JUDGMENT 1. - These two appeals arise out of the judgment dated 30.4.1992 passed by the District and Sessions Judge, Jodhpur, by which the learned Sessions Judge convicted the appellant for the offence Under section 302 Indian Penal Code and sentenced her to undergo imprisonment for life. D.B. Criminal Appeal No. 189 of 1992 was filed by the appellant through her counsel while D.B. Criminal (Jail) Appeal No. 235 of 1992 has been filed by her through the jail. Since both the appeals arise out of the same judgment, relate to the same ncident and have been filed by the same appellant, they are, therefore, being disposed of by this common judgment. 2. Appellant Smt. Ashki @ Asha Devi, alongwith her husband Tulsi Ram was tried by the learned Sessions Judge, Jodhpur for the offence under Sections 302 & 302/34 DPC. The case of the prosecution, as unfolded in the FIR lodged on 26.5.1991 at 11.00 a.m. by Smt. Papudi - the mother of the deceased children Suresh and Kiran, was that she was married to Tulsi Ram, who eight to ten years before, had kept one lady, viz., Smt. Ashki in his house and they were living like husband and wife. She was sent to her parents' house and since then she is living with her parents. Out of this wedlock, one daughter Kiran (aged about 12 years) and one son Suresh (aged about 14 years) were bom. Her daughter Kiran was living with her while Suresh was living with her father. A week before the date of the incident, Suresh came to Jodhpur and took his sister Kiran with him as there were summer vacation. Her aunt-in-law Huka Bai is living with Tulsi Ram at Bilara. Both the children, therefore, went to Bilara. Yesterday, Huka Bai came to Jodhpur and informed her that on 24.5.1991, at 9.00 p.m. Suresh was sleeping with her and Kiran was sleeping with Ashki. Sometime thereafter Ashki came upstairs and took Suresh forcibly with her. After sometime she heard the cries of Suresh. Huka Bai thereafter went downstairs and enquired from Ashki what had happened, upon which Ashki informed her that Suresh had got some fever and, therefore, she is going to give some medicine to him. Huka Bai thereafter turned out from the room and Suresh was taken inside the room and after taking Suresh inside the room, Ashki closed the door. Huka Bai thereafter went downstairs and enquired from Ashki what had happened, upon which Ashki informed her that Suresh had got some fever and, therefore, she is going to give some medicine to him. Huka Bai thereafter turned out from the room and Suresh was taken inside the room and after taking Suresh inside the room, Ashki closed the door. Tulsi Ram was, also, knowing this fact and he was, also, inside the room. Both of them administered poison to both the children. In the morning, Huka Bai went to the room where Suresh and Kiran were sleeping and found both of them lying unconscious. Huka Bai thereafter called Tulsi Ram and enquired from him what had happened to the children as neither they were opening their eyes nor they were speaking anything; but Tulsi Ram ignored her and Smt. Ashki turned her out from the house by giving a push. From there she came to Jodhpur and informed her about the incident. 3. On the basis of this written report given by Smt. Papudi to PW 13 Daulat Singh, A.S.I. of Police Station, Bilara, the case was registered at Police Station, Bilara. The Police after necessary investigation presented the challan in the Court of the Chief Judicial Magistrate, Jodhpur, from where the accused were committed to stand their trial before the learned Sessions Judge, Jodhpur. 4. The prosecution, in support of its case, examined seventeen witnesses. The accused did not examine any witness in their defence. The learned Sessions Judge, after trial, acquitted accused Tulsi Ram of all the offences but convicted appellant Smt. Ashki for the offence under section 302 Indian Penal Code. and sentenced her to undergo imprisonment for life. It is against this judgment dated 30.4.1992 that the appellant has preferred these two appeals. 5. It is contended by the learned counsel for the appellant that the learned Sessions Judge has relied upon the statement of PW 2 Smt. Huka Bai who is a hostile witness, and PW 4 Smt. Papudi against the appellant while the same evidence has been disbelieved by the learned trial Court against accused Tulsi Ram though the evidence against both the accused is of the similar nature and no disclosure could have been made over these witnesses. It has further been contended by the learned counsel for the appellant that the witnesses produced by the prosecution are not reliable witnesses and the prosecution has failed to prove the case against the appellant. It has, also, been contended by the learned counsel for the appellant that the learned Sessions Judge committed an error in placing reliance over the recovery of the poisonous peas from the house of the accused and the prosecution has failed to establish the guilt of the appellant and the appellant deserves to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court. 6. We have considered the submissions made by the learned counsel for the parties. 7. The prosecution, in support its case, produced seventeen witnesses. The nature of the evidence produced by the prosecution consists of the evidence of PW 2 Huka Bai, who is an inmate of the house where the incident took place. She has been declared hostile but the learned trial Court placed reliance over part of her statement. PW 4 Smt. Papudi is the wife of accused Tulsi Ram and the mother of the deceased children who has stated that she was turned-out from the house by Tulsi Ram and at the relevant time she was living with her parents. PW 1 Dr. Jagdish Jugtawat is the. Medical Jurist posted at M.G. Hospital, Jodhpur, who performed the post-mortem on the dead bodies of Suresh and Kiran and has stated that the cause of death of the victims could not be ascertained by post-mortem and it could be determined only after examination of the visras. PW 3 Banshi Lal, PW 10 Prem Singh, PW 11 Iedan Singh, PW 14 Durga Ram, PW 15 Madho Singh and PW 16 Prakash Chand are the Motbir witnesses to the recoveries, the site plan etc. PW 5 Prabhu Das Vaishnava was the driver of the car. PW 3 Banshi Lal, PW 10 Prem Singh, PW 11 Iedan Singh, PW 14 Durga Ram, PW 15 Madho Singh and PW 16 Prakash Chand are the Motbir witnesses to the recoveries, the site plan etc. PW 5 Prabhu Das Vaishnava was the driver of the car. This car was hired by accused Tulsi Ram, in which Suresh and Kiran were taken to the hospital at Jodhpur by Tulsi Ram and appellant Ashki and they were admitted in Umaid Hospital, Jodhpur and the medical treatment was given to them but both, Suresh and Kiran, died in the hospital, PW 9 Gopal Ram was the servant of Tulsi Ram who has stated that he did not remember whether he purchased any medicine on the day of the incident or not. PW 6 Mohan Singh is the Police Constable who arrested accused Tulsi Ram vide Ex. P/10 and Smt. Ashki vide Ex. P/11. PW 12 Mahendra Singh was the Head Constable, who was the Malkhana Incharge of the Police Station, with whom the incriminating articles were deposited in the sealed condition by the Investigation Officer and who gave these articles for FSL Examination to PW 8 Hem Singh, F.C., who took the sealed articles in the same sealed condition first to the Office of the Superintendent of Police, Jodhpur and after obtaining the forwarding letter from PW 7 Virendra Singh, went to Jaipur and deposited the articles in the State Forensic Science Laboratory, Jaipur for FSL Examination. PW 13 Daulat Singh, A.S.I. was posted at Police Station, Bilara, who received the wireless messages from Jodhpur and then he went to the hospital at Jodhpur and there Smt. Papudi presented the written report Ex. P/8, on the basis of which the FIR was registered. PW 17 Bhanwar Dan was the Station House Officer, Police Station, Bilara, who conducted the investigation and present the challan. 8. The learned Sessions Judge, while convicting the appellant relied upon the statement of PW 2 Huka Bai and the recovery of the peas containing aluminium phosphate-a poison-and the fact that the visras of both the deceased were containing peas coated with aluminum phosphate. We have, therefore, to see: whether the evidence relied upon by the learned trial Court in convicting and sentencing the accused-appellant are sufficient to establish the guilt of the accused-appellant ? 9. We have, therefore, to see: whether the evidence relied upon by the learned trial Court in convicting and sentencing the accused-appellant are sufficient to establish the guilt of the accused-appellant ? 9. The prosecution case mainly rests upon the statement of PW 2 Smt. Huka Bai and the recovery of the poison in the form of aluminium phosphate coated peas used for killing rats. PW 2 Huka Bai was declared hostile by the prosecution. The evidence of a hostile witness, which after close scrutiny inspires confidence and is found dependable, can be accepted. Neither there is any rule of law nor of prudence that the evidence of a witness who has been declared hostile, should be excluded completely from consideration altogether. Merely because a witness has been declared hostile, the whole evidence of such witness does not stand wiped-off or effaced from the record. 10. Now, we have to see the statement of PW 2 Huka Bai in the light of the observations made above. PW 2 Huka Bai has stated that Tulsi Ram is her nephew and Smt. Ashki is his wife. Tulsi Ram was married to Smt. Papudi. Out of this wedlock, Papudi gave birth to Suresh and Kiran. The relations between Tulsi Ram and Smt. Papudi were strained and Papudi was living with her parents. Suresh was living with his father at Bilara while the daughter Kiran was living with her mother Papudi at Jodhpur. Tulsi Ram has kept Asha Devi in his house and they were living like husband and wife. A son, now aged about five years, was, also, born to Smt. Asha Devi. Both the children (Suresh and Kiran) died about two months before; but she cannot say how they died, but it is sure that they were killed by Ashki. On the fateful night she was in Bilara. Suresh was sleeping by her side. Ashki forcibly took him to down stairs. The children did not speak. Ashki did something with Kiran and killed her. Kiran was sleeping down-stairs alongwith Ashki. In the cross-examination by the Public Prosecutor, she has admitted that it is wrong to say that when Kiran came, Asha Devi started quarreling. She has, also, admitted that when she heard the cries, she came down-stairs and on enquiry Ashki told her that nothing had happened. Kiran was sleeping down-stairs alongwith Ashki. In the cross-examination by the Public Prosecutor, she has admitted that it is wrong to say that when Kiran came, Asha Devi started quarreling. She has, also, admitted that when she heard the cries, she came down-stairs and on enquiry Ashki told her that nothing had happened. She has, also, denied that when she came down-stairs, Asha Devi was sitting over the chest of deceased Suresh. She has denied these facts mentioned in Ex. P/3. She has, also, admitted that she did not see the accused administering anything to deceased Suresh or Kiran. She has stated that she saw the deceased children lying unconscious and, therefore, she enquired from Ashki why the children were neither speaking nor were they opening their eyes. She has, also, denied to have given any information to Smt. Papudi and has stated that she gave information to Tulsi Ram and not to Papudi. 11. This witness has given a complete go-bye to her earlier statement recorded under Section 161 Criminal Procedure Code. In the earlier version given by this witness, she has implicated both Tulsi Ram and Ashki with the crime. She has, also, made certain improvements in her statement before the Court. This witness, in her earlier version, has shown the presence of Tulsi Ram and Ashki, both, in the house alongwith the children, while during the trial she has implicated only appellant Ashki. This witness has not seen the accused-appellant administering poison or medicine to the children. A close reading of the statement of this witness clearly shows that this witness has no sanctity for truth and she has tried to resile from her earlier statement and gave a statement suitable to her nephew. The evidence of this witness, therefore, PW 2, does not inspire confidence and no conviction can be based on the basis of the statement of such a witness. The learned Sessions Judge was, therefore, not justified in relying upon the statement of such type of witness who has no regard for truth. A person who has no regard for truth and who can alter or make the statement in the manner which she likes, cannot be said to be a reliable witness and no reliance can be placed on such type of witness. 12. A person who has no regard for truth and who can alter or make the statement in the manner which she likes, cannot be said to be a reliable witness and no reliance can be placed on such type of witness. 12. The next evidence relied upon by the prosecution and believed by the learned Sessions Judge is the recovery of the peas containing aluminium phosphate. The visras taken from the dead-bodies of Suresh and Kiran were found containing aluminium phosphate. The peas, which were recovered from the kitchen of the accused-appellant were, also, found containing aluminium phosphate and they were thirty-five in number. The peas which were recovered from the house of the accused-appellant were the sort of poison used for killing the rats. 13. Before taking the evidence against the accused, it has to be seen whether the recovery of the peas, i.e., the poyson used for killing the rats, were made on the information and at the instance of the accused-appellant ? The appellant was arrested on 29.5.1991. According to the prosecution case, tire information Ex. P/24 was given by the accused-appellant on 30.5.1991 at 12.00 noon and the house of the accused-appellant was not far away from the Police Station, but still the recovery of the peas from the kitchen of the accused was made on 31.5.1991 vide Ex. P/14. PW 14 Prem Singh and PW 16 Prakash Chandra have been shown as the two Motbir witnesses connected with the recovery of the peas. PW 10 Prem Singh has not given the date on which the recovery of these peas was made and he has only stated that the peas lying in a bowl were recovered from the kitchen of the accused. He has, also, not stated that the bowl was produced by the accused or it was recovered on the information or at the instance of the accused-appellant. PW 16 Prakash Chandra has stated that on 31.5.1991 a bowl containing dried peas recovered in his presence from the kitchen of the house of Asha Devi and the peas were put in a plastic bag and sealed and the recovery memo of which is Ex. P/14. PW 17 Bhanwar Dan, SHO, who investigated the case, has stated that Smt. Ashki gave information to him on 30.5.1991 and in pursuance to this information the recovery of the peas was made on 31.5.1991 vide Annexure P/14. P/14. PW 17 Bhanwar Dan, SHO, who investigated the case, has stated that Smt. Ashki gave information to him on 30.5.1991 and in pursuance to this information the recovery of the peas was made on 31.5.1991 vide Annexure P/14. When he was confronted and asked why the recovery was made on 31.5.1991 when the information was given on 30.5.1991, he said that on 30.5.1991 there was a communal riot in Pipar city. This explanation is not supported by any evidence. When he was confronted with the fact that the peas were already recovered on 27.5.1991 and he brought the same peas and got them recovered, he denied this suggestion but his denial does not inspire confidence and is contrary to the facts of the case. 14. PW 14 Durga Ram, who is a Motbir witness to Ex. P/20, Ex. P/21 and Ex. P/22 and also to the two Panchnamas Ex. P/6 and Ex. P/7, has stated that on 27.5.1991 he was called and he witnessed all these recoveries. He has further stated that on that very day the police had recovered the peas lying in a Katori (bowl) from the kitchen of the accused and the police had taken these peas and the bowl alongwith the powder to the Police Station. PW 15 Madho Singh, who is, also, a Motbir witness to Ex. P/20, Ex. P/21 & Ex. P/22, has stated that when Ex. P/20 was prepared, a bowl was also lying in the kitchen of the accused and the blue water was in a bucket. The clothes etc. were sealed and the bowl and the peas were, also, sealed on that very day. 15. From the evidence of PW 14 Durga Lal and PW 15 Madho Singh it, therefore, stands established that the recovery of the peas, i.e., the poison containing aluminium phosphate, was made on 27.5.1991 from the kitchen of the house of Tulsi Ram. When the recovery of the peas had already been made on 27.5.1991, therefore, this cannot be said to be a recovery made on the information and at the instance of the accused-appellant on 31.5.1.91 when the accused were arrested two days after the recoveries were made. This recovery of the peas, therefore, cannot be read against the accused-appellant. The learned Sessions Judge was, therefore, not justified in relying upon this recovery against the accused-appellant. 16. This recovery of the peas, therefore, cannot be read against the accused-appellant. The learned Sessions Judge was, therefore, not justified in relying upon this recovery against the accused-appellant. 16. In a case of death by poisoning, the prosecution has to prove four circumstances, i.e., (i) that the death has been caused by poisoning; (ii) that there is a clear motive for the accused to administer poison to the deceased; (iii) that the accused had the poison in his possession; and (iv) that the accused and an opportunity to administer poison to the deceased. 17. It is true that in the present case the cause of death of Suresh and Kiran were by poisoning, but there is no evidence available on record to show that the accused-appellant was having a clear motive to administer poison to the deceased or she was in possession of the poison or she had an opportunity to administer poison to the deceased, which might resulted in the death of the deceased. Though the appellant was the step-mother of the deceased but nothing has been placed on record to show that the relations between her and the deceased were strained; rather the circumstances show otherwise. Deceased Suresh was living with the appellant for the last about eleven years and he brought even his sister Kiran during the summer vacation to Bilara. Nobody has stated that the treatment of the appellant towards the deceased was cruel or an unbecoming. In the absence of any evidence to the contrary, the appellant had no motive to commit the murder of the deceased. The prosecution has, therefore, failed to prove the case against the appellant beyond reasonable manner of doubt. The learned Sessions Judge was, therefore, not justified in convicting and sentencing the accused-appellant. The judgment dated 30.4.1992, passed by the learned Sessions Judge, Jodhpur, convicting and sentencing the accused-appellant for the offence under Section 302 Indian Penal Code, therefore, deserves to be quashed and set aside and the appellant deserves to be acquitted. 18. In the result, the appeal filed by accused-appellant Smt. Ashki alias Asha Devi, is allowed. The judgment dated 30.4.1992 passed by the learned Sessions Judge, Jodhpur, convicting and sentencing the accused-appellant for the offence under Section 302 Indian Penal Code is quashed and set aside and the appellant is acquitted of all the charges levelled against her. She is in jail. The judgment dated 30.4.1992 passed by the learned Sessions Judge, Jodhpur, convicting and sentencing the accused-appellant for the offence under Section 302 Indian Penal Code is quashed and set aside and the appellant is acquitted of all the charges levelled against her. She is in jail. She may be released forthwith if not required in any other case.Appeal Allowed. *******