Judgment ( 1. ) APPELLANTS have filed this appeal against the judgment dated 13-2-1991 passed in Sessions Trial No. 130 of 1989 by 3rd Additional Session Judge, chhindwara, convicting appellant No. 1 Balkrishna under Sections 302 and 498-A of I. P. C. and sentencing him to life imprisonment and rigorous imprisonment for three years respectively and appellant No. 2 Ashabai under section 498-A of I. P. C. , sentencing her to rigorous imprisonment for three years. ( 2. ) IN nutshell, the prosecution story is that appellant Balkrishna was married to Pushpa Bai (deceased) about three months before her death. Appellant No. 2 Smt. Ashabai was the wife of elder brother of appellant balkrishna. On 19-8-1989 Balkrishna lodged a missing report with the police, contending that he and his wife Pushpa Bai had gone to work at his field at about 10. 00 A. M. At about 4-4. 30 P. M. Pushpa Bai left the field for going back home. At about 6. 00 P. M. when he reached home, he did not find Pushpa Bai there. He went to the house of his father-in-law who lived in the same village and also to the houses of other persons to Inquire about Pushpa Bai, but she could not be traced out. Next day i. e. on 20-8-1989 her dead body was found in the well situated in the field of appellants. Murg intimation (Ex. P/3) was got recorded by Balkrishna. ( 3. ) DEAD body of Pushpa Bai was sent for the post mortem examination to Primary Health Centre, Pandhurna, where Dr. K. L. Mishra (PW-10)performed the post mortem examination and found following injuries:- (1) Abraised contusion 1/2 x 1/4" over right labia majora. (2) Right side of face, abdomen and tips and toes eaten by aquatic animals. (3) Right nasal bone fractured with rupture of adjacent cartilage. On genital organs external and internal he found abraised contusion of 1/2 x 1/4" over right labia majora and adjacent area. Internally, vagina cervix and uterus contained blood and uterus having a laceration of 1 x 1/4" obliquely placed. According to him, the time elapsed since death was approximately 18 hours from post mortem examination. The death was due to shock of multiple origins (haemorrhagic and neurologic) due to trauma over nasal and genital area which appeared to be homicidal in nature. Asphyxia was due to drowning. According to him, the time elapsed since death was approximately 18 hours from post mortem examination. The death was due to shock of multiple origins (haemorrhagic and neurologic) due to trauma over nasal and genital area which appeared to be homicidal in nature. Asphyxia was due to drowning. In his opinion, drowning itself could have been the cause of death, but it was not a case of attempt to commit rape or rape. After investigation, the charge sheet was filed and the case was committed for trial. ( 4. ) DURING trial, the Trial Court framed charges under Sections 302 and 498-A of I. P. C. against appellant Balkrishna and under Section 498-A of I. P. C. against appellant Smt. Ashabai. Both the appellants abjured their guilt and pleaded false implication. ( 5. ) PROSECUTION in order to prove the charges against the appellants examined 12 witnesses, whereas in their defence accused examined 2 witnesses (DW-1) Ramkrishna, husband of appellant No. 2 Smt. Ashabai, and (DW-2) Bhaskar ( 6. ) THE case of prosecution rested on the circumstantial evidence. There was no direct evidence of the occurrence. Prosecution adduced circumstantial evidence comprising (1) illicit relations between appellant No. 1 balkrishna and appellant No. 2 Smt. Ashabai, wife of elder brother Ramkrishna, (2) appellant - Balkrishna being last seen in the company of deceased, (3)homicidal nature of injuries found on the body of deceased and (4) conduct of appellant Balkrishna. The learned Trial Court on appreciation of evidence held the appellant Balkrishna guilty of the offence under Sections 302 and 498-A of i. P. C. and appellant Smt. Ashabai under Section 498-A of I. P. C. Hence, aggrieved appellants have preferred this appeal. ( 7. ) LEARNED senior Counsel for the appellants Mr. S. C. Datt has challenged the conviction of the appellants, submitting that the circumstances by which prosecution has sought to make out offences have not been proved beyond reasonable doubt. These circumstances are not of definite tendency indicating exclusively to the guilt of appellants. He has submitted that the circumstance of last seen together does not positively yield any incriminating inference, as appellant Balkrishna being the husband of the deceased, they were naturally to be seen working together at the field. Thereafter the deceased had gone to the house. These circumstances are not of definite tendency indicating exclusively to the guilt of appellants. He has submitted that the circumstance of last seen together does not positively yield any incriminating inference, as appellant Balkrishna being the husband of the deceased, they were naturally to be seen working together at the field. Thereafter the deceased had gone to the house. The conduct of appellant in going to the house of his father-in-law and other persons of the village also indicated his bonafides. He also submitted that the evidence adduced by the prosecution to prove illicit relations between appellants Balkrishna and Smt. Ashabai was unnatural and unreliable. Had appellant Balkrishna developed illicit relations with Ashabai long back, he would not have naturally married with the deceased at all, instead of first marrying and then removing her from the way. He further submitted that the injuries found on the body of the deceased were possible by fall in the well. There was no evidence against appellant No. 2 to prove that she subjected the deceased to any kind of cruelty. ( 8. ) PER contra, Shri T. K. Modh, learned Dy. Advocate General, appearing for the respondent/state contended that the circumstance of motive which the appellant No. 1 had against the deceased for removing hurdle between his illicit relations with appellant No. 2, coupled with the evidence of last seen was sufficient to prove the guilt of the appellants. ( 9. ) IN order to prove the illicit relations between appellant Balkrishna and his Bhabhi Ashabai, the prosecution has examined Namdev (PW-2) and manda (PW-4), brother and sister of deceased, and Shankar (PW-8), neighbour of appellant Balkrishna. Tukaram (PW-1), father of the deceased, has simply said that appellant Balkrishna used to harass the deceased, though he has admitted in his statement that he did not know about her harassment in the house of the appellant and he never saw appellant harassing the deceased. So far as the evidence of Namdev (PW-2) is concerned, he deposed that his sister used to say that Balkrishna had illicit relations with Ashabai which she had seen and that Ashabai used to harass her by dropping more salt and chili in the food which she prepared. In para 11 of his deposition, he has said that he had disclosed about the fact of the said illicit relations in his police statement (Ex. In para 11 of his deposition, he has said that he had disclosed about the fact of the said illicit relations in his police statement (Ex. D/l) but the same was missing there. Manda (PW-4), elder sister of deceased, deposed that after her marriage, Pushpa Bai had come to her fathers house twice or thrice and had complained about the cruelty of Ashabai that she used to put salt and more chili in the food and also that her husband did not sleep with her and instead slept with Ashabai and Ramkrishna (elder brother ). She also deposed that Pushpa bai had told her that after the marriage, Balkrishna had never slept with her. On due appreciation of the evidence of the aforesaid two witnesses, it appears that the evidence of Namdev (PW-2) is suspicious and not reliable as his statement about the illicit relations of the appellants happened to be an improvement. So far as the testimony of Manda (PW-4) is concerned, she has in chief-examination stated that Pushpa Bai had informed her that her husband had used to sleep with ashabai and Ramkrishna. Ramkrishna is the elder brother of appellant balkrishna and husband of Smt. Ashabai. Merely on her saying that her husband did not sleep with her (deceased), it cannot be inferred that he had illicit relations with his Bhabhi or that he entertained any grudge against the deceased. Besides this, our attention has been drawn by the learned Counsel for the appellants that with respect to the evidence about the illicit relations given by these two witnesses, it had not been put to accused persons seeking explanation under Section 313, Cr. P. C. In Narendra Singh and another Vs. State of Madhya pradesh, 2004 (3) M. P. H. T. 165 (SC) = (2004) 10 SCC 699 , the Apex Court held: It was obligatory on the part of the Court to give an opportunity to the accused to explain the circumstances. When circumstances had not been put to accused which could have been explained away by him, prejudice is caused to him by not being given a chance to explain the said purported material against him. In such circumstances the evidence of PW-2 Namdev and PW-4 Manda cannot be taken into consideration against the appellants. ( 10. ) ON perusal of evidence of PW-8 Shankar, at the first sight it appears to be improbable and unnatural. In such circumstances the evidence of PW-2 Namdev and PW-4 Manda cannot be taken into consideration against the appellants. ( 10. ) ON perusal of evidence of PW-8 Shankar, at the first sight it appears to be improbable and unnatural. He has deposed that he had gone to fetch a "sabbal" from Balkrishna, that he had called out Balkrishna but when nobody heard, he had then entered the house and saw Balkrishna and Ashabai in a nude position and that as soon as they saw him, they stood up. In cross-examination, he said that at ike time when he had gone there, the door of Balkrishnas house was lying open. After giving calls, he had waited for about 5 minutes and had thereafter gone into the house and he had then seen from the Chhapri balkrishna half nude but he had not seen the face of his Bhabhi. He deposed that he never disclosed this incident to any body. This incident, according to him, was of the time when Balkrishna had not been married. From his deposition it appears that the deceased was his niece, but he did not disclose the above fact to his uncle or to Namdev, brother of the deceased, even at the time of engagement, in which he was present. On meticulous analysis of the evidence of this witness we find his evidence to be quite unnatural. It does not at all stand to reason that during the day time the appellants would have indulged in the aforesaid promiscuity and that too by keeping the doors open, instead of taking extra precautions. In our opinion, the evidence of this witness does not inspire confidence in the circumstances. ( 11. ) APPELLANTS have examined DW-1 Ramkrishna who is the husband of appellant Ashabai and brother of appellant Balkrishna. He has categorically stated that he had never seen or heard any kind of illicit relationship between appellants Balkrishna and Ashabai. Similar is the statement of DW-2 Bhaskar who happened to be their neighbour. Their evidence has not been challenged by cross-examining them. In the circumstances, in our opinion, the prosecution has failed to prove any illicit relationship between appellants Balkrishna and ashabai and resultantly also the motive attributed to appellant No. 1 for murdering the deceased. ( 12. Similar is the statement of DW-2 Bhaskar who happened to be their neighbour. Their evidence has not been challenged by cross-examining them. In the circumstances, in our opinion, the prosecution has failed to prove any illicit relationship between appellants Balkrishna and ashabai and resultantly also the motive attributed to appellant No. 1 for murdering the deceased. ( 12. ) AS far as the evidence of last seen together is concerned, Rambhau (PW-3) deposed that his field is adjacent to the field of Balkrishna and he had seen Balkrishna and his wife Pushpa Bai weeding out the grass from the field till 6 Oclock in the evening. Thereafter, he had gone to his house. According to him, in the evening Balkrishna had gone to the house of his uncle-in-law Laxman and had inquired from him as to whether Pushpa Bai had come to his house. He had heard Balkrishna saying that Pushpa Bai had left the field at about 4. 00 P. M. He had then told that he had seen Pushpa Bai at the field till 6. 30 P. M. In cross-examination, he admitted that he did not remember as to when Pushpa Bai had come at the field and when she had gone in the past. Similar evidence has been given by Tukaram (PW-5 ). He deposed that he had seen Balkrishna and pushpa Bai working in the field till 7 Oclock in the evening. He had seen that from a distance of about 100 paces. From the evidence of both these witnesses though it is established that the appellant and his wife Pushpa Bai were working at the field, but it does not make out any incriminating circumstance against appellant Balkrishna. The deceased being seen with her husband at the field does not give rise to any incriminating inference against the appellant. From the evidence of Rambhau as well as Tukaram (PW-1), father-in-law of the deceased, it is found that appellant had gone to search the deceased at his house and to the houses of other persons in the village. This shows his bonafide conduct. Even if it is said that appellant Balkrishna deliberately went to the house of father-in-law to ward off suspicion against him, it cannot be held to be the only possible inference. If on the basis of evidence two inferences are possible, then inference going in favour of accused has to be accepted. This shows his bonafide conduct. Even if it is said that appellant Balkrishna deliberately went to the house of father-in-law to ward off suspicion against him, it cannot be held to be the only possible inference. If on the basis of evidence two inferences are possible, then inference going in favour of accused has to be accepted. In the aforesaid circumstances it cannot be held with certainty that if appellant Balkrishna was seen with his wife in the field, he had perpetrated the murder of the deceased. ( 13. ) THOUGH Dr. K. L. Mishra (PW-10), who performed the post mortem examination, opined that injuries found on the body of deceased to be homicidal in nature, yet in Para 6 of his cross-examination he admitted that the aforesaid injuries could have been caused due to fall in the well. He further deposed that he could not give any opinion as to whether the fracture found on the body of deceased was ante mortem or post mortem. In such circumstances the possibility that the deceased might have fallen in the well situated in the field accidentally cannot be ruled out. ( 14. ) IN State of Uttar Pradesh Vs. Ashok Kumar Shrivastava, (1992) 2 scc 86 , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. ( 15. ) IN order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. If there is any reasonable doubt of the guilt of the accused, he is entitled to be acquitted. ( 16. ) THE burden of proof of all the incriminating circumstances is on the prosecution. On due consideration of the evidence and the material adduced by the prosecution we find that the prosecution has failed to prove the circumstances pointing towards the guilt of both the accused persons beyond a reasonable doubt. ( 16. ) THE burden of proof of all the incriminating circumstances is on the prosecution. On due consideration of the evidence and the material adduced by the prosecution we find that the prosecution has failed to prove the circumstances pointing towards the guilt of both the accused persons beyond a reasonable doubt. There is no evidence to bring home the charge under Section 498-A of I. P. C. against both the appellants and the charge under Section 302 of I. P. C, against the appellant No. 1. ( 17. ) FOR the foregoing reasons the judgment of conviction passed by the trial Court is set aside, appeal of both the appellants is allowed. They are acquitted. The appellants are on bail. Their bail bonds are discharged. Criminal Appeal allowed.