Honble GUPTA, J. – Through this appeal, appellants Kherunissa, Ramzani and Alladeen have challenged their convictions u/Ss. 302 & 202 IPC and sentence of imprisonment for life and a fine of Rs. 1,000/- and six months R.I. and Rs. 1,000/- respectively, recorded by learned Sessions Judge, Jodhpur vide judgment dated 27.4.1982. (2). The unfortunate incident occurred in the evening of 3.6.1981 in the city of Jodhpur in which five children of tender age lost their life. Babu Singh L.C. No. 1160 reported before the S.H.O., Police Station Khanda Phalsa at 11.30 p.m. on 3.6.1981 that five daughters of Alladeen Chhipa have died of suffocation and there were rumours that the girls have been murdered by the family members. On this report the S.H.O. rushed to the spot. He found that Rehmat (10) years, Nazma 6 1/2 Nasim (2) years, Shamim (2) and subana (one year) were lying dead. He noticed some injuries on the neck of Rehmat. He , therefore, Registered a case u/Ss. 302 & 201 IPC vide FIR Ex. P/29. He inspected the site, prepared the inquestmemos and interrogated the witnesses. The post-mortem examination was conduc- ted by Dr. S.B. Mathur, PW 13. He prepared the reports Ex. P/15 to P/19. He found that there were injuries on the neck of Rehmat and her cause of death was asphyxia which was the result of strangulation. For the other girls also, he opined that they had died of asphyxia. Some articles were recovered at the instance of two accused Kherunissa and Salim. After the completion of investigation, the police challaned six persons. (3). The learned Sessions Judge charged Kherunissa appellant and Abdul Salim with the offences u/S. 302 r/w Sec. 34 & 201 IPC. Other persons viz. Ramzani, Alladeen, Hazi Mohd. and Nasiya were charged with the offence u/s. 201 & 202 IPC. All of them pleaded not guilty and claimed to be tried. The prosecution examined Babu Singh, PW 1, Allabux, PW 2, Mohd. Yusuf, PW 3, Jetun, PW 4, Aasiya, PW 5, Mohammed, PW 6, Abdul Samad, PW 7, Nisar Ahmed, PW 8, Mohd. Ishaq, PW 9, Hari Singh, PW 10, Arjun Lal, PW 11, Heera Lal, PW 12, Dr. S.B. Mathur, PW 13, M. Yusuf, PW 14, Hari Singh PW 15, Amra Ram, PW 16 and Ramchander, PW 17. The accused in their statements denied having committed any offence. Ishaq, PW 9, Hari Singh, PW 10, Arjun Lal, PW 11, Heera Lal, PW 12, Dr. S.B. Mathur, PW 13, M. Yusuf, PW 14, Hari Singh PW 15, Amra Ram, PW 16 and Ramchander, PW 17. The accused in their statements denied having committed any offence. They pleaded that they did not know as to how the girls died. They did not examine any witness in defence. The learned Sessions Judge vide impugned judgment held that the girls had met homicidal death. He further found that accused Kherunissa had caused the death of her five daughters. He also found proved a charge u/S. 202 IPC against accused Ramzani and Alladeen. The remaining three accused were acquitted. (4). Since accused Ramzani has died, the appeal filed by him stands abated. (5). We have heard the arguments of the learned counsel for the appellant and the learned Public Prosecutor and perused the record of the case. (6). Mr. Garg, learned counsel for the appellant vehemently contended that the learned Sessions Judge has committed error in convicting Kherunissa on the basis of the circumstances pointed out in the judgment. He submitted that Kherunissa, who is the mother of the children, could not have any motive to cause the death of her daughters. Inviting our attention to the fact that many members were living in the house where the death had occurred, he urged that the possibility that any other family member or any outsider could cause the death of girls is not ruled out. (7). On the other hand the learned Public Prosecutor tried to support the judgment of the trial Court. (8). We have given the matter our thoughtful consideration. There is no direct evidence on record connecting accused with the crime. The case rested on the cir- cumstantial evidence. (7). On the other hand the learned Public Prosecutor tried to support the judgment of the trial Court. (8). We have given the matter our thoughtful consideration. There is no direct evidence on record connecting accused with the crime. The case rested on the cir- cumstantial evidence. The learned Sessions Judge has relied on the following circumstances to hold that Kherunissa had caused the death of five children :– (i) The deceased were living along with accused Kherunissa; (ii) The three deceased were of tender age and, therefore, they could not live without accused Kherunissa; (iii) All the five girls were murdered at one and the same place; (iv) The murder had taken place in the house of the accused and outsider could not enter in the house ; (v) The time of occurrence between 6.30 to 10 p.m. was such, that persons, other than family members could not have an opportunity to cause death; (vi) The five deceased were in perfect health before the occurrence; (vii) The death was caused by strangulation; (viii) The deceased were in the company of Kherunissa at the last time; (ix) Deceased Rehmat was found nacked and her frock and underwear were recovered at the instance of accused Kherunissa; and (x) Kherunissa kept mum about the offence and she has not given any explanation. (9). The point for consideration is whether on the basis of circumstances relied on by the learned Sessions Judge it could be inferred that the accused was the person who had committed the murder of five girls. (10). The crucial question to be determined is whether accused Kherunissa was with the deceased persons when they were murdered. Ordinarily, accused being mother was expected to be with the children at her house. So also the other appellants and the accused persons (since acquitted) who are father, grand-father and close relatives of the deceased. However, it has come in the statement of Jetun, PW 4 who is the sister of accused that at about 6 p.m. Kherunissa had visited her house and she was with her for about half an hour and at about 10 p.m. she learnt that daughters of Kherunissa had died. The statement of Jetun indicates that Kheru- nissa was away from her house at about 6 p.m. and she remained in the company of Jetun for about half an hour. The statement of Jetun indicates that Kheru- nissa was away from her house at about 6 p.m. and she remained in the company of Jetun for about half an hour. There is no evidence on record as to at what time Kherunissa reached back her house. It is significant to point out that no question has been asked to Kherunissa accused regarding her visit to the house of Jetun and, therefore, she had no occasion to explain as to where she went from the house of Jetun and at what time she reached her house. It has come in the statements of Jetun, PW 4 and also of the other witnesses that all the three appellants and three persons acquitted lived in the same house. In the presence of this evidence, it could not be conclusively found proved that five deceased were in the company of accu- sed Kherunissa when they breathed last. The learned Sessions Judge has observed at para No. 25 of the judgment that Kherunissa has not offered any explanation that she had gone out or that the deceased were not with her. As already pointed out, no question had been asked to Kherunissa in her statement u/S. 313 Cr.P.C. and, therefore, she had no occasion to give her explanation. No inference could be drawn against the accused because of her not volunteering any explanation. In any case, when six accused persons were living in the same house and there is no evidence on record that at what time Kherunissa reached her house after visiting Smt. Jetun it cannot be said that they were in the exclusive company of the appellant Kherunissa when the girls died. (11). The learned Sessions Judge has given importance to this fact that the house was safe and the outsider could not intrude between 6.30 to 10 p.m. It has come in evidence that the occurrence had taken place in the room situated in the upper storey. Hari Singh, PW 15 who had investigated the case has deposed that the house of the accused was adjacent to the houses of the neighbours. In these circumstances, the possibility that any person might have intruded from the neighbours house cannot be ruled out. Hari Singh, PW 15 who had investigated the case has deposed that the house of the accused was adjacent to the houses of the neighbours. In these circumstances, the possibility that any person might have intruded from the neighbours house cannot be ruled out. In any case, when it is admitted case of the prosecution that all the accused persons lived in that house, it is not possible to presume that only accused Kherunissa could commit the murder of the girls. Rather, there could not be any motive for Kherunissa to kill her daughters. The pro- secution has failed to prove motive for the offence. Ordinarily a mother cannot think of killing her children. In the ordinary course of human conduct and experience it has been seen that mother is always a protective umbrella of the kids. (12). There may be a situation where because of ill-treatment of husband or in-laws the lady may think of committing suicide and before that she may also think of killing her kids. However, such a situation is not alleged in this case. In our opinion, on the grounds that the offence was committed in the house and at a time when possibility of an outsider entering the house was not there, the learned Sessions Judge has erred in drawing inference against appellant Kherunissa to commit murder of her daughters. (13). The learned Sessions Judge has also relied on the circumstances that the three kids were of tender age and they could not live without mother. True it is that children of tender age mostly live with their mother. However, it has come in the prosecution evidence itself that Kherunissa had visited the house of Jetun on that day and she had not taken the kids along with her. It is thus obvious that accu- sed Kherunissa used to leave the children at her house while discharging social obligations. As such no inference can be drawn that the deceased could be only in company of the appellant Kherunissa when they breathed last. (14). One more circumstance which has been relied on by the learned Sessions Judge deserves to be noticed. Hari Singh, PW 15 has deposed that he had arrested Kherunissa vide Arrest Memo Ex. As such no inference can be drawn that the deceased could be only in company of the appellant Kherunissa when they breathed last. (14). One more circumstance which has been relied on by the learned Sessions Judge deserves to be noticed. Hari Singh, PW 15 has deposed that he had arrested Kherunissa vide Arrest Memo Ex. P/13 and thereafter she gave information that `Frock belonging to Rehmat has been concealed by her under other clothes and thereafter accused Kherunissa got the frock and underwear recovered from her house. He has further deposed that `Frock was stained with blood and underwear was also having stains. The recovery memo is Ex. P/38. Ramchander, PW 17 is the Motbir of this memo. Ramchander has denied that Kherunissa had produced anything to the police. He has, however, admitted his signatures on the memo Ex. P/38. The witness though has denied the recovery from the appellant has not been declared hostile. The other witness to the recovery memo Ex. P/38 Narpat Singh has not been examined by the prosecution. Be that as it may, the `Frock and under- wear were sent to the Forensic Science Laboratory for chemical examination. Report Ex. P/39 indicates that there was no blood either on the underwear (chaddi) or on the `Frock. Thus, the recovery of `Chaddi (underwear) and the `Frock at the instance of accused Kherunissa is not of much significance. The recovery of a `Frock and underwear of deceased Rehmat at the house of the accused cannot be a circumstance connecting the accused with the murder of Rehmat. Rehmat lived in that very house and Kherunissa being mother certainly keep her clothes. In our opinion, the learned Sessions Judge has erred in giving importance to this circumstance to hold accused Kherunissa guilty. (15). The other circumstances pointed out are not at all of significance much less to connect the accused with the murder of the girls. (16). It is of course there on record that the five girls had met homicidal death at one and the same time but how it happened and who is responsible for this heinous crime is still a mystery. It is cardinal principle of criminal law that accused can be convicted only when the offence is proved beyond all reasonable doubts. (16). It is of course there on record that the five girls had met homicidal death at one and the same time but how it happened and who is responsible for this heinous crime is still a mystery. It is cardinal principle of criminal law that accused can be convicted only when the offence is proved beyond all reasonable doubts. When the case rests on the circumstantial evidence only the conviction is possible only when the circumstances relied on are fully established and the chain of evidence should be complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. It must show that in all probabilities the act must have been done by the accused. When admittedly many persons resided in the house the possibility that persons other than appellant Kherunissa, committed the crime cannot be ruled out. (17). However, strong the emotional considerations may be but the same cannot take the place of proof. It is indeed unfortunate that five innocent kids lost their life and the culprit whosoever he may be, goes unpunished but it would be still wrong if an innocent person is held responsible for the same merely on the basis of strong and serious doubt. The learned Sessions Judge has convicted the appellant on the probability that the accused may be the culprit but the law is well settled that probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. We have carefully gone through the evidence produced in the case and the judgment of the learned Sessions Judge and in our opinion the circumstances narrated by the learned Sessions Judge are not sufficient on which it could be found proved that appellant Kherunissa had committed the murder of her five daughters. At any rate the case is not free from doubt and the appellant Kherunissa is entitled to the benefit of doubt. (18). The learned Sessions Judge has convicted the appellants Ramzani and Alladeen who are grand-father of the deceased girls u/S. 202 IPC holding that they were duty bound u/S. 39 Cr.P.C. to inform about the offence to the police or the Magistrate. A duty has been cast u/S. 39 on every person aware of commission of certain offences to inform the nearest Magistrate or a Police Officer. A duty has been cast u/S. 39 on every person aware of commission of certain offences to inform the nearest Magistrate or a Police Officer. The important point to be cnsidered is whether by the time the police reached the house of the accused they knew that the girls had been murdered by some-one. The family members noticed that all the five girls sleeping in one room had died. There is no evidence on record to hold that any of the accused had seen the injuries on the neck of Rehmat. Since the five children died while sleeping in a room, the family members in the first instance could only think of accidental death. There was absolutely nothing on which Alladeen and Ramzani could imagine that the girls had been murdered. When they did not know that offence u/S. 302 IPC was committed, the occasion of performing duty u/S. 39 Cr.P.C. did not arise. (19). It has come in the statements of the prosecution witnesses that at about 10 p.m. the death of children was noticed and family members started weeping. The police reached the place of occurrence before 11.30 p.m. There was, thus little time left in between the knowledge of the death of girls and the arrival of the police. It was natural for the family members to have become upset on knowing the death of five girls. In our opinion, it cannot be said that the omission on the part of the two appellants to give information of the offence was intentional. Offence u/S. 202 IPC can be found proved only when the omission to give information was intentional. In our opinion, the learned Sessions Judge has erred in convicting both the appellants Ramzani and Alladeen u/S. 202 IPC. (20). As a result of foregoing discussion, we are constrained to hold that the conviction of the appellant is not sustainable. They are entitled to acquittal. (21). Consequently, this appeal succeeds. The conviction and sentences recorded by the learned Sessions Judge are set aside and the appellant Kherunissa is acquitted of the offence u/S. 302 IPC and Alladeen is acquitted of the offence u/S. 202 IPC. They are on bail. They shall not surrender to the bail bonds. Fine if realised shall be refunded to them. The appeal of Ramzani has abated.