witness, aged 12 years. In her diary statement, she has stated that, at the time of occurrence, she was in her School where she received information through her teacher and a peon that some incident had taken place in her house, she rushed to her house and found her mother in a burnt condition, who disclosed her that she (deceased) suffered burn injury from the Gas burner. In the Court, while taking summersault, she states that she saw her father pouring kerosene oil on her mother and setting her ablaze. She was duly confronted from her diary statement, where she merely states that her diary statement recorded by the Police, was not given by her. 20. It is a settled proposition of law that an accused can be convicted only on the basis of the statement of a child witness, but condition precedent is that the said statement should inspire the confidence of the Court and should be trustworthy. In Panchi v State of U.P., (1998) 7 SCC 177 the Apex Court, while dealing with the issue relating to the evidence of child witness, held as under:- "... ... ...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." With regard to the testimony of child witness, the Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & Ors., (2009) 12 SCC 731 held as under: "... ... ...The evidence of a child witness is not required to be rejected per se, but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. ... ...The evidence of a child witness is not required to be rejected per se, but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See: Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 ." In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 it was held as follows: (SCC p. 343, para 5) "... ... ...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." The proposition 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 . 21. Present is a case where the statement of a child witness is wholly unreliable and untrustworthy. In her diary statement, (PW-2) Ekta Sonker has never made any allegation against the accused persons whereas, while improving in the Court, she becomes an eye witness and implicate accused no.1 by saying that it is he who burnt her mother. From the statement of (PW-2), it is further clear that she was influenced by her maternal grandmother, maternal grandfather and maternal uncles. Most of the times, she used to live with them and even at the time of recording her statement in the Court, all those persons were present in the Court. She further admits that whatever has been narrated by her maternal grandmother, she is deposing in the Court. Furthermore, at the time of inquest, PW-1 Naresh Kumar Sonker (brother of the deceased) was present, but he has not made any allegation against the accused persons. 22. Considering the over all evidence of (PW-2) Ekta Sonkar, we are of the view that she is not a reliable witness and, therefore, accused no.1-Vinod Sonker cannot be convicted under Section 302 of IPC on the strength of the statement of (PW-2). 22. Considering the over all evidence of (PW-2) Ekta Sonkar, we are of the view that she is not a reliable witness and, therefore, accused no.1-Vinod Sonker cannot be convicted under Section 302 of IPC on the strength of the statement of (PW-2). Further, considering the entire evidence, in our considered view, appellant no.1 cannot be convicted either under Section 498-A of IPC or under Sections 3 and 4 of the Dowry Prohibition Act. He is, accordingly, acquitted of all the offence by giving him benefit of doubt. 23. But for bald statements made by some of the witnesses, there is absolutely no evidence against accused no.2-Dhunni, showing his involvement in commission of offence. Undisputedly, he was residing separately. In the facts and circumstances of the case, we are of the view that accused no.2 cannot be convicted for any offence. He is, accordingly, acquitted of all the offence. 24. Learned Sessions Judge has erred in convicting the accused appellants, whereas they are entitled for benefit of doubt. The judgment and order of the learned Sessions Judge is not sustainable in law, the same is, accordingly, set aside. 25. The appeal succeeds and is, accordingly, allowed. Appellant no.1-Vinod Sonker is reported to be in jail. He be set free forthwith, if not required in any other case. Accused no.2-Dhunni is reported to be on bail and, therefore, no order is required in his respect.