JUDGMENT - P.S. SHAH, J.:---The appellant has challenged his conviction for an offence of murder under section 302 of the Indian Penal Code. The facts leading to the prosecution of the accused are these. 2. On November 23, 1974, the four months old child of the complainant, Prayagbai, died of poisoning. It is alleged that the accused entered the house of the complainant at about 8 a.m. when the complainant had gone to the river for washing clothes and administered endrine poison to the infant child viz., Deepaji. It is the common ground that the complainants husband, Maruti, died about three years prior to the incident. After his death, the complainant was residing in her family house with her two children, Panchphula aged about eight years and Balasaheb aged about 5/6 years at the time of the incident. The complainants other two children and her mother, Warabai who were also residing with the complainant had left for the field in the early hours of the morning some time prior to the incident. According to the prosecution, in the morning at about 7.30 a.m. the complainant fed the child and left for the river for washing the clothes leaving the two children, Panchapule and Balasaheb along with the infant child in the house. Shortly after the departure of the complainant, Prayagbai, the accused entered the house and managed to drive away the two children out of the house and then he is said to have administered the poison and left the house within five minutes. It is further the case of the prosecution that thereafter the two children came back to the house and found that the child was vomiting, froth collected near the mouth and had convulsions. Having noticed this, Balasaheb ran to the river and brought his mother to the house. She found that the child, Deepaji, had his mouth getting foul smell like endrine and was getting convulsions. She then lifted the child and took him to Vishwanath who was residing in the adjoining house and informed the incident to him. Vishwanath then advised her to take the child immediately to the Medical Dispensary at Purna situated about two miles away from the village. In the meantime several persons including Sarpanch, Vyankaji, collected there. He brought butter milk, soap and salt and fed the liquid thereof to the child for the purpose of vomiting to eliminate poison. Vishwanath then advised her to take the child immediately to the Medical Dispensary at Purna situated about two miles away from the village. In the meantime several persons including Sarpanch, Vyankaji, collected there. He brought butter milk, soap and salt and fed the liquid thereof to the child for the purpose of vomiting to eliminate poison. Thereafter, the child for the Medical Dispensary at Puna reaching there at about 9.30. a.m. Dr. Quadri the Medical Officer of the Dispensary, examined the child and found that it had convulsions. Its body was cold, there was frothing from the nose and its heart beats were very slow. On account of these symptoms Dr. Quadri suspected that the child suffered from endrine like poisoning. He also noticed that the mouth of the child was then smelling of the substance like endrine. He started treating the child mainly in order to eliminate poison from the body in order to avoid further complications. However, ultimately the succumbed at about 11 a.m. On the demise of the child, the police were informed by the doctor. The police then came to the dispensary and recorded the statement of the complainant. It may be stated here that the child died after the First Information Report of the complainant was recorded. Initially, therefore, the offence was registered as one under section 307 of the Indian Penal Code and on the death of the child, the offence was changed to the one under section 302 of the Indian Penal Code. The doctor gave his opinion that the death might have been caused of pulminary oedeme caused by ingestion of endrine like poison. Dr. Quadri also sent the viscera to the Chemical Analyser for his report and opinion. However the report shows that no recognizable poison was detected. In the circumstances the prosecution relies on the opinion given by the Dr. Quadri and his evidence before the Court in support of its case that it is a case of death by administration of poison. 3. It was alleged by the prosecution that there was strong motive for the accused to commit the crime. In this connection , the prosecution has led the evidence to the effect that after the death of Prayagbais husband she had developed illicit intimacy with the accused. The accused used to very often go to the house of Prayagbai, eat and even sleep there. In this connection , the prosecution has led the evidence to the effect that after the death of Prayagbais husband she had developed illicit intimacy with the accused. The accused used to very often go to the house of Prayagbai, eat and even sleep there. This illicit intimacy resulted in her giving birth to the said child. In fact disputed by the accused that it was his child born of his illicit relations with Prayagbai. It is further the case of the prosecution that Prayagbai and the accused had purchased a piece of land in the village. However, the sale-deed was executed in the name of the accused alone. She came to know that the sale-deed did not stand jointly in the name of herself and the accused. Therefore, she started insisting on the accused that the land should be transferred in the name of the illegitimate child, which suggestion was not accepted by the accused and he went on maintaining the land purchased by him. This brought about an excitement between the complainant and the accused and it is said that for about a month or two prior to the incident the accused did not visit the house of Prayagbai. It is also common ground that the income earned by Prayagabai as a labourer was insufficient for the maintenance of her family and the accused used to supplement that income, so long as the relation between the two was not strained. According to the prosecution the demand by Prayabai for the transfer of the land in favour of her illegitimate child led the accused to commit the offence and that was the motive for the murder. The prosecution also relied on the circumstances that during the suo of investigation a small bottle containing endrine was seized from the house of the accused. Reliance was also placed on the testimony of witnessses who had seen the accused entering the house of Prayagbai during her absence and returning within a few minutes. It is, therefore, alleged that during this visit in the morning the accused administered the poison on the child. 4. There being no direct evidence, the prosecution relied on circumstantial evidence in support of its case against the accused during trial. The learned trial Judge found the following circumstances established on the evidence on record. It is, therefore, alleged that during this visit in the morning the accused administered the poison on the child. 4. There being no direct evidence, the prosecution relied on circumstantial evidence in support of its case against the accused during trial. The learned trial Judge found the following circumstances established on the evidence on record. Firstly, that the accused was a married man having developed illicit intimacy with Prayagbai and having suffered the consequence thereof by begetting an illegitimate child, was placed in a situation of shouldering the responsibility of maintaining the said child. Prayagbai insisted the accused to make provision for the maintenance of their illegitimate child by transferring some land in his name. The accused, therefore, had a strong motive to commit the murder of the child in order to exhonerated himself from the liability of maintenance of his illegitimate son. Secondly, till the morning of the incident the child was hale and hearty all along except on one occasion when it suffered from a fit about eight days before the incident. When she returned home from the river she found the child vomiting and thereafter on the advice of one of the prosecution witnesses, Vishwanath, took the child to the dispensary. The child was also found getting convulsions and his breath was smelling of endrine when he was brought to the above witness by Prayagbai. Dr. Quadri also stated in his examination in chief that his mouth was smelling like endrine and on considering the symptoms and post mortem report he gave his opinion that the death being caused by poisoning. Thirdly, possession of the poison by the accused at the materials time was established from the circumstance that the endrine bottle was seized from the residential house of the accused. The Chemical Analysers report showed that it contained organo-chloro compound, a probable insecticide endrine and kerosene oil. Thus, the accused was in possession of the position. Fourthly, the accused had an opportunity to administer poison to the child. The prosecution evidence is to the effect that when Prayagbai had left for the river, the accused who was waiting for an opportunity went to her house and managed to drive away the two children who were in the house and then must have administered the poison and came out of the house. The prosecution evidence is to the effect that when Prayagbai had left for the river, the accused who was waiting for an opportunity went to her house and managed to drive away the two children who were in the house and then must have administered the poison and came out of the house. The learned Judge relied on the circumstances as regards the accused entering the house and coming out of the house within a short time and the sudden deterioration in the condition of the child after he left the house. The learned Judge, therefore, held that these circumstances which were cogently established by the prosecution unequivocably point towards the guilty of the accused and the circumstances, taken collectively, were incapable of giving any explanation on any reasonable hypothesis save that of the guilty sought to be proved against him. 5. The accused has challenged his conviction by the Sessions Judge, Parbhani, in this appeal. 6. The most important point that arises for consideration is whether the accused did enter the house of the complainant which gave him an opportunity to administer poison to the child. Even if the prosecution has established the fact that the accused had gone to the house of Prayagbai in the morning at about 8 a.m. alleged, it is necessary to establish that the poison must have been administered only during the period when the accused was present in the house. The prosecution placed reliance on the evidence of the two children of Prayagbai viz. Panchaphula (P.W. 2) and Balasaheb (P.W. 3). Further reliance is also placed on the testimony of Vishwanath (P.W. 6) and Vaijnath (P.W. 13). Panchaphula did not support the prosecution and she was treated hostile. Her evidence, therefore, does not assist the prosecution on the aspect that whether the accused had gone to the house of Prayagbai in the morning on that day. It appears that Balasaheb who is the child witness of 5/6 years does support the prosecution on this aspect. Further, the manner in which this child witness has given evidence does not inspire confidence and we do not think that this evidence can be relied on without due corroboration. We would, therefore, like to assess the value of the testimony of Vishwanath and Vaijnath first. Further, the manner in which this child witness has given evidence does not inspire confidence and we do not think that this evidence can be relied on without due corroboration. We would, therefore, like to assess the value of the testimony of Vishwanath and Vaijnath first. The evidence of Vishwanath shows that his elder brother is a Police Patil of the village and his house is situated to the south of the house of Prayagbai. His evidence also shows that the Gram Panchayat office is situated in front of his house. He has deposed about the frequent visits of the accused to the house of Prayagbai and his illicit relations with her. According to him, at about 7.30 or 8 a.m. while he was going to the Gram Panchayat office he saw the accused sitting on the Ota of the Gram Panchayat Office. The accused thereafter went to the house of Prayagbai and came out within about five minutes. At that time Prayagbai had gone to the river to wash clothes. About fifteen minutes after while he was worshipping at his house, Prayagbai came there weeping with her son, Deepaji, and informed him that Deepaji had suddenly taken ill and he should see what the matter was. He found that the child was getting convulsions and was clinching fists and its breath was smelling of endrine. He then called a servant of his nephew and asked him to smell the breath of the child and when he smelt it he confirmed that it was smelling of endrine. He, therefore, advised Prayagbai to take the child to Medical Dispensary. Further, according to him, Prayagbai then shouted loudly by saying that the accused had caused danger to her son. His cross-examination reveals a number of factors which go to show that he is not an independent or reliable witness, nor has he given his evidence in a straight forward manner. Although, he denied that he had any enmity with the accused, he had to admit that the accused was not visiting his house. Not only that, but he was allowing the accused to visit his house. Although, according to him, he left his house for going to Gram Panchayat Office, actually he did not go to the Gram Panchayat office in the morning on that day. It appears highly doubtful that he might have seen the accused at the Gram Panchayat Office. Not only that, but he was allowing the accused to visit his house. Although, according to him, he left his house for going to Gram Panchayat Office, actually he did not go to the Gram Panchayat office in the morning on that day. It appears highly doubtful that he might have seen the accused at the Gram Panchayat Office. In his examination-in-chief he boldly stated that at the time when the accused had gone to the house of Prayagbai, she had gone to the river to wash her clothes. In his cross examination, however, he had to admit that he had not seen himself Prayagbai going to the river nor did he see her returning from the river. Then according to the prosecution, the accused had managed Panchaphula to go out of the house of the complainant by giving her five paise to purchase sweets from a shop and had also driven Balasaheb out of the house after slapping him. Curiously enough, Vishwanath does not refer to Panchuphula and Balasaheb going to out of the house or Balasheb having wept. On the contrary, he admitted that he did not hear any child crying or weeping from the house of Prayagbai. His conduct after he was told by Prayagbai that the accused had killed the child is also highly unnatural and improbable. Admittedly, Vishwanaths brother is a Police Patil of the village. He also knew that his brother had gone to Purna. Having come to know of a serious offence, one would have expected Vishwanath to accompany Prayagbai to the dispensary and the Police Station. The only advice tendered by this witness to Prayagbai was to take the child to the Medical Dispensary. It is impossible to believe that a person who comes to know of such a serious crime would merely advise the illiterate woman just to go to the Medical Dispensary and would not even tell the servant to approach the Police Patil or Police Station at Purna, especially when he knew that his brother who is a police patil had gone to Purna. It has been suggested in the cross-examination that this witness is on inimical terms with the accused and had grudge against the accused because of his relationship with Prayagbai. It has been suggested in the cross-examination that this witness is on inimical terms with the accused and had grudge against the accused because of his relationship with Prayagbai. Having regard to the admissions made by the witness in the cross examination and the manner in which he has given evidence, it appears to us that he is not a witness of truth and it is difficult to place reliance on his testimony. 7. The next witness, Vaijnath (P.W. 13), deposed that he had gone to the Gram Panchayat Office at about 8 a.m. and he saw the accused sitting there. According to him, he had gone to the Gram Panchayat Office for listening radio news. He has further deposed that he then saw the accused towards the house of Prayagbai. After 1 ½ hours while he was at the Gram Panchayat Office he was Prayagbai carrying her infant child in her arms and was shouting that the accused had fed endrine to her son. In his cross examination, however, he had to admit that he had not stated in his statement before the police that Prayagbai was shouting that the accused had fed endrine to her son. This material omissions in the police statement would show that the witness is capable of improving his story. Morever, he has not stated that the accused had entered the house of Prayagbai, but he merely stated that the accused went towards her house. There was no particular reason for his having noticed the accused going towards the house of Prayagbai., He had gone to the Gram Panchayat Office for listening the radio new. He was unable to give details as to the names of other persons present at the Gram Panchayat Office. There is particularly no reason for him to notice the departure of the accused towards the house of Prayagbai. In his evidence he has not even disclosed his reaction to the shouting of Prayagbai that the accused had fed endrine to her son. It appears from his evidence that he took the shouting of the lady as an inception of no consequence. We are not at all impressed by the evidence of this witness as well. 8. What then remains is the evidence of the child witness, Balasaheb, who was hardly aged 5/6 years when he gave evidence. It appears from his evidence that he took the shouting of the lady as an inception of no consequence. We are not at all impressed by the evidence of this witness as well. 8. What then remains is the evidence of the child witness, Balasaheb, who was hardly aged 5/6 years when he gave evidence. According to him, on the day of the incident his mother had gone to the river for washing clothes. According to him, he himself, his younger brother, woman and his sister, Panchaphula were at the house and Deepaji was in the cradle. He then stated : "the accused came thereafter to our house. I was out of the house. The accused entered out house. I smelt the mouth of Deepaji. It smelt of something. Hence I went to the river of call my mother. I told my mother at the river that the mouth of the child was smelling. Myself and my mother then came home. When we came home the accused was not there then. My sister Panchaphula told my mother that the mouth of Deepaji was smelling. My mother then went near the child and smelt his mouth. I also went near it. The child was then vomitting. My mother gave butter milk and milk to drink to the child. One Warik fed it to the child. Thereafter my mother and Vishwanath took the child to the dispensary". In the next part he further stated : "When the accused came to our house he gave 5 paise to Panchaphula and she went to purchase sweet meet (Goli) to the shop. The accused then asked me to go and call any my mother and slapped me. I then went and stood near Gonni tree behind my house. I did not see anything therefrom. Nothing could be seen therefore inside my house". 9. The above narration would show that he is unable to give any consistent version of the incident. While in the beginning he stated in his evidence that he was out of the house when the accused had come there, later on he has stated that he was asked to go out of the house by the accused and he was also slapped by the accused. While in the beginning he stated in his evidence that he was out of the house when the accused had come there, later on he has stated that he was asked to go out of the house by the accused and he was also slapped by the accused. It also appears that his version in examination-in-chief was not consistent with his police statement and , therefore, the prosecution itself had to confront with his the statement before the police. According to his evidence, Vishwanath had accompanied his mother to the dispensary at Purna. However, Vishwanath has not supported this version. In his cross-examination by the accused the child admitted that he had not stated the incident to anyone. He also admitted that the police were with him since a day prior to the day on which his deposition was recorded in the Court. In his statement before the police he had not stated that Warik had fed butter milk to the child. We are not atharlaim pressed by the testimony of this child witness and we find some substance in the defence suggestion that he is stating at the instance of the police. In any case, we would not consider it safe to rely on the testimony of this child witness without any proper corroboration. The complainant has not supported the prosecution case against the accused. She has even disowned her First Information Report which is said to have been lodged by her at the Police Station. She did not support the prosecution case that anyone had come to the river to call her or that Balasaheb came there weeping and told her that the accused had beaten him. She has admitted in the cross-examination that Vishwanath used to ask the accused as to why he was visiting her house and both had exchange of hot words over it. She also stated in the cross-examination that she did not shout on seeing the condition of the child, but she took the child of Vishwanath. She also State that Vishwanath had no talk with her on the way to Purna Medical Dispensary nor did she express any suspicion to him. There is some substance in the contention of the learned Public Prosecutor that she has tried to shield her paramour because she would not like to lose both the child and the company and shelter of her parampour. There is some substance in the contention of the learned Public Prosecutor that she has tried to shield her paramour because she would not like to lose both the child and the company and shelter of her parampour. Whatever that may be, her evidence is not in any manner useful to the prosecution. Having regard to the above discussion, therefore, we are of the view that the prosecution has failed to establish the presence of the accused in the house of Prayagbai on that day in the morning beyond reasonable doubt. It is true that the strained relations between Prayagbai and the accused and her insistence on the accused to transfer the land in the name of their illegitimate child might raise some suspicion against the accused as having been responsible for the death of the child. However, the possibility of Prayagbai herself having been responsible for the administration of the poison cannot be ruled out. There is no clear evidence as to the duration of time during which she was absent from her house. There is also no clear evidence as to the exact time when she left for river nor are we in a position to know the time that had elapsed after she left the house and the entry of the accused in the house. Admittedly she had fed the child before she had left for river. The medical evidence shows that poison reacts rather slowly after food is taken. Having regard to her financial condition and the refusal of the accused to transfer the land in the name of the child she might have thought of administering the poison to the child. In any case, the burden of proving its case that the accused had gone to the house of Prayagbai in her absence on that day lay on the prosecution. As indicated above, there is no relianble evidence on this question. If the circumstance viz. the opportunity to administer the poison is left out of consideration, then the other circumstances established by the prosecution would hardly by sufficient to led to the inference that the accused alone was responsible for the commission of the offence. As indicated above, there is no relianble evidence on this question. If the circumstance viz. the opportunity to administer the poison is left out of consideration, then the other circumstances established by the prosecution would hardly by sufficient to led to the inference that the accused alone was responsible for the commission of the offence. The circumstances from which the inference of guilt is to be drawn, have to be fully established by unimpeachable evidence beyond a shadow of doubt and further all the established facts should be of a determinative tendency unerringly pointing toward the guilt of the accused. What is established by the prosecution in this case is the mere fact that there was strong motive for the accused to commit the offence. However, the motive is a double edged weapon and motive by itself cannot lead to the only conclusion that it was the accused who was responsible for the commission of the offence. It may be mentioned here that the prosecution had also relied on the circumstances that endrine bottle was seized from the house of the accused. Admittedly, the house belonged to the joint family. It is well known that endrine is used as an agricultural insecticide. The mere finding of the endrine in the house of the accused who is admittedly an agriculturist, therefore, cannot be a circumstances against him. With the result, we are unable to agree with the view taken by the learned Sessions Judge. We hold that the position as it stands, it is not possible to hold that the prosecution has established its case against the accused beyond reasonable doubt. The accused is, therefore, entitled to acquittal. The appeal is, therefore, allowed. The order dated May 25, 1976, passed by the Sessions Court, Parbhani, convicting the accused for the offence under section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life is quashed and set aside and the accused is acquitted. 10. The accused is set at liberty forthwith, if not required in any other case. -----