JUDGMENT - PALSHIKAR V.G., J.: - Being aggrieved by the judgment and order of conviction and sentence passed on 9-6-1999 by IV Additional Sessions Judge, Satara in Session Case No. 151/98 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us. 2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence. 3. The prosecution story as it emerges on reappreciation of evidence on record stated briefly is that the accused had extra marital relations with the deceased husbands brother as a result of which she had conceived. According to the prosecution she delivered on 2-6-1998 and then since the child was borne out of illicit relations she killed it on the same day and buried it thereafter. On the basis of complaint lodged by one of the relations of the appellant investigation was undertaken, child was exhumed. It was found dead with an injury and therefore the appellant was prosecuted for committing murder of the child. The prosecution has examined as many as eight witnesses to prove its case. Learned trial Judge solely relying on testimony of P.W. 7-Jijabai Mhaskar convicted the accused of murder seeking corroboration of the doctors evidence to hold that what has been deposed to by P.W. 7 is corroborated by doctors testimony. It is this judgment which is assailed before us in this appeal. 4. P.W. 1 Dr. Vasant Karanjavadekar is examined to prove that the accused was factually pregnant and this witness told her that she was pregnant. This fact is not disputed by any one, not even by the accused. This evidence is therefore inconsequential. P.W. 2 Dr. Mohan Patil conducted the post mortem of the child and found the injuries as mentioned by him in the report. However in his cross-examination he has categorically admitted that such injury can occur if after delivery the child falls on an instrument like sickle. 5. P.W. 3 Subhash Patil deposes that around Ganesh festival that year the brother-in-law of the accused had come. The witness was present when the child was exhumed from the place where it was buried. He thus proves that the body of the child was exhumed and it had certain injuries. 5. P.W. 3 Subhash Patil deposes that around Ganesh festival that year the brother-in-law of the accused had come. The witness was present when the child was exhumed from the place where it was buried. He thus proves that the body of the child was exhumed and it had certain injuries. Since the case of death was not certain it was registered as accidental death No. 6/98. P.W. 3 is Police Patil of the village. P.W. 4 Tanaji Bhaise is the panch who excavated the body and made inquest panchnama. He sent the body for post mortem and has proved the post mortem certificate and other relevant documents. He recorded the statement of several witnesses but did not remember at the time of deposition as to whose statements were recorded by him. P.W. 5 Shankar Bhosale is the panch witness who subscribed the panchnama regarding recovery of sickle at the instance of the accused. However his evidence will have to be discarded for the reason that he is not a resident of that village. He is regular panch. There is no reason why he was called from outside and admits in his cross-examination that he signed the panchnama in the temple itself. Therefore the prosecution has failed to prove that there was a proper and legitimate recovery. There is therefore no evidence on record to show as to what was the weapon used for cutting throat. P.W. 6 Nivrutti Mhaskar is the witness who was present and subscribed the panchnama of dead body of the child being exhumed. About this fact there is no doubt. 6. P.W. 7 Jijabai Mhaskar on whose complaint the prosecution started claims that she heard the sound of digging and when she looked at the direction she found the accused burying the child. She admits in her cross- examination that she felt defamed as member of her family had illicit relations with another member of family and it can be considered as an insult of the entire family. It is because of the complaint of this woman that the entire case is investigated into. Except the statement of this witness there is no other evidence on record. 7. It may particularly be noted that in this case written statement under section 313 has been filed by accused in addition to the statement in which she has clearly admitted her relationship with her deceased husbands brother. Except the statement of this witness there is no other evidence on record. 7. It may particularly be noted that in this case written statement under section 313 has been filed by accused in addition to the statement in which she has clearly admitted her relationship with her deceased husbands brother. She has stated that pregnancy was known to entire village, that there was no objection to such pregnancy either from her family members or from other relations residing in the same village. Then she describes in the statement the manner in which she lost the child. According to her she was in high state of pregnancy and was sleeping in the house with her elder daughter aged 9 years. She then started getting sever labour pains and when they became unbearable she lied down on a cot (bazla) and delivered the child as a consequence of such painful delivery she fainted and when she came in senses she found that she had delivered a child who had fallen on the sickle lying around. She was deeply grieved and therefore she buried the child as per the customs. 8. The police have recorded the statement of more 22/25 persons. There is no evidence on record to show that any objection was taken to this pregnancy by any one. The prosecution could have examined the daughter who is alleged to be present. P.W. 7 admits candidly that she can hear everything which happens in the house of the accused. If that is so, it is surprising that she did not hear the shrieks of the accused when she was under severe pains while delivering the child. It has come in evidence of P.W. 3 Police Patil that in the vicinity there were about 60 huts or small houses yet nobody has heard the shrieks. There is no evidence that delivery was absolutely normal or smooth. Evidence on record clearly shows that the pregnancy was known to the whole village and the relations of the accused, there was therefore no motive for the accused to throttle her own child who she allowed to grow in her womb for nine months. If she wanted to so, she could have done earlier, she would not have waited for delivery to take place. If she wanted to so, she could have done earlier, she would not have waited for delivery to take place. In the absence of any such evidence and in view of the fact that sickle can be found in every villagers house the entire evidence as led by the prosecution can be explained in two ways; one on the basis of which the conviction is recorded by learned trial Judge and the other taking into consideration the 313 statement and the attending evidence inference of the prosecution evidence being consistently explained by accused in her favour. It is settled law that when such two conclusions are possible one in favour of the accused is to be accepted. Taking into consideration the paucity of evidence as led by the prosecution the possibility of child having died immediately after birth due to fall cannot be overruled. Hence the appellant is entitled to benefit of doubt. In the result therefore appeal succeeds and is allowed. The appellant-accused be set at liberty forthwith if not required in any other case. Appeal allowed. -----