JUDGMENT : Sadhana S. Jadhav, J. 1. Heard learned counsel appearing for the parties. 2. The appellant herein is convicted for the offence punishable under Section 304(II) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six years and fine of Rs. 500/- in default to suffer rigorous imprisonment for six months in Sessions Case No. 810 of 2013 by the learned Additional Sessions Judge, Greater Mumbai vide judgment and order dated 16th October 2014. Hence, this appeal. 3. It is the case of the prosecution that the appellant herein is the wife of Nandkishor Taksalkar (deceased). He was a police personnel and residing in Marol Police Camp. There used to be intermittent quarrels between husband and wife. The present appellant was married to Ishwar Khandare in the year 1993. She had begotten a son from the first marriage. His name is Satish Khandare. Ishwar was plying auto rickshaw. The appellant had withdrawn herself from the society of her husband and was residing with Nandkishor as his wife. Her son Satish was residing with her and her other son Aniket was residing with Ishwar Khandare. 4. On 28th April 2013, the appellant had been to Powai police station and had informed to the police (PW-1) Sushil Kumar Bhosale that her husband Nandkishor had raised a quarrel with her as he was in a state of intoxication. She had further disclosed that she had assaulted her husband Nandkishor with tile and iron hammer and had caused bleeding injuries. She was accompanied by her son, Satish. Thereafter the police had been to the spot and found that Nandkishor had sustained bleeding injuries. He was referred to Mangal Hospital, Marol where he was declared dead on admission. Initially Accidental Death No. 39 of 2013 was registered. Upon realising that it is a case of homicidal death, Crime no. 242 of 2013 was registered against the present appellant for the offence punishable under Section 302 of Indian Penal Code. Upon completion of investigation, the charge-sheet was filed on 8th May 2013. The prosecution has examined 16 witnesses to bring home the guilt of the accused. 5. The case of the prosecution is based upon the statement of the accused prior to registration of the offence. PW-5, Vikas Popatrao Rajbhoj, police constable residing in the same building. PW-6, Anita Pradip Mohite, who was one door neighbour of the deceased. The prosecution has examined 16 witnesses to bring home the guilt of the accused. 5. The case of the prosecution is based upon the statement of the accused prior to registration of the offence. PW-5, Vikas Popatrao Rajbhoj, police constable residing in the same building. PW-6, Anita Pradip Mohite, who was one door neighbour of the deceased. PW-7, Satish Ishwar Khandare is son of the deceased. PW-10, Anil Nana Kurhade, police constable residing in the same building. PW-14, Kakasaheb Vasantrao Shinde, the Relief Officer to whom the incident was disclosed and he recorded the complaint lodged by PSI, Bhosale. PW-15, Mohd. Yaqoob Hamjasaheb Mulla is the investigating officer and PW-16, Dr. Narendra Gangaram Shinde, who conducted the post-mortem on the dead-body of the deceased. 6. The case is unfolded by PW-5, Vikas Popatrao Rajbhoj, who has deposed before the Court that Nandkishor was residing in Room no. 7 at first floor. On 28th April 2013, at about 12.00 noon, Nandkishor was standing near the building, he was beating and abusing one auto rickshaw driver and courier person. He was under the influence of alcohol. At about 12.30 p.m. he heard the noise of quarrel from the house of Nandkishor. He heard sound of throwing utensils. Nandkishor was also abusing all residents of the building. PW-5 had put in the best of efforts to pacify him, but he was in no mood to listen. Thereafter Nandkishor had entered in his room under the influence of alcohol. PW-5 had asked him to leave the house. At about 2.30 p.m. PW-5 had left the house and at about 6.30 pm., when he returned home, he saw the police persons near his building and had learnt that the appellant had assaulted Nandkishor with a tile and hammer. 7. It is stated in the cross-examination that Nandkishor behaved in a disorderly manner under the influence of alcohol prior to the incident and due to such behaviour the people in the building were disturbed. That Nandkishor was heavily drunk on 20th April 2013 and was creating ruckus. 8. PW-6 Anita Pradip Mohite resides in front of the house of the accused and Nandkishor. She has corroborated the narration of facts of PW-5. 9. PW-10, Anil Nana Kurhade was also residing in the same building. He deposed before the Court that Nandkishor always used to return home in a state of intoxication. 8. PW-6 Anita Pradip Mohite resides in front of the house of the accused and Nandkishor. She has corroborated the narration of facts of PW-5. 9. PW-10, Anil Nana Kurhade was also residing in the same building. He deposed before the Court that Nandkishor always used to return home in a state of intoxication. The relations between the spouses were strained. He also corroborated with the evidence of PW-5. 10. PW-13, Sameer Babasaheb Mujawar was attached to Powai Police Station. He has deposed before the Court that in the intervening night of 27th and 28th April 2013 at about 1.15 a.m. the accused-appellant had been to the police station, she had disclosed to the Police that her husband was addicted to liquor. She disclosed that on 27th April 2013 at about 11.15 p.m. her husband had assaulted her under the influence of alcohol. Hence N.C. bearing No. 1886/2013 under Section 323 of Indian Penal Code was registered against the deceased. Since her husband was working as a police officer, he was called to the police station and was given an understanding. He had signed the papers of N.C. and the spouses were directed to maintain peace. 11. PW-14 and 15 have also disclosed that on 28th April 2013 at about 5.00 p.m. the accused/appellant had been to the police station and informed that she had assaulted her husband. The star witness of the prosecution case is Satish Khandare, who was present in the house at the time of the incident. He has deposed before the Court that in the midnight of 27th April 2013, his father had assaulted his mother and therefore, she lodged a report at the police station at 12.30 am. That at about 5.00 a.m. Nandkishor had returned home and had again started quarrelling with his mother. His mother had dialled 100 number. A police van had been to their house and Nandkishor, accused-appellant and their son i.e. PW-7 were taken to the police station. The police authorities had tried to pacify. They all returned home at 10.00 a.m. Nandkishor had then left the house, he returned at 11.00 a.m. He had brought a bottle of liquor. He was telling his wife that he would kill her. Nandkishor had thrown all the utensils out of the house. He then ordered for lunch from hotel. He had lunch and then left the house. They all returned home at 10.00 a.m. Nandkishor had then left the house, he returned at 11.00 a.m. He had brought a bottle of liquor. He was telling his wife that he would kill her. Nandkishor had thrown all the utensils out of the house. He then ordered for lunch from hotel. He had lunch and then left the house. He returned at 3.00 p.m. and went to sleep. According to PW-7, he then woke up and saw that Nandkishor was sleeping. He then accompanied his mother to the police station. His mother then informed the police that she had murdered Nandkishor. On request of the Court to declare the witness hostile and accordingly he was declared hostile. The witness was confronted with his previous statement. He has categorically stated that he had not stated the portion marked A, B, C and D. He has denied to have seen the incident in which his mother had assaulted Nandkishor with an iron hammer and a tile. It is stated in the cross-examination that on 28th April 2013, Nandkishor had assaulted a rickshaw driver and one courier person and he had consumed alcohol to such an extent that he was not knowing what he was doing. It is also stated that prior to the incident, Nandkishor was not only harassing the accused-appellant but also to the residents of the building under the influence of alcohol and therefore, the residents of the building were fed-up with the behaviour of Nandkishor. The witness has admitted that his statement was recorded by 66th Metropolitan Magistrate on 14th May 2013. It was a statement under Section 164 of Code of Criminal Procedure. When he was confronted with his statement under Section 164 Cr.P.C. he has denied that he had accordingly stated before the Magistrate. He has specifically deposed that he had not gone to the Magistrate voluntarily and therefore, he does not know what was the contents of the statement recorded by the Magistrate, but he had signed the said statement as per the direction of the Metropolitan Magistrate. 12. PW-16, Dr. Narendra Gangaram Shinde had conducted autopsy on the dead-body of Nandkishor. Column number 17 showing the following injuries: (i) CLW above left eyebrow, 6 cm. above left ear frontal area. (ii) CLW above left angle of eyebrow, middle side. (iii) CLW 4 cm. above right ear near right parietal eminence. 12. PW-16, Dr. Narendra Gangaram Shinde had conducted autopsy on the dead-body of Nandkishor. Column number 17 showing the following injuries: (i) CLW above left eyebrow, 6 cm. above left ear frontal area. (ii) CLW above left angle of eyebrow, middle side. (iii) CLW 4 cm. above right ear near right parietal eminence. (iv) CLW 11 cm above right ear, back or parietal area. (v) CLW 7 cm. above back of right ear, occipital area. (vi) There was fracture of temporal bone and occipital bone and on base of skull. It appears from the post-mortem notes that these are not different injuries but an extended injuries or impact injuries of injury no. (v). PW-16, Doctor has opined that the cause of death was haemorrhagic shock due to head injuries with skull fracture, with consumption of alcohol (un-natural). The Doctor has stated that the injuries may be possible by means of tile and hammer. That the injuries are on vital part and are sufficient to cause death in ordinary course of nature. He has further admitted that injury number 1 by itself is sufficient to cause death. That injury number 5 may be possible when a person falls on his backside on the head. 13. In the present case, the questions are (i) what is the effect of the hostility of PW-7, Satish Khandare, (ii) whether the prosecution has proved it's case beyond reasonable doubt and (iii) in the facts of the given case, whether it would be necessary to consider the circumstances in which incident has occurred. 14. Besides the fact that the accused-appellant was last seen in the company of the deceased and that she had visited the police station and narrated the incident can be accepted without there-being any such corroboration. Since PW-7 has turned hostile, it cannot be said that this is a case of direct evidence but this would be a case of circumstantial evidence. The Court cannot be oblivious of the fact that in such cases, the conjecture or suspicion may take the place of legal proof. If the circumstances are of a conclusive nature, then it would be necessary to examine the circumstances in which the incident has occurred. 15. The Court cannot be oblivious of the fact that in such cases, the conjecture or suspicion may take the place of legal proof. If the circumstances are of a conclusive nature, then it would be necessary to examine the circumstances in which the incident has occurred. 15. The Apex Court in the case of Hanumant Govind Nargundkar and Others vs. State of Madhya Pradesh, AIR 1952 SC 343 , has held as follows: "It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears." 16. In the present case, whether the statement made by the accused on the basis of which the law was set into motion, can be used as an admission or a confession. The statement was made prior to registration of an offence. That since 27th April 2013, the police had been apprised twice about the atrocities and harassment meted out to the accused by the deceased, who happen to be a police personnel. One N.C. was registered. On the second occasion, at 11.00 a.m. the accused-appellant had dialled 100 number. Both of them were taken to the police station and when they returned home, the incident had occurred. The deceased had returned home with a bottle of liquor and then all that happened was within the special knowledge of PW-7. In fact the prelude of the incident was known to the police. Although the burden was upon the accused, to discharge the onus of fact within her special knowledge of Sections 105 and 106 of Indian Evidence Act, she could still raised plea of exception. 17. In the case of Vijayee Singh and Others vs. State of Uttar Pradesh, (1990) 3 SCC 190 , the Apex Court has held as follows: "Section 105 of the Indian Evidence Act, to some extent places the onus of proving any exception in a penal statute on the accused. 17. In the case of Vijayee Singh and Others vs. State of Uttar Pradesh, (1990) 3 SCC 190 , the Apex Court has held as follows: "Section 105 of the Indian Evidence Act, to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him. The Section further lays down that the Court shall presume non existence of circumstances bringing the case within an exception. The words burden of proving of the existence of circumstances occurring in the Section are very significant. It is well settled that "this burden" which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case beyond all reasonable doubts. It is also well settled that the accused need not set up a specific plea of his offence and adduce evidence. That being so, the question is what is the nature of burden that lies on the accused under Section 105 of Indian Evidence Act, if the benefit of the general exception of the private defence is claimed and how it can be discharged." 18. The facts in the present case and more particularly the prelude to the incident in question would entitle the accused-appellant to raise a plea of self defence. It is well settled principle of law that the plea of self defence need not be specifically raised. It has to be gathered from the surrounding an extenuating. 19. There is material to show that while returning from the police station, the deceased had brought a bottle of liquor and had threatened the accused-appellant that she would be eliminated. The possibility that she had to assault the accused/appellant in her self defence cannot be ruled out. 20. In fact, although the burden of establishing the plea of self defence is on the accused/ appellant, the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. The accused is not required to prove the plea of private defence beyond reasonable manner of doubt. The onus upon the accused is only to the extent that the version is probable one, which is reflected from the salient features and the circumstances in the prosecution case itself. 21. The accused is not required to prove the plea of private defence beyond reasonable manner of doubt. The onus upon the accused is only to the extent that the version is probable one, which is reflected from the salient features and the circumstances in the prosecution case itself. 21. The prosecution has not examined the Metropolitan Magistrate to substantiate the contents of the statement of PW-7 recorded under Section 164 of Cr.P.C. It is further pertinent to note that the statement of accused-appellant at the first instance was not reduced into writing, but her version was reduced into an F.I.R. lodged by P.I. Sushil Kumar Bhosale and the same is treated as an F.I.R. and marked as Exhibit 13. Moreover, initially Accidental Death No. 39 of 2013 was registered. Although, according to the prosecution, there was an admission by the accused-appellant that she was the author of the injuries sustained by her husband. Section 25 of the Indian Evidence Act reads as follows: "25. Confession to police officer not to be proved - No confession made to a police officer, shall be proved as against a person accused of any offence." 22. A confession must either admit in terms of the offence or at any rate substantially all the facts, which constitutes the offence. The Hon'ble Apex Court in the case of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 , has held that: "A confession or an admission is evidence against the maker of it, unless its admissibility is not excluded by some provision of law; that Section 25 does not exclude all statements by the accused to Police officer, but only confessions, which are on admissions in terms of the offence or at any rate substantially all facts, which constitute the offence. This Section does not stand in the way of admitting the statement of the accused to a police officer, if such statement does not amount to a confession. Section 162 of Cr.P.C. should be considered alongwith Section 25 of this Act while admitting any statement other than a confession except as provided in Section 27, which provides that a statement leading to the discovery of a fact is admissible. Thus, Section 25 protects the accused in respect of a confession made by him to the police officer, whereas Section 162 protects the accused if it is made during the course of investigation. Thus, Section 25 protects the accused in respect of a confession made by him to the police officer, whereas Section 162 protects the accused if it is made during the course of investigation. The practise of holding the memorandum preceding recovery as a confession and therefore incriminating, is deprecated by the Supreme Court in a catena of decisions." 23. As accused cannot be compelled to be a witness against himself. In the case of Pakala Narayan Swami vs. Emperor, 1939 AIR 47, the Privy Council has held that Section 25 of Indian Evidence Act covers a confession made to a police officer even before any investigation has started and is not confined to a confession in the course of an investigation. 24. In the present case, the statement of accused had led to the discovery of a fact that her husband had died in the house due to injury. The onus of the prosecution would be to establish that the appellant was the author of the said injury. Even if, dead-body is found in the house of the accused, it would be necessary to consider the prelude to the incident, the peripheral circumstances in which the incident had occurred and whether the injury was caused by the accused in the course of exercising private defence. 25. In the light of the above discussions, the only inference that can be drawn is that the prosecution has not proved the guilt of the accused reasonable doubt. The only fact that the accused was lastly in the company of the deceased cannot be said to be an incriminating material as it was natural for the accused to be with the deceased at the material time, other possibilities must be excluded before an adverse inference could be drawn. 26. Section 3(2) of the Indian Evidence Act reads as follows: Section 3(2) [all documents including electronic records produced for the inspection of the Court] such documents are called documentary evidence: "Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved" - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not proved" - A fact is said not to be proved when it is neither proved nor disproved." 27. This is a specific case where it can be safely inferred that the prosecution has not proved the its case. The term not proved indicates a state of mind between two states of mind, which say. 28. In the case of Emperor vs. Shafi Ahmed Nabi Ahmed, 1925 Bom. LR 515, the Court has held that the term not proved indicates a state of mind between two states of mind (proved and disproved) when one is unable to say precisely how the matter stands. 29. In the present case, it cannot be necessarily held that it is a false case. A fact that is not proved is not necessarily a fact which is disproved. A fact is said to be not proved when it is neither proved nor disproved. A fact which is not proved may be true or may be false. There is a suspicion about its truth-fullness and at the same time falsity is not established. In view of above discussion, the appeal deserves to be allowed. Hence, the following order: ORDER: (i) The appellant herein is acquitted of the offence punishable under Section 304(II) of the Indian Penal Code. (ii) The judgment and order dated 16th October 2014 delivered by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No. 810 of 2013 is hereby quashed and set aside. (iii) The appellant be released forthwith. (iv) The amount of fine, if paid, be refunded. (v) The Superintendent of Yerawada Prison (Women Cell) shall send compliance report of the release of the appellant forthwith. (vi) Professional fees of the advocate appointed by this Court to espouse the cause of the appellant be paid in accordance with rules.