JUDGMENT A.K.Mishra, J. - The appellants were convicted under Section 148 of the Indian Penal Code (hereinafter referred to as "I.P.C. in brevity) and under Section 302 read with Section 149 of the I.P.C. and sentenced to undergo for six months rigorous imprisonment for the former while imprisonment for life for the later in the judgment dated 31.05.1999 in Sessions Case No. 72 of 1999 passed by learned Additional District and Sessions Judge, Malkangiri. 2. Tersely put, prosecution case is that on 11.09.1997 at about 6.00 P.M. in village Erbanpalli deceased Kamarami Nanda was guarding his paddy field. His daughter P.W.4 was present there. All the accused persons being armed with bows and arrows chased him shooting arrows, the deceased ran and fell down at a distance and succumbed to injuries. On next day at 12.00 Noon the nephew of the deceased reported the matter in written at Podia Police Out-Post. The A.S.I. (P.W.8) made station diary entry and sent the F.I.R. to the O.I.C., Kalimela Police Station where the same was registered vide Kalimela P.S. Case No. 35 dtd. 13.07.1997. The A.S.I. took up investigation, arrested the accused persons, examined the witnesses and conducted inquest over the dead body. Doctor (P.W.6) conducted postmortem on 13.07.1997 and submitted postmortem examination report Exhibit-3 and also opinion as to the seized M.Os. vide Ext.4. After completion of investigation Charge-sheet was submitted. Learned Judicial Magistrate, First Class, Motu took cognizance and committed case to the Court of Session. All the appellants faced trial for offence under Section 148 of the I.P.C. and Section 302 read with Section 149 of the I.P.C. 3. The plea of defence is denial simpliciter. 4. Prosecution has examined nine witnesses in all, defence examined none. F.I.R., Inquest report, chemical report and postmortem report etc. are marked as Exhibits- 1 to 16. Seized Kati and arrows are made M.O. - I to M.O.-V 5. P.W.1 the nephew of the deceased is the informant. P.W.2 is the scribe of the F.I.R. Ext.1. P.W.5, wife of the deceased is a post occurrence witness along with P.Ws, 2 and 3. P.W.4 is the daughter of the deceased, a child eyewitness. P.W.6 is the Medical Officer. P.W.7 is the Constable who took the dead body to the hospital for postmortem. P.W.8 is the A.S.I. of Podia Police Out-post, who conducted initial investigation. P.W.5, wife of the deceased is a post occurrence witness along with P.Ws, 2 and 3. P.W.4 is the daughter of the deceased, a child eyewitness. P.W.6 is the Medical Officer. P.W.7 is the Constable who took the dead body to the hospital for postmortem. P.W.8 is the A.S.I. of Podia Police Out-post, who conducted initial investigation. P.W.9 is the O.I.C. of Kalimela P.S., who has submitted the Chargesheet. Learned Additional Sessions Judge, Malkangiri found that P.W.3 who is declared hostile is believable to the extent that accused persons did not turn up to the Panchayat. P.Ws 1 and 2 are found to be post occurrence witnesses. P.W.5, the wife of deceased is found to have contradicted with her earlier statement duly proved through I.O. P.W.8 vide para-19 that she had seen the accused persons at the spot after occurrence and for that not reliable. Appreciating the evidence of P.W.4 child witness and believing her as an eyewitness learned Addl. Sessions Judge convicted the accused persons/appellants as stated above. 6. Mr. J.K.Panda, learned counsel for the appellants submitted that the sole eyewitness P.W.4 being a child is not reliable and her statement being translated in the court, is found to have been not done with regard to his understanding of the questions put to her. Mr. Panda further submitted that in absence of motive, the evidence of a child witness which is inconsistent in nature should not be relied upon to base conviction particularly when the F.I.R. lodged after one day naming eight persons and got registered after two days of the occurrence and postmortem was conducted thereafter. 7. Mr. S.Zafarulla, learned Additional Standing Counsel supported the judgment on the ground that the child witness P.W.4 is trustworthy enough to base conviction and one interpreter was appointed to communicate between the witness and the court during recording of deposition. 8. Keeping the above rival contentions, before testing the reliability of the testimony of child witness P.W.4, the contour of situational narratives culled out from the evidence needs to be addressed. 9. The evidence of doctor P.W.6 discloses that on 13.07.1997 he conducted postmortem of the deceased Kamarami Nanda and found seven ante mortem injuries vide Ext. 3 and the time of death was within 36 to 48 hours. In cross examination he admits that the cause of death was due to shock and haemorrhage. 9. The evidence of doctor P.W.6 discloses that on 13.07.1997 he conducted postmortem of the deceased Kamarami Nanda and found seven ante mortem injuries vide Ext. 3 and the time of death was within 36 to 48 hours. In cross examination he admits that the cause of death was due to shock and haemorrhage. So the death of deceased on 11.07.1997 at 6.00 P.M. is found to be homicidal in nature. Fact remains proved that after two days of the incident the postmortem was conducted. The F.I.R. Ext.1 discloses the name of eight accused persons and name of appellant-Madakami Moka was not mentioned therein. It cannot be said that the F.I.R. Ext.1 was lodged in hot haste. 10. The competency of P.W.4 a child witness is now the eye point. She was examined on 23.09.1998 stating her age to be 10(ten) years. She was given solemn affirmation. The Presiding Officer has mentioned that she gave reasonable answers to the questions asked. Thereafter Presiding Officer has also mentioned in deposition sheet that the witness knew only "Koya" language and on consent of counsel one interpreter was appointed to interpret "Koya" language into Oriya. Neither the deposition sheet nor the order sheet discloses the questions put by the Presiding Officer to the witness to test her competency. Even there is no mention that such questions were translated through the interpreter. This witness on recall was again crossexamined on 22.5.1999. The evidence was recorded as per the procedure prescribed under Section 276 of the Cr.P.C. Section 277 of the Cr.P.C. provides that if the witness gives evidence in any other language, other than the language of the Court, a true translation of the evidence shall be provided. If the evidence is taken down in English and translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation. As P.W.4 knew only "Koya" language and did not know Oriya language, the Presiding Officer should have kept the questions put to her in the threshold to determine her competency. In the decision : Ratansinh Dalsukhbhai Nayak V. State of Gujarat, 1997 5 SCC 341 it is stated by the Honble Apex Court that:- "7. As P.W.4 knew only "Koya" language and did not know Oriya language, the Presiding Officer should have kept the questions put to her in the threshold to determine her competency. In the decision : Ratansinh Dalsukhbhai Nayak V. State of Gujarat, 1997 5 SCC 341 it is stated by the Honble Apex Court that:- "7. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of makebelieve." In the case at hand learned Presiding Officer has not preserved anything in the record that the questions put by him to P.W.4 and the answer received had undergone a process of translation to determine her competency. It may be started here that while recalling P.W.4 for further cross-examination vide order dated 27.03.1999 the learned Addl. Sessions Judge found that the allegation that the interpreter mislead the court was not correct. This shows that defence has questioned the recording of the evidence of P.W.4. In the decision : R.Ramesh Vs. State Rep. By Inspector of Police,2019 76 OCR(SC) 34 the Honble Apex Court has held that:- "12. What the trial judge was required to determine was whether the children were in a fit and competent state of mind to depose and were able to understand the purpose for being present on the occasion. Prior to the recording of evidence of a child witness, the Trial Court must undertake the exercise of posing relevant questions to determine the capacity of the child witness to provide rational answers. This exercise would allow the court to determine whether the child has the intellectual and cognitive skills to recollect and narrate the incidents of the crime." 11. In the light of above law, the testimony of P.W.4 may be seen, least it may overcome the shadow raised on her competency. What P.W.4 has testified is found contrary on material part. This exercise would allow the court to determine whether the child has the intellectual and cognitive skills to recollect and narrate the incidents of the crime." 11. In the light of above law, the testimony of P.W.4 may be seen, least it may overcome the shadow raised on her competency. What P.W.4 has testified is found contrary on material part. She has stated that when all the accused persons armed with bows, arrows and Tangia came, her father started running. The accused persons chased him and shoot arrows, the deceased fell down. Her father had a Kati (M.O.-I) in his hand. After he fell down, accused Kawasi Unga snatched away Kati and dealt blows to his right side neck as a result deceased expired. Thereafter she immediately returned to her house and narrated to her mother and uncle P.W.1 informant. In cross examination she has stated that even though it was evening she and her father were present in the land and the dead body was found near the boring tube-well at a distance of 1.5 K.M. from the land and after chasing such a distance they murdered the deceased. She was contradicted with the statement under Section 161 Cr. P.C. that accused Kawasi Unga snatched away the Kati from the hand of the deceased and dealt blows to the neck and back of the deceased. She was also contradicted with her previous statement under Section 161 Cr.P.C. that she had stated that only three accused persons namely, Madhi Kosa, Deba and Bhima chased her father and when her father was running, other accused persons restrained him on the way. The above contradiction with regard to 161 Cr.P.C. statement of this witness brought out in para-4 is found to have been proved through the I.O. (P.W.8) in para-18. This witness has stated that she had accompanied with her mother and uncle to the police station where the F.I.R. was written in her presence. It may be stated that in the F.I.R. one appellant-Madakami Moka was not named. The above material contradiction in respect of a child witness creates doubt about her reliability. If this witness has stated about nine persons at the time of preparation of F.I.R., it is not understood as to how F.I.R. had contained only eight names. It may be stated that in the F.I.R. one appellant-Madakami Moka was not named. The above material contradiction in respect of a child witness creates doubt about her reliability. If this witness has stated about nine persons at the time of preparation of F.I.R., it is not understood as to how F.I.R. had contained only eight names. This contradictory part of the evidence of P.W.4 if separated from her testimony, nothing substantial is left to ascertain as to who the accused persons first approached the spot land and then chased upto a distance of 1.5 K.M. near the tube-well. It may not be ignored that doctor has stated that injury no.7 caused by arrow shooting was the cause of death. So the person who gave fatal blow is not clear. In the decision: Amrika Bai Vrs. The State of Chhattisgarh, 2019 AIR(SC) 1831 Honble Supreme Court has observed that:- "12. The law is well-settled on the aspect that mere presence in an unlawful assembly cannot render a person liable unless there was a common object, being one of those set out in Section 141 I.P.C. and she was actuated by that common object.[See: Dani Singh v. State of Bihar, 2004 13 SCC 203 ]" P.W.5, the mother of child and wife of the deceased has categorically denied to know the reason for which deceased was murdered. So prosecution is not able to show the motive behind the incident. 12. It transpires that the evidence of child witness P.W.4 is not free from material contradiction. Her credibility is doubtful. She did not know the Oriya language for which an Interpreter was appointed, but there is no material preserved in the lower court record that the questions put to her to test competency was also undertaken through the process of interpreter. As the evidence is not cogent and clear, P.W.4 is found wholly unreliable. The conviction based upon such testimony is not sustainable in the eye of law. 13. In the result, the conviction of the appellants under Sections 148/302/149 of the I.P.C. and sentence passed there on vide judgment dated 31.05.1999 by the learned Addl. District & Sessions Judge, Malkangiri is hereby set aside. The accused persons are acquitted and they are set at liberty. 14. Appellant No. 2 was granted bail on 21.11.2000 while other appellants were granted bail on 10.03.2000, hence, their bail bonds stand cancelled. 15. District & Sessions Judge, Malkangiri is hereby set aside. The accused persons are acquitted and they are set at liberty. 14. Appellant No. 2 was granted bail on 21.11.2000 while other appellants were granted bail on 10.03.2000, hence, their bail bonds stand cancelled. 15. The Appeal is allowed. 16. Return the L.C.R. immediately to the lower court.