Judgment : U. D. SALVI, J. Rule. Rule made returnable forthwith. Heard finally by mutual consent. 2. These appeals have been preferred to question the judgment and order dated 9-5-2011 passed by learned Additional Sessions Judge-10, Aurangabad in Sessions Case No. 218/2010. 3. Learned Additional Sessions Judge convicted the appellants/ accused of the offence punishable under section 302 read with 34 of Indian Penal Code, 1860 and sentenced them to suffer life imprisonment and pay fine of Rs. 5,000/- each, in default of payment of fine, to undergo further R.I. for one month. Appellant/ Accused No. 1 in Criminal Appeal No. 378/2011 was further convicted of the offence punishable under section 498-A of Indian Penal Code, 1860 and was sentenced to suffer R.I. for one year and to pay fine of Rs. 1,000/-, in default of payment of fine, to undergo further R.I. for one month. 4. One Hirabai wife of the appellant/ Accused-Samadhan and daughter-in-law of the appellants/ Accused-Parvati, Manik and Ashok, and sister-in-law of the appellant/ accused-Chandrabhan Mote, died of drowning in a well situate at the distance of 100 to 150 feet from her matrimonial home at Village Nandgaon Tanda, Tq. Soyegaon, District Aurangabad around 7.30 hours on 6-10-2009. Based on the eye-witnesses account of two witnesses i.e. mother and daughter of the deceased, the prosecution levelled accusation against the accused persons of they having thrown the deceased Hirabai in the well and thereby committed murder by intentionally causing her death. It is also the prosecution case that the appellants/ accused had subjected the deceased-Hirabai to mental and physical cruelty for making her yield to their demand of Rs. 15,000/- allegedly required to repay debt and for business. The prosecution further alleged that the appellants/ accused voluntarily caused heart to and mortally threatened and abused the complainant-mother of the deceased at or about the time of incident. 5. Charges under sections 302, 498-A, 323, 504, 506 all read with section 34 of the Indian Penal Code, 1860 were framed against the appellants/ accused vide Exhibit 11 by learned Additional Sessions Judge, Aurangabad. The appellants/ accused pleaded not guilty to the charges and claimed to be tried. The prosecution examined seven witnesses including two alleged eye witnesses, two relations of the deceased Hirabai, Medical Officers and the Investigating Officer. The appellants/ accused pleaded not guilty to the charges and claimed to be tried. The prosecution examined seven witnesses including two alleged eye witnesses, two relations of the deceased Hirabai, Medical Officers and the Investigating Officer. The appellants/ accused denounced the prosecution case as false one in response to their examination under section 313 of the Criminal Procedure Code, 1973. Further more, the appellants/ accused examined two defense witnesses namely D.W.-1- Ramesh Pawar- the Police Patil and D.W.-2-Mastakhan Sherkhan a neighbouring resident of Village Nandgaon Tanda at Exhibit 71 and 73 respectively. 6. Learned trial Court whole-heartedly believed the mother and daughter of the deceased Hirabai and found no reason for discarding their evidence in context with testimonies of the defense witnesses. Learned trial Court further observed that the daughter of the deceased a minor, was not a tutored witnesses. From the reading of the medical evidence it held that existence of two ante-mortem injuries-Bullae mark found on the body of the deceased provided strong circumstance regarding beating of the deceased by the accused before she was killed. Learned trial Court dismissed the defense evidence for the same being in conflict with the record. 7. Learned Advocate for the appellants/ Accused submitted that the entire case is got up, as could be seen from delay caused in lodging the complaint and time available to the complainant- Mirabai mother of the deceased to frame the accused in a false case. According to him, the daughter of the deceased P.W.-2 Laxmi was tutored to give evidence by her grand mother and maternal uncle with whom she was living at village Badarkha since the incident and this could be revealed on close scrutiny of her evidence in context with other evidence on record. He submitted that the facts asserted by the so called eye-witnesses found no corroboration either in the circumstantial or medical evidence on record. He urged the Court to consider the defense evidence liberally to find out whether it revealed a possibility of accidental death of deceased Hirabai in the present case, and if the answer was in affirmative, the appellants/ accused deserved to be given the benefit of reasonable doubt. 8. He urged the Court to consider the defense evidence liberally to find out whether it revealed a possibility of accidental death of deceased Hirabai in the present case, and if the answer was in affirmative, the appellants/ accused deserved to be given the benefit of reasonable doubt. 8. According to the PW-1-Mirabai Netare, a phone call received from the deceased-Hirabai at the place of her neighbour made her aware of the ill treatment meted out to the deceased by her husband and brother-in-law for yielding to their offering demand of Rs. 10,000/- made to pay off the debt of a Mukadam, and as a result she was prompted to visit the matrimonial home of daugher situate at Village Nandgaon Tanda, Tq. Soyegaon, District Aurangabad. No where in her evidence she disclosed name of her neighbour and time of receiving a call from the deceased Hirabai. The prosecution also did not examine anybody to reveal the said fact. The prosecution took recourse to the evidence of D.W.1- Ramesh Pawar to show the presence of the P.W.1- Mirabai of the deceased at the time of incident. D.W.-1 - Ramesh Pawar in his cross-examination revealed that when he went to the spot of incident, he had noticed the mother of deceased crying and shouting that her daughter was dead. He denied the suggestion that she was shouting that her daughter was killed. According to him, he did feel that she (mother of the deceased) should be taken to police station but she did not come. Though, P.W.1-Mirabai revealed in her evidence that the accused-Samadhan dragged her to the Police Patil- D.W.1-Ramesh Pawar, he denied the suggestion that P.W.-1 Mirabai had disclosed that her daughter was thrown in well and he should visit the place. According to D.W.-1-Ramesh Pawar, he was informed by a villager that wife of Samdhan fell in the well. 9. Though, P.W.1-Mirabai revealed in her evidence that the accused-Samadhan dragged her to the Police Patil- D.W.1-Ramesh Pawar, he denied the suggestion that P.W.-1 Mirabai had disclosed that her daughter was thrown in well and he should visit the place. According to D.W.-1-Ramesh Pawar, he was informed by a villager that wife of Samdhan fell in the well. 9. According to P.W.-1 Mirabai, after she went to the matrimonial home of the deceased Hirabai at Village Nandgaon Tanda, she sat near the door of her home when Samadhan-Accused No. 1 along with Bebabai-absconding accused and accused No. 5-Chandu came after cutting Bajara corns and made grievance that her daughter (deceased) did not cut Bajara corns; and, therefore, the accused No. 2-Parwatibai and absconding accused Bebabai caught hands of her daughter (victim), and accused No. 5-Chandu and Accused No. 1-Samadhan caught legs of her daughter (victim) and all them threw her daughter into a well; and during this incidence the accused No. 3- Manik and Accused No. 4- Ashok caught hold of her in order to prevent her from saving her daughter. She further revealed in her examination-in-chief that the accused No. 1-Samadhan assaulted her. In the cross-examination however, P.W.-1 Mirabai gave a different version of the incident. She deposed that when she had been to the matrimonial home of her daughter, the absconding accused Bebabai prepared tea for her and due to intervention of the deceased-Hirabai, the cup and saucer in which tea was offered to her fell from her hand and, thereupon, Bebabai- absconding accused and the accused No. 1-Samadhan started claiming compensation for the damages incurred to the cup and saucer and a quarrel broke out which lasted for an hour. Such evidence, only reveals the passion of P.W.-1 Mirabai to spin out stories unmindful of the consequences it would have on total worth of her evidence. 10. Such evidence, only reveals the passion of P.W.-1 Mirabai to spin out stories unmindful of the consequences it would have on total worth of her evidence. 10. Her cross-examination further reveals that she was unable to explain the omissions regarding 1] Coming of her son and revelations made to them about the incident; 2] the appellant/ accused No. 2-Parvatibai and the absconding accused catching hold of hands of the deceased and accused No. 1-Samadhan and accused No. 5-Chandu catching hold of legs of the deceased; 3] the said accused returning home from the field after Bajara cutting and making grievance about the deceased not participating in cutting of Bajara, and the Accused No. 1-Samadhan assaulting her and dragging her to residence of Police Patil. These material omissions in the evidence call for corroboration before credence is placed on the testimony of PW.-1-Mirabai Netare. In-consistency in the evidence of P.W.1-Mirabai further surfaces in her cross-examination. She initially deposed that she was caught hold by the appellant/ Accused Nos. 3 and 4 at the front door of the residence of the deceased about the time her deceased daughter was thrown in the well, and when she told her captors to let her go to call swimmer to save her daughter and they left her free and thereupon she went to the house of Police Patil situate nearby. Later on in the cross-examination, she revealed that she was at the door till the incident was over and remained there for one more hour after the incident. 11. P.W.-1-Mirabai deposed that the incident had taken place around 6.00 pm in midst of locality inhabited by 500 to 600 persons and none came forward either to intervene or to witness the incident. According to her, the well, wherein the deceased was thrown, was situate at the distance of 15 feet behind the house of her deceased daughter. This averment is in conflict with the revelations made in the admitted piece of evidence scene of offence panchanama (Exhibit 19), which reveals that the residence of the deceased was situate on the western side of the well at the distance of about 100 to 150 feet. This averment is in conflict with the revelations made in the admitted piece of evidence scene of offence panchanama (Exhibit 19), which reveals that the residence of the deceased was situate on the western side of the well at the distance of about 100 to 150 feet. It further reveals that a road running in north-south direction passes between the well and the residence of the deceased and in the vicinity of the well, there is a temple and two residential premises of local residents on the either side of the well. May be none came forward to intervene, but it was not unlikely that the incident could not have been witnessed by any one of the local residents. However, there is dearth of corroborative evidence coming from any independent source. In the present case, evidence P.W.-7 Chhatrbhuja T. Nagargoje - Investigating Officer fails to disclose that he had recorded the statements of the local residents in the vicinity of the crime spot. 12. Evidence of P.W.-1 Mirabai makes a reference to assault with kick blows on the deceased by her brother-in-law- Accused No. 5 Chandu as well as physical violence meted out to herself by her son-in-law the accused No. 1-Samadhan. Medical evidence vide testimonies of P.W.-4-Dr. Surajkumar Baban Wakode (Exhibit 34) and P.W.-5 Dr. Rangnath Kaluba Tupe (Exhibit 38) offers no corroboration to P.W.-1 Mirabai on this aspect. No injuries which could be connected either with the kick blows or beating are found recorded in the post-mortem report (Exhibit 39) or injury certificate (Exhibit 34). P.W.-5 Dr. Tupe deposed that Bullae marks noticed on the body of the deceased were probably caused due to burn. There is nothing in the oral testimonies of either P.W.-1-Mirabai or P.W.-2 Laxmi to suggest that burn injuries were caused to the deceased any time by any of the accused in the present case. According to P.W.-5 Dr. Tupe, it was a case of asphyxia due to drowning. Post-mortem report (Exhibit 39) shows that the deceased was a well-nourished person aged about 31 years. There is no evidence that at the material time the deceased was intoxicated or in capacitated to defend herself for any reason whatsoever. Obviously, the victim would have resisted the assailants, who caught her limbs, bodily lifted her and threw her in the well, thereby giving rise to tale tell marks of physical violence on her body. There is no evidence that at the material time the deceased was intoxicated or in capacitated to defend herself for any reason whatsoever. Obviously, the victim would have resisted the assailants, who caught her limbs, bodily lifted her and threw her in the well, thereby giving rise to tale tell marks of physical violence on her body. Absence of such marks on the body of the deceased puts a big question mark on the testimony of P.W.1-Mirabai. P.W.-4 Dr. Wakude deposed that he had noticed during the medical examination of P.W.1-Mirabai around 3.30 pm on 7-10-2009 the following injuries : 1] Contusion over left knee front side admeasuring 0.5 cm x 0.5 cm 2] Contusion on lateral malleolus of right ankle of size 0.5 cm x 0.5 cm. According to him, the injuries were caused within twelve hours probably by hard and blunt object. Significantly, the incident had occurred around 6.00 pm on 6-10-2009 much beyond twelve hours. P.W.-5 -Dr. Wakode in cross-examination revealed that the said injuries were possible on fall on hard and rough surface. However, P.W.-5 Dr. Wakode did not say that such injuries could have been caused by kick blows. It is therefore, difficult to gather from medical evidence any corroboration to the testimony of P.W.-1-Mirabai. 13. P.W.-2-Laxmi Mote purportedly a minor, who could not understand the sanctity of oath revealed that when her mother the deceased Hirabai was telling her grand mother-Mirabai about the demand of money made by her father, her uncle- Accused No. 5- Chandrabhan kicked her mother as a result of which, blood started oozing from her mouth. As observed here-in-above, the medical evidence bears no corroboration to this revelation made by P.W.-2 Laxmi Mote. According to P.W.-2-Laxmi, the accused No. 1-Samadhan, Accused No. 5-Chandrabhan and absconding accused Bebi pushed her mother in the well, and the accused No. 3-Ashok and Accused No. 4-Manik caught hold of her grand mother- Mirabai and threatened her with mortal threats, and thereafter, her grand mother-Mirabai went to Police Patil, where Police Patil had asked Samadhan-Accused No. 1 to cut her grand mother into pieces with sword and throw them in a dam, and her father assaulted her grand-mother with fist and kicks. In her cross-examination, she revealed that there were about 10 persons near the well, when her mother was pushed in the well, and yet none of them prevented the occurrence of the incident. In her cross-examination, she revealed that there were about 10 persons near the well, when her mother was pushed in the well, and yet none of them prevented the occurrence of the incident. Her version regarding the presence of the witnesses at the material time is in striking contrast with that of P.W.-1-Mirabai. She further revealed that she was with her grand mother when she had been to Police Patil, and at that time her father and uncle were at the residence. She further revealed in her cross-examination that her father and uncle returned to her house, after pushing her mother in the well and had taken non-veg meals. According to her, she and her grand mother P.W.-1 Mirabai were sitting at the house of neighbour when the accused were enjoying non-veg meals, and at that time her grand mother went to Police Patil. Revelations made by P.W.-2 Laxmi before the Trial Court is nothing but garbled account providing a reason to believe a possibility that she was giving tutored evidence. Such view is further fortified by a fact that P.W.-2-Laxmi had been residing with her relations-grand mother and maternal uncle at Village Badarkha since the death of her mother and she was brought to the Court by her maternal uncle. It can be further perceived from the fact that while giving her examination-in-chief she did not weep but emotions gave way when she was confronted with suggestions that she was deposing falsely against her father, uncle and Parvatibai at the end of the cross-examination done on behalf of the Accused No. 1- Samadhan, Accused No. 2-Parvati and Accused No. 5- Chandrabhan. Pertinently, in the evidence of P.W.1-Mirabai and P.W.-2-Laxmi there has been consistent disclosure of the fact that villagers used the water from the said well, and yet P.W.-2-Laxmi revealed in her cross-examination that they (herself and her family) were not using the water from the said well for any purpose including drinking purposes, and they used to bring water from other well situate in other field. Scene of offence panchanama (Exhibit 19) reveals no other well in the vicinity of the residence of the deceased. Revealation made by P.W.-2-Laxmi therefore, sounds strange, and such strange revelation could not have been there from a minor unless tutored. Scene of offence panchanama (Exhibit 19) reveals no other well in the vicinity of the residence of the deceased. Revealation made by P.W.-2-Laxmi therefore, sounds strange, and such strange revelation could not have been there from a minor unless tutored. Evidence of P.W.-3-Uttam Netare and P.W.-6-Anna Kamble relations of the deceased is of little assistance to the prosecution as they were not witnesses to the incidence. From their testimonies it can only be seen that after they met P.W.-1- Mirabai the complaint was lodged by P.W.-1 Mirabai in early hours on 7-10-2009. 14. On this back-drop, the evidence of neighbouring resident D.W.2-Mastankhan leaves a prudent person thinking about the possibility of deceased falling in the well accidentally. He deposed that when he returned from the field and was unyoking the bullock cart, he saw Hirabai going for fetching water with pitcher and bucket. Though, he said having seen Hirabai with pitcher and bucket he could not tell how Hirabai fell into the well. Nowhere in his cross-examination the prosecution denounced him as an interested witness out to support the accused persons. He has been discredited for the fact that scene of offence panchanama (Exhibit 19) made no reference to the pitcher and bucket which were seen by him near the well as well as for the discrepancy in respect of taking out of the dead body from the well. It appears that learned trial Court unduly expected the defense to prove its case beyond reasonable doubt, though it is sufficient that it reveals a probable defense. Existence or non-existence of such probability has to be ascertained in context with the prosecution evidence. As discussed above, the prosecution evidence fails to rule out the probability of accidental fall of the deceased in well surfacing in the defense evidence. The Appeals therefore, must succeed. Hence, the order. ORDER I] The appeals are allowed. II] Judgment and order dated 9-5-2011 passed by learned Additional Sessions Judge-10, Aurangabad convicting the accused and imposing consequent sentences in Sessions Case No. 218/2010 is set aside. The appellants/ accused in Criminal Appeal No. 285/2011 and Criminal Appeal No. 378/2011 are acquitted of the offence punishable under section 302 read with 34 of Indian Penal Code, 1860 and are ordered to be released forthwith from the prison unless required in any other case. The appellants/ accused in Criminal Appeal No. 285/2011 and Criminal Appeal No. 378/2011 are acquitted of the offence punishable under section 302 read with 34 of Indian Penal Code, 1860 and are ordered to be released forthwith from the prison unless required in any other case. III] The Appellant/ accused No. 1-Samadhan Ramdas Mote is acquitted of the offence punishable under section 498-A of Indian Penal Code, 1860 and is ordered to be set at liberty unless required in any other case.