JUDGMENT : Ahluwalia, J. The present appeal preferred by Murti @ Murta Devi, is directed against the impugned judgment dated 24.7.2008 rendered by the Additional Sessions Judge (Fast Track) No.1, Tonk. The trial court vide the impugned judgment held the appellant guilty of offence under Section 302 IPC and vide a separate order of even date sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 3,000/-, in default of payment of fine to further undergo one year R.I. 2. The case of the prosecution is that the appellant, on the night of 2.6.2007 between 10:00 to 10:30 PM, in village Kumhariya in her father-in-law's house committed murder of her husband Ram Prasad with whom she had retired to bed in the Bada in the house. The conviction of the appellant rests upon the following circumstances: (i) Extra judicial confession made by the accused to Mathura Lal (P.W.14), Shyo Kishan (P.W.15) and her mother-in-law Smt. Dev (P.W.16). (ii) Recovery of axe (Article 1) vide recovery memo Exhibit-P/13 by the appellant in pursuance of her disclosure statement (Exhibit-P/52). (iii) Presumption under Section 106 of Indian Evidence Act. (iv) Recovery of blood stained clothes of the accused. 3. In the present case, the criminal proceedings were set into motion on presentation of written report (Exhibit-D/1) by Chainsukh (P.W.4) father-in-law of the appellant. The written report (Exhibit-D/1) was presented by Chainsukh (P.W.4) before the Investigating Officer Bhanwar Singh (P.W.21), who was then posted as SHO, Police Station Sonp, Tonk. The written report (Exhibit-D/1) when translated into English reads as under:- "To Station House Officer, Police Station Sonp, District Tonk. Sub: Regarding lodging of the First Information Report. Sir, With regard to above noted subject, it is submitted that I am resident of village Kumhariya. I have three sons. Ram Prasad is eldest. 10-12 years ago, he was married with Murta Bai daughter of Badri Lal Gurjar, resident of village Sahipura. From the last 4-5 years, my daughter-in-law Murta Bai was coming and going out of from her in-laws house. On 2.6.2007, in the evening my son Ram Prasad at about 9:00 PM came to the house. He retired to his bed along with my daughter-in-law Murta Bai. Our remaining family members were sleeping inside Guwadi and outside the house. From the last 4-5 years, my daughter-in-law Murta Bai was coming and going out of from her in-laws house. On 2.6.2007, in the evening my son Ram Prasad at about 9:00 PM came to the house. He retired to his bed along with my daughter-in-law Murta Bai. Our remaining family members were sleeping inside Guwadi and outside the house. In night at about 11:00 PM, Murta Bai raised noise from the Bada and came to the courtyard and informed my wife Dev that your son has been killed. My wife Dev cried and went inside the Bada. After hearing cries and wailing, I along with my daughters namely Prasann, Roshan and son Nadaan went inside the Bada. My son Ram Prasad was lying on the cot smeared with blood. He was having injuries on his neck and hands. Lot of blood had oozed. Number of persons from the village arrived. Murta Bai disclosed that suddenly somebody came and after causing injuries with axe to Ram Prasad ran away from the spot and she had not seen the face of the assailant, she had seen some body running away from the spot. Information to this effect was given at Police Station Sonp through mobile. Sd/- Chainsukh s/o Teja Gurjar, r/o Kumhariya, Police Station Sonp, District Tonk." 4. The above said FIR was investigated, charge-sheet was presented against the appellant. The case was committed to the court of Sessions and was entrusted for trial to the court of Additional Sessions Judge (Fast Track) No.1, Tonk. The prosecution in all examined twenty-one witnesses. Thereafter, the statement of the accused-appellant was recorded under Section 313 Cr.P.C. 5. The accused in her statement under Section 313 Cr.P.C. stated that she was sleeping with her husband on the same bed. She was having lot of love towards her husband. They were having no dispute. While she was sleeping, she suffered injury on her left hand. She woke up and saw that somebody was causing injuries to her husband Ram Prasad. Due to fear, she raised noise and saw one person running away from the spot. She came running to courtyard, where her mother-in-law and sister-in-law were sleeping. She informed her mother-in-law that somebody has killed her son and she had not seen the face of assailant. Thereafter, his father-in-law, mother-in-law and sister-in-law came inside the room. Other villagers also came there. She came running to courtyard, where her mother-in-law and sister-in-law were sleeping. She informed her mother-in-law that somebody has killed her son and she had not seen the face of assailant. Thereafter, his father-in-law, mother-in-law and sister-in-law came inside the room. Other villagers also came there. Axe was lying at the spot. The police also arrived there. When the police arrived, axe was lying at the spot. Police carried the proceedings for long. The police had taken photographs of the spot. The police took into possession the axe, clothes worn by Murta Bai and deceased Ram Prasad. The accused-appellant further stated that she had neither concealed the axe nor clothes. 6. It is deniable fact that Ram Prasad had died due to injuries suffered by him in the occurrence. Dr. Ramniwas Meena (P.W.13) on 3.6.2007 at 10:00 AM had conducted autopsy on the dead body of Ram Prasad and as per Post Mortem Report (Exhibit-P/16), had found eight injuries on the person of deceased Ram Prasad. Injuries No. 1 and 2 on the neck had proved fatal. First of all, we shall deal with the evidence of extrajudicial confession. 7. Mathura Lal (P.W.14) is the elder brother of the complainant Chainsukh (P.W.4), elder father of the deceased Ram Prasad, hence, Mathura Lal is Taya of the deceased. This witness has stated that when he reached at the spot before arrival of the police, Murta Bai was standing there. Her hands and clothes were stained with blood. This witness in cross-examination stated that accused Murta Bai told him that she had committed murder of Ram Prasad. However, the attention of this witness was drawn to the police statement (Exhibit-D/4). This witness stated that had disclosed above facts to the police and as to why police had not noted the same in statement (Exhibit-D/4), he could not give any explanation. It will be pertinent to reproduce the following lines from the cross-examination of Mathura Lal (P.W.14), as under: " ;g lgh gS fd eSaus iqfyl dks vius c;ku esa ;g ckr crk nh Fkh fd eqrkZ us esjs ls dgk Fkk fd mlus jkeizlkn dks ekj fn;k gSA iqfyl c;ku izn'kZ Mh&4 esa eSaus rks mijksDr ckr fy[kkbZ fd eqrkZ us esjs ls jkeizlkn dks ekjus okyh ckr fy[kkbZ Fkh] blesa D;ksa ugha fy[kk gS] ;g esjs dks ugha irkA " 8. Considering that Mathura Lal (P.W.14) is close relation of the deceased Ram Prasad and the complainant Chainsukh (P.W.4), we cannot ignore omission of material fact in the statement made by Mathura Lal (P.W.14) before the Investigation Officer. Mathura Lal (P.W.14) in his statement before the police under Section 161 Cr.P.C. had nowhere stated that Murta Bai had made any extra-judicial confession. The stand taken by this witness for the first time in the court cannot be accepted, especially when evidence of extra-judicial confession is a weak type of evidence. 9. Similarly, Shyo Kishan (P.W.15) deposed before the court that he asked the accused, Murta Bai regarding the occurrence and she stated that mistake had been committed by her. She had killed her husband with an axe. This witness was confronted with the police statement (Exhibit-D/5) recorded under Section 161 Cr.P.C. It will be apposite here to reproduce the following portion of the cross-examination of the witness, as under:- " esjs ls iqfyl us iwNrkN dh FkhA esjs iqfyl c;ku izn'kZ Mh&5 esa bckjr , ls ch eq>s pSulq[k dh iRuh nsok us crk;k fd Fkh fd eq>s pqipki vkdj eqrkZ us crk;k fd rqEgkjs csVs dks dksbZ dqYgkM+h ls ekjdj gR;k djds Hkkx x;k gSA ;g Hkkx xokg us lquk vkSj dgk fd eSaus iqfyl dks ;g ugha fy[kk;kA eSaus iqfyl dks ;g crk fn;k Fkk fd eSaus eqrkZ ls iwNk rks mlus crk;k fd esjs ls xyrh gks x;h gSA eSaus iqfyl c;ku izn'kZ Mh&5 esa ;g fy[kk fn;k Fkk] ;fn iqfyl us ugha fy[kk rks eSa D;k d:aA ;g dguk xyr gS fd eSa >wB cksy jgk gksm] fd eSaus eqrkZ ls ;g iwNk gks vkSj eqrkZ us ;g esjs dks crk;k fd xyrh gks x;h gks vkSj vkt bl ckr dks eSa igyh ckj U;k;ky; esa dg jgk gksmA " 10. Similarly, Smt. Dev (P.W.16) deposed in the court that her daughter-in-law Murta Bai had made confession that she had caused injuries to the deceased Ram Prasad with an axe. However, in cross-examination, this witness stated that she had disclosed this fact for the first time in the court and earlier thereto, she had not informed anybody. Similarly, Smt. Dev (P.W.16) deposed in the court that her daughter-in-law Murta Bai had made confession that she had caused injuries to the deceased Ram Prasad with an axe. However, in cross-examination, this witness stated that she had disclosed this fact for the first time in the court and earlier thereto, she had not informed anybody. The exact words stated by the witness in cross-examination are as under:- " eSaus eqrkZ ls ;g iwNk Fkk fd dkSu ekj x;k rks eqrkZ us dgk fd jkeizlkn ifr dks eSaus ekjk gS] ;g ckr eSaus fdlh dks ugha crkbZ] ;g ckr vkt eSa igyh ckj U;k;ky; esa dg jgh gwWaA " 11. Thus, it is apparent that the witnesses have made material improvement and therefore, evidence of extra-judicial confession cannot be relied against the appellant Murta Bai. Presumption under Section 106 of Indian Evidence Act. 12. Chainsukh (P.W.4) in the court stated that Ram Prasad and accused Murta Bai had retired in the night to Bada. In the Bada, there was only one cot and Ram Prasad and Murta Bai were sleeping thereon. This witness stated that there is only one door for going to the Bada. Mr. Kapil Gupta, the learned counsel for the appellant, to demolish this part of evidence has drawn our attention to the site plan (Exhibit-P/1). On the side of wall of Bada, at point 'P', a door covered with Tata (a temporary door) has been shown. Chainsukh (P.W.4) in cross-examination admitted that in the site plan (Exhibit-P/1) at point 'A', there is Tata, the exact words stated by Chainsukh (P.W.4) are as under:- " izn'kZ ih&1 dks ns[kdj dgk fd ih LFkku ij dksbZ njoktk ugha gSaA ih LFkku ij dsoy VkVk yxk gqvk gSA njoktk ugha gSA njoktk tkx esa gS vkt [kqn dgk ;g lgh gS fd esjh vkSjr] eSa o esjh iq=h rhuksa pkSd esa lks;s gq, FksA " 13. Thus, from point 'P', there is access to the room, where Ram Prasad and Murta Bai were sleeping. Murta Bai had stated that somebody came, caused her injuries and to her husband Ram Prasad. Therefore, we cannot hold with certainty that nobody else had access to the room. Somebody can get entry into the room from point 'P' shown in the site plan (Exhibit-P/1), 'P' in the site plan where Ram Prasad and Murta Bai were sleeping. Murta Bai had stated that somebody came, caused her injuries and to her husband Ram Prasad. Therefore, we cannot hold with certainty that nobody else had access to the room. Somebody can get entry into the room from point 'P' shown in the site plan (Exhibit-P/1), 'P' in the site plan where Ram Prasad and Murta Bai were sleeping. We would not have assigned much significance to the availability of Tata (temporary door) at point 'P', had the learned counsel for the appellant not brought to our notice the application Exhibit-D/3 submitted by Chainsukh (P.W.4) to the police on 5.6.2007. The application (Exhibit-D/3) was presented by Chainsukh (P.W.4) before the Investigating Officer. In the said application, Chainsukh (P.W.4) has stated that Kalu s/o Prabhu Lal, Mathura Lal s/o Kanha and another person had caused injuries to his son. Therefore, it is apparent that till 5.6.2007, in-laws of the appellant Murta Bai were also harbouring suspicion that somebody else has committed offence. Chainsukh (P.W.4) is not a truthful witness, before the court to the extent that he denied contents of application (Exhibit-D/3) same were put to Chainsukh (P.W.4), he denied having presented any application to the police. He denied that he accompanied one Badri, Member of Zila Parishad and had gone along with hundred persons to the plice to urge that they should arrest the real assailants. We will reproduce the following portion of the cross-examination of Chainsukh (P.W.4) as under:- " ;g dguk xyr gS fd eSaus ?kVuk ds 4&5 fnu ckn iqfyl dks dksbZ nLrkost is'k dh gksA gekjs xkao esa cnzhyky uke dk O;fDr ftyk ifj"kn dk lnL; gS jgrk gks cfYd ckgj xkao dk gSA ;g dguk xyr gS fd eSa bl ?kVuk ds ckn 4&5 fnu ckn 100 vknfe;ksa ds lkFk Fkkus ij x;k gksmA ;g izn'kZ Mh&3 nj[okLr dks xokg us lquk vkSj dgk fd eSaus iqfyl dks ;g nj[okLr ugha nh] vkt [kqn fd iqfyl us ;g >wBh fy[kh gSA ;g dguk Hkh xyr gS fd blh nj[okLr izn'kZ Mh&3 dks ysdj eSa cnzhyky vkSj ';ksfd'ku xqtj vkSj xqtj lekt ds 100 O;fDr;ksa dks ysdj Fkkus ij tkdj ;g nj[okLr is'k dh gksA " 14. The above statement made by Chainsukh (P.W.4) is belied from the cross-examination of Bhanwar Singh (P.W.21) the investigating officer. The above statement made by Chainsukh (P.W.4) is belied from the cross-examination of Bhanwar Singh (P.W.21) the investigating officer. This witness admitted in the court that application (Exhibit-D/3) is having endorsement given in his hand from point A to B and the same also contains his signatures at point C to D. It will be apposite to reproduce the endorsement A to B given by Bhanwar Singh (P.W.21) on application Exhibit-D/3. " ;g fjiksVZ Jh pSulq[k iq= Jh rstk xqtZj P/O dqEgkfj;k us e; Jh cnjhyky ftyk ifj"kn lnL; lUnh;k mQZ bLyke uxj o ';ksfdlu iq= Jh gtkjh xqtZj P/O dqEgkfj;k e; 100 O;fDr djhc xqtj lekt ds yksx mi0 Fkkuk gks is'k dhA ekeys gktk esa bl fjiksVZ ls iwoZ 46@07 vUrxZr /kkjk 302 IPC esa ntZ gksdj rQ~'kh'k tkjh gSA eqythek Jherh eqrkZ mQZ ewfrZ dks fxjQ~rkj fd;k tk pqdk gSA fjiksVZ esa crk;s O;fDr;ksa dks ryc dj rQ~'kh'k gksxhA fjiksVZ 'kkfey i=koyh fd;kA " 15. In the context of above that the witnesses have cooked up evidence of extra-judicial confession, they have creeled a false piece of evidence so far extra-judicial confession is concerned and furthermore, Chainsukh (P.W.4) specifically denied the presentation of application (Exhibit-D/3), we are of the view that it is not safe to uphold the conviction of the appellant solely by raising presumption under Section 106 of Indian Evidence Act. In application (Exhibit-D/3), Chainsukh (P.W.4) complainant has very firmly stated that offence of murder was committed by other persons, who were named by him in the application (Exhibit-D/3). 16. Once there is an access to the room, the appellant had also suffered injury in the occurrence and till 5.6.2007, family of the deceased Ram Prasad was convinced that other persons have caused murder, we cannot uphold life imprisonment awarded upon the appellant merely by raising presumption under Section 106 of Indian Evidence Act. 17. So far evidence of recovery of axe and clothes is concerned, same is padding by the police. It has come in the evidence that immediately on the night of the occurrence, police had arrived at the scene of the occurrence. Immediately, thereafter, Murta Bai had informed her father-in-law and mother-in-law. In the FIR also it is stated that injuries were caused with an axe. Thus, axe was present in the house. It has come in the evidence that immediately on the night of the occurrence, police had arrived at the scene of the occurrence. Immediately, thereafter, Murta Bai had informed her father-in-law and mother-in-law. In the FIR also it is stated that injuries were caused with an axe. Thus, axe was present in the house. Murta Bai was sleeping with her husband Ram Prasad and received injuries in the occurrence, naturally there will be blood stains on clothes. Therefore, the same cannot be treated as incriminating circumstance in the present case. 18. Taking totality of circumstances, we are of the view that benefit of doubt can be extended to the appellant Murta Bai as it is not safe to uphold her conviction by raising presumption as it cannot be said that prosecution has proved chain of circumstances to such an extent that we can come to definite conclusion that offence has been committed by the appellant alone. Hence, by extending benefit of doubt, we accept the present appeal and set aside the conviction and sentence awarded by the trial court upon the appellant and acquit her of the charge. 19. In view of the acceptance of the appeal, in above terms, we order that the appellant Murti @ Murta Bai be released forthwith, if in custody and not required in any other case. 20. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Murti @ Murta Bai is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court.