JUDGMENT 1. - This appeal by Mst. Tulchan alias Tulsi appellant is directed against the judgment of the learned Additional Sessions Judge, Churu dated 27 2.1974 by which she was convicted under section 302 Indian Penal Code and sentenced to undergo imprisonment for life for administering poison to her husband Pooraram and thereby causing his death. 2. The prosecution case against the appellant was as follows:-On 29.5.1972 a written report was lodged by Kurda Ram with the SHO Taranagar that Pooraram son of Balu Jat resident of Khivsar had died & his dead body was lying and so an inquiry be made into the cause of his death. This report was got written by Mohaamda from Laduram Patwari and it bore the signatures of Mohamda, Ravatram, Tejaram and other villagers. Upon receiving this report, Shri Bhanwarsingh Head Constable Incharge of Police Station, Taranagar, asked better particulars from Kurdaram who upon being questioned disclosed to the Head Constable that Pooraram was his brother-in-law the gainer and on 28.5.1972 he had gone on the back of his she-camel to the field of the former for fetching grass (known as Lash in vernacular) and when he did not return from there till noon, Kurdaram went to the field, met him there and asked him why he had not came back. The deceased there. upon told Kurdaram that he had a pain in his back and so he did not come back. Then Kurdaram made the deceased sit on the back of the camel and started for going to his house but in the way Pooraram deceased breathed his last. On the basis of the written report, Shri Bhanwarsingh Head Constable Incharge Police Station, Taranagar, proceeded to the place where dead body of the deceased was lying to make an inquiry into the apparent cause of death of Pooraram under section 174 CrPC. 3. On reaching the spot Bhanwarsingh prepared a Panchnama on the dead body and got post mortem examination performed over it by Dr. K.C. Sharma, Medical Officer Incharge, Government Hospital Taranagar, at the spot on 22 5.1972 at 2 P.M. Upon examination the doctor found the following facts:- "External observation:- Whole of the body swollen and started purifying, whole of the face and hands became bluish black, blisters present all over abdomen, chest neck and forearm areas. Blood tinged fluid coming out of the mouth. Blood tinged fluid coming out of the mouth. Rigor mortis not present, both eyes swollen, closed and pubils slightly dilated. 2. Cranium and spinal cord: 1) Scalp, skull and vertebrae:- Healthy 2) Membranes:- Congested 3) Brain.- Congested 3. Thorax:. a) Wall, ribs and cartilage:- Healthy b) Pleasurae:- Congested c) Larynx & tracheae:- Congested d) Right Lung:- Congested e) Left Lung:- Congested f) Paricardirum:- Congested g) Heart:- Empty h) Large vessels:- Healthy 4. Abdomen: 1) Walls:- Healthy 2) Paritocium:- Slightly congested and full of purifying gases 3) Mouth, Pharynx and Oesophagus:- Mouth pharynax swollen, oesophagus congested. Stomach and its contents:- Gastric mucosa swollen, idematus and haemorrhagic patches all over the mucosa membrane and highly congested. Stomach:- Empty except little congested material present 5. Small intestines and their contents:- Congested and full of gases and fickle matter 6. Large intestine and their contents:- Full of fickle material and gases 7. Liver:- Highly congested and bluish black in colour 8. Spleen:- Highly congested and bluish black in colour 9. Kidney s:- Congested 10. Bladder:- Empty 11. Organs of generation internal and external:- Swollen, Scrotum full of blood Muscles, bones & joints:- There was no injury, fracture or dislocation."In his opinion, death occurred from poisoning. For confirmation of his opinion, he sent the stomach contents and viscera to Chemical Examiner in a sealed condition through the Police. The Chemical Examiner gave his report Ex.P/7, according to which the contents sent by the doctor were positive for zinc phosphide. The clothes of the deceased which he was wearing on his body at the time of his death that is one Dhoti, one turban and one shirt also were found positive for the aforesaid poison. Soon after the autopsy was conducted on the dead body by Dr. K.C. Sharma, Shri Bhariwarsingh Head Constable recorded a first information report of the crime at Police Station Taranagar and registered a criminal case under section 302 Indian Penal Code on its basis and handed over the investigation to Shri Girdharisingh S.H O. P.S. Taranagar, on 30.5.1972. Shri Girdhari Singh inspected the site and prepared the site inspection name and the site plan. He prepared the site plan of the field of Kaluram also. Then he arrested the appellant on 31.5.1972 vide memo of arrest Ex, P.11 and sought clarification from Dr. K.G Sharma vide his letter Ex.P.16. Shri Girdhari Singh inspected the site and prepared the site inspection name and the site plan. He prepared the site plan of the field of Kaluram also. Then he arrested the appellant on 31.5.1972 vide memo of arrest Ex, P.11 and sought clarification from Dr. K.G Sharma vide his letter Ex.P.16. The doctor replied that the death of the deceased appeared to have occurred more than 24 hours prior to the time of the post mortem examination and there was no injury, or swelling over the spinal column. Shri Girdharisingh then recorded the statement of the witnesses and after collecting other necessary evidence, filed a chargesheet against Mst. Tulchhan alias Tulsi appellant under section 302 Indian Penal Code in the court of Munsif Magistrate First Class Rajgarh. The learned Magistrate held an inquiry preparatory to commitment and upon finding a prima facie case exclusively triable by the court of Sessions committed the appellant for trial to the court of Additional Sessions Judge, Churu under section 302 IPC. The learned Additional Sessions judge tried the appellant and found her guilty of the offence of murder and convicted and sentenced her as stated above. 4. We have carefully perused the record and heard Mr. S R. Singhi, learned counsel for the appellant and Mr. N S. Acharya Public Prosecutor, for the State. 5. It has been vehemently contended on behalf of the appellant that there is no direct evidence in this case to show that it was Mst. Tulchhan appellant who administered poison i e. zinc phosphide to her husband Pooraram after mixing it in a cup of tea. According to Mr. S. R Singhi, learned counsel for the appellant, the entire prosecution case hinges on circumstantial evidence which is neither credible nor inconsistent with the innocence of the appellant as it can be explained away on other hypothesis than that of her guilt. Mr. N.S. Acharya Public Prosecutor for the State on the other hand urged that the incriminating circumstances brought on the record are fully established and are strong enough to lead to an inevitable conclusion that the deceased was done away with by the appellant who offered him a glass of tea having mixed zinc phosphide poison in it which was taken in by the deceased at her Muse. It was further urged by the Public Prosecutor that the appellant made an extra judicial confession of her guilt before an independent witness Chetanram soon after the crime : and there is no reason to discard this piece of evidence which has been believed and acted upon by the trial judge. According to the submission of the learned Public Prosecutor there is further evidence of Gopal on the record to show that the deceased while taking the tea offered to him by the appellant expressed that its test was sour and later on disclosed to Nandram that he was feeling burning sensation within & drowsy after taking the tea offered to him by his wife. On the strength of the aforesaid evidence the Public Prosecutor tried to convince us that conviction of the appellant under section 302 Indian Penal Code is clearly sustainable in the eye of law and no fault can reasonably be found with the findings of the trial Judge as to the guilt of the appellant. 6. We have given our earnest consideration to the rival contentions. It may be observed at the out set that the prosecution could not produce any witness in whose presence the zinc phosphide was mixed by the appellant with the tea that was offered to Pooraram deceased. The entire prosecution case rests upon the following circumstances:- (1) The appellant purchased 100 Grams of zinc phosphide from Rampratap P W 19 for Rs. 1.30 P. on 17-9-1971. (2) She offered a glass of tea to husband Pooraram on the day of occurrence in the morning. The deceased took the tea and expressed before Gopal PW8 that its taste was sour. (3) After taking the tea the deceased went to the field of Kurdaram for fetching a kind of grass known as 'Lashee' in vernacular. In the way he disclosed to Nandram that be was feeling burning sensation within and drowsy after taking the tea offered to him by his wife Mst. Tulchhan alias Tulsi appellant. (4) The appellant made an extra judicial confession of her guilt before Chetan Ram that she had mixed medicine of killing rats in the tea offered by her to her husband which he took in and died of poison. (5) Motive on the part of the appellant to take away the life of her husband. 7. Tulchhan alias Tulsi appellant. (4) The appellant made an extra judicial confession of her guilt before Chetan Ram that she had mixed medicine of killing rats in the tea offered by her to her husband which he took in and died of poison. (5) Motive on the part of the appellant to take away the life of her husband. 7. It will not be out of place to mention that the learned Additional Sessions Judge convicted the appellant on the basis of the above mentioned pieces of circumstantial evidence, as according to him they were fully established by the prosecution and were incapable of being explained away on any other hypotheses than that of the guilt of the appellant. It is, therefore, necessary for us to ascertain whether these circumstances have been established by cogent, credible and convincing evidence and whether they are of a conclusive tendency and wholly inconsistent with the innocence of the appellant. We take these circumstances one by one for discussion. 8. The first incriminating circumstance brought on the record is that the appellant purchased 100 Grams of medicine for killing rats from one Rampratap for Rs. 1.30 P or 17-9-1971. This fact is proved by the evidence of Bhagwana Ram PW 12, Magniram PW 16 and Rampratap PW19. Bhagwanaram PW 12 stated in his deposition that Rampratap purchased poison 200 grams in quantity for killing rats from Magniram for Rs. 2.90P, in his presence. At the time of purchase Mst. Tulchhan alias Tulsi appellant also was present. She asked Magniram to give her also poison for killing rats but Magniram refused to sell the poison to females. Thereupon the appellant protested in a loud tone. Rampratap then gave her 100 grams of poison for killing rats out of the quantity of poison which be had purchased from Magniram. Similar is the evidence of Magniram and Rampratap. Hence we have no hesitation in holding that the appellant purchased poison for killing rats from Rampratap for value on 17.9.1971 because the evidence of these three eye-witnesses has not been shaken in cross-examination at all and there is no reason to hold that they were telling lies. 9. The next link in the chain of circumstantial evidence is that the appellant offered a glass of tea to her husband Pooraram, who upon taking it expressed before Gopal P.W. 8 that its taste was sour. 9. The next link in the chain of circumstantial evidence is that the appellant offered a glass of tea to her husband Pooraram, who upon taking it expressed before Gopal P.W. 8 that its taste was sour. The evidence of on this point is that on the day of occurrence he had gone to village Bhaleri for fetching drinking water in a container. When he was returning to his village after drinking water in the container he felt inward urge to smoke tobacco and so he went to the house of the appellant that Jay in the way for taking burning charcoal for his Chilam. The appellant supplied the burning charcoal. At that time he saw Pooraram deceased sitting on a cot and taking tea from a glass. On seeing the witness, Pooraram directed the appellant to offer tea to the former also. The appellant went inside the house, came back immediately and disclosed that there was no spare tea and she would prepare fresh tea for Gopal. There upon Gopal refused to take the tea and started from there with his Chilam. When he was going out of the house of the appellant he heard Poora Ram telling his wife Mst. Tulchhan that the test of the tea was sour. Mst Tulchhan alias Tulsi thereupon replied that she had prepared tea in a utensil in which vegetables were prepared and so the tea gave a sour taste. Gopal further stated that two days after this event he came to know in his village that Pooraram had died but he disclosed this event to Chetanram and Chunaram when be had gone to village Khinvasar after 20 or 25 days. Gopal further stated that two days after this event he came to know in his village that Pooraram had died but he disclosed this event to Chetanram and Chunaram when be had gone to village Khinvasar after 20 or 25 days. The evidence of Gopal does not appear to us to be true and convincing for the simple reason that even when he heard about the death of Pooraram two days after the event, he did not come forward to disclose all the facts within his knowledge to Chetanram and Chunaram, or to any other relative of the deceased and kept silent for 20 or 25 days Apart from this Chetan Ram P W. 6 and Chunaram P.W. 7 did not say in their deposition that they were informed by Gopal P.W 8 that the deceased had taken tea in a glass at the house of the appellant and that he was telling that the taste of the tea was sour and that the appellant then replied that the taste of the tea was sour because she prepared it in a utensil in which vegetable was cooked The prosecution could not afford any reasonable explanation why Chetanram and Chunaram failed to state in their depositions at the trial that they were informed by Gopal P.W. 8 about the facts of the deceased having taken tea at the house of his wife Mst. Tulchhan and of having complained to Mst. Tulchan alias Tulsi about the sour taste of the tea. The evidence of a witness who does not come forward for considerably long period to disclose material facts within his knowledge relating to the commission of the crime either to the police or to the relatives of the deceased or to any other person in the locality in which the crime was committed is not entitled to any weight in the absence of any reasonable explanation for his failure to do so. 10. There is another circumstance which weigh with us in not accepting the evidence. The circumstance is that he is closely related to Maliram P W. 5 with whom the appellant had previously enmity. Gopal P.W.8 admitted in his cross-examination that Maliram resident of Khivsar is his brother-in-law the gainer. 10. There is another circumstance which weigh with us in not accepting the evidence. The circumstance is that he is closely related to Maliram P W. 5 with whom the appellant had previously enmity. Gopal P.W.8 admitted in his cross-examination that Maliram resident of Khivsar is his brother-in-law the gainer. Maliram in his deposition clearly admitted that the appellant had filed a criminal case under section 363 Indian Penal Code against him and that he was also impleaded as an opposite party in an application by Tulsa appellant under section 552 old Criminal Procedure Code. Hence Gopal P.W. 8 is not a disinterested witness. 11. Another circumstance relied upon by the prosecution to prove the connection of the appellant with the crime of murder of her husband is that the deceased himself disclosed to Nandram P W. 10 that he was feeling sensation within and drowsy after taking the tea offered to him by his wife Mst Tulchan. To prove this circumstance the prosecution has examined Nandram P.W.10. The evidence of Nandram at the trial is that about 8 A.M. when he was going to village Nakdesar he saw Pooraram deceased going in the way on the back of a she-camel. On seeing Pooraram the witness saluted him. There upon Pooraram disclosed to the witness that he was going to the field. At that time he saw Pooraram dozing and placing his head on a bag which he was carrying with him on the back of the she-camel. Nandram claimed to have asked Pooraram why he was dozing in that manner. Pooraram then disclosed to him that he stayed with his wife Mst. Tulchhan appellant in the night at her house and she offered him tea on the next morning and that after taking tea he was feeling drowsy and his body was having burning sensation. Nandram then asked Puraram to accompany the latter to village Rajolu for getting him treated there but Pooraram refused by stating that he would take his brother-in-law along with him to village Rajolu for treatment. The evidence of this witness also does not inspire confidence. He admitted in his cross examination that he came to know about the death of Pooraram three or four days after he had met him in the way when he returned to his village Khivasar from Nakdesar. The evidence of this witness also does not inspire confidence. He admitted in his cross examination that he came to know about the death of Pooraram three or four days after he had met him in the way when he returned to his village Khivasar from Nakdesar. In the village at Khivnsar he claimed to have disclosed all the above facts within his knowledge to Chunaram, Curiously enough Chunaram P.W 7 did not say in his deposition that he was informed by Nandram that the deceased had disclosed to him that he has feeling burning sensation and drowsy after taking tea offered to him by his wife at her house and that in fact Nandram saw him dozing and having placing his head on a bag on the back of she-camel. Chunaram P.W. 7 is the brother of Pooraram deceased. If the talks that took place between Nandram (Nandlal) and the deceased had been disclosed to Chunaram, the latter would have surely mentioned them in his deposition at the trial. Hence this circumstance also has not been established by the prosecution beyond reasonable shadow of doubt. 12. The fourth link in the chain of evidence against the appellant is her extra judicial confession which she was alleged to have made before Chetanram PW 6. The evidence of Chetanram at the trial is that he received information about the death of Poona Ram on the next day from Narang, there upon collected Chunaram, another Chetanram, Pemaram, Satsatam, Surjaram and Bhagwana and asked then to go to village Bhaleri. These persons went with Chetanram to village Bhaleri on the back of their camels. At village Bhaleri Chetanram and his companions went to the house of Tejaram and called for Kurdaram brother-in-law of the deceased. They made necessary inquiries from Kurdaram who informed them that the deceased was found lying beneath the tree of Jauti. Then they further questioned Kurdaram and being dissatisfied with his answers got a report written by Laduram Patwari & sent it to the Police Station Taranagar through Kurdaram. After the report was sent, to Chetanram returned to bus stand where from he went to the jungle for passing his stools. In the way he claimed to have met the appellant who confessed before him that she had given tea to Pooraram after mixing the poison for killing rats in it and Pooraram died of poison. After the report was sent, to Chetanram returned to bus stand where from he went to the jungle for passing his stools. In the way he claimed to have met the appellant who confessed before him that she had given tea to Pooraram after mixing the poison for killing rats in it and Pooraram died of poison. She further disclosed to Chetanram that she poisoned her husband because the latter administered a beating to her in the night., and therefore, he should exercise his influence over his collateral's. Chetanram then informed Maliram and Chunaram about the extra judicial confession made to him by Tulchan appellant. The evidence of this witness relating to extra judicial confession of the appellant is highly doubtful because he admitted in his cross-examination that he had gone to the jungle for passing his stools before making of the report and when the report was got written he was present in the house of Tejaram. Although he stated in his cross-examination that the report was not written in his presence, but he knew it will that a written report was going to be made to the Police. If the extra judicial confession of her guilt was made by the appellant to him before the report was reduced to writing he would have surely disclosed to the scribe of the report was written that the appellant had made an extra judicial confession of her guilt before him. In the passing we may state that there is no mention of the extra judicial confession of the appellant in the written report Ex.P.9 or in the inquest report Ex P.2 and in the formal first information report Ex.P.20 which was recorded by Bhanwarsingh Incharge Police Station Taranagar after holding an inquiry into the cause of death of Pooraram under section 174 CrPC. It will also not be out of place to mention that the inquest report was prepared by Bhanwarsingh in the presence of Tejaram, Chunaram and others at 12.30 P.M, an 29.5.72. It will also not be out of place to mention that the inquest report was prepared by Bhanwarsingh in the presence of Tejaram, Chunaram and others at 12.30 P.M, an 29.5.72. If Chetanram had disclosed to Chunaram that the appellant made an extra judicial confession of her guilt before him prior to the making of the written report to the Police, this fact could have been surely mentioned by Chunaram before, Bhanwarsingh at the time when be was preparing the inquest report the very day at about 12 30 P,M. Apart from this, Chetanram could easily inform the Police about this fact of extra judicial confession soon after it was made to him by the appellant. Maliram PW 5 no doubt stated in deposition that he was informed by Chetanram about the fact of extra judicial confession made to the latter by the appellant, but Mali Ram also did not claim to have stated this fact before the police soon after he came to know about it. Besides Maliram has stated earlier, is not a disinterested witness as he admitted in his cross- examination that the appellant had instituted a criminal case against him under section 363 Indian Penal Code and that he was made an opposite party in an application filed by the appellant under section 551 old Cr. PC Maliram falsely stated that one Budhram also informed him that the deceased was poisoned and done to death but curiously enough Budhram did not support him on this point. Consequently we are of the view that the prosecution could not succeed in proving that appellant confessed her guilt before Gattaram the very day after the death of her husband. 13. Another piece of evidence led by the prosecution to connect the appellant with the crime is that she was a woman of bad character and wanted to get rid of her husband Pooraram. It is true that the appellant was not living with her husband and was residing in a house constructed by her at village Bhaleri in those days and some of the prosecution witnesses have spoken about her suspicious character, but there is no reliable evidence on the record that her relations with her husband were strained and she wanted to get rid of him. On the other hand, the prosecution case itself is that the deceased had stayed with the appellant at her house in the night and had accepted tea offered to him by her. This clearly inducted that her relations with the deceased were normal. Apart from this, as the prosecution could not lead satisfactory evidence to prove the connection of the appellant with the murder of her husband the mere existence of motive, if any, is not sufficient to fasten criminal liability upon her under Section 302 IPC. Motive is not an essential ingredient of the offence of murder. Conviction of an accused cannot be based on the evidence of motive alone in the absence of any other cogent and convincing evidence implicating him or her in the commission of the crime. There is no other piece of evidence on the record to prove the guilt of Tulsi appellant. No poison was recovered from her house upon search. Consequently we are of the view that the circumstances brought on the record to prove the guilt of the appellant were not fully established by the prosecution beyond reasonable doubt. The conviction and sentence of Mst Tulchan alias Tulsi appellant, therefore, cannot be confirmed and maintained. 14. Hence we accept the appeal filed by Mat Tulchan alias Tulsi, set aside her conviction and sentence under section 302 Indian Penal Code, and acquit her of the same. The appellant is in Jail. She shall be set at liberty forthwith if not required in connection with some other case.Appeal accepted. *******