R. D. SHUKLA. J. ( 1 ) THIS appeal is directed against the judgment and order dated 27. 11. 87 of Sessions Judge, Ratlam passed in S. T. No. 82/87 whereby accused-appellant has been convicted u/section 302 IPC for having committed murder of Smt. Rukminibai on 18. 2. 87 in village Palduna, and sentenced to imprisonment for life. ( 2 ) THE prosecution story in brief is that on the date of incident i. e. 18. 2. 87 at about 6 p. m. Rukminibai was returning from Jungle and was going towards residential village, the moment she reached near a rivulet by the side of the field, one of Madhu Patel, the accused who was hiding behind the bushes jumped all of a sudden, gave 34 blows from the Butt of Pharsi and thereafter chopped of the legs for taking out the silver ornaments which she was wearing Rukminibai raised alarm. Sardar and Ramesh reached the spot. Accused left the place of incident immediately after arrival of Sardar and Ramesh. ( 3 ) BOTH these witnesses Sardar and Ramesh who have been examined as PW 5 and PW 9 ran towards village as they themselves were scared and informed the villagers. The responsible persons of the village came on the spot. They found Rukminibai dead. The matter was reported to police on the same day by Heeralal PW 7, the same was recorded by PW 8 Sultan Singh who registered an offence u/sections 302 and 396 IPC vide Crime No. 89/87. The investigation of the case was conducted by A. R Khan PW 13 who received the information and FIR on the same night. He visited the spot, prepared inquest report (P/9) found both the legs severed at the level of ankle joint prepared site map (P/8); seized stained and unstained earth from the spot including broken bangles, shoes and some artificial pearls lying on the place of incident. The photographs of the dead body were also taken vide P/18 and P/20. The body was sent for post mortem examination with inquest report. ( 4 ) DR. Harish Kumar Dubey PW 1oa conducted autopsy on the body of Rukminibai and found right leg cut from 2. 5 above the ankle joint, the bones were exposed. The left leg was also cut from above the ankle joint. The margins of cut injuries were not clean cut, they were irregular and oblique. ( 4 ) DR. Harish Kumar Dubey PW 1oa conducted autopsy on the body of Rukminibai and found right leg cut from 2. 5 above the ankle joint, the bones were exposed. The left leg was also cut from above the ankle joint. The margins of cut injuries were not clean cut, they were irregular and oblique. He further found lacerated wound and cut wound of 1. 5 on the left ear and lacerated wound 3 x 1. 5 on the occipital part of the head. Lacerated wound 1 x 0. 5 on the left side of tempo-partial region. There was depressed fracture of temporal done. Brain was cut and tom to the size of 1. 5. All the injuries were ante-mortem and sufficient in ordinary course of nature to cause death. Deceased died of coma as a result of head injury. Other injuries also accelerated death. ( 5 ) DURING investigation, accused was arrested, he gave information about Pharsi, sharp edged cutting weapon vide P/2 and the same was seized vide P/s. One pair of silver Kadi was seized from one Rakma, son of Gotam at the instance of accused Ramsingh vide P/4 and on the basis of information given by accused vide P13. Rakma was related to the accused as son-in-law. The silver ornaments were got identified under the direction of one Shri Heeralal, Sarpanch. The same was correctly identified by Ranchod, husband of deceased, after investigation, challan against the accused was filed under Sections 302 and 309 IPC much was committed to the Court of Session. Accused denied the guilt and pleaded false implication. Learned Sessions Judge has convicted and sentenced the accused as above. Hence this appeal. ( 6 ) THE contention of learned Counsel for appellant is that the prosecution witnesses specially PW 5 Ramesh and PW 9 Sardar who claim to be the eye witnesses are not reliable as they did not disclose the incident immediately. The second contention of learned Counsel for appellant is that the other circumstantial evidence adduced in the case is not sufficient to connect the accused with the crime. ( 7 ) AS against it, learned Counsel for the State has supported the case of the prosecution and submitted that PW 5 Ramesh and PW 9 Sardar were young persons. The second contention of learned Counsel for appellant is that the other circumstantial evidence adduced in the case is not sufficient to connect the accused with the crime. ( 7 ) AS against it, learned Counsel for the State has supported the case of the prosecution and submitted that PW 5 Ramesh and PW 9 Sardar were young persons. They were scared of the incident and for this reason they failed to disclose the incident immediately, but, looking to other corroborative evidence they have rightly been believed. ( 8 ) WE were taken to the evidence on record of the case. The conviction in the case is mainly based on the evidence of PW 5 Ramesh and PW 9 Sardar who claim themselves to be the eye witnesses. ( 9 ) PW 5 Ramesh has stated that the alongwith Sardar were looking after buffalos. During that process, one buffalo ran towards Jungle and went towards the well of Rajaram. They caught hold it and brought it back. Meanwhile, they heard the alarm raised by Rukminibai. Both of them went to the place and saw the accused causing injury by means of Pharsi. He has further stated that both the legs of Rukminibai were chopped of above the ankle joint and silver Kadi were not found there. But during cross examination in para 16, he has admitted that the assailant has left the place before they reached the spot. In para 17 of his cross-examination he has accepted that on a querry from villagers as to who has killed Rukminibai, he did not disclose the name and stated that he could not identify the person. In para 20, he has admitted that the Police recorded the report in Panchayat Bhavan and he has disclosed the name of assailant to the Police, prior to the fact of report by Heeralal but in FIR lodged by Heeralal, the name of assailant does not find place. He has also admitted that he alongwith Sardar were also arrested by Police as they themselves were suspected for commission of murder. He has also admitted that he alongwith Sardar were also arrested by Police as they themselves were suspected for commission of murder. ( 10 ) PW 9, Sardar, the other eye witness of the incident has though supported the version of Ramesh and stated that on hearing the alarm raised by Rukminibai, they went to the spot and saw accused causing injury to Rukminikai by Pharsi and has further stated that on their arrival at the place of incident, accused left the place. In the examination-in-chief itself in para 6 this witness has admitted that he did not disclose the name of accused to Sarpanch as he was scared of being implicated in the case. In para 9 of his statement he has admitted that he did not disclose the name of Sarpanch Heeralal Dhakad. In para 10 of his statement be bas further admitted that on querry from Rajaram, he stated that he could not recognise the assailant. He has also admitted in para 11 of his statement that he was taken in custody by Police and was kept in lock up for two days. ( 11 ) LEARNED Trial Judge has taken into consideration all these facts and infirmities in the evidence of these witnesses but bas believed them holding it to be that as the witnesses are young persons such discrepancies are bound to occur. We do not agree with the finding of learned Trial Judge as burden lies on the prosecution to prove the case beyond reasonable doubt by cogent and reliable evidence. In this case two inferences can be drawn and that witnesses are not reliable or atleast not wholly reliable and secondly that witnesses are reliable and the discrepancy stands explained. In such a situation, where two inferences can be drawn from the same set of facts, inference which is akin to the innocence of the accused ought to be drawn. There is always a presumption of innocence in favour of the accused. The Court cannot be allowed to approach the evidence with preconceived notion that the accused is guilty and accordingly cannot be allowed to act upon the evidence of such witness who themselves have been suspected as accused in the case and who fails to disclose the name of assailant immediately after occurrence. In our opinion, therefore, the two witnesses i. e. PW 5 Ramesh and PW 9 Sardar are not reliable. In our opinion, therefore, the two witnesses i. e. PW 5 Ramesh and PW 9 Sardar are not reliable. Conviction cannot be based on the sole testimony of these two witnesses. ( 12 ) THE next set of evidence adduced against the accused is recovery of silver Kadi on the information of accused and from one house of his son-in-law Hakma. PW 13 Rakma has denied any recovery from his house. He was not made accused in the case. PW 1 Ranchod, husband of deceased Hukminibai had admitted in para 15 of his statement that the silver Kadi were shown to him before identification conducted by Sarpanch Heeralal. This shows that the Prosecution Agency was interested in patching up the discrepancies and in padding the case suited to the prosecution story. Learned Trial Judge has also disbelieved the fact of pair of silver Kadi belonging to deceased Rukminibai having been recovered at the instance of accused and from the possession of Rakma PW 13. ( 13 ) LEARNED Trial Judge has further found that Ranchod has nowhere stated that the pair of silver Kadi produced in the Court belong to him. We do not find anything to disturb that finding. Learned Trial Judge has acquitted the accused u/sections 396 and 397 IPC. Even otherwise as rightly held by Trial Judge the assailant was all alone and there was no assembly of five persons, the accused cannot be convicted and even cannot be charged u/section 396 IPC. However, since the recovery of identification is doubtful and the fact that silver ornaments produced in the Court belongs to deceased Rukminibai has not been proved, no adverse inference can be drawn against the accused. ( 14 ) IN view of discussion above we do not find clear, cogent and reliable evidence connecting the accused with the crime of murder and loot. Though a strong suspicion has been created against the accused because of the statement of PW5 5 Ramesh and 9 Sardar but suspicion however strong it may be, cannot be made basis for conviction. We, therefore, extend benefit of reasonable doubt to accused. ( 15 ) AS a result, appeal succeeds and the accused is acquitted of the offence punishable u/section 302 IPC. The accused was on bail. His bail bonds were cancelled for non-appearance as such he is in jail. He be released forthwith. Appeal allowed. .