JUDGMENT 1. - The appellant Hanjuri stands convicted for the offence under sections 302 and 309, IPC and she has been sentenced to imprisonment for life on the first count and six months simple imprisonment on the second count. 2. On 26-7-1974 at about 9 a.m. Punaram, the adoptive father of the appellant, lodged a report at police station, Pugal that Hanjuri with her two children one daughter Munki aged about 5-6 years and another child Ramchandra aged about 11/2 years, was living in village Rainsar. The husband of Hanjuri, harjiram, had gone for cultivation at 61 head. Muknaram came to him in the early morning at 5 or 6, and informed him that Hanjuri and her two children are not at her house She had gone away. Thereupon, Punaram along with Muknaram went to Sahu Khan and tracked the foot prints, which proceeded to well. They saw the movement of water in the well. They saw Mst. Hanjuri in the well. Mandekhan, PW 2 got down in the well and there after all the three were taken out from the well. Ramchandra and Munki were found dead. The appellant was taken out alive. On his report, a case under section 302/309 IPC was registered against the appellant. After usual investigation, a Challan was presented against the accused appellant. The Accused was charged for the offence under section 302 IPC for having caused the death of her son Ramchandra and daughter Munki and she was also charged under section 309 IPC. for having attempted to commit suicide. The appellant, however, not pleaded guilty to charge and claimed to be tried. The prosecution has examined PW 1 Punaram, PW 2 Modekhan. PW 3 Mukna Ram, PW 4 Nichhitarsingh, investigating officer and Dr. R.P. Soni PW 5. The statement of the accused was recorded under section 313, Cr. PC in which, she deined the prosecution case and stated that she alone jumped into the well. In defence, she examined one Sahukhan as DW 1. The learned Sessions Judge, after hearing the arguments convicted and sentenced the appellant as aforesaid. The appellant has preferred this appeal through jail. 3. We have heard Mr. B. Advani, learned counsel for the appellant and Mr. M.D. Purohit, learned Public Prosecutor for the State. 4. It may be stated that there is no direct evidence against the appellant in the case. The appellant has preferred this appeal through jail. 3. We have heard Mr. B. Advani, learned counsel for the appellant and Mr. M.D. Purohit, learned Public Prosecutor for the State. 4. It may be stated that there is no direct evidence against the appellant in the case. The learned Sessions Judge has proceeded on the basis that the accused appellant must have taken her children to the well and threw them first and thereafter she herself jumped into the well. When the accused was taken out of the well, she remained silent. The circumstance of remaining silent has been employed against the accused and no explanation was offered by the appellant as to how the three fell into the well. It is true that PW 1 Pun-ram, PW 2 Modekhan and PW 3 Muknaram have stated that when it was asked to Hanjuri as to how she fell into the well, then she gave no reply. As against this evidence, here is another statement of PW 2 Modekhan, who. in his cross-examination, stated that Mst. Hanjuri was so much in senses so as to catch the rope, but she was not in a position to speak. She did not speak even when she was taken away from the well. Admittedly, Sahukhan DW 1 was also present at the spot and he has been examined as defence. He gave a different version. According to him, there was a cry coming out the well "Save me and save my children" When she was asked as to why she fell into well, she said that she was starving. When she was asked about the children, then she stated that she did not know about the children. Thus, a different version have come in the statements of the witnesses on the point as to whether she remained silent or gave any reply or whether she was in a position to make any speach. Thus, this circumstance of remaining silent can be pressed into service against the appellant. Besides this circumstances, there is no other evidence on record to hold that the accused appellant threw her children into the well and then she jumped herself. Even if, all the three can be said to have visited the well together it can be necessarily and conclusively be inferred that she first threw her children and then herself jumped. Besides this circumstances, there is no other evidence on record to hold that the accused appellant threw her children into the well and then she jumped herself. Even if, all the three can be said to have visited the well together it can be necessarily and conclusively be inferred that she first threw her children and then herself jumped. It may be that she might have jumped first, leaving her children behind at the well and thereafter, Munki might have fell down into the well along with Ramchandra. Such an inference would be an imagination that the accused appellant first threw her children and then she herself jumped. In the circumstances, it can not be said that the offence under section 302 Indian Penal Code is proved beyond all reasonable doubt. 5. As regards the offence under section 309, IPC. it is proved by her own statement in which she has confessed that she fell into the well as she was starving. Thus, the conviction of the accused appellant under section 302, Indian Penal Code can be maintained and so her conviction and sentence for the offence under section 302, Indian Penal Code deserve to be set aside. 6. Consequently, the appeal is party allowed. The conviction and sentence for the offence under section 302, IPC. are set aside and the conviction and sentence for the offence under section 309 IPC are maintained. The appellant has already undergone sentence much more than was awarded under section 309 Indian Penal Code so she be set at liberty if not required in any other case.Appeal Partly Allowed. *******