JUDGMENT : (Prayer: Criminal Appeal is filed under Section 374(ii) of Criminal Procedure Code, to set aside the judgment and sentence passed in S.C.No.23/2014 dated 19.03.2015 on the file of the Principal District and Sessions Judge, Ariyalur, convicting the appellant for the offence under Section 304(ii) of IPC and sentenced to undergo five years imprisonment and imposed a fine of Rs.1,000/- in default to undergo one year imprisonment.) 1. The matter is heard through “Video Conference”. 2. Convicted first accused is the appellant herein. 3. The criminal appeal is filed against the judgment passed in S.C.No.23/2014 dated 19.03.2015 on the file of the Principal District and Sessions Judge, Ariyalur, convicting the appellant for the offence under Section 304(ii) of IPC and sentenced to undergo five years imprisonment and imposed a fine of Rs.1,000/- in default to undergo one year imprisonment. 4. The respondent-police filed final report against A1 and A2 alleging that A1 and defacto complainant are neighbors. The child of defacto complainant frequently went to the house of A1 and played in her house. At that time, A1 used to scold the boy. On 16.09.2013, the defacto complainant was unwell and in order to go to hospital she left her son Balaji in the custody of A1 and her mother Vijayalakshmi at 1.00 p.m. The mother of A1 left the child Balaji in the custody of A1. While the boy Balaji cried continuously, A1/Priya slapped on the cheek of the boy Balaji with her hand and then the child dashed against the wall and become unconscious. Then, A1 took the boy Balaji and picked the rope with Gold Thayathu and throw the rope with Thayathu into a forest area and thrown the boy into the well of Chettinadu Cement Company. She throw the boy into the well with the intention of murdering him. A2 threatened witness No.2. Hence, the respondent-police laid the charge sheet under Section 302, 201 and 506(i) as against A1 and A2. 5. During trial, on the prosecution side P.W.1 to P.W.17 were examined and Exs.P1 to P19 have been marked. Further, one material object was marked. 6. Based upon the oral and documentary evidence, the learned Principal District & Sessions Judge, Ariyalur, had acquitted A2 and convicted A1 as stated supra. 7. Heard the learned counsel for the appellant and the learned Government Advocate for the respondent. 8. Further, one material object was marked. 6. Based upon the oral and documentary evidence, the learned Principal District & Sessions Judge, Ariyalur, had acquitted A2 and convicted A1 as stated supra. 7. Heard the learned counsel for the appellant and the learned Government Advocate for the respondent. 8. The learned counsel for the appellant would contend that A) none of the circumstances projected by the prosecution has been established. B) The prosecution version of the cases suffer from inherent infirmities. 9. Per contra, the learned Government Advocate would contend that two witnesses have spoken about to of having seen A1 beating the child and the Doctor who performed autopsy on the dead body could not ruled out homicidal violence having been committed on the child. Further, he made submission in support of the order passed by the learned Sessions Judge. 10. P.W.1 is the mother of the deceased (2 1/2 year old child). P.W.2, who was grazing the cattle near to scene of the crime viz., well, turned hostile. P.W.3 and P.W.4 are projected as if, P.W.2 was telling P.W.1 about the certain alleged act of the accused, on the body of the child. P.W.5 is the father of P.W.1 while P.W.4 and P.W.6 who had lifted the dead body of the child from the well. The attestor of observation mahazar and seizure mahazar were examined as P.W.7 to P.W.9. The attestor of the arrest and recovery were examined as P.W.10 and P.W.11. Others, P.W.12 to P.W.14 are revenue and police witnesses. P.W.14/Dr.Ramesh, who had conducted postmortem and issued Ex.P10. P.W.14/Ramesh, is now working as Assistant Medical Officer in Ariyalur Government Hospital. On 17.09.2013, while he was on duty, he received the body of the deceased for postmortem. He found the following injuries:- 1. A Bluish contusion of size about 3x3cm over centre of forehead seen. 2. An abrasion of size about 5x4cms with scab is seen over the left side of upper back. 3. Chest-ribs intact, lungs are voluminous and edematous - both sides. On cut section of the lungs, copious, watery, frothy, blood stained fluid is seen. 4. Right side of the heart contains liquid blood. 5. Abdomen - Stomach is distended, filed with water mixed with biscuits. 6. Intestines - small and large intestines distended, contained water. Bladder empty and intact. 7. Hyoid bone found intact. 8. On cut section of the lungs, copious, watery, frothy, blood stained fluid is seen. 4. Right side of the heart contains liquid blood. 5. Abdomen - Stomach is distended, filed with water mixed with biscuits. 6. Intestines - small and large intestines distended, contained water. Bladder empty and intact. 7. Hyoid bone found intact. 8. Skull - contusion of the size about 3x3cms is present on the right side of the forehead. The skull back were found intact. The brain matter was found intact. Spine and vertebra - Normal. 9. Stomach - intestines, kidney, piece of liver and preservatives were sent for visera analysis. 11. His evidence is to the effect that the doctor who conducted the postmortem of the deceased was examined as P.W.15. P.W.14 stated that during his evidence that the deceased would appear to have died of drowning. Further P.W.14 during his cross examination stated that while a person died of drowning, his lungs will be voluminous and edematous and the stomach will be distended filled with water and only due to the voluminous and edematous of the lung asphyxia occurred and due to it the person will be died. Further, P.W.14 found contusion on the forehead and the abrasion on the left side of upper back of the child. From P.W.14, it reveals that death of the boy was caused due to the voluminous, edematous of the lung and due to it asphyxia occurred and due to it the child died. 12. The suggestive case of the defence is that it is a case of death by drowning, it is seen that the deceased child had drunk lot of water while floating in the well and it is a accidental death. 13. The theory of the prosecution in brief is that the deceased a 2 1/2 year old child is the son of P.W.1, the defacto complainant. A1/appellant is accused of having dashed the child on the wall and thrown him into the near by well and committed murder. While A2 was alleged to have criminally intimidated a witness. A1 was presented for offence under Section 302, 201 of IPC, which A2 was presented under Section 506(i) CPC in S.C.No.23/2014 before the learned Principal Sessions Judge, Ariyalur. 14. After perusing Ex.P10 coupled with the answer elicited in the cross examination, the positive opinion of the medical officer who had conducted postmortem, is “death by drowning”. A1 was presented for offence under Section 302, 201 of IPC, which A2 was presented under Section 506(i) CPC in S.C.No.23/2014 before the learned Principal Sessions Judge, Ariyalur. 14. After perusing Ex.P10 coupled with the answer elicited in the cross examination, the positive opinion of the medical officer who had conducted postmortem, is “death by drowning”. The prosecution trying to establish that the homicidal violence could not be ruled out. Mere suspicion cannot take place of the proof. 15. As observed earlier, it is elicited during the cross examination of medical witness of P.W.14 Doctor, that while a person died of drowning his lungs will be voluminous and edematous and the stomach will be distended, filed with water. The same is duly reflected in Ex.P10, assumes significance and support the theory of the defence as stated supra. 16. The prosecution mainly relied upon P.W.1, P.W.2, P.W.3 and P.W.4 along with the medical evidence of P.W.14. P.W.1/mother of the deceased boy, in her evidence stated that on 16.09.2013 she was unwell and in order to take treatment she decided to go to the hospital and at 1.00 p.m., she left her child Balaji with A1/Priya and her mother since they are neighbours of P.W.1 and she returned to the house of A1 at 2.00 p.m., and she asked about her son to A1 and A1 told inconsistent pleas and then she searched for her son in several places and one Renganathan told her that A1/Priya throw her son into well and then she went to the well and saw that her son was floating in the water of the well and then she intimated the matter to the police station. It is her evidence in Ex.P1/complaint. 17. Though P.W.1 and P.W.2 would depose that P.W.2/Renganathan, the old man who said to have grazing with the sheep have told that the accused had beaten the boy and throw into the well, has turned hostile. It remains to be stated that P.W.3/Sekar, could state that he had witnessed the boy and witnessed that the appellant/A1 was beating the boy for the reasons not known, the same was not disclosed in Ex.P1/complaint, in which he had attested at the time of lodging the complaint with the police assumes significance. 18. It is needless to say that P.W.3 is the attestor of Ex.P1/complaint. 18. It is needless to say that P.W.3 is the attestor of Ex.P1/complaint. The statement of P.W.3 and P.W.4 under Section 161 of Cr.P.C., also reached the Court much much later, also assumes significance. P.W.4 version, does not clinchingly associate the alleged overtact of the accused and hence, this Court finds that none of the circumstances projected by the prosecution is established in the manner known to law. The medical evidence is also not suggestive of violence having been committed on the deceased. As stated supra, the medical evidence does not reflect as to the nature and the cause of the death. As observed, it only lends support to the suggestive theory of the defence that it is a natural death and the cause of death is drowning and hence, I find that the version of P.W.2 having turned hostile, the version of P.W.3 and P.W.4 cannot lend any credence to the prosecution theory. 19. Admittedly, neither P.W.1 nor P.W.3 nor even P.W.4 have seen the occurrence, the case is based on the circumstantial evidence, there are chains of circumstances each incriminating in nature, they should form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of crime excluding any hypothesis of innocence. To form such chain each and every circumstances have to be proved by beyond all reasonable doubts. Non establishing of chain disrupts or cut the chain of circumstances. The motive ascribed as against A1 is that she was very much obsessed with the child causing nuisance with her house at odd hours. But, none of the witness have spoken about this aspect. 20. In a case based on the evidence of ocular witnesses, motive is not a sine qua but, if it is there, there is no wrong in it, but in a case, based on circumstantial evidence, motive plays a vital role to assess the quality of the evidence adduced. and thus, for the reasons stated supra, the evidence of P.W.3 and P.W.4 is not reliable and trustworthy. P.W.3, who is the attestor of Ex.P1/complaint, has not whispered anything having seen the accused in the company with the deceased as spoken to by him in the witness box. As noted earlier, his statement under Section 161 of Cr.P.C., have reached the Magistrate Court much later also cause serious doubt on the veracity of the version of P.W.3. P.W.3, who is the attestor of Ex.P1/complaint, has not whispered anything having seen the accused in the company with the deceased as spoken to by him in the witness box. As noted earlier, his statement under Section 161 of Cr.P.C., have reached the Magistrate Court much later also cause serious doubt on the veracity of the version of P.W.3. The version of P.W.4 is lacks credence in nature and hence, the trial Court has committed an error in relying upon his evidence to lend the the circumstantial theory projected by the prosecution. 21. In view of the discussion, in the preceding paragraph, this Court finds that there is no eye witness for the occurrence and the witness of circumstantial evidence were not linked as a chain in order to convict the appellant and there is no evidence to the effect that the accused thrown the child in the well and also the evidence of prosecution witnesses had not proved the limp of the circumstantial theory that the appellant pushed the child in the well and the child suffered injury thereafter, nor the appellant thrown the deceased in the well. 22. At this juncture, it is also pertinent to note that the evidence of P.W.14/Doctor who had conducted autopsy of the deceased gave the opinion that the child was drown in the water and cause of death was asphyxia on drinking the water and hence, when the medical evidence is not suggestive of the violence having committed on the deceased and medical evidence is not definite as to the nature and cause of the death, this Court, taking note of the facts mentioned in Ex.P10/post postmortem certificate and answer elicited in the cross examination, the evidence of the Doctor is not supporting the case of the prosecution and the cause of the death as spoken to in Ex.P10/postmortem report only suggest that the suggestive case of the prosecution is more probable than the prosecution theory. 23. In the absence of any positive evidence to show that the appellant/first accused bet the child and subsequently, throw him in the well has not been proved in the manner known to law and the charge under Section 302, which was converted by the Sessions Judge into 304(ii) has not proved beyond reasonable doubt. 23. In the absence of any positive evidence to show that the appellant/first accused bet the child and subsequently, throw him in the well has not been proved in the manner known to law and the charge under Section 302, which was converted by the Sessions Judge into 304(ii) has not proved beyond reasonable doubt. By operation of law, benefit of doubt goes to the appellant/first accused and the prosecution has miserably failed to prove the circumstantial theory of the case as required and hence, the evidence of P.W.1, P.W.2 and P.W.4 are held to be unreliable and cannot be lead to in the absence of any probable chain between the witnesses version which is also found to be contracted with the evidence of investigation officer. 24. In the result, the criminal appeal is allowed. The conviction and sentence as against the appellant/A1 in the judgment dated 19.03.2015 in S.C.No.23 of 2014 passed by the learned Principal District and Sessions Judge, Ariyalur, are set aside. The appellant/accused is acquitted from the charge under Section 304(i) of IPC. The fine amount, if any, paid by her is ordered to be refunded to her. The bail bonds executed by her, shall stand terminated/discharged.