JUDGMENT G. S. AHLUWALIA, J. : – This Criminal Appeal under section 374 of Criminal Procedure Code has been filed against the Judgment and Sentence dated 6-7-2011 passed by Sessions Judge, Vidisha in S.T. No. 219 of 2010, by which the appellant has been convicted under section 302 of Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs. 2000/- in default R.I. for 6 months. 2. The necessary facts for disposal of the present appeal in short are that on 2-5-2010, an information was sent from Distt. Hospital, Vidisha that at 3:30 A.M. in the night, Kamlesh Nagar, who got injured in a fighting was brought in an unconscious condition and he was admitted in Male Surgical Ward and has been referred to Hamidia Hospital, Bhopal. Copy of Pre M.L.C. was also sent along with the information. Thereafter, at 7:45 A.M., another information was sent from Distt. Hospital, Vidisha that Kamlesh Gurjar, who had sustained injuries in fighting was brought in a serious condition, therefore, he was referred to Bhopal. The said person has been brought back in a dead condition from Bhopal. Accordingly, the information of death was given to the Police Station. 3. Ku. Hemlata Solanki, posted as A.S.I. prepared the Lash Panchnama after issuing Safina Form. A requisition for post-mortem of the dead body was sent. The statement of Rajendra was taken on the same day. The statement of Lalita bai was also taken on the same day. Spot map was prepared. Blood stained and plain earth was seized from the spot. Accordingly, FIR in crime No. 313/2010 for offence under section 302 of Indian Penal Code was registered against the appellant, who is the wife of the deceased Kamlesh Nagar. Thereafter, the investigation was handed over to another investigating officer. 4. Thereafter, the investigation was taken over by Ram Babu Goswami, Head Constable and he arrested the appellant on 2-5-2010. Her memorandum was recorded. A blood stained stone was recovered which was lying under the dressing table. On 3-5-2010, one bottle was seized on the production of the same by Lalita bai. Police after completing the investigation filed the charge-sheet for offence under section 302 of Indian Penal Code. 5. The trial Court by order dated 20-8-2010 framed charge under section 302 of Indian Penal Code. 6. The appellant, abjured her guilt and pleaded not guilty. 7. On 3-5-2010, one bottle was seized on the production of the same by Lalita bai. Police after completing the investigation filed the charge-sheet for offence under section 302 of Indian Penal Code. 5. The trial Court by order dated 20-8-2010 framed charge under section 302 of Indian Penal Code. 6. The appellant, abjured her guilt and pleaded not guilty. 7. The prosecution examined Anguribai (P.W.1), Rajendra (P.W.2), Lalita bai (P.W.3), Pradeep Nagar (P.W.4), Kuldeep Nagar (P.W.5) Janki Prasad Tripathi (P.W.6) Raviraj Singh (P.W.7), Dr. Sudhir Jain (P.W.8), Ku. Hemlata Solanki (P.W.9), Satendra Dubey (P.W.10), Meena (P.W.11), Rambabu Goswami (P.W.12), K. M. Goyal (P.W.13) and S. S. Solanki (P.W.14). 8. The appellant did not examine any witness in her defence. 9. The trial Court by the impugned judgment and sentence convicted the appellant for the above mentioned offence. 10. Challenging the impugned judgment, it is submitted by the Counsel for the appellant, that although Anguribai (P.W.1) has claimed herself to be an eye-witness, but no FIR was lodged and only information which was given to Dr. Sudhir Jain was that the deceased Kamlesh Nagar has suffered injuries in fighting. The police has suppressed the original FIR. The medical evidence clearly indicates, that the real story has been suppressed by the prosecution. The appellant was residing separately in Bhopal and her case for divorce was pending against Kamlesh Nagar and she has been arrested from Bhopal and not from Vidisha as projected by the prosecution. Further, the complainant Ku. Hemlata Solanki, A.S.I. herself had recorded the FIR. Even the evidence has been created because at the time of initial inspection, the police had not found any stone on the spot. 11. Per contra, the Counsel for the State has supported the prosecution story as well as the findings recorded by the trial Court. 12. Heard the learned Counsel for the Parties. 13. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Kamlesh Nagar was homicidal in nature or not? 14. Dr. Sudhir Jain (P.W.8) had medically examined the injured and found following injuries : Examine Kamlesh Nagar son of Phool Singh caste Banskar resident of Toppura Ward, Vidisha. 13. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Kamlesh Nagar was homicidal in nature or not? 14. Dr. Sudhir Jain (P.W.8) had medically examined the injured and found following injuries : Examine Kamlesh Nagar son of Phool Singh caste Banskar resident of Toppura Ward, Vidisha. H/o assault by stone Injury (i) Lacerated wound right forehead 3 cm x 0.5 cm x bone deep blotted blood present (ii) Lacerated wound over left side forehead 2 cm x 0.5 cm x muscle deep clotted blood present. (iii) Lacerated wound over left Pinna 3 cm x 05 cm partial evulsed Pinna. Bleeding present (iv) Abrasion over right Cheek 3 cm x 3 cm oozing present. Pt. is unconscious, pupil partially dilated x-ray skull C. T. Scan head Referred to H. H. Bhopal Deptt. Of Neurosurgery for needful. 3:40 A.M. 2-5-2010 The M.L.C. is Ex. P.12 15. Dr. Sudhir Jain was cross-examined. In cross-examination, he admitted that in his Pre MLC he had not written that any first aid was given. He on his own stated that treatment is mentioned in the treatment sheet. He admitted that treatment sheet is not filed. He had written the depth as bone was visible. As X-ray was not done, therefore, he cannot say as to whether there was any fracture or not? 16. Dr. K. M. Goyal (P.W.13) has conducted the post-mortem of the dead body of Kamlesh Nagar and found following injuries : (i) A stitched wound 4 cm long over right side of forehead (ii) A stitched wound 3 cm long over left side of forehead (iii) A lacerated wound 3 cm x 2 cm x skin deep over left pinna of ear (iv) Abrasion 3 cm x 3 cm right cheek. Bleeding from nose, mouth and both ear present Blood clots present inside the mouth. All injuries are ante-mortem. On Internal Examination subdural hemorrhage was found over both frontal region of brain with fracture of base of skull and collection of blood. In stomach black fluid with cots of blood were found. Cause of death was coma due to intra-craniel hemorrhage (Head injury). Time passed since death is within 24 hours. The post-mortem report is Ex. P.17. 17. This witness was cross-examined. In cross-examination, he stated that the cause of death of hemorrhage. In stomach black fluid with cots of blood were found. Cause of death was coma due to intra-craniel hemorrhage (Head injury). Time passed since death is within 24 hours. The post-mortem report is Ex. P.17. 17. This witness was cross-examined. In cross-examination, he stated that the cause of death of hemorrhage. He admitted that he had not mentioned the width and depth of injury No. 1. Injury No. 2 was also stitched. He had not opened the stitches. Injury No. 3 was not stitched. 18. Although Dr. K. M. Goyal (P.W.13) has stated about the injuries, but surprisingly, he did not open the stitches and did not try to find out the depth of the injuries. In the present case, the allegations are that a 20 Kg stone was pelted on the head of the deceased, therefore, depth of injuries was important. Thus, this lapse on the part of the autopsy surgeon shall be considered at the later stage. 19. Anguribai (P.W.1) has stated that her house and the house of Kamlesh are adjoining to each other. Her mother-in-law resides in a room situated in front of the room of this witness. It was mid night. She heard the noise of falling something and heard the noise of groaning. She came out of her room and saw that the room of her younger-brother-in-law was opened and saw that the appellant was pelting stone on the head of Kamlesh. Kamlesh was lying on the ground. She got frightened and went back to her room and informed her husband. Both of them came out and saw that the appellant was running away from the room of Kamlesh. Her husband went to the room of Kamlesh, whereas she unlocked the door of her mother-in-law which was bolted from outside. She informed the incident to her mother-in-law. Thereafter, they searched for the appellant but could not find. Thereafter her husband and nephew Kuldeep took Kamlesh to hospital in an auto. 20. In cross-examination, she stated that the appellant was married to Kamlesh about 14 years back. Appellant is residing in Bhopal and never comes to Vidisha. Some Court case was also there between the appellant and Kamlesh. During the pendency of the Court case, the appellant was residing in Bhopal along with her mother. She had tried to convince the appellant during Court case. Appellant is residing in Bhopal and never comes to Vidisha. Some Court case was also there between the appellant and Kamlesh. During the pendency of the Court case, the appellant was residing in Bhopal along with her mother. She had tried to convince the appellant during Court case. It is true that during Court case, the deceased was residing in the adjoining house. Generally Kamlesh used to live with his mother and sometimes he used to have meals with this witness. She admitted that on some occasions, Kamlesh used to drink. In the night of incident, the appellant was sleeping in the room of her mother-in-law. She had heard the noise of falling of some heavy object or stone, thereafter clarified that it might be of falling of some person. She admitted that she had also heard groaning. She admitted that she must have taken 2-3 minutes to come out of her house. She saw that Kamlesh was lying on the ground and the appellant was sitting by the side of Kamlesh. The appellant had also noticed her. When she went there, the appellant was assaulting by stone. The stone was pelted on forehead of Kamlesh. The floor was cemented. The appellant had come on the third day to disclose the stone. It is true that the stone was lying in the same room in which Kamlesh was assaulted. 21. Rajendra (P.W.2) has stated that he was awaken by his wife who informed that the appellant is assaulting Kamlesh. Accordingly, he came out of his room and saw that Kamlesh was lying injured and the appellant was running away. They took the injured to Hospital. Where stitches etc were given and was referred to Bhopal. Kamlesh died on the way to Bhopal, but still they took him to Hospital where he was declared dead and accordingly, they brought him back to Vidisha and post-mortem was conducted in Vidisha Hospital. Lash Panchnama, Ex. P.1 was prepared. The dead body was handed over to him and its acknowledgment is Ex. P.2. The spot map, Ex. P.2 was prepared by the police. Blood stained earth and plain earth was seized vide seizure memo Ex. P.4. The police had also seized one stone on the disclosure made by the appellant. The memorandum is Ex. P.5. The appellant had informed that the stone is lying under Diwan Box. P.2. The spot map, Ex. P.2 was prepared by the police. Blood stained earth and plain earth was seized vide seizure memo Ex. P.4. The police had also seized one stone on the disclosure made by the appellant. The memorandum is Ex. P.5. The appellant had informed that the stone is lying under Diwan Box. Accordingly, the stone was seized vide seizure memo Ex. P.6. The weight of stone was about 15-20 Kg. The appellant was arrested vide arrest memo Ex. P.7. This witness was cross-examined. 22. In cross-examination, he stated that Court cases were going on between the appellant and the deceased. Case was instituted at Bhopal and Kamlesh used to go to Bhopal to attend the case. He fairly admitted that during the Court case, he had never met with appellant. Kamlesh used to consume liquor on some occasions. He had started consuming liquor during the Court cases. He did not lodge the report, because he had already informed the police on mobile, and he was directed by police that first of all he should take the injured to Hospital and FIR shall be written at a later stage. The FIR was lodged by his wife. The FIR was lodged at about 4-5 in the night. His wife had gone to the police station along with his nephew Anand. His wife had informed him that FIR has been lodged. Anand had also informed him. He further stated that they had returned to Vidisha at about 7 in the morning. Spot map was prepared at 11-12 P.M. He admitted that the room of Kamlesh was open at the time of arrival of police. He admitted that the police had seized earth. The stone was not seized at that time, because the police was not aware of the location of stone. He further admitted that the floor is cemented and blood stained earth was seized after removing cement. The stone was lying about 1½ ft away from the place from where earth was seized. Stone was kept at a short distance from the pillow. He denied that appellant used to keep the stone in his room. On the very same, the police had brought the appellant and her memorandum was recorded in his presence. He admitted that he had seen the appellant in the police station. 23. Stone was kept at a short distance from the pillow. He denied that appellant used to keep the stone in his room. On the very same, the police had brought the appellant and her memorandum was recorded in his presence. He admitted that he had seen the appellant in the police station. 23. Lalita bai (P.W.3) has stated that in the evening, the appellant and Kamlesh were fighting with each other on some issue. Thereafter, Kamlesh went away and came back at 10:00 P.M. Dinner was offered to him. Thereafter, she offered additional Vegetable to Kamlesh and in the meanwhile the appellant brought Vegetable for Kamlesh. She saw that the appellant had mixed something in the vegetable. She thought that some medicine must have been mixed. After having his dinner, Kamlesh went to sleep and when she requested the appellant to go to bed, then she replied that this witness may sleep, and she will sleep later-on. On her insistence, the appellant slept in her room along with her daughter. In the night, her elder son and daughter-in-law were shouting. She tried to open the door, but it was locked from outside. Anguri bai (P.W.1) opened the door and informed that the appellant has run away after assaulting Kamlesh by stone. Thereafter, she went to the room of Kamlesh and found that he was lying in pool of blood. Thereafter, her son Rajendra and grand son Kuldeep took him to hospital. Kamlesh died on his way to Bhopal. Police came on the next day and closed the door of the room of Kamlesh. Thereafter, on the third day, she had handed over a red coloured bottle which was lying in the room of Kamlesh. The bottle was seized vide seizure memo Ex. P.8. This witness was cross-examined. 24. In cross-examination, she admitted that the marriage of Kamlesh and appellant had taken place about 13-14 years back. It is true that after some time of marriage, the appellant went back to Bhopal and instituted the case of divorce. She stated that the appellant went back to Bhopal in the year 2009. It is true that appellant was sleeping in her room. She did not inform to Kamlesh that appellant has mixed something in vegetable. She admitted that the appellant did not meet him on the day of incident and even on next day. She stated that the appellant went back to Bhopal in the year 2009. It is true that appellant was sleeping in her room. She did not inform to Kamlesh that appellant has mixed something in vegetable. She admitted that the appellant did not meet him on the day of incident and even on next day. Kamlesh resides separately from his elder brother, but used to eat with her. On the next day, the police had not seized any thing from the room of Kamlesh but had instructed to close the door. Seizures were made on the third day of incident. The police had come at about 12 P.M. on the third day. On the said day, stone, bottle and earth were seized. She denied that the appellant was not in the house on the date of incident. 25. Pradeep Nagar (P.W.4) has stated that after the death of Kamlesh, he went to the house of Kamlesh in order to enquire as to whether the appellant has been arrested or not? He saw that the appellant was sitting there. Her memorandum, Ex. P.5 was recorded and on her disclosure a stone weighing approximately 15 kg was seized which was kept under the dressing table. The seizure memo is Ex. P.7. After three days of incident, the police had seized one bottle vide seizure memo Ex. P.8. This witness was cross-examined. 26. In cross-examination, he stated that Rajendra and deceased are his uncles. His house is at a distance of 1 km from the house of Rajendra. He was informed by his aunty about the death of Kamlesh. Incident took place on 1-5-2010. Stone was not seized on the third day, but it was seized on 2-5-2010. Stone and bottle were seized on same day. 27. Kuldeep Nagar (P.W.5) has stated that in the intervening night of 1/2-5-2010, he was in his house. His aunty knocked his door and informed that the appellant has assaulted Kamlesh who is lying in an injured condition. Accordingly, he took him to Vidisha Hospital in his auto. Thereafter, he was referred to Bhopal. While they were on their way to Bhopal, Kamlesh died. They took him to Hamidia Hospital at Bhopal, where he was declared dead. Accordingly, he brought him back by the same Ambulance. Lash Panchnama, Ex. P.1 was prepared. After the post-mortem, his dead body was received and supurdaginama is Ex. P.2. Thereafter, he was referred to Bhopal. While they were on their way to Bhopal, Kamlesh died. They took him to Hamidia Hospital at Bhopal, where he was declared dead. Accordingly, he brought him back by the same Ambulance. Lash Panchnama, Ex. P.1 was prepared. After the post-mortem, his dead body was received and supurdaginama is Ex. P.2. Spot map Ex. P.3 was prepared. Blood stained earth and plain earth was seized vide seizure memo Ex. P.4. Safina form is Ex. P.9. This witness was cross-examined. 28. In cross-examination, he fairly conceded that his police statement was not recorded and he had never told any body that his aunty had informed him about the incident. 29. Janaki Prasad Tripathi (P.W.6) has stated that he had brought the cloths of deceased from the hospital in a sealed packet which was seized by Bundela vide seizure memo Ex. P.10. 30. Ravi Raj Singh (P.W.7) has stated that he had taken the dead body for post-mortem along with requisition. The requisition for post-mortem is Ex. P.11. The cloths of the deceased were handed over to him in a sealed packet which were given to Bhagwant Singh Bundela who seized vide seizure memo Ex. P. 10. 31. Ku. Hemlata Solanki (P.W.9) has stated that she had received the enquiry of merg No. 38/10. She had issued Safina form, Ex. P.9, and Lash Panchnama, Ex. P.1 was prepared. Thereafter, dead body was sent for post-mortem along with requisition, Ex P.11. She had recorded the statements of Rajendra and Lalita on the same day. On the information of Rajendra, spot map Ex. P.3 was prepared. The blood stained earth and plain earth were seized from the spot vide seizure memo Ex. P.4. FIR No. 313/2010, Ex. P.16 was registered on the same day. Thereafter, the investigation was done by other investigating officer. She was cross-examined. 32. In cross-examination, she stated that S.H.O. of Police Station was Shri Jain. She admitted that below her signatures on FIR, Ex. P.16, S.H.O/Incharge S.H.O. has been mentioned. She claimed that on the said day, she was day officer from 6 to 14:00. She admitted that during her duty hours, Shri Jain had not come. She admitted that Jyoti Nigam is senior to her but claimed that she had never instructed Jyoti Nigam to investigate the matter. P.16, S.H.O/Incharge S.H.O. has been mentioned. She claimed that on the said day, she was day officer from 6 to 14:00. She admitted that during her duty hours, Shri Jain had not come. She admitted that Jyoti Nigam is senior to her but claimed that she had never instructed Jyoti Nigam to investigate the matter. She has stated that she had obtained the signatures of Rajendra and Lalita on their merg statements. She reached on the spot at about 11:30 A.M. She prepared the spot map at 11:50. She had inspected the room minutely and she did not find any blood stained stone in the room. The room of Kamlesh is adjoining to room of Munne Shah and there is no street in between. 33. Satendra Dubey (P.W.10) has stated that Ward boy, District Hospital Vidisha had brought the information, Ex.P.14 and on the basis of which, merg No. 38/2010 was registered. Information regarding death of Kamlesh is Ex. P.15. 34. Shri Krishna Meena (P.W.11) has stated about the information, Ex. P.14 received from the Distt. Hospital, Vidisha. 35. Rambabu Goswami (P.W.12) is the investigating officer, and is posted as Head Constable. On 2-5-2010 he arrested the appellant vide arrest memo Ex. P.7 and her memorandum Ex. P.5 was recorded and one stone which was lying under the dressing table was taken out by the appellant and was seized vide seizure memo Ex. P.6. On 3-5-2010, Lalita bai produced one bottle which was seized vide seizure memo Ex. P. 8. This witness was cross-examined. 36. In cross-examination, he stated that he had received the investigation on 2-5-2010 at 02:00. He recorded the memorandum of the appellant on 2-5-2010 at 17:25. She was arrested on the same day at 17:55. She was arrested after the seizure was made. The appellant was arrested from her house. He had reached the house of the appellant at 17:20. The appellant had not come to the Police Station. He admitted that at the time of seizure, the room of the deceased was open. 37. This witness was again recalled and in examination-in-chief, he stated that on 2-5-2010 at 17:40 he had seized the stone on the memorandum of the appellant. The stone is Article A. 38. S. S. Solanki (P.W.14) has stated that he had sent the seized articles to F.S.L. Bhopal along with draft Ex. P.18 and the F.S.L. report is Ex. P.19. This witness was again recalled and in examination-in-chief, he stated that on 2-5-2010 at 17:40 he had seized the stone on the memorandum of the appellant. The stone is Article A. 38. S. S. Solanki (P.W.14) has stated that he had sent the seized articles to F.S.L. Bhopal along with draft Ex. P.18 and the F.S.L. report is Ex. P.19. Whether prosecution has withheld the original FIR 39. On 2-5-2010 an information, Ex. P.13 was sent by District Hospital, Vidisha to S.H.O., Police Station Kotwali, that at 3:30, Kamlesh Nagar has been brought in an injured condition who has suffered injuries in a fight. Thus, it is clear that no information was given to Distt. Hospital Vidisha by Rajendra (P.W.2) that Kamlesh has been caused injuries by the appellant by pelting stones. 40. Similarly in another information, Ex. P.14 which was given by Distt. Hospital, Vidisha to S.H.O., Police Station Kotwali, Distt. Vidisha, it was mentioned that the injured was referred to Bhopal, but he has been brought back to Distt. Vidisha in a dead condition and in this information it was also mentioned that Kamlesh had sustained injuries in a fight. Accordingly, Merg intimation, Ex. P.15 was registered. Thus, it is clear that at the initial stage and even after the death of Kamlesh, Rajendra (P.W.2) did not disclose that injuries have been caused by the appellant. 41. Further, Rajendra (P.W.2) in his cross-examination has stated that he did not lodge the report, because he had already informed the police on mobile, and he was directed by police that first of all he should take the injured to Hospital and FIR shall be written at a later stage. The FIR was lodged by his wife. The FIR was lodged at about 4-5 in the night. His wife had gone to the police station along with his nephew Anand. His wife had informed him that FIR has been lodged. Anand had also informed him. 42. The police has not filed the copy of FIR lodged by Anguri bai (P.W.1). Anguri bai (P.W.1) has not stated that she had lodged any report. Anand has not been examined by the Police. Thus, it is clear that either Rajendra (P.W.2) has suppressed the material information, by taking a stand that his wife had lodged the report, or the police has deliberately withheld the FIR lodged by Anguri bai (P.W.1). 43. Anguri bai (P.W.1) has not stated that she had lodged any report. Anand has not been examined by the Police. Thus, it is clear that either Rajendra (P.W.2) has suppressed the material information, by taking a stand that his wife had lodged the report, or the police has deliberately withheld the FIR lodged by Anguri bai (P.W.1). 43. It is true that a cryptic information regarding commission of offence cannot be treated as an FIR, but the information given by Rajendra (P.W.2) on mobile should have been mentioned in the Rojnamchasanha. Even that has not been produced by the Police. 44. When the assailant was known, then why FIR, Ex. P.16 was lodged after the merg inquiry? Further, the police has not filed the copies of the merg statements of Rajendra (P.W.2) and Lalita bai (P.W.3). 45. In view of the evidence of Rajendra (P.W.2), it is clear that the prosecution has suppressed the FIR lodged by Anguri bai (P.W.1). When the appellant was arrested and from where? 46. It is the case of the prosecution itself, that the appellant was residing in Bhopal with her mother and case of divorce was pending against Kamlesh. According to Lalita bai (P.W.3), the appellant was sleeping in her room along with her daughter. Anguri bai (P.W.1) and Rajendra (P.W.2) have merely stated that they saw that the appellant was running away. However, they are completely silent about the whereabouts of her daughter. It is not the case of the prosecution that the appellant ran away after leaving her daughter in the house of Anguri bai (P.W.1), Rajendra (P.W.2), Lalita bai (P.W.3). Further more Anguri bai (P.W.1) in para 5 of her cross-examination has stated that on the third day of incident, the appellant was brought by police and she pointed about the stone which was used by her. The incident had taken place in the intervening night of 1/2-5-2010. Therefore, if her evidence is accepted, then it is clear that the appellant must have been brought on or after 3-5-2010 for the purposes of recovery of stone. 47. Lalita bai (P.W.3) in para 5 of her cross-examination, has stated that the appellant was brought by police on third day of incident and specifically stated that she had not met with the appellant on the day of incident and even on the 2nd day of incident. 47. Lalita bai (P.W.3) in para 5 of her cross-examination, has stated that the appellant was brought by police on third day of incident and specifically stated that she had not met with the appellant on the day of incident and even on the 2nd day of incident. In para 6 of her cross-examination she has also stated that the police had come on the third day of incident to recover stone, blood stained and plain earth etc. 48. However, Rambabu Goswami (P.W.12) in para 3 of his cross-examination, has stated that on 2-5-2010 itself he had arrested the appellant from her house/place of incident. Whereas it is not the case of Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita bai (P.W.3) that the appellant was staying back in her matrimonial house even after the incident. Thus, the place of arrest of the appellant is highly doubtful. 49. Further, the appellant in her statement under section 313 of Criminal Procedure Code has specifically stated that she was arrested from Bhopal. 50. Thus, the prosecution has failed to prove that the appellant was arrested on 2-5-2010 from the place of incident, but in fact, the explanation given by the appellant that she was arrested from Bhopal is trustworthy. Thus, it is clear that the prosecution has wrongly projected that the appellant was arrested on 2-5-2010 from the place of incident. Recovery of Stone 51. It is the case of the prosecution that on 2-5-2010, a blood stained stone was recovered on the disclosure made by appellant and the stone was lying under the dressing table. 52. As per seizure memo, the stone was recovered on 2-5-2010 at 17:40, Ex. P.6. The width of stone was 20 inch, length was 9 inch and thickness was 4 inch. As already pointed out, Anguri bai (P.W.1) and Lalita bai (P.W.3) have specifically stated that the appellant was brought by the Police on the third day of incident. Thus, by no stretch of imagination, the stone can be seized on 2-5-2010. Further more, it is the evidence of witnesses, that after the incident, the room of Kamlesh was open and the police had instructed them to lock/close the door. It is not the case of the prosecution, that the door of the room of Kamlesh was sealed by Ku. Hemlata Solanki (P.W.9). Further more, it is the evidence of witnesses, that after the incident, the room of Kamlesh was open and the police had instructed them to lock/close the door. It is not the case of the prosecution, that the door of the room of Kamlesh was sealed by Ku. Hemlata Solanki (P.W.9). It is also not the evidence of Rambabu Goswami (P.W.12) that he had opened the seal of the room. 53. Further, Ku. Hemlata Solanki (P.W.9) who had inspected the room on 2-5-2010 some time between 11:30 to 11:50 P.M., did not notice any stone in the room, although the room was minutely seen. 54. Rajendra (P.W.2) in para 6 of his cross-examination has stated that the stone was lying at a distance of 1½ ft. from the place from where blood stained earth was seized. He has also stated that stone was lying at a short distance from the pillow. As per prosecution case, blood stained earth and plain earth was seized by Ku. Hemlata Solanki (P.W.9) on 2-5-2010 at 12:05 P.M., vide seizure memo Ex.P.4. Thus, it is clear that the stone was already lying on the spot and was seen by Rajendra (P.W.2) at the time of seizure of blood stained earth, but why the same was not seized by the police and why Ku. Hemlata Solanki (P.W.9) has shown her ignorance about the stone? Thus, it is clear that the prosecution was suppressing material facts. Further more, the room in which incident took place was neither locked nor sealed and the residents of the house had every opportunity to manipulate the things. Under these circumstances, this Court is of the considered opinion, that the prosecution has failed to prove that blood stained stone was seized on the disclosure made by the appellant. Whether the evidence of Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita bai (P.W.3) is reliable. 55. It is the case of the prosecution that the appellant was residing separately in Bhopal and divorce case was pending. The appellant had never come to her matrimonial house after separation. But the prosecution witnesses are silent that under what circumstances, the appellant came to her matrimonial house along with her daughter. 56. 55. It is the case of the prosecution that the appellant was residing separately in Bhopal and divorce case was pending. The appellant had never come to her matrimonial house after separation. But the prosecution witnesses are silent that under what circumstances, the appellant came to her matrimonial house along with her daughter. 56. It is true that the Counsel for the appellant was not serious in cross-examining the prosecution witnesses, and himself gave suggestion that the appellant was sleeping in the room of Lalita bai (P.W.3), but whether this suggestion given by the Counsel should be treated as admission on the part of the appellant ? 57. There is nothing on record to suggest that the suggestion given by her Counsel that appellant was sleeping in the room of Lalita bai (P.W.3) was given on the instructions given by the appellant, specifically when she has not admitted the same in her statement under section 313 of Criminal Procedure Code. The appellant has taken a specific stand in her statement under section 313 of Criminal Procedure Code that for the last three years, she was residing in her parental home and till her arrest, she never came to Vidisha. 58. It is submitted by Shri Padam Singh, Counsel for the appellant, that when overwhelming evidence is available to show that the appellant has been falsely implicated, then incorrect suggestion given by her Counsel to the prosecution witnesses, should not be given importance. It is submitted that an Advocate must know the art of asking questions to the prosecution witnesses and if he was negligent, then the appellant should not be made to suffer. 59. Considered the submissions made by the Counsel for the appellant. 60. It is true that the Advocates must know the art of cross-examination and must know how to formulate their questions, but any question asked by the Counsel can also not be ignored as the questions were put to the prosecution witnesses who were deposing with regard to the incident. But where the appellant has taken a specific stand in her statement under section 313 of Criminal Procedure Code, then this Court is of the considered opinion, that overall circumstances should be taken into consideration. 61. But where the appellant has taken a specific stand in her statement under section 313 of Criminal Procedure Code, then this Court is of the considered opinion, that overall circumstances should be taken into consideration. 61. According to Anguri bai (P.W.1) she heard the noise of something falling on the ground and accordingly, she came out of her room and saw that the appellant was assaulting Kamlesh. She immediately rushed back to her room and informed her husband. When they again came out of their room, they saw that the appellant was running away. The room of Lalita bai (P.W.3) was bolted from outside which was unbolted by Anguri bai (P.W.1). As already held that none of these witnesses have spoken about the daughter of the appellant and further why this important information was withheld from the hospital and this Court has also come to a conclusion that the original FIR has been suppressed by the Prosecution. 62. Further, these witnesses are Interested witnesses. According to Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita Bai (P.W.3), the appellant was residing in Bhopal and divorce case against Kamlesh was pending. Thus, the relations of the witnesses with the appellant were not cordial. They had every intention and motive to falsely implicate the appellant in order to suppress the very genesis of the incident. Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita bai (P.W.3) are the residents of the same house. The burden was on them to show as to how and under what circumstances, Kamlesh had died a homicidal death. Therefore, in order to avoid said circumstance, they had very convenient way to get away by falsely implicating the appellant. Why blood stained cloths of the appellant were not seized. 63. It is the case of Rambabu Gowami (P.W.12), that the appellant was arrested on 2-5-2010 in her matrimonial house itself, then why her blood stained clothes were not seized. Why no attempt was made to search out for blood stained clothes of the appellant. Recovery of Bottle on the production of same by Lalita bai (P.W.3) 64. Rambabu Goswami (P.W.12) has stated that vide seizure memo Ex. P.8, he had seized one bottle on the production of the same by Lalita bai (P.W.3). The said bottle was sent to F.S.L., Bhopal. According to Lalita bai (P.W.3), the appellant had mixed something in the vegetable which was given to Kamlesh. Rambabu Goswami (P.W.12) has stated that vide seizure memo Ex. P.8, he had seized one bottle on the production of the same by Lalita bai (P.W.3). The said bottle was sent to F.S.L., Bhopal. According to Lalita bai (P.W.3), the appellant had mixed something in the vegetable which was given to Kamlesh. As per the F.S.L. report, Ex. P.20, Ethyl Alcohol was found. According to the prosecution witnesses themselves, the deceased used to consume liquor. Thus, it is clear that the bottle which was made available by Lalita bai (P.W.3) to the police on 3-5-2010 must be of the deceased himself and a false story was concocted that the appellant had mixed the same in the vegetable of the deceased. Whether ocular evidence is corroborated by medical evidence. 65. According to Dr. Sudhir Jain (P.W.8), he had medically examined the injured and prepared his MLC, Ex. P.12. In the MLC, Ex. P.12, there is no mention of giving any first aid. Even no treatment sheet has been produced by the prosecution to show that the injured was given any first aid. On the contrary, in the post-mortem report, Ex. P.17, stitches were found. According to prosecution, the injured had died on the way to Bhopal and he was declared brought dead by Hamidia Hospital. Therefore, it is clear that the injured was not given any treatment on his way to Bhopal. Then how he got stitches has not been explained by the prosecution. Dr. Sudhir Jain (P.W.12) has not stated that he had applied stitches. Even the witness from Hamidia Hospital has not been examined to show that the injured Kamlesh was brought in dead condition. No information was given by Hamidia Hospital, Bhopal to police to the effect that one person in dead condition has been brought. 66. Further more, according to Dr. K. M. Goyal (P.W.13), who had conducted post-mortem, he did not open the stitches and did not measure the depth of injuries. It is a case of pelting stone. Therefore, the depth of the injury was important. Why that was not done? Why the stitches were not opened in order to find out the depth of the injuries? Further if any injury was caused by pelting stone, then crush injury would have been sustained by the deceased. No crush injury was found. It is a case of pelting stone. Therefore, the depth of the injury was important. Why that was not done? Why the stitches were not opened in order to find out the depth of the injuries? Further if any injury was caused by pelting stone, then crush injury would have been sustained by the deceased. No crush injury was found. Further more, according to the seizure memo Ex.P.6, the size of the stone was 20 inch wide, 9 inch long and 4 inch thick. Then the deceased should have certainly received crush injury and not the injuries which were found on his head. 67. Thus, it is clear that the ocular evidence also does not find corroboration from medical evidence, and the medical evidence completely rules out the ocular evidence. Why investigation was handed over to Head Constable 68. According to FIR, Jyoti Nigam, S.I. was posted in the police station. Ku. Hemlata Solanki (P.W.9) was A.S.I. One Shri Jain was the S.H.O. As per FIR, investigation was handed over to Jyoti Nigam, S.I., but no investigation was done by her. The prosecution has not explained as to why the investigation was handed over to Head Constable and why it was not done by Senior Police Officers. Recovery of blood stained earth from the spot. 69. According to Anguri bai (P.W.1), Rajendra (P.W.2) the room had cemented floor. According to Rajendra (P.W.2) blood stained earth was recovered after removing cemented floor. This explanation is beyond understanding. When the floor was cemented then why the blood stained cemented floor was not seized. How the blood would seep into the ground. Thus, it is clear that the recovery of blood stained earth is nothing but a camouflage done by the police. 70. Under these circumstances, this Court is of the considered opinion, that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. In fact it appears that an innocent person was falsely implicated. 71. Accordingly, the appellant is acquitted of the charge under section 302 of Penal Code and is held not guilty. 72. Ex-consequenti, the Judgment and Sentence dated 6-7-2011 passed by Sessions Judge, Vidisha in S.T. No. 219 of 2010 is hereby set aside. 73. The appellant is in jail. She be released immediately if not required in any other case. 74. Accordingly, the appellant is acquitted of the charge under section 302 of Penal Code and is held not guilty. 72. Ex-consequenti, the Judgment and Sentence dated 6-7-2011 passed by Sessions Judge, Vidisha in S.T. No. 219 of 2010 is hereby set aside. 73. The appellant is in jail. She be released immediately if not required in any other case. 74. Let a copy of this judgment be immediately provided to the appellant, free of cost. 75. The record of the trial Court be send back along with copy of this judgment, for necessary information and compliance. 76. The Appeal succeeds and is hereby Allowed.