JUDGMENT : Per Ananda Sen, J. These criminal appeals are directed against the conviction and sentence of both the appellants vide judgment of conviction dated 16.07.2011 and order of sentence dated 19.07.2011 passed by learned 1st Additional Sessions Judge, Giridih in Sessions Trial No.50 of 2006, whereby the appellants have been convicted under Sections 302/34 and 201 of the Indian Penal Code and they have been sentenced to undergo R.I. for life for the offence punishable under Sections 302/34 of IPC further to undergo R.I. for two years each under Section 201 of IPC. 2. Learned counsel for the appellant submitted that entire case hinges on the testimony of the child witness aged about 5 years, but if his evidence is scrutinized properly, it would be clear that he had not seen the second part of the occurrence, thus, the reliance upon his testimony by the Trial Court to convict the appellants is bad in law. As per the appellants, save and accept the child witness there are no other witness, who had seen the occurrence. The testimony of all the other witnesses were hearsay, who had gathered the information from the child witness. If the testimony of the child witness is demolished, automatically the testimony of all the other witnesses have to be brushed aside. He further submits that non-examination of the Investigating Officer has caused prejudice to the appellants as neither the place of occurrence has been proved nor the weapon by which the deceased was assaulted was proved or recovered. Learned counsel for the appellants submits that the informant, who is P.W.-3, in his cross-examination has admitted that he is an accused in the case of murder of father-in-law of Mukesh Hazra [appellant in Cr. Appeal (D.B.) No.548 of 2011], that being so, there is high probability of false implication of these appellants. The child witness has stated that the deceased was first assaulted with the handle of the motor pump, but surprisingly the Doctor, who had conducted the postmortem did not find any injury on the face of the deceased, which creates a doubt about the correctness of the statement of the child. 3. Learned A.P.P. for the State submitted that a child of five years has seen the offence committed these appellants. 3. Learned A.P.P. for the State submitted that a child of five years has seen the offence committed these appellants. The child witness has stated that these appellants have first assaulted the deceased with the handle of the pump and thereafter threw the child in the pond. The postmortem report corroborates the fact that boy died due to drowning. The child witness has stated that he had seen the entire occurrence and there is nothing in his testimony to disbelieve him. It is the case of the prosecution that on the basis of the evidence, these appeals have to be dismissed. 4. The F.I.R. is at the instance of P.W.-3. The F.I.R. was lodged under Sections 302/201/34 of IPC. As per the prosecution case, the son of the informant who was aged about 6 years was playing near the pond. Kamal Hazra (Child witness) was also present there. Both the accused persons were irrigating their field when it is alleged that the son of the informant was disrupting the water supply by touching the diesel pump. The aforesaid act of the son of the informant caused annoyance to the appellants, as a result of which they assaulted the son of the appellant with the handle of the pump on his head, thereafter, he was thrown in the pond. The son of the informant was searched when Ruplal Hazra (child witness) son of Shital Hazra informed him about the entire incident. The body was recovered from the pond thereafter. 5. On the aforesaid fardbeyan, Bengabad P.S. Case No.116 of 2005 was registered under Section 302/201/34 of IPC. The police after investigation filed chargesheet under Section 302/34 and 201 of IPC. Cognizance was taken and the case was committed to the Court of Sessions. 6. As the appellants pleaded not guilty, charge was framed under Sections 302/34 and 201 of IPC and they were put on trial. Six witnesses have been examined in this case by the prosecution, who are as follows:- (i) P.W.-1-Dr. Rajesh (ii) P.W.2- Karu Hazra (iii) P.W.-3- Nakul Hazra, informant of these cases (iv) P.W.-4- Kaili Devi (v) P.W.-5- Gora Devi (vi) P.W.-6- Ruplal Hazra 7. Two Court witnesses were also examined. C.W.-1- Brahma Deo Hazra, who is grand-father of the deceased, is a hearsay witness and he has exhibited the inquest report, which has been marked as X for identification. Two Court witnesses were also examined. C.W.-1- Brahma Deo Hazra, who is grand-father of the deceased, is a hearsay witness and he has exhibited the inquest report, which has been marked as X for identification. C.W.-2- Kameshwar Prasad, exhibited the formal F.I.R., which has been marked as Exhibit-3 and the handwriting of scribe of the fardbeyan marked as Exhibit-4. He also identified the signature of Hawaldar in the inquest report, which was marked as Exhibit-5. 8. The prosecution has also exhibited the following documents:- Exhibit-1, Postmortem report. Exhibit-2 Signature of Nakul Hazra on the fardbeyan Exhibit-2/1 Signature of Suresh Hazra on the fardbeyan Exhibit-2/2 Signature of Khiru Hazra on the fardbeyan Exhibit-3 Formal F.I.R. Exhibit-4 fardbeyan and endorsement Exhibit-5 Inquest report. Mark X for identification on the inquest report. 9. When we analyze the evidence of the prosecution witnesses, we find that prosecution witness Nos.2, 3, 4 and 5 are not the eye witness to the said occurrence. They have gathered the information of the entire incident from P.W.-6. They have stated that the deceased boy was playing in the field and the appellants were irrigating their field when deceased was disrupting their pump, as a result of which, the appellants gave a blow on the head of the deceased by a handle of the pump and thereafter threw him in the pond. None have stated that they had seen the occurrence. They all stated that it is Ruplal Hazra (P.W.-6), who had narrated the story to them. 10. Now the witness, who is most important is P.W.-6 (Ruplal Hazra). He on the date of examination was aged about 10 years and as per him the occurrence had taken place five years back which means, he was of five years on the date of occurrence. He claimed to be the eye witness. The case thus, hinges solely on the testimony of this child eye witness. 11. The Hon’ble supreme court in the case of Suryanarayana vs. State of Karnataka, reported in (2001) 9 SCC 129 has held as to how the statement of child witness is to be considered. Paragraph 5 of the said judgment is quoted herein below:- “5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. Paragraph 5 of the said judgment is quoted herein below:- “5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix- up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.” 12. Further, the Hon’ble supreme court in the case of Pramila vs. State of U.P., reported in (2021) 12 SCC 550 has held that a close scrutiny is called for to satisfy with regard to the reliability and genuineness of the evidence of the child witness. Paragraphs 5 and 6 of the said judgment is quoted herein below:- “5. Further, the Hon’ble supreme court in the case of Pramila vs. State of U.P., reported in (2021) 12 SCC 550 has held that a close scrutiny is called for to satisfy with regard to the reliability and genuineness of the evidence of the child witness. Paragraphs 5 and 6 of the said judgment is quoted herein below:- “5. Criminal jurisprudence does not hold that the evidence of a child witness is unreliable and can be discarded. A child who is aged about 11 to 12 years certainly has reasonably developed mental faculty to see, absorb and appreciate. In a given case the evidence of a child witness alone can also form the basis for conviction. The mere absence of any corroborative evidence in addition to that of the child witness by itself cannot alone discredit a child witness. But the courts have regularly held that where a child witness is to be considered, and more so when he is the sole witness, a heightened level of scrutiny is called for of the evidence so that the court is satisfied with regard to the reliability and genuineness of the evidence of the child witness. PW 2 was examined nearly one year after the occurrence. The Court has, therefore, to satisfy itself that all possibilities of tutoring or otherwise are ruled out and what was deposed was nothing but the truth. 6. The evidence of a child witness and the manner of its consideration has been dealt with in State of M.P. v. Ramesh [State of M.P. v. Ramesh, (2011) 4 SCC 786 : (2011) 2 SCC (Cri) 493] , as follows : (SCC p. 792, para 14) “14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” 13. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” 13. Considering the law laid down by the Hon’ble Supreme Court, we are scrutinizing the statement of this witness. P.W.-6 stated in his evidence that he was playing with the deceased, where these two appellants were irrigating their field. Deceased was disrupting their motor pump, as a result of which, the motor pump stopped. The appellant- Mukesh Hazra with the handle of the motor pump assaulted the deceased on his head, as a result of which the deceased- Santosh Hazra fell down and died when Mukesh, Debu and Panchu had thrown the deceased in the pond. In cross-examination, he stated that when the appellants started fuming, this witness fled from there. Later on, he suspected that the deceased got drowned in the pond. The Doctor, P.W.-1, who conducted the postmortem on the dead body of the deceased in his deposition had stated that he did not find any external injury either antemortem or postmortem on the body of the deceased. He opined that deceased died due to drowning. 14. From the evidence, led by the prosecution, we find that the prosecution case is consistent that the deceased was assaulted on his head by the handle of the pump, but surprisingly Doctor did not find any injury on the head of the deceased. P.W.-6, who is the child witness, in para 10, has stated that once these appellants started fuming, he fled away. Thereafter he states that he suspects that the deceased had been thrown in the pond. His statement creates a doubt in the mind of this Court as to whether this little boy of five years had at all seen the entire occurrence of assault or that of throwing the boy in pond, or not. According to him he had fled out of fear when these appellants fumed. If that be so, whether he had seen these appellants assaulting the deceased with the handle of the pump is doubtful, moreso when, he stated that he fled immediately when he was scolded. Thus, it is clear that this witness had not seen the appellants throwing the deceased in the pond. If that be so, whether he had seen these appellants assaulting the deceased with the handle of the pump is doubtful, moreso when, he stated that he fled immediately when he was scolded. Thus, it is clear that this witness had not seen the appellants throwing the deceased in the pond. So far as his statement about the assault on the head by the handle of the pump is concerned, the same is falsified from the postmortem report and evidence of the Doctor, who stated that there is no external injury on the head of the deceased. If a child of five years, is hit on his head by the handle of a pump or machine, there is bound to exist an external injury, which is in the instant case was not found by the Doctor. Thus, there is material discrepancy in the statement of the witness. His evidence does not inspire confidence. 15. P.W.-3, who is the informant of this case in his evidence had admitted that was an accused involved in the case of murder of the father-in-law of these appellants. Thus, the element of false implication of these appellants, by the informant cannot be ruled out. 16. Further, Investigating Officer has not been examined in this case, which caused prejudice to the defence as neither the place of occurrence has been proved nor the defence could extract the details of the enmity between the informant and these appellants, though informant has admitted that there was some enmity between them. The assault weapon, its details, recovery etc. could not be questioned by the deceased. 17. From the aforesaid evidence and what has been discussed above, in our opinion, conviction cannot be based on the sole testimony of the child witness as there are material discrepancy in his evidence. 18. Considering the above discrepancy, which has been highlighted in the testimony of the child witness i.e. P.W.-6, by giving benefit of doubt, we acquit these appellants from the charges under Sections 302/34 and 201 of IPC. Accordingly, the judgment of conviction dated 16.07.2011 and order of sentence dated 19.07.2011 passed by learned 1st Additional Sessions Judge, Giridih in S.T. No.50 of 2006 is set aside. Both these Criminal Appeals are allowed. 19. As the appellants are already on bail, they and their bailors are relieved from the liabilities of the bail bonds. 20. Accordingly, the judgment of conviction dated 16.07.2011 and order of sentence dated 19.07.2011 passed by learned 1st Additional Sessions Judge, Giridih in S.T. No.50 of 2006 is set aside. Both these Criminal Appeals are allowed. 19. As the appellants are already on bail, they and their bailors are relieved from the liabilities of the bail bonds. 20. Let Trial Court Records along with a copy of this judgment be sent to the concerned trial court forthwith. 21. Interlocutory application, if any, also stands disposed of.