The conviction under Section 307 IPC was overturned due to unreliable child witness testimonies and the failure of the prosecution to prove the case beyond reasonable doubt.

JUDGMENT :

SACHIN SINGH RAJPUT, J.

1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.) has been preferred by the appellant being aggrieved by judgment dated 31.03.2005 passed by the First Upper Sessions Judge, Surajpur, District Surguja (C.G.) in Sessions Case No. 89 of 2004. By the impugned judgment the appellant has been convicted for an offence under Section 307 of Indian Penal Code, 1860 (in short “IPC”) and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 500/- in default of payment of fine, to further undergo rigorous imprisonment for 2 months.

2. The case of the prosecution in nutshell is that on the date of incident, in the morning i.e. 19.05.2003, father of Sonu (victim) namely- Moharlal (PW03) was digging a ditch for latrine with the permission of the Municipal Council. At that time, father of the appellant namely- Umashankar Sahu (PW12) raised a dispute with him. The father of the victim, Moharlal and his wife had gone to SDM Court to attend the hearing and when he was proceeding back to his home, he received an information that his son i.e. Sonu (Victim) fell into the well and he was taken to hospital. Moharlal (PW03) saw him in the hospital. His Children Radha (PW05) and Anil (PW06) informed that the appellant took Sonu near the house and in order to kill him, threw him in Bittu's well. Later on, Sonu (victim) was taken out by Umashankar Sahu (PW12) and Triloki Soni (PW07). Thereafter, an FIR Ex. P/1 was lodged. The victim was medically examined, spot map Ex. P/5 was prepared by the Police and Ex. P- 8 was prepared by the Patwari. After investigation, chargesheet was filed before the Additional Chief Judicial Magistrate, Surajpur and after committal, the case was received by the trial Court for its trial and the learned trial Court framed charge under Section 307 of IPC. The appellant denied the charge and prayed for trial.

3. Prosecution examined as many as 13 witnesses and exhibited 9 documents in order to prove its case. Statement of the accused person under Section 313 of Cr.P.C. was also recorded in which he pleaded his innocence and false implication on account of a dispute took place between the family members of the appellant with the mother of the victim.

4. The learned trial Court after hearing the parties and going through the evidence adduced before it convicted and sentenced the accused/appellant herein as described above. Hence this appeal.

5. Ms. Mukharjee, learned counsel appearing for the appellant submits that conviction of the appellant is erroneous, contrary to the evidence on record and is bad in law. She further submits that the learned trial Court has not appreciated the evidence in its proper perspective. She submits that there is no eyewitness to the fact that Sonu (Victim) was thrown by the appellant into the well. Conviction is based only on the testimony of two child witnesses namely- Radha (PW05) and Anil (PW06) and from cumulative assessment of their testimony, it is evident that they are the tutored witness. They are speaking as tutored by their mother. It is also proved from record that earlier a report was lodged against the mother of the victim by the family members of the appellant and in order to save themselves from it, a false report has been lodged against the appellant. She further submits that there is nothing on record to suggest that the well was covered with the wall and, as such, there is all possibility that the victim might have fallen into the well and a false story has been created that the appellant has thrown the victim into the well. She submits that Moharlal (PW0