JUDGMENT 1. - This appeal by the accused is directed against the judgment dated December 2, 1982 of the District and Sessions Judge, Bikaner, convicting and sentencing the accused appellants for the offence under Section 302 read with Section 34, Indian Penal Code to imprisonment for life. 2. The appellants were tried for causing the death of Mst. Champa wife of Fakir Chand by drowning her into the water reservoir (known as KUNDI) on September 5, 1980, in the morning at about 8.00 a.m. in the house of accused Mangi Lal situate in Mohallah Satyanarainji-ka Chowk, Bikaner. Appellant Fakir Chand is the husband of the deceased while appellant Mangi Lal is her father in-law. Mst. Champa was living with her husband. They were married about 15 years back and had two sons. Raju, the elder son, was living at the maternal grand-father's house, while the younger Rakesh, aged eight years, was living with the parents. The maternal grand father's house is hardly at a distance of two furlongs. The prosecution case was that the accused were harassing Mst. Champa and wanted her to bring ornaments from her father. Only 10-15 days prior to the occurrence, Champa had complained to her father that her Borla and Necklace had been removed by her father in-law, but she being asked to bring the same or cash in its place from her father. Construction work was going on at the house of Mangi Lal. They wanted money for that purpose. The prosecution case was that the accused had told Mst. Champa that they would kill her if she did not being money from her father. As she was unable to do this, both the accused appellants, in the morning on the date of the occurrence, i.e. September 5, 1980, drowned her into the water reservoir (KUND1) of the house and killed her. 3. Appellant Mangi Lal himself made report at the Police Station, Naya Sahar, district Bikaner the same day at about 10.15 a m. stating therein that he had gone to the Railway Workshop, where he was employed, in the morning at about 8.20 a.m. At about 9.00 a.m Fakir Chand came to him and told him that Mst. Champa had died by falling into the KUNDI and that he had now laid her in the room after having taken her out of the KUNDI. Champa had died by falling into the KUNDI and that he had now laid her in the room after having taken her out of the KUNDI. On this report, the Police commenced proceedings under Section 174, Cr.PC. On September 5, 1980, Shri Tribhuwan Singh, Station House Officer was not at the Police Station B kaner, as be bad gone to Hanumangarb. The initial investigation was, therefore, done by Lal Mohammed, Assistant Sub Inspector of Police. Lal Mohammed proceeded to the house of the accused. There he found the dead body of Mst. Champa in the Chowk. He inspected the dead body and prepared the memo thereof. He took in possession the wet clothes, i.e Petikot, Blouse and Sari, which had already been replaced by dry clothes on the body of the deceased by the accused. A Panchnama was drawn. Thereafter the Investigating Officer prepared the site plan. The depth of the KUNDI (water reservoir) was measured. It was 6' 11' deep. Its opening was 18" x 14". The water level was at 6' 11/2". He also measured the height of the deceased. She was 5' 7". The width at the point of shoulders of the dead body was 13". No other marks of significance were observed at the spot by the Investigating Officer, except that facial matter was found floating in the KUNDI, which is essential meant to store and preserve water for drinking purposes. The dead body was sent to the Prince Vijaysingh Memorial Hospital, Bikaner, for post-mortem examination. The post-mortem examination was conducted by Dr. R K. Gehlot on the same day at about 3.25 p.m. The body was well built and well nourished. Rigor-mortis had developed all over the body. The post-mortem staining present over face, neck, back and posterior aspect of back and back of chest. On compression of chest, white fine tenacious lathery froth appeared from the right nostril. Ant-bite post-mortem abrasions were noticed on both the mouth and right side chin, and on the angle regions of both eyes. Facial matter was present in the anus region. The doctor found two abrasions 1" x 0 4 c.m. x linear and 0.2 c.m. x linear with space of 0 2 cm. in between the two vertically placed just above the lateral malleolus on outer aspect of left ankle joint. The corner was hazy, pupils dilated and eyes partially open. Facial matter was present in the anus region. The doctor found two abrasions 1" x 0 4 c.m. x linear and 0.2 c.m. x linear with space of 0 2 cm. in between the two vertically placed just above the lateral malleolus on outer aspect of left ankle joint. The corner was hazy, pupils dilated and eyes partially open. White fine tenacious froth was present on the larynx and traches Both the lungs were enlarged whimnous covering the heart and filling the thoracic cavity. Identification marks of the ribs were present. Both lungs were found oedomutous, pits on pressure, spongy, doughy fell and on out section exude profuse blood stained frothy fluid. The stomach contained about 3-4 ounces of whitish semi-digested food The mucus membrance kidneys and liver were congested. The spleen was congested but slightly enlarged. The bladder was found empty According to the doctor, the cause of death was drowning. The visras were preserved for chemical analysis for detection of poison etc. On examination, however, it revealed nothing. The prosecution case, further, was that both the accused confessed their guilt before Dhooraram father of the victim in the presence of two others, namely, Ashok Kumar and Megh Raj. On September 8, 1980. the investigation was taken over by Shri Tribhuwan Singh, Station House Officer. Initially, the proceedings had commenced under Section 174, Cr PC as the report lodged by Mangi Lal disclosed the case to be a case of suicide. Later, during the course of investigation, the case was registered under Section 302 read with Section 34, Indian Penal Code on September 9, 1980 On September 11, 1980, both the accused were arrested. Upon completion of investigation, the Police submitted a charge-sheet against both the accused in the Court of the Judicial Magistrate No. 2 Bikaner, who committed them to the Court of Sessions for trial. They were charged for the offence under Section 302 and read with Section 34, Indian Penal Code. They pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined as many as fifteen witnesses. They were charged for the offence under Section 302 and read with Section 34, Indian Penal Code. They pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined as many as fifteen witnesses. Mainly, the prosecution case is based on the evidence of Rakesh a minor son of the deceased, the extra-judicial confessions said to have been made by the accused before Dhoora Ram in the presence of Ashok Kumar and Megh Raj and the circumstantial evidence that the deceased died in the house of the accused, where the accused alone had the opportunity to kill her. 5. In the statements recorded Under/Section 313, Cr PC the accused denied having committed the offence. The defence case was that Mst Champa brought the end of her life by sub-merging hereself into the water reservoir (KUNDI). The accused were not responsible for the same. It was admitted that the KUNDI (water reservoir) was 14"x 18" its depth was 6' and was full of water. The case of Mangi Lal was that he had gone to the Railway workshop at 7.30 a.m. He got his card punched and returned from the Workshop at 8 25 a.m. He denied having made the confession. He further stated that the financial condition of Dhooraram had become weak. He had misappropriated the ornaments of her elder daughter also and was not returning the ornaments of Mst. Champa as well. The case set up by accused Fakir Chand was that early in the morning on the date of occurrence, in September 5, 1980, he took bath and went to his room upstairs for doing Pooja Paath. He returned down stairs at 7.15 a.m. Bu that time, his father had already left for the workshop. Champa was busy in cleaning the house. Mst.Champa was telling Rakesh, who was standing there with a bundle of clothes, to go the maternal grand-father's house and take his bath there and that she too would be following him shortly. The case of the accused was that he asked her that she should not go alone and that he would also accompany her. Champa asked him why he wanted to accompany her. On this, the accused told her that she had not brought back the ornaments from her father. She had not worn the ornaments on the festivals of Holi and Rakhi as well. Champa asked him why he wanted to accompany her. On this, the accused told her that she had not brought back the ornaments from her father. She had not worn the ornaments on the festivals of Holi and Rakhi as well. The accused also told her that, contrary to her version that her father had kept the ornaments in the bank, her father Dhooraram had told him the previous night when he met him at the Panwala shop at about 8.00/9.00 a.m. that the ornaments were not with him and that she had taken the same long back. The accused told Mst. Champa that he wanted to talk about the ornaments with her father in her persence. The accused then went into the cote (BARA) and returned 20-25 minutes thereafter. He them called Champa but there was no response. He looked for her in the house up-stairs but there also he did not find her. When he was descending the stairs, he noticed that some sound like "LBABLAB" was coming from the KUNDI. He probed into it and found that Mst. Champa was there in KUNDI. He brought her out treated her by applying massage and tried to take out water from her body. How ever, he failed in his efforts and could not save her. Thereafter, he went to Dhoora Ram and narrated to him the incident and also the fact that she had drowned hereself. Dhooram suggested him to call his father and that he was asking Ashok and Meghraj to go to the site. The accused went to inform his father and brought him there. By that time several people had come to their house. Thereafter, his father proceeded to the Police Station for making the report. 6. Only one witness, Bhanwar Lal was examined in defence. He deposed that he did not notice any strained relations or quarrel between Fakir Chand and his wife Champa. They were living a cordial life Fakir Chand was married to Champa about fifteen years back. At that time, Mangi Lal had given certain ornaments to the birde, which consisted of golden Borla, Timaniya, Kandora, Muthiya, golden bangles, rings and other ornaments. These ornaments were kept with Dhoorarara. 7. After trial, the learned Sessions Judge convicted and sentenced the appellants to imprisonment for life the offence under Section 302 read with Section 34, Indian Penal Code. At that time, Mangi Lal had given certain ornaments to the birde, which consisted of golden Borla, Timaniya, Kandora, Muthiya, golden bangles, rings and other ornaments. These ornaments were kept with Dhoorarara. 7. After trial, the learned Sessions Judge convicted and sentenced the appellants to imprisonment for life the offence under Section 302 read with Section 34, Indian Penal Code. The learned Sessions Judge held that the daceased Mst. Chama died a homicidal death by drowning in the water of the KUNDI. There was no reason for Mst. Champa to commit suicide. The Sessions Judge was impressed by the evidence of Rakesh and held that his statement was natural and trustworthy. The learned Sessions Judge further held that Champa's death was neither suicidal nor accidental. It was not possible for her to plunge into the KUNDI and kill herself. The learned Sessions Judge believed the evidence of Dhooraram, Ashok Kumar and Meghraj and held that the accused had made extra-judicial confessions in their presence of having thrown the deceased into the KUNDI. He also believed the evidence of Madan Gopal, a neighbour, who stated [bat he had heard the cries of Mst. Champa and that when he knocked at the door of the accused, the latter rebutted him to mind his own business. According to the learned Sessions Judge, the circumstances proved against the accused were sufficient to bring home the guilt against the accused. The learned Sessions Judge arrived at a conclusion that Mst. Champa was killed by the accused by drowning into the KUNDI. 8. Aggrieved by the aforesaid judgment of the learned Sessions Judge, the accused-appellants have preferred the present appeal in this Court. 9. We have heard Mr. M.N. Singhvi and Mr. MX. Garg counsel for the accused-appellants and Miss Sumitra Sankhla Public Prosecutor for the State and also Shri M.D. Purohit, counsel for the complainant. 10. The counsel for the appellants have contended that the evidence relating to the extra-judicial confession alleged to have been made by the accused before Dhooraram in the presence of Ashok Kumar and Meghraj was unnatural and absolutely concocted. 10. The counsel for the appellants have contended that the evidence relating to the extra-judicial confession alleged to have been made by the accused before Dhooraram in the presence of Ashok Kumar and Meghraj was unnatural and absolutely concocted. The fact that despite the alleged extra-judicial confession, the police continued to proceed with the case under Section 174, Cr.PC without registering a case under Section 302, Indian Penal Code is indicative that the story of extra-judicial confession was introduced subsequently Dealing with the evidence of Rakesh, the counsel have urged that apart from being a child witness his conduct was most unnatural. His testimony was not corroborated by medical evidence as no marks of dragging were found on the body of the deceased. The witness was prone to tutoring. Learned Counsel also urged that the learned Sessions Judge was in error in placing reliance on the testimony of Madan Gopal. Learned Counsel are emphatic that the circumstances present in the case do not rule out the possibility that Mst. Champa herself plunged into the water and brought an end to her life. The case of homicidal death, argues learned Counsel, has not been established beyond doubt by the prosecution and the accused could not be convicted for causing the death of Champa. In any event there was paucity of evidence to convict both the accused jointly or either of the accused singly and individually with the alleged murder. 11. The learned Public Prosecutor has, on the other hand, fully supported the judgment of the learned Sessions Judge. He has urged that the circumstances brought out against the accused were sufficient to hold that the death of Mst. Champa was caused by the accused. The circumstances were compatible with the death of Champa was accidental or suicidal. He has further submitted that the evidence of Dhooraram Ashok Kumar and Megh Raj was reliable and the learned Sessions Judge wholly justified in accepting their evidence to the effect that the accused had confessed before them that they had killed the deceased by throwing her into the KUNDI. The learned Public Prosecutor and Mr. Purohit have submitted that the evidence of Rakesh, though a child witness, was straight-forward and trustworthy. There was nothing in his testimony to discredit his evidence. Shri M.D. Purohit, supporting the prosecution with his unfailing vehomence, has urged this court to uphold the conviction of the appellants. The learned Public Prosecutor and Mr. Purohit have submitted that the evidence of Rakesh, though a child witness, was straight-forward and trustworthy. There was nothing in his testimony to discredit his evidence. Shri M.D. Purohit, supporting the prosecution with his unfailing vehomence, has urged this court to uphold the conviction of the appellants. According to him, the motive proved against the accused was sufficient for them to commit the murder of Mst. Champa. She was living a miserable life. The accused were harassing and ill-treating her. They were forcing her to bring ornaments or cash from her father and if she failed to comply, they had threatened to kill her. According to Mr. Purohit, the circumstances against the accused were more than sufficient to hold that Mst Champa was killed by the accused. On the date of the occurrence itself submits Mr. Purohit, the shrieks of Champa from the house of the accused were heard by Madan Gopal. Mr. Purohit has, further, submitted that the injuries on the ribs and the hands of Champa, as noted in the inspection memo of the dead body and deposed to by the prosecution witnesses at the trial, was indicative of the fact that the death of Mst Champa was not suicidal but homicidal. The accused alone had the opportunity to kill her in the house. There was no reason, no immediate dispute, no quarrel or any compulsion for Mst. Champa to commit suicide. The plea of alibi set-up by the accused was false and was an added circumstance to evidence their complicity. The conduct of the accused who had changed the clothes of the deceased and had removed all the evidential marks from the scene of occurrence even before the Police reached there was also incriminating. Shri Purohit has further urged that the evidence of Dhooraram, Ashok Kumar, Meghraj and Rakesh was natural, straight-forward and wholly reliable. 12. We have given our earnest consideration to the arguments addressed at the Bar. We have also been taken through the entire evidence and record of the case. We frankly admit that the case presents features, complex and grave, which kept us indecisive for quite a few days. We searched for material which could settle the issue but despite prolonged arguments by counsel on both the sides we could not lay our hands to any piece of evidence sufficient to resolve the question involved herein. 13. We frankly admit that the case presents features, complex and grave, which kept us indecisive for quite a few days. We searched for material which could settle the issue but despite prolonged arguments by counsel on both the sides we could not lay our hands to any piece of evidence sufficient to resolve the question involved herein. 13. The first and foremost question for decision in this case is whether the death of Mst. Champa was suicidal or homicidal. The Sessions judge has held that she died a homicidal death and we are required in that app all to examine the correctness of this conclusion. Undisputably it was the common case of the, parties that she died by drowning. There is, also no challenge to the fact that she met her death by drowning in the water of the reservoir, called as a KUNDI. There is sufficient material on record to sustain this fact that Mst. Champa died of drowning in the water reservoir The doctor has deposed that on compression of chest, while tenacious lathery froth appeared at the right nostril. Facial matter was present in the anus region. It may here be pointed out that facial was also found floating in the water of the reservoir when the Investigating Officer inspected the KUNDI. Fine white tenacious froth was also present in the larynx and trachea. The doctor found both the lungs enlarged whimnous covering the heart and filling the thoracic cavity. The lungs were oadematous pits on pressure spongy, doughy feel and on out section exuded profuse blood stained frothy fluid, identification marks of the ribs present. The liver, spleen and kidney were congested. Based on these appearances, the doctor has opined that the cause of death of Mst. Champa was drowning. The presence of the facial matter both in the water reservoir and the anus region of Mst. Champa is indicative of the fact that her death took place when she was in the KUNDI. We have no hesitation in affirming the finding of the learned Sessions Judge that Mst. Champa met her death on account of drowning in the KUNDI (water reservoir). 14. What is in issue is; whether the deceased herself brought her death by suicide or was it a case of homicidal killing? We have no hesitation in affirming the finding of the learned Sessions Judge that Mst. Champa met her death on account of drowning in the KUNDI (water reservoir). 14. What is in issue is; whether the deceased herself brought her death by suicide or was it a case of homicidal killing? The prosecution alleges that both the accused forcibly put her into the KUNDI and caused her death while the case of the appellants is that she, of her own, plunged into the water reservior and voluntarily brought the end of her life. The report of autopsy and the symptoms and appearances noted therein leave us merely guessing. The medical testimony does not lead us anywhere. It is difficult from the post-mortem report to form a definite opininon that it was a case, not of suicide but of homicide. The mouth of the KUNDI was 14" X 18". The depth was 5', 11" and the water level was at 6', 11/2". The height of Mst. Champa, as measured by the Investigating Officer and mentioned in the inspection memo of the dead body, was 5, 7". If so, the victim, was a grown-up woman, could not be just thrown or forced into the KUNDI, without any struggle or resistance on her part. In that event, she must receive some injuries that are visible externally But in the post-mortem report, we find none. Modi, in "Medical Jurisprudence and Toxicology", 19th Edition, page 171, has noted: "Homicidal drowning is rare except in the case of infants and children. It is not possible to throw an adult of average strength and in full possession of his senses into water so as to drown him unless he is attacked unware or he has been previously stupified by some narcotic drug." In the present case; there is no evidence to show that Mst. Champa was, in any way, taken unwares. There is not even a suggestion that she had been stupified by any drugs previously. If she had been forced into the KUNDI her resistance must have caused some marks of struggle and injuries on her body. The post-mortem report does not show any such signs or symptoms. No external injuries were found on her body to show that she was a victim of forcible sub hersion in the reservoir. If she had been forced into the KUNDI her resistance must have caused some marks of struggle and injuries on her body. The post-mortem report does not show any such signs or symptoms. No external injuries were found on her body to show that she was a victim of forcible sub hersion in the reservoir. We asked the learned Public Prosecutor and Shri Purohit, counsel for the complainant, and also the counsel for the accused appellants to point out any material which could clinch the issue. Mr. Purohit invited our attention to a mention in the Fard-Surat A-Haal (Ex.P. 6) of the bluish marks noticed on the ribs and hands of the deceased. True, Lal Mohammed and Megh Raj have testified in court that they noticed bluish marks on the ribs as also on the hands of Mst. Champa, but this fact is not supported by the medical evidence. The post-mortem report is significantly silent about any injury on the ribs or hands. Rather, Dr. Gehlot, in this statement in the Court, has categorically stated that he did not find any injuries on the ribs and/or hands of the deceased. Dr. Gehlot was not alone when he performed the post-mortem examination of the dead body. Another doctor, an eminent and a senior one. Dr. SB. Mathur, also present during the said examination. We are not prepared to accept that two such senior doctors will fail to notice the marks of injuries, if any, on the body of the deceased. The close up photos of the ribs and hands are available on the record. Very carefully we looked into the photos to find out whether there were any marks on the ribs and the hands to give the appearance of being bruises or abrasions to evidence struggle or resistance on the part of the deceased. The surface of the ribs and hands, in the photos, appears to be quite clean and do not suggest even remotest marks of any injury on them. Learned Counsel for the accused has suggested that the Investigating Officer and the witness may have mistook the post-mortem staining and have wrongly described them as bluish marks. It often happens and in this case the post-mortem staining did exist on the body of the deceased, as revealed in the postmortem report. Learned Counsel for the accused has suggested that the Investigating Officer and the witness may have mistook the post-mortem staining and have wrongly described them as bluish marks. It often happens and in this case the post-mortem staining did exist on the body of the deceased, as revealed in the postmortem report. Therefore, in the absence of any marks of injuries in the post-mortem report to indicate resistance or struggle. It would not be safe to infer that Mst. Champa was forcibly thrown in the KUNDI by the accused. Naturally, a medical man when he appears as a witness in Court to pove the injuries of a victim of assault or homicide testifies not only as a witness of opinion or as an expert but also as a witness of fact, as he is required to disclose as to the existence of injuries on the body of the victim, the subject of his examination. He, therefore, appears not merely as an expert but furnishes direct evidence as well. In Modi's Jurisprudence (19th Edition pape 121) it is said: "Post-mortem lividity or starting has sometimes been mistaken for bruises caused by violence during life, and consequently innocent persons have been prosecuted for murder but acquitted after wards, when the charge could not be proved. Dead bodies occasionally forwarded to Modi for post-mortem examination with a report from the police that as a result of violence there were bruises on the back, but, on inspection, the so-called on the bruises were found to be nothing also but post mortem staining." The postmortem staining is, thus, often mistaken for bruises. Therefore, the evidence of a doctor becomes important It is he who can throw a light as to whether there was any infiltration or profusion of blood into the subcutaneous tissues. It is the medical man who can possitively depose whether any marks on the dead body giving the appearance of bruises were ante mortem injuries or the mere marks of post mortem staining Thus, the material available on the record takes us no where. The possibility that it may have been a case of suicide, is not completely ruled out. May be, it was a case of homicide, but, at the same time, it could possibly be a case of suicide. We are unable to hold positively that Mst. Champa met a homicidal death. The possibility that it may have been a case of suicide, is not completely ruled out. May be, it was a case of homicide, but, at the same time, it could possibly be a case of suicide. We are unable to hold positively that Mst. Champa met a homicidal death. The mere fact that death took place by drowning in a water reservoir does not necessarily lead to the conclusion that it was case of murder. 15. We may next proceed to examine whether other circumstances pointed out by Shri Purohit, learned Counsel for the complainant, establish the fact that it was a case of homicide and the accused were responsible for the death of Champa. Shri Purobit has, in this connection., relied on the following circumstances, namely, (1) that the evidence of Dhoora Ram, Ashok Kumar and Meghraj prove that accused had themselves made a confession before Dhooraram that they had killed Mst. Champa by throwing her into the water of the 'KUNDI'; (2) that the evidence of Rakesh, son of the deceased establishes the fact that it were the accused who dragged Champa towards the KUNDI; (3) that the statement of Madan Gopal lends support to the prosecution in as much as he states that he heard the weeping cries of Mst. Champa coming from the house of the accused and when he knocked at the door of the accused, he was told to mind his own business; and (4) that the accused had motive, which was sufficient to induce them to commit the murder of Champa. He has further submitted that these circumstances not only connect the two accused with the murder of Champa but they can as well be used to hold that is was a case of homicide and not suicide. 16. First, we take-up the evidence regarding the extra-judicial confession. It consists of three witnesses, viz., Dhooraram, Ashok Kumar and Meghraj. As stated earlier, Dhooraram is the father of the victim girl. He has stated that on the date of occurrence he was at his house. Ashok Kumar and Meghraj were also with him. At about 9.00 a.m. Mangi Lal and Fakir Chand came there and asked him to accompany them to their house. When he asked them what was the matter, they told him that Mst. Champa had died. He has stated that on the date of occurrence he was at his house. Ashok Kumar and Meghraj were also with him. At about 9.00 a.m. Mangi Lal and Fakir Chand came there and asked him to accompany them to their house. When he asked them what was the matter, they told him that Mst. Champa had died. On further questioning, Mangi Lal said: " gekjh xyrh gks x;h] ekQ dj nks vkSj tYnh ls pydj lkjh lykg nks ugha rks ekeyk fcxM+ tkosxkA eSaus iwNk D;k xyrh gks x;h rks ekaxhyky us dgk fd geus pEik dks dqUMh esa Mkydj ekj fn;k gSA bl ij QdhjpUn ls iwNk fd dqoj lkgc ls D;k dg jgs gks D;k ;g ckr dgh rks QdhjpUn cksyk fd gka gels xyrh gks x;h ge nksuksa us dqUMh esa Mkydj ekj fn;kA QdhjpUn us dgk fd vkids gh vkneh gSa iqfyl esa dqN er dgks o vkxs pkjikbZ esa Mkydj vkxs tykus dk dke djksA " 17. Another witness Ashok Kumar, who is the nephew of Dhoora Ram, has stated that he was sitting with Dhooraram when the accused came there and asked Dhooraram to accompany them to their house. When Dhooraram asked what was the reason, they said that Mst. Champa had died. On further questioning, Mangilal said: " gels xyrh gks x;h vkSj QdhjpUn us Hkh lgefr esa flj fgyk fn;kA /kqMkjke us iwNk D;k xyrh gks x;h rks ekaxhyky cksyk fd geus pEik dks Mqckdj ekj fn;k gSA bl ij QdhjpUn cksyk fd xyrh gks x;hA " 18. To the same effect is the evidence of Meghraj. He is also a relative of Dhooraram. He has stated that they came to the house, of Dhooraram and asked him to accompany them to their house. When Dhooraram asked as to what was the matter, the accused told him that Mst. Champa had died. On being questioned further by Dhooraram, Mangi Lal said: " geus bldks ikuh dh dqUMh esa Mqckdj ekj fn;kA bl ij /kwMk jke QdhjpUn ls iqNk fd D;k ckr gS daoj lkgc QdhjpUn us dgk fd Bhd gSA " 19. We have carefully read the statements of these witnesses. Champa had died. On being questioned further by Dhooraram, Mangi Lal said: " geus bldks ikuh dh dqUMh esa Mqckdj ekj fn;kA bl ij /kwMk jke QdhjpUn ls iqNk fd D;k ckr gS daoj lkgc QdhjpUn us dgk fd Bhd gSA " 19. We have carefully read the statements of these witnesses. Before we examine the worth of their testimony, we will be well advised to keep in view the caution administred by S. M. Fazl Ali, J in Shared Birdichand Sharad v. State of Maharashtra ( AIR 1984 Supreme Court 1622 at page 1636) . There it was said: "All persons to whom the oral statement are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking apart of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemosis against the accused person and in this process certain facts which may not or could not have been stated unconsciously may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." The close relationship of the witnesses with the victim apart the statements given by them do not impress us Mangi Lal had already lodged a report at the Police Station where he had set-up the plea of suicide by Champa. There was no occasion for the accused to have gone to Dhooraram and confess the guilt before him Mangi Lal and Dhooraram were not on visiting terms. Dhooraram has admitted that even on the occasion of the marriage of his two sons, the accused had not participated. Mangi Lal had not come to his house for the last 6-7 years. There was no occasion for the accused to have gone to Dhooraram and confess the guilt before him Mangi Lal and Dhooraram were not on visiting terms. Dhooraram has admitted that even on the occasion of the marriage of his two sons, the accused had not participated. Mangi Lal had not come to his house for the last 6-7 years. It appears to us to be unusual that the accused would go and confess their guilt before Dhooraram and that too in the presence of his relations Ashok Kumar and Meghraj. It is not the case of the prosecution that they were actuated by any sense of repentence. Further, the reaction shown by Dhooraram to the alleged confessions made by the accused also appear to us to be highly exceptional. Dhooraram did not exhibit any rage or anguish He did not rebuke, reprimand or even admonish the accused. He, did not accompany them to the place, where his daughter was lying dead. He, the father of the victim, must have reacted sharply, if not impetuously, on the news that his daughter has been done to death by the accused. The evidence, rather, shows that he did not visit the site the whole day. The mother of the girl was alive. One brother was also there No one went to see the deceased. Even Rajesh, the elder son of the victim, was not sent to see his mother. This was quite unnatural unusual, a strange behaviour on the part of all the relatives of the unfortunate victim. As per the prosecution, Ashok Kumar and Meghraj were sent there to find out what had happened at the house of the accused This further belies the theory of confessions alleged to have been made by the accused. When they had already admitted in terms, that they had thrown Mst. Champa in the KUNDI, as result of which she had died, what remained there to be further found out by these witnesses. Again, Meghraj before whom the confessions were made, was present when the Panchnama was prepared. He did not inform the Police then that the accused had already admitted their guilt to Dhoora Ram in his presence. The absence of any mention in the Panchnama about the confession having been made, leads to the inference that the story of confessions was developed later on. He did not inform the Police then that the accused had already admitted their guilt to Dhoora Ram in his presence. The absence of any mention in the Panchnama about the confession having been made, leads to the inference that the story of confessions was developed later on. Further, the words in the confessional statement attributed to Fakir Chand varies from witness to witness. Dhooraram says that Fakir Chand had said that they had committed a mistake and that they both have killed Mst. Champa by drowning her into the KUNDI. As against this, Ashok Kumar has merely attributed to Fakir Chand the words "mistake has been committed". Meghraj has deposed that Fakir Chand uttered the words "it is correct." In such a situation, we are not in a position to hold what exactly Fakir Chand admitted and whether he at all confessed am thing. We also have doubts whether Mangi Lal at all went to the house of Dhoora Ram and confessed the guilt there. Rather, in all probability, he must at that time be with the Police, where he had lodged the report that Champa had herself committed suicide. One important circumstance, which the prosecution failed to explain was that the proceedings under Section 174 Cr.PC continued right upto September 9, 1980. Had the accused made the confession before these witnesses on the 5th itself, the investigation would have forthwith registered the case under Section 302,IPC. Neither Dhooraram nor any of his men including Ashok Kumar and Meghraj made any effort to get the case registered against the accused for the offence Under Section 302, Indian Penal Code. Dhooraram had been the Chairman of the Municipal Council and a very influential man. We doubt that the veracity of these witnesses and disbelieve their version that the accused made extra judicial confessions before Dhooraram. This circumstance has, therefore, to be kept out of consideration. 20. We next deal with the evidence of Rakesh. He was eight years of age when the occurrence took place. He has stated that his mother gave him milk to drink. He then went out for playing in the lane as his school time was at 10 00 a.m Within five-ten minutes, he returned to the house. When he came inside and stood in the AANGAN, he saw that his father and grandfather were dragging his mother towards the KUNDI. He has stated that his mother gave him milk to drink. He then went out for playing in the lane as his school time was at 10 00 a.m Within five-ten minutes, he returned to the house. When he came inside and stood in the AANGAN, he saw that his father and grandfather were dragging his mother towards the KUNDI. At that time, the main gate of the house was open. When he entered the house, his father closed the door. The witness further states that he started crying, but his grand-father asked his father to turn him out. On this, his father pushed him outside the house and closed the door. Thereafter he resumed playing. When after five-ten minutes, he again returned and knocked the door, it was opened by his father. He want inside but there he did not find his mother. When he asked his father the where abouts of his mother, his father told him that she had gone o his maternal grand-father's house. On this, he went to his maternal grand-father's house and asked his maternal grand father about his mother, but he did not find her there, also. A bare perusal of the statement of this witness appears to us to be artificial and unusual. A boy of eight years is possessed of sufficient sense to understand what was happening with his mother when she was being dragged towards the KUNDI, as stated by him. Would he simply go out and engage himself in playing? Would he not raise hue and cries and attract people to help his mother, more so, when he was turned out of the bouse? Would the accused keep the door open at a time when they took in their head to drown the deceased by dragging her into the KUNDI? It has come in evidence that his elder brother Raju was already residing with Dhooraram. Would Rakesh not go to him atleast and tell him the entire story. These are some of the features in his statement which keep us unconvinced about the truth of his story. Witnesses of this age are easy victims of tutoring He is living with his maternal family and had come to the court right from their custody. Would Rakesh not go to him atleast and tell him the entire story. These are some of the features in his statement which keep us unconvinced about the truth of his story. Witnesses of this age are easy victims of tutoring He is living with his maternal family and had come to the court right from their custody. Further more, if he had seen his father and grand-father dragging his mother towards the KUNDI, why he still asked his father the where abouts of his mother and then simply accepting the answer given by his father went to the house of his maternal grand-father and enquired him as to whether his mother had come there. His testimony is not supported by the medical evidence. There were no marks of injury on the body of the deceased indicating that she was dragged to the KUNDI. His story is unnatural and his conduct so unusual that we find it difficult to accept his evidence to form a basis for holding the accused responsible for the death of Mst. Champa. 21. We may, now, turn to the statement of Madan Gopal. He has deposed that in the morning on the date of occurrence, when he was going to the school, where he was employed as a teacher, he heard, on the way, the weeping sounds of Mst. Champa. He knocked at the door but was rebuffed by Mangi Lal that he should mind his own business. He thereafter, went away to the school. In cross examination, he has admitted that his statement was recorded by the Police on September 21, 1980. He was with the Police on September 9, 1980 but he did not inform the Police that he had heard the cries of Champa in the morning on the date of the incident. He informed the Police about this fact on 19th, i.e. fifteen days after the occurrence. He is a close relative of Dhooraram. A witness, who remains silent for complete fifteen days and does not inform the Police even though he was with them, can hardly inspire any confidence. We are not prepared to give credence to his testimony. 22. As regards the motive alleged against the accused, the witness Dhooraram has stated that the accused used to harass and ill-treat his daughter Mst. Champa. We are not prepared to give credence to his testimony. 22. As regards the motive alleged against the accused, the witness Dhooraram has stated that the accused used to harass and ill-treat his daughter Mst. Champa. Only ten-fifteen days prior to her death, she had told him that her father-in-law had removed her Borla and Necklace but were pressing her to bring the said ornaments or cash from the witness, i. e. her father. Mst. Champa was married to Fakir Chand fifteen years prior to the occurrence. Except the oral testimony of this witness, we do not find any corroborative material on record to show that the accused were pressing Champa for bringing ornaments, or cash from Dhooraram. It is not unusual that the parents of a victim girl attribute such conduct to the husband of the girl and his relations out of sheer anguish. No details or particulars of the harassment or ill-treatment meted out to the girl earlier have been given by the witness. As against this, the statement of accused Fakir Chand is that Mst. Champa had kept her ornaments with Dhooraram She had not worn them even on Holi and Rakhi festivals. When he asked Mst. Champa as to why she had not put-on the ornaments on these festivals, she had replied that the ornaments had been placed in the bark by her father. Fakir Chand had told Mst. Champa that he had met Dhooraram the previous night but he was denying the fact that the ornaments were with him. The accused had asked Mst. Champa that he would accompany her to Dhooraram's house and confront him in her presence. The suggestion of the defence is that may be, Mst. Champa was not prepared to face the situation. Women do commit suicide on least provocation. They finish themselves in a fit of deep anguish or even frustration. After all, the real cause or reason for the suicide is better known to the victim and none else. The motive put -forward by the prosecution against the accused for committing the murder and the reason suggested by the accused for the victim to commit suicide are evenly balanced. If the motive attributed by Dhooraram may have led the accused to commit the murder of Mst. The motive put -forward by the prosecution against the accused for committing the murder and the reason suggested by the accused for the victim to commit suicide are evenly balanced. If the motive attributed by Dhooraram may have led the accused to commit the murder of Mst. Champa, the situation, in which she was placed, as suggested by the accused, could equally induce her to end her own life In these circumstances, we are not inclined to attach much importance to the circumstance of motive. 23. We may, at this stage deal with the argument of Shri Purohit that the false plea of alibi pleaded by the accused Mangi Lal was an added circumstance to show their complicity in the crime. We are not prepared to accept this submission. In Shanker Lal Gyarsilal Dixit v. State of Maharashtra [ AIR 1981 SC 765 ] the Supreme Court has said: "Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as as an additional circumstance, if other circumstances point unfailing to the guilt of the accused." In the present case, the evidence of witnesses and the circumstances do not point to the guilt of the accused with reasonable certainty and as such the plea of the accused, even if false, cannot be used 10 supply the missing chain in the prosecution case. More over, here in the instant case, the prosecution has not succeeded in showing that the plea of alibi taken by the accused was false. What Mangi Lal stated in his statement under Section 313, Cr. PC was that he hed gone to the Railway Workshop at 7.30 a.m. and had returned from there at 8.25 a.m. The prosecution has examined two witnesses, namely, Isardass and Ratanchand belonging to the Railway Workshop. Isardass supports the plea of the accused to the, effect that he saw the accused in the workshop when he reached there at 7.30 a.m. He further says that he did not see the accused in the workshop later at 9 00 a.m. but this does not disprove the case of the accused as he himself states that be had returned from there at 8.30 a.m. Ratanchand, no doubt, states that he himself did not see the accused in the workshop. The witness, how ever, admits that the cards of the employees could be punched only upto 7.38 a.m. The cards are kept at the gate with the Time-keeper. The witness has further admitted that he had seen the card of Mangi Lal at 10 00 O'Clock on September 5, 1980 and it was found to have been duly punched. In this card, the entry time is 7. 34 a.m. and the leaving time is 8.25 am. These witnesses have been examined by the prosecution itself. Far from disproving the plea of alibi their evidence rather supports the accused that he was not at his house when the occurrence took place. 24. In the light of the aforesaid discussion we are not persuaded to hold that it was a case of homicide and that the accused caused the death of Mst. Champa by drowning her into the KUNDI. The possibility of Mst. Champa's having, herself, committed the suicide, is not completely ruled out. Fouler the crime, higher must be the proof. Strong moral conviction cannot take the place of legal proof. The prosecution has failed to establish that Mst. Champa was killed by the accused by drowning her into the water-reservoir. In these circumstances, it is difficult to sustain the conviction of the appellants for the offence under Section 302 read with Section 34, Indian Penal Code. We extend the benefit of doubt to them. It is unfortunate that the accused are in jail since September 11,1980 and we are hearing their appeal now in 1988. 25. We allow the appeal set-aside the conviction and sentence of the appellants passed by the learned Sessions Judge and acquit them of the charges levelled against them. They shall released be forthwith, if not required in any other case.Appeal Allowed. *******