Judgment D. L. MEHTA, J. ( 1 ) THIS appeal is directed against the judgment dated 23rd February 1977, passed by the learned Sessions Judge, Alwar, in Sessions Case No. 100 of 1976. The appellant has been convicted under section 302 I. P. C. and sentenced to rigorous imprisonment for life and a fine of Rs. 500/ -. She has also been convicted under section 309 I. P. C. and sentenced to undergo one years rigorous imprisonment. In default of payment of fine, she was further directed to undergo rigorous imprisonment for four months. ( 2 ) THE prosecution story unfolded during the trial is that the appellant was living with her husband in village Dholidhup. There was a terror and the family of the appellant left village Dholi-Dhup and established in village Kheri. The prosecution case further goes that the family members of the accused- Appellant purchased agricultural land from one Om Prakash. The amount of the land could not be paid to the seller of the land and, as such, the silver Karas of Mst. Rahmam were taken away by her husband for selling in the market and for making the payment to Om Parkash. It is further alleged that Mst. Rahmam was not happy on this and, as such, she jumped in the well with her child, Pakru, aged 4-5 months. Before jumping with her child she threw two other children into the well. ( 3 ) ON behalf of the prosecution, P. W. 2, Nawab is the eye witness, P. W. 1, Sublian Khan lodged FIR. at the Police Station which is marked as Ex. P. 1. Learned counsel for the appellant has invited our attention to the statements of P. W. 3, Susala and P. W. 7, Sahuri. Both these witnesses have stated that Rahmani gave the silver Karas voluntarily and there was no dispute and she was living peacefully. She has thus demolished the theory of motive for the commission of the crime and we are of the view that the prosecution has failed to prove any motive. ( 4 ) P. W. 2, Nawab, is the child witness of 7 years. He is only the eye-witness of the occurrence. She has thus demolished the theory of motive for the commission of the crime and we are of the view that the prosecution has failed to prove any motive. ( 4 ) P. W. 2, Nawab, is the child witness of 7 years. He is only the eye-witness of the occurrence. In his examination he has stated the case of prosecution by saying that her aunty threw her two children in the well, thereafter, she jumped into the well with her youngest child in her lap. However, in cross examination, he has stated that he has not seen anything. He saw only his aunty falling into the well. He has further stated that he did not see, Majid, Jarri and Fakru falling in the well. He has further stated that his aunty, the present appellant, was taking bath. Nawab is a child witness and thus, he has given two versions-one in favour of the prosecution in the examination in-chief and one in favour of the appellant in the cross- examination. A conviction should not ordinarily be based on the statement of a child witness, particularly in this case, when two versions have been given by the child. We are not prepared to accept the version which has been given in favour of the prosecution. The testimony of Nawab, P. W. 2, cannot be relied upon. ( 5 ) THE other set of witnesses, namely, P. W. 1, Subhan Khan, has stated that when he went to the temple of 1-lanuman ii for drinking water, there he saw Baba ii. Asha Singh, Puran and Ramovtar Nawab came there and informed that his aunty has fallen in the well. He is the author of the First Information Report. ( 6 ) P. W. 3, Susala, the husband of the appellant, has stated that he was informed that, AAcpps dq,wa esa fxj x;s gsa vksj vksjr Hkh dq,waa esa fxj x;h gsa ( 7 ) P. W. 8, Puran, has stated that the child came running and informed that his aunty has fallen into the well and she has also thrown away her children into the well. This statement can only be used for corroborating the statement of Nawab, P. W. 2, but Nawab has not stated as this witness has stated. On the contrary, Nawab has stated in his cross-examination that he had not seen the children falling down in the well. This statement can only be used for corroborating the statement of Nawab, P. W. 2, but Nawab has not stated as this witness has stated. On the contrary, Nawab has stated in his cross-examination that he had not seen the children falling down in the well. He had seen only her aunty falling in the well. Thus, from the evidence on record, we are not satisfied that the prosecution has been able to prove that the children were thrown in the well by Mst. Rahmani, the present appellant. However, we will have to take into consideration the statement given by Mst. Rahmani under section 313 Cr. P. C. ( 8 ) MST. Rahmani, the appellant, has stated that her two children were playing nearby the well and she was taking the bath. She has further stated that there was an effect of cyclone and her two children fell down in the well. As soon as she saw them falling in the well, she ran towards the well to save them. She had a child of 4 to 5 months in her lap and she jumped into the well only with the intention to save her two children. From the perusal of her statement under section 313 Cr. P. C. it seems that the explanation given by Mst. Rahmani may be probable. ( 9 ) SHE had the knowledge that the child of 4 to 5 months was in her lap and she jumped in the well, to save her two children who fell down in the well She may not be having the intention of committing murder of her third child, but she had the knowledge that she would not be able to save her children who had already fallen in the well, but about the third child who was in her lap, she bad the knowledge and with this knowledge she jumped into the well. So the knowledge can be attributed that she was responsible for causing the death of her third child. ( 10 ) AS far as the two children are concerned, we are of the view that the, prosecution has failed to prove any case against her, so she is acquitted on that count. So the knowledge can be attributed that she was responsible for causing the death of her third child. ( 10 ) AS far as the two children are concerned, we are of the view that the, prosecution has failed to prove any case against her, so she is acquitted on that count. As far as her third child, who was in her lap, is concerned we are of the view that instead of convicting her under section 302, I. P. C. , she should be convicted under section 304 Part-Il, I. P. C. ( 11 ) IN the result, we accept the appeal of the appellant in part. Set aside the conviction and sentence under section 302, I. P. C. , as well as the conviction under section 309, I. P. C. We hereby convict the present appellant under section 304, Part on, I. P. C. She has remained behind the bar for a pretty long time. It will not be in the interest of justice to send her back to the prison. ( 12 ) MR. Walia submits that the accused appellant bas remained in jail for more than 5-6 years. Taking into consideration the conviction under section 304 Part-II, and looking to the fact that she has already remained behind the bar for more than 6 years, she is entitled to the benefit of Section 428 Cr. P. C. Looking to the submissions of Mr. Walia it is directed that before the issuance of warrants it should be verified that whether the accused- Appellant has remained in jail for a period of four years or not and, if it is found that she has remained in jail for a period of four years, then no warrants should be issued for her arrest. Appeal allowed.