JUDGMENT : S.K. Ray, J. - The Appellant has been charged u/s 302. Indian Penal Code for having committed murder of her twin babies Bada Majhi and Sana Dei by administering oleander poison and u/s 309, Indian Penal Code for having attempting to commit suicide by swallowing oleander seed herself. The Sessions Judge acquitted the Appellant u/s 309, Indian Penal Code and sentenced her to R. I. for the u/s 302, Indian Penal Code. From this judgment of conviction this criminal appeal has been filed. 2. The Appellant had first married the elder brother of p.w. 2 and through him she had a son and two daughters of whom p.w. 3 is one. After the death of her husband she remarried his younger brother, p.w. 2, and through him she gave birth to the twin babies, a son and a daughter, alleged to have been poisoned. 3. The prosecution case is that on 21-6-1971 at 5 p.m. the accused administered oleander poison to her babies in consequence whereof they died. p.w. 3, who had gone out of home to catch crab and fish, returned home and found the twin babies dead. She then questioned her mother, the accused, about it to her query, she replied that she had fed the babies with Bramasia Phal (oleander seed) and in her presence swallowed one such seed. p.w. 3 then ran to her grand mother (p.w. 4) and informed her that the accused. had administered oleander poison to the babies and had taken it herself. p.w. 4 immediately gave tamarind and fish water to accused to drink whereafter the accused vomited out the oleander seed and was saved from death. Subsequently, when p.w. 2 returned home at about 5.30 p.m. p.w. 3 reported the matter to him. On hearing this p.w. 2 went to the Ward Member of village and informed him about the occurrence. Thereafter, a panchayati was held in the house of the Ward Member where both p.w. 3 and the accused were present. There the accused made on extra judicial confession of having administered the oleander poison to the babies and killed them thereby. She also vomited out the oleander seed there. The Panch members kept that seed. 4. Then p.w. 2 on the instruction of the Ward Member, went to the Jaipatna P.S. and lodged F.I.R. on 22-6-1971 at noon. There the accused made on extra judicial confession of having administered the oleander poison to the babies and killed them thereby. She also vomited out the oleander seed there. The Panch members kept that seed. 4. Then p.w. 2 on the instruction of the Ward Member, went to the Jaipatna P.S. and lodged F.I.R. on 22-6-1971 at noon. The F.I.R. was recorded by the police officer, p.w. 6 and a case was registered and die investigation was taken up in absence of the Officer-in-charge, who had gone out of the P.S. on some other duty; p.w. 6 reached the village of occurrence at 6. p.w. He held the inquest and despatched the dead bodies for post-mortem examination and seized two torn rags with which he found the dead bodies of the twins to have been covered. He seized die vomited materials of the Appellant from the outer house of the Ward Member. p.w. 7 sent the seized vomited materials to the Chemical Examiner for analysis. The Chemical Examiner sent the report Ext. 14. On receipt of this report and the report of the postmortem of the doctor (p.w. 1), p.w. 7 submitted the charge-sheet. 5. The defence is one of denial. It may be stated here that the prosecution evidence has failed to disclose any motive at an. 6. The only question to consider is whether the Appellant killed her twin babies by administration of oleander poison. 7. The prosecution has relied upon the extra-judicial confession alleged to have been made before p.w. 3 and before the panchayati and on report of the Chemical Examiner in which some poison was found in the vomited materials seized by p.w. 6 under. Ext. 10. There is admittedly no eye-witness to the occurrence. The whole case has to be disposed of on the basis of the extrajudicial confessions of the accused and on the other circumstantial evidence appearing in this case. 8. In cases of this nature where murder has been committed by poising, the prosecution has to prove (a) that the death took place by poisoning; (b) that the accused was in possession of poison; and (c) that the accused had opportunity to administer poison to the deceased. 8. In cases of this nature where murder has been committed by poising, the prosecution has to prove (a) that the death took place by poisoning; (b) that the accused was in possession of poison; and (c) that the accused had opportunity to administer poison to the deceased. These three elements must be established either by direct or by circumstantial evidence: In case circumstantial evidence is resorted to for the purpose of reaching the conclusion of guilt, all circumstances leading to such conclusion must be first fully established and all facts so established must be shown to be consistent only with the hypothesis of guilt of the accused. Further, in this case, the extra-judicial confession having been retarded, it cannot constitute the sale basis of conviction without independent corroboration. In this legal background evidence is to be scanned. In this case the doctor, p.w. 1, who held the post-mortem examination has given a hesitant opinion that the death of the twin babies appears to the by homicidal poisoning. He, in fact, preserved the vistera for chemical examination so that a conclusive opinion could be formed on the basis of the result of such examination of viscera. The doctor sent die vescera for chemical examination (Ext. 4), but unfortunately, as it now appears the report of the Chemical Examiner was never tendered in evidence. In the circumstances, we have first of all to see whether the death was due to poisoning. With regard to other external symptoms, the doctor says that both the deceased died of some poisoning. He categorically states that he cannot be definite in the present case that the death was due to oleander poison or not. He was unable to say what type of poison was administered which resulted in death of the deceased, and the discoloration and congestion of various organs present in the case are indicative only of taking a heavy dose of poison. It is, the before impossible to hold that the deceased died of oleander poisoning. In this connection reliance is placed on Ext. 14 to show that the death was due to poisoning. Ext. 14 is the report of the Chemical analysis of vomited materials submitted in response to the forwarding letter issued at, the instance of Order (Ext. 13). It appears from Ext. 13 that some vomited materials of both the babies on a piece of rag were marked ?A? 14 to show that the death was due to poisoning. Ext. 14 is the report of the Chemical analysis of vomited materials submitted in response to the forwarding letter issued at, the instance of Order (Ext. 13). It appears from Ext. 13 that some vomited materials of both the babies on a piece of rag were marked ?A? and the rags containing mark of vomited materials of both the babies were labelled ?C?. Vomited materials of the accused were marked ?B?. All the three vomited medals were thus marked as ?A?, ?B? and ?C?. The Chemical Examiner put his own mark on the glass jars which were labelled as ?A? and ?B?, which were 2404/ All and 2404/A/2 respectively. These jars contained colourless solid crystals. The opinion of the Chemical Examiner is that the colourless solid crystals in the glass marked ?A? contained Toxic principles of the vitae neriffolia (oleander), but no poison could be detected in the remaining exhibits. There is no proof that the materials in glass jar, ?A? were the vomited materials of the deceased babies. the doctor, p.w. 1, on the other hand, has categorically stated that he did not notice any vomiting in the case of the babies. The net result is that the prosecution has failed to prove beyond all reasonable doubt that any poison was administered to the babies; Consequentially, the prosecution must be held to have failed to prove beyond reasonable doubt that the death was caused by, administration of poison. 9. Next element to see is whether the accused was in possession of the poison p.w. 3?s evidence is that she saw the accused, swallowing one oleander-seed which was later vomited out and the seed kept by the Ward Member. That seed has not been produced. She has further stated that there is no oleander tree in the village. p.w. 7, the I.O. has, however, stated that there are some oleander trees in Malipada of the village of the accused. There is no evidence forthcoming that the accused had at any time plucked fruits from those oleander trees. It is also pertinent to note at this stage that the Police Officer (p.w. 6) in course of his investigation did not find any grinding materials or any oleander paste in the house of the accused. There is no evidence forthcoming that the accused had at any time plucked fruits from those oleander trees. It is also pertinent to note at this stage that the Police Officer (p.w. 6) in course of his investigation did not find any grinding materials or any oleander paste in the house of the accused. If the accused had administered poison to the babies, four months old, she must have made oleander paste. In the circumstances, the only reasonable conclusion is that the prosecution has failed to prove that the accused was in possession of oleander poison. 10. With regard to the last element there can be no doubt that the accused had full opportunity to administer poison to the babies, because she, as mother, had exclusive care and tending of the babies who had not crossed the stage of breast feeding. But there is no evidence as to how the poison was administered. 11. In the result, all the elements to prove murder by poisoning have not been established and accordingly, the prosecution must be held to have failed to establish beyond all reasonable doubts that the accused had killed the deceased by administering oleander poison. 12. Coming to the extra-judicial confession, which has been retracted, in the absence of any independent evidence either direct or circumstantial, corroborating the same, it cannot be said that the extra-judicial confession was true. Even if voluntary, such confession cannot be acted upon as it is not found to be true. 13. The learned Sessions Judge, however, has convicted the accused u/s 302 on a misconception of fact. He has stated in para 9 of his judgment that the opinion of the doctor (p.w. 1) gets ample corroboration by Ext. 14, the report of the Chemical Examiner admitted into evidence u/s 510 Code of Criminal Procedure, which disclosed presence of toxic principles of the vetianerfifolia (oleander) in the viscera contents of deceased Boda Majhi. As we have already seen that the viscera contents were sent to the Chemical Examiner but the report, if any, has not been proved in the case. This false impression of his appears to have influenced his mind in reaching his conclusion of guilt. The Sessions Judge acquitted the accused u/s 309, Indian Penal Code on the ground that the evidence of p.w. 3 to the effect that the accused had taken Baramasia Phal was open to doubt. This false impression of his appears to have influenced his mind in reaching his conclusion of guilt. The Sessions Judge acquitted the accused u/s 309, Indian Penal Code on the ground that the evidence of p.w. 3 to the effect that the accused had taken Baramasia Phal was open to doubt. This is on additional factor which corroborates our earlier conclusion that the prosecution has failed to establish beyond all reasonable doubt that the accused was in possession of poison at any time. 14. In the circumstances, we are satisfied that the prosecution has failed to bring home the guilt to the accused beyond all reasonable doubt. We, therefore, set aside the judgment of conviction and sentence of the Sessions Judge and direct that the Appellant be set at liberty forthwith. The appeal is accordingly, allowed. P.K. Mohanti, J. 15. I agree. Final Result : Allowed