JUDGMENT : This appeal is directed against the judgment dated 27/05/2011 passed by Additional District and Sessions Judge No.1, Hanumangarh in Sessions Case No.08/2011, convicting and sentencing the appellant-accused for the offence under Section 302 of IPC for life imprisonment with a fine of Rs.2,000/- and on default further to undergo four months rigorous imprisonment and under Section 307 of IPC for seven years rigorous imprisonment with a fine of Rs.1,000/- and on default further to undergo two months rigorous imprisonment and under Section 498A for three years rigorous imprisonment with a fine of Rs.500/- on default further to undergo fifteen days rigorous imprisonment. 2. 2. The contents of FIR Ex.P.2, which was lodged by Smt. Chhindrapal wife of Sukhdev read as under :- nj[okLr Jheku~ lh-vkbZ- lkgc iqfyl Fkkuk guqekux<+ tŒ fo"k;%& ckcr ntZ djus ,Q-vkbZ-vkj- A Jheku th] fuosnu gS fd izkFkhZ;k lysex<+ dh jgus okyh gSA izkFkhZ;k dh 'kknh vkt ls pkj lky iwoZ lq[knso flag iq= Lo- izseflag ds lkFk gqbZ Fkh bl 'kknh ls izkFkhZ;k ds nks cPps ,d yM+dk vk;q 2 o"kZ 6 ekg vueksy o yM+dh ,d vk;q djhcu 3 ekg gSA izkFkhZ;k dk ifr izkFkhZ;k dks ngst esa eksVjlkbZfdy dh ekax dks ysdj rax] ekjihV djrk FkkA vkt ls djhcu ,d lky iwoZ ekjihV djds ?kj ls fudky fn;k FkkA vkt ls djhc 20 fnu iwoZ izkFkhZ;k ds ifr ds ukuk&ukuh jkthukek djokdj izkFkhZ;k dks esjh llqjky ys x;s FksA izkFkhZ;k dk ifr ihyhcaxk esa /;kM+h & etnwjh djrk FkkA dy fnukad 29-10-08 dks izkFkhZ;k dk ifr izkFkhZ;k o nksuks cPpksa ds lkFk ;g dgdj fd ysdj pyk fd ihyhcaxk ls lkeku ysdj vkuk gS izkFkhZ;k ml ij fo'okl djds vius cPpksa lfgr mlds lkFk py iM+hA mlus taD'ku dh fVdV yh ysfdu lrhiqjk gh mrj x;k o dgus yxk fd ikl esa mldh eklh dh <+k.kh gS mlls feydj pyrs gSA izkFkhZ;k vius cPpksa lfgr mlds lkFk & lkFk py iM+hA xzke uoka ds ikl cM+h ugj ds lkFk & lkFk pyrs izkFkhZ;k us mlls iwNk fd ;gka rks dksbZ <+k.kh gS ugha dgka ij ysdj tk jgs gks rks izkFkhZ;k ds ifr us dgk fd vHkh crkrk gwaA bruk dgdj mlus izkFkhZ;k o izkFkhZ;k ds nksuksa cPpksa dks ugj esa /kdsy fn;kA izkFkhZ;k us 'kksj epkus ij iM+kSl esa dke djus okys dk'rdkjksa us izkFkhZ;k o izkFkhZ;k dh iq=h dks rks cpk fy;k ysfdu izkFkhZ;k dk yM+dk vueksy ugha fey ldkA izkFkhZ;k ds dgus ij xzke iapk;r uoka dk vkneh eq>s o esjh cPph dks vius ?kj ij ys x;k o esjs ifjokj okyks dks baryk nhA pwafd esjk ifr vDlj esjs ls yM+kbZ & >xM+k djrk jgrk Fkk bl dkj.k ls esjs ifjokj okyks us esjs llqjky ckr dh rks nsoj us lkjh ckr crkbZA igys rks og Vky&eVksy djrs jgs vkt fnu esa djhcu 12 cts iwjh ?kVuk dk irk esjs firk dks crk;k ftldks ysdj eSa Fkkuk esa vkbZ gwaA esjs ifr us eq>s o esjs cPpksa dh tku ls ekjus dh fu;r ls ugj esa QSadk gSA esjk yM+dk vueksy vHkh rd ykirk gSA nj[okLr nsdj fuosnu djrh gwa fd eqyfte ds f[kykQ eqdnek ntZ dj dk;Zokgh dh tkosA fnukad%& 30-10-08 izkFkhZ;k fNUnziky iRuh lq[ksno flag iq=h thr flag dkSe etch fl[k fuoklh lysex<+ rg- fVCch ftyk guqekux<+ ¼jkt-½ 3. This FIR was lodged on 30/10/08 under Sections 302, 307, 498A of IPC in Police Station Hanumangarh, after investigation, charge-sheet was filed against accused-appellant, upon trial prosecution produced ten witnesses. Accused-appellant was also examined as DW.1 as a defence witness and learned trial Court, while deciding the trial, passed afore-referred judgment, convicting and sentencing accused-appellant, as described above. 4. Heard rival contentions of both the sides, learned counsel for the accused-appellant has urged that learned trial Court has committed gross illegality in appreciating the evidence and proper evaluation of the evidence has not been made by learned trial Court. There are significant contradictions in the F.I.R as well as in the statements of the complainant Smt. Chhindrapal, who has improved herself, while examined before the trial Court and both these versions are enough to indicate that she was liar, but trial Court has wrongly termed her statements as gospel truth. The actual version of accused’s predicament has been disclosed by the accused-appellant under his defence evidence and he has felt a prey to the conspiracy of his wife, he never thrust his wife and tender kids into canal. It has also been argued that complainant Smt. Chhindrapal is not a chaste lady, she was having illicit relations with one Gurupal Singh, so she was legitimately advised by her husband to mend her attitude, to which she did not yield and further even eloped and got her marriage solemnized with Gurupal Singh, against which F.I.R. of accused-appellant was lodged under Section 494, 498, 496 and 120B IPC against Chhindrapal Kaur as well as against Gurupal. It has also been contended that complainant lady Chhindrapal once disappeared and MPR was lodged, after her recovery, her statements were recorded by the Investigating Officer, copy of which is already there on the record as Ex.D.1 and D.2, in which Smt. Chhindrapal has admitted that on 19/08/2010, she telephonically called Gurupal Singh son of Chetan Singh, R/o. Village 2 KSP in the night and she went away with him and married with him, so in order to enjoy a lascivious life, she filed a false report against appellant-accused her husband and got him lodged in the Jail to enjoy life with her paramour. There are major contradictions in the evidence of the prosecution. There are major contradictions in the evidence of the prosecution. Eye witnesses, who rescued drowning individuals, have also narrated that accused-appellant was under water and was also drowning, who was rescued by them and after that he was rather complaining to his wife that it was his wife, who was responsible for throwing her kids away into water, in order to resist to snatching away her illicit relations with her paramour. She herself jumped into the canal with both kids indignantly in a disobedient way and no kind of cruelty or offence whatsoever has been committed by the appellant-accused, so he is innocent, hence his appeal be allowed and the impugned order be quashed. Contrariwise, learned public prosecutor has contended that there is no flaw in the judgment impugned, learned trial court has properly appreciated entire evidence and appeal does not bear any force, so it be dismissed. 5. Upon perusal of the record and evidence, it appears that as per Ex.P.2-F.I.R after getting her deboarded at Sattipura Station, accused said his wife Chhindrapal for going to his Masi’s Dhani to meet her, whereas junction ticket was purchased. She was walking besides him near Nava Village Canal and pointed him that none such Dhani was visible around, her husband retorted that he was just apprising, saying that, he pushed the complainant and her both kids in the canal, but this version is vitally improved in the evidence because she has said that he took her by bus at 12' O clock and deboarded at Sattipura, bought a liquor quarter from Satipura and bananas and further took her in tempo of Rodawali and got them alighted from tempo near canal, further they sat under a tree, where Sukha Singh consumed liquor and get all bananas eaten to his son, then she and her son said to go for home, but Sukha Singh said that home is here, saying so, he threw his son in the canal. She has further said that at that time her daughter was in her lap, she cried then Sukha Singh catching her arm threw her in the canal and her daughter was also got fallen into the canal, so both these versions are quite contradictory. 6. She has further said that at that time her daughter was in her lap, she cried then Sukha Singh catching her arm threw her in the canal and her daughter was also got fallen into the canal, so both these versions are quite contradictory. 6. In F.I.R the place near canal is said to of solitude without Dhani or houses nearby and the ticket of junction indicates, that the journey was through train, but contrary to this version, certain new facts have been introduced like that they went by bus and after alighting from bus, tempo was taken, Sukha Singh purchased a liquor quarter, consumed it and they sat under a tree and the sequence of alleged thrusting and throwing them away into the water, is also said to be separately, first to his son, next to Chhindrapal and then to her daughter, all such facts have advertently introduced to fasten culpability upon the accused, but both the versions being distinguishable have rather cast a shadow of doubt as such the story of the prosecution has become shrowded with doubt, being unreliable. Entire Ex.P.2 F.I.R. does not depict that appellant-accused was also fallen into canal water, but it alleges that the victims were thrown into, whereas accused was also into the water and was drowning, who too was rescued by the villagers and it is well corroborated in the evidence of the rescuing persons, so this is a significant fact concealed by this witness to twist the happenings. 7. PW.5 Sonu, who rescued victims has said that on that day he was working under NREGA with other labours at the canal, his uncle Manga Singh was with him. He heard some sound from canal side, so they rushed there, he saw a man, a baby and a lady were drowning in the canal, Manga Singh jumped into the water and rescuing baby, gave her to him, which was laid on Patti, after laying baby on patti, he jumped into the water and caught hand of the man and brought him ashore and after climbing-over, gave his hand to Manga, who pulled him outside. He has also said that Sukha Singh said lady ^^rus esjk cPpk ekj fn;k eSa rq>s ugha NksMqxh^ . He has also said that Sukha Singh said lady ^^rus esjk cPpk ekj fn;k eSa rq>s ugha NksMqxh^ . Further, they were taken to the house of Deputy Sarpanch, in his cross-examination, he has narrated an important fact that on the day of event, about 100 people were working there under NAREGA and were repairing canal. 8. PW.3 Manga Singh, who too has played his role as a rescuer, has said that the incident belongs to next day of Deepawali of 2008, he was there, noise came, there were one man and a lady and one baby in the water, he rescued them and ousted them from the water, Sonu was with him, he has also said that first he jumped into the water, subsequently Sonu too jumped into water to rescue. First, we rescued baby and handed it over to Sonu, then rescued both the person and brought them out of canal water, apart from them we did not see any of their son into the water, we took them to Sarpanch because they were struggling, he has also said, after naming several persons being there, that they were nearby in the fields, few ladies have also been said to be, there and has further said that the victims were swaying away and were coming flowing in water from upside of flow and has said that he does not know as to how they fallen into the water nor they informed us, so testimony of this witness also shows that accused-appellant was also into the water and was drowning, who too was rescued, this aspect has also been accepted by the complainant lady Chhindrapal, they were rescued by two individuals, who were near in the field and Sukha Singh was also ousted from water and rescued by them from the canal and has said that both the rescuer had taken them to Nava Goan and everything was conveyed to Sarpanch Santa Singh. 9. PW.2 Santa Singh has said that incident belongs to next day of Deewali, he was present at his home, Manga Singh, Sonu and Sukha Singh came there, Chhindrapal wife of Sukha Singh and his baby also came. 9. PW.2 Santa Singh has said that incident belongs to next day of Deewali, he was present at his home, Manga Singh, Sonu and Sukha Singh came there, Chhindrapal wife of Sukha Singh and his baby also came. Chhindrapal, her baby and Sukha Singh were drenched, Manga Singh and Sonu informed him that all three were got rescued from the canal water, he has said a very significant utterance that he asked them, were you three or anyone else was there with them, they informed that they were three only, so Santa Singh summoned Sarpanch as well, Chhindrapal had informed him that his uncle was also a Sarpanch in Palanwali by that time aunty of Chhindrapal also came there and three to four individuals too came, he has said that on her information, he telephoned to her Sarpanch uncle by that time, she did not say that her son was alongwith, who was not rescued, when her aunty came, then she informed this. We all went to the spot, but their son Magan could not be searched. 10. PW.1. Dr.Hari Om Bansal has given evidence regarding postmortem conducted by him on the body of the deceased Anmol and he has said that the postmortem report Ex.P.1 contains his signature and the opinion has opined the cause of death of the baby was drowning and has said that he had conducted postmortem on 30.10.2008 at 4:15 evening, no injury was there on the body of the deceased. 11. PW.6 Ram Pratap is SHO, conducting investigation and he has narrated the entire sequence and methodology of investigation and has corroborated Ex.Ps. 2, 3,4A,5,6,7,9,10, 11,12, in his cross examination, he too has said that Chhindrapal Kaur was under shock and was perplexed, so she did not convey anything and had conveyed this much that she had fallen into the canal, he has further said that he did not seize skins of Bananas, cap of liquor bottle, since he did not find, same were worthy for the evidence and after relying upon the evidence of Sonu Manga Singh and Sukha Singh, he conducted further proceedings, he has also said that he had arrested Sukha Singh prior to recovery of body of the baby, on suspicion. Recital of F.I.R shows that all three family members Smt. Chhindrapal, her two kids were pushed into the water altogether, whereas in testimony, they have been said to be pushed one by one, the FIR is lodged on 30.10.2008 at 6:00am, which is belatedly lodged on the next day after elapsement of more than 24 hours. 12. Perusal of evidence of rescuer Manga Singh and Sonu did not disclose anything like that Chhindrapal had informed them that she and her both the kids were pushed into the canal water by her husband advertently. Even PW 3 Manga Singh said that when and how they were fallen into the water, is not know to him nor they informed this to them, this witness has also said that when drowning individuals were rescued and brought out of the water, a police man came there, whose name is not known to him and PW. 5 Sonu has also said that *lq[kk flag us dgk fd rus esjk cPpk ekj fn;k eSa rqEgs ugha NksM+waxk** ] likewise in his crossexamination this aspect has also been reiterated by this witness by saying:- ^^tks Mwc jgs Fks oks iatkch cksy jgs FksA esjk cPpk ekj rk] ;s ckr lq[kkflag us cksyh FkhA*^ , but surprisingly, non-confronted aspect of police statements of both the witnesses says that lady Chhindrapal had allegedly informed them that she and her both babies were pushed into the water by appellant-accused advertently, which is not at all corroborated by both these rescuing witnesses in their evidence, which is enough to indicate that the investigating agency has not remained indifferent in its investigation and has acted malafidely in a biased way. This aspect fortifies from noting as wrote beneath the typed FIR Ex.P. 2, which is hand written text under sign of Thana Adhikari Police Thana Hanumangarh, discloses that during scuffle Sukha Singh also got fallen in the canal, whereas nothing of this nature is there in the typed FIR, which was belatedly lodged one day later to the incident and this hand written addition is written akin to police statements, which makes the proceedings as if done under irregularity malafidely. 13. 13. Ex.D.1 is an MPR proceedings of 22/08/2010, which says that Chhindrapal @ Sillu left the house without information and MPR was lodged, and she was recovered from Jodhpur and handed over to her parents and Ex.D.2 is a statements, which were made by Chhindrapal @ Sillu daughter of Lakhveer Singh verbatim text of it says that :- ^^eSa fnukad 19-08-2010 dks jkr 11 cts ?kj ls vdsyh fudyh ?kj ds lnL; ekrk] ekek] NksVk HkkbZ rFkk ukuh th lHkh lks jgs FksA eSa xqjiky flag son of psru flag xk¡o 2 KSP dks ?kj ls Qksu }kjk cqyk;kA 11-15 cts xqjiky flag ds lkFk guqekux<+ eksVjlkbZfdy ls pys x;sA guqekux<+ ls xkM+h djds tks/kiqj pys x;sA ogka vk;Z efUnj esa geus 'kknh dj yhA mlds i'pkr ge mn; efUnj Fkkuk pys x;sA fnukad 20@08@2010 dks ge Fkkuk pys x;sA Qksu ls ?kj dks lwfpr fd;k x;kA fnukad 21-08-2010 dks iqfyl Fkkuk fVCch yk;k x;kA eSa viuh ethZ ls ?kj ls xbZ FkhA eSa xqjiky son of psru ds lkFk 'kknh djuk pkgrh gw¡ ijUrq vc eSa viuh bPNk ls vius ekrk&firk ds lkFk tkuk pkgrh gw¡A eq>s fdlh izdkj dk dksbZ Hk; ugha gSA eSa vius ?kj okfil tkuk pkgrh gw¡ eq>s esjs ekrk&firk ds lkFk ?kj Hkst fn;k tkosA** which is enough to disclose that during survival of her husband, she entered into marriage with another person, hence, fidelity of such a woman could very well be inferred. Accused-appellant Sukha Singh has also filed a F.I.R/complaint against Chhindrapal and Gurupal Singh under Sections 494, 498, 496 and 120B of IPC and the same was ordered to be lodged by J.M, Tibi, District Hanumangarh on 07/05/2012 under Section 156 (3) Cr.P.C, which is indicative from the certified copy of the said produced. 14. Upon perusal and evaluation of the evidence, it emerges that typed F.I.R does not disclose that accused-appellant also got fallen in the canal and all the three were thrown into the water together, but evidence of Chhindrapal narrates that all three were pushed into canal individually and separately and son was thrown away primarily. Mode of conveyance coming over there, is also not identical. The facts relating to consumption of liquor and making of the bananas eaten to the deceased son are also improvements. 15. Mode of conveyance coming over there, is also not identical. The facts relating to consumption of liquor and making of the bananas eaten to the deceased son are also improvements. 15. Both the rescuers PW.3 Manga Singh and PW.5 Sonu have not stated that the accused-appellant pushed and thrown them into the water and nothing of that kind was even conveyed by Chhindrapal to both of them. A policeman also came there, when sinking persons were brought out of the water, then too nothing was communicated to him nor any abnormal tidings were submitted. PW.5 Sonu has specifically narrated that “the accused-appellant Sukha Singh was painful and was saying to complainant Chhindrapal Kaur, his wife, that her wife has not acted fair, by killing his son and he will not spare her”. The type written F.I.R has also been lodged belatedly after lapse of more than 24 hours. Appellant-accused has categorically stated in his defence evidence that his wife was not faithful and chaste and was nurturing illicit relations with Gurupal Singh so, she was being restrained and this was the bone of contention between their relations and she often used to withdraw his companionship by fleeing away to her parental house. Quoting Ex.D.1 and Ex.D.2 he has said that Chhindrapal Kaur had fled away with Gurupal Singh, in his cross-examination, he has also said that he witnessed his wife Chhindrapal Kaur in compromising position, while Gurupal was kissing her and has also denied all the allegations, hence, adverting upon the above, it is suffice to conclude that prosecution has failed to establish alleged charge against the accused-appellant with corroborative, reliable and positive evidence and there are several contradictions and frailities in the evidence of the prosecution and prosecution has not connected and proved its case beyond the contours of reasonable doubt. 16. In the case of Sukliya Vs. State of Madhya Pradesh reported in (2010) 16 SCC 745, the Hon'ble Apex Court has held as under :- “6. 16. In the case of Sukliya Vs. State of Madhya Pradesh reported in (2010) 16 SCC 745, the Hon'ble Apex Court has held as under :- “6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted”. In Narendra Singh and Another v. State of M.P., (2004) 10 SCC 699 , the Hon’ble Apex Court has recognized presumption of innocence as a human right and has gone on to say that: “30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between ‘may be’ and ‘must be’. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. Xxx xxx xxx xxx xxx 33. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. Xxx xxx xxx xxx xxx 33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.” 17. It is indisputable, under criminal jurisprudence to connect the accused with the alleged charge and crime with indelible positive and reliable evidence but the prosecution has failed to prove the same, therefore, we are of the view that the accused-appellant is entitled to get benefit of doubt and be acquitted from the charges under Sections 302, 307 and 498A of IPC, since the said charges are not proved. Resultantly, the appeal is allowed. Conviction and sentence of the accused is hereby quashed and set aside, so, he be released forthwith, if his custody is not needed in any other case. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.25,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.