JUDGMENT : Per Ramesh Sinha, Chief Justice 1. The appellant has preferred this Criminal Appeal under Section 374(2) of the Cr.P.C. questioning the impugned judgment dated 29.05.2018 passed by the learned IInd Additional Sessions Judge, Surajpur, District Surajpur, Chhattisgarh in Sessions Case No. 84/2017, whereby the appellant has been convicted for offences punishable under Sections 302 and 201 of the IPC and sentenced to undergo R.I. for life with a fine of Rs. 50/-, in default of payment of fine to further undergo R.I. for 3 months; R.I. for 7 years and fine of Rs. 50/-, in default of payment of fine to further undergo R.I. for 3 months, respectively. Facts of the Case: 2. The facts of the case relevant for deciding the present appeal are briefly stated as under:- A. On 27.08.2017, the Complainant/Jawahir (PW/11) who is the husband of the appellant, lodged a report against the appellant/Devmati to the effect that she killed their two children/Son Lokesh aged 4 years and daughter Geeta aged about 15 months by throwing them into the well. B. After receipt of the information, Police Station-Chandni registered a Morgue Intimation No. 21/2017 and the dead bodies of the children were sent for postmortem. C. On 01.09.2017, the First Information Report was lodged by the husband of the appellant bearing FIR No. 44/2017 against the appellant for the offence punishable under Sections 302 and 201 of IPC. D. After investigation, the charge sheet was filed before the Judicial Magistrate Surajpur, thereafter the matter was committed to the Court of Ld. IInd Additional Sessions Judge, Surajpur, and Sessions Case No. 84/2017 was registered for the offence punishable under Sections 302 and 201 of the Indian Penal Code against the appellant. E. The charges were framed against the appellant by the learned Trial Court and the appellant abjured the charges leveled against her. Thereafter, the trial began to run. The learned trial Court in order to bring home the guilt of the appellant examined 15 prosecution witnesses and exhibited 30 documents whereas 4 documents were exhibited by the defence. After the conclusion of the trial, the Ld. Trial Court convicted the appellant for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced her to the extent as stated above, against which, the present appeal has been preferred. 3. Arguments advanced by the learned counsel for the parties:- 1. After the conclusion of the trial, the Ld. Trial Court convicted the appellant for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced her to the extent as stated above, against which, the present appeal has been preferred. 3. Arguments advanced by the learned counsel for the parties:- 1. Learned Senior counsel appearing for the appellant submitted that the judgment passed by the learned trial Court is bad in law and also not sustainable in the eyes of the law. From the evidence on record, it is clear that there were major contradictions in the statements of the prosecution witnesses and their deposition. He further submitted that the learned trial Court gravely erred in convicting the appellant only on the basis of the seizure of green colour Saree, whereas there is no evidence available on the record to show that the appellant killed her children (Lokesh and Geeta) by throwing them into the well. It has been stated by the appellant in her statement recorded under Section 313 CrPC that the Saree recovered from the spot i.e. Green Saree was not worn by her on that particular day and the statement made against her by Anarkali (PW/1) was given to implicate her in a false case, as she was having an illicit love affair with her husband. 2. It is argued that the present is a case of circumstantial evidence. In the present case, not a single witness has stated that he saw the appellant throwing the deceased children into the well. Neither the postmortem report nor the Doctor who conducted the autopsy stated that the death of the children was homicidal in nature. The diatom test has also not been conducted by the prosecution to rule out accidental drowning. It is further argued that the learned trial Court has not considered the explanation given by the appellant in her statement recorded under Section 313 of the CrPC in its true perspective. 3. Learned Senior counsel further contended that for proving a case based on circumstantial evidence, it is necessary for the prosecution to prove each and every circumstance beyond reasonable doubt and the circumstances so proved must form a complete chain of evidence. Suspicion, howsoever, strong, cannot substitute proof beyond reasonable doubt. 3. Learned Senior counsel further contended that for proving a case based on circumstantial evidence, it is necessary for the prosecution to prove each and every circumstance beyond reasonable doubt and the circumstances so proved must form a complete chain of evidence. Suspicion, howsoever, strong, cannot substitute proof beyond reasonable doubt. In support thereof, he would place reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , and the same has been reiterated in the matter of Ram Pratap v. State of Haryana, (2023) 2 SCC 345 . 4. Learned Senior counsel also stated that the learned trial Court should have given the benefit of doubt to the appellant. He also contended that the appellant has falsely been implicated in the present case, there is no documentary evidence available on record that the appellant has committed the alleged offence and that the prosecution has failed to prove its case beyond reasonable doubt. As such, the appeal deserves to be allowed and the impugned judgment deserves to be set aside. 5. He also placed reliance on the judgments passed by the Hon’ble Supreme Court in the matter of Chandrapal v. State of Madhya Pradesh (2022 SCC OnLine SC 705); the judgment passed by a Division Bench of this Court in the matter of Alisha Ali @ Shrivastava v. State of Chhattisgarh (CRA No. 977/2012, 11.10.2022); and Pawan Kumar Pandey v. State of Chhattisgarh (CRA No.673 of 2010). 6. On the other hand, the learned counsel appearing for the State would support the impugned judgment and submit that the statement of the complainant/PW-11 is wholly reliable and trustworthy and his testimony inspires confidence. It is further argued that the husband of the appellant himself has lodged an FIR against his wife. It is also argued that there was no family member except the appellant when the incident occurred. The Saree recovered from the well along with dead bodies belongs to the appellant. He further submitted that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted and sentenced the appellant which does not warrant any interference by this Court. 4. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 5. He further submitted that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted and sentenced the appellant which does not warrant any interference by this Court. 4. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 5. Coming back to the facts of the present case, it is not in dispute that the incident took place between 4:00 hrs to 7:00 hrs on 27.08.2017 at village Navadih, Harradand, District Surajpur. The husband of the appellant lodged a Morgue Intimation vide Ex.P5 & 6. Spot map was prepared vide Ex.P/4; inquest report was prepared vide Ex.P/11 & 12. One Green Saree was seized from the place of occurrence i.e. well of Jawahir (PW/11) in the presence of witnesses Gurupratap (PW/10) and Anarkali (PW/1) on 28.08.2017 vide Ex.P/13. FIR was registered against the appellant for the offence punishable under Sections 302 and 201 IPC vide Ex.P/15 & 20 and the appellant was arrested vide Ex.P26. 6. Anarkali (PW/1), who is a neighbour of the appellant, in her Court statement, stated that on the date of the incident, she had visited the house of the appellant at about 3 PM and returned at about 4 PM. She stated that at that time, both the children were alive and the appellant herself said that she would throw her children (son Rakesh Yadav and daughter Geeta) into the well and would die herself. This witness advised her not to do so. On the very next day, at about 8:00 hrs, after hearing the hue and cry, she came to know that both the children had died. She claimed that the appellant had worn the green saree that was recovered from the well. In para-7, she stated that the husband of the appellant had proceeded to market at about 3:00 PM. She admitted that she had not seen the appellant throwing the deceased children into the well. 7. Rambhajan (PW/2), father-in-law of the appellant stated that on the date of the incident, he was sleeping along with his grandson-namely, Mukesh in the old house and usually, he used to sleep there. On the next day of the incident, upon hearing Mukesh's voice, he came to the spot and saw the deceased children lying dead in the well. 7. Rambhajan (PW/2), father-in-law of the appellant stated that on the date of the incident, he was sleeping along with his grandson-namely, Mukesh in the old house and usually, he used to sleep there. On the next day of the incident, upon hearing Mukesh's voice, he came to the spot and saw the deceased children lying dead in the well. He admitted that one saree was recovered from the well and he levelled an allegation against the appellant. He also admitted that he had not seen the appellant throwing the deceased children into the well. 8. Rajkunwar (PW/3), who is the mother-in-law of the appellant stated that on the date of the incident, her husband (PW/2) and Mukesh (PW/9) took their cattle towards the forest. She stated that she went to Navatola with her daughter at about 9:00 hrs, and at the time of her departure, the deceased children and the appellant were present. The next day, she was informed that both the children had died. 9. Ratikunwar (PW/4) is a neighbour of the appellant and he is a hearsay witness. Omnarayan (PW/5) is Patwari, who prepared the spot map on the instance of Jawahir (PW/11) and one Jagbandhan Gurjar. 10. Chadeshwar Ram, Sub Inspector (PW/6) is the investigating officer, who stated that after receipt of the Morgue Intimation on 28.08.2017 at about 10.30 hrs, he reached the spot at about 11:00 hrs. He admitted that he prepared Ex.P/6-Morgue Intimation. He admitted that the dead bodies of the children were recovered from the well and green coloured saree was also recovered from the well. He supported the prosecution case. 11. Mukesh (PW/9) stated that the deceased children were his step-brother and sister. He further stated that he did not see the deceased children in the well. He also stated that he had gone somewhere along with his grandfather at about 8:00 hrs and returned at about 5:00 hrs to his old house and slept there along with his grandfather. 12. The husband of the appellant namely, Jawahir (PW/11) stated that when he returned from the market in the night at about 10 hrs., he saw the appellant lying on the floor of the house and at that time she had worn a blouse and a petticoat. 12. The husband of the appellant namely, Jawahir (PW/11) stated that when he returned from the market in the night at about 10 hrs., he saw the appellant lying on the floor of the house and at that time she had worn a blouse and a petticoat. On being asked about the children, she replied that they might be sleeping somewhere, and he assumed that his children would be sleeping in the new house. After this, he went to his new house and opened the door but did not find the children there. At night, he again went to his father and asked about the children and the next morning at about 7 pm he found the dead bodies of the children floating into the well. He also stated that he took his cattle outside at about 11-11.30 hrs. In his evidence, particularly in para 17, he stated that since he had no idea about the incident, he did not search for his children. 13. Dr. A.M. Siddiqui (PW/13), who conducted the autopsy stated in his statement that the cause of death was asphyxia due to drowning. He also stated that normally dead body floats on the surface of the water after 2-3 hrs of death. This witness has not stated whether the death of children was homicidal or accidental. 14. As regards the complicity of the appellant in the crime in question, the conviction of the appellant is based on the ground that on the date of the incident i.e. 28.08.2017, the appellant wanted to go to her maternal house to which the deceased Lokesh had refused due to which the appellant got annoyed and returned back to her house and thereafter, threw the children into the well. The Learned Court below has further held that one green saree which belonged to the appellant was seized vide Ex. P.13 from well and it has been stated by Anarkali (PW-1) and Rambhajan (PW-2) in their deposition that the said saree was worn by the appellant on the date of incident. Furthermore, it has been held that looking at the age of deceased children 15 months and 4 years, respectively, it cannot be presumed that they themselves fell down into the well. 15. Furthermore, it has been held that looking at the age of deceased children 15 months and 4 years, respectively, it cannot be presumed that they themselves fell down into the well. 15. In the matter of Chandrapal (supra), the Hon’ble Supreme Court in para-8 observed and held that “In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death”. It reads thus:- “8. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish "homicidal death" as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. ........" 16. In the matter of Alisha Ali @ Pooja Shrivastava (supra), a Division Bench of this Court in para-9 & 10 held that if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. It reads as under:- “9. The first question is, whether the death of the deceased was homicidal in nature. The trial Court has not recorded any finding that death of the deceased is homicidal in nature, it has only recorded finding that death of the deceased, who was aged about 2½ years, was on account of drowning in water i.e. Rani Sagar Dam. 10. In order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. {See Madho Singh v. State of Rajasthan and Chandrapal v. State of Chhattisgarh (paragraph 19).} 17. The first and foremost requirement to prove the homicidal death is missing in the present case. Dr. A. M. Siddiqui (PW13) in his deposition has not stated anywhere that the death was homicidal in nature, therefore, the conviction cannot be recorded under Section 302 of IPC. 18. In the matter of Pawan Kumar Pandey (supra), this Court in para 25 & 26 observed thus:- “1st Circumstance -Diatom Test: 25. Dr. A. M. Siddiqui (PW13) in his deposition has not stated anywhere that the death was homicidal in nature, therefore, the conviction cannot be recorded under Section 302 of IPC. 18. In the matter of Pawan Kumar Pandey (supra), this Court in para 25 & 26 observed thus:- “1st Circumstance -Diatom Test: 25. When a body is recovered from water, there is usually a suspicion whether it was a case of ante-mortem or post-mortem drowning i.e. whether the body was drowned before or after death. To diagnose the cause of death in such cases, the diatom test is conducted. However, the diatom test is not confirmatory because diatom could be detected in the post-mortem drowning, if the same water in which the body was found was drunk by the deceased before the death. As per Modi's Medical Jurisprudence and Toxicology, 23rd Edition, water may not be present in the stomach, if the person died from sudden cardiac arrest or became unconscious immediately after falling into water, so that he could not struggle and swallow water in the act of drowning. It further says that the typical signs of drowning are seen only in the body of drowned person when it is removed from water, within a few hours after death and examined immediately. 26. In the present case, no doubt, diatom test (Ex.P-39) did not confirm that the deceased died due to drowning in water. In other words, there was no water in the body of the deceased which matched with the water in the pond from which the body of deceased was recovered. Admittedly, the deceased went missing from the morning of 18.10.1998 and his body was recovered from the village pond on the next day at about 4 in the evening. Post-mortem was conducted on 20.10.1998 at 12.35 p.m. and as per post-mortem report (Ex.P-2), the probable duration between the death and post-mortem was between 2 to 5 days. Diatom test was conducted on 30.12.1998. No sign of injury, external or internal, was noticed on the body of deceased. Thus, it is clear that the body of deceased was not recovered and examined within a few hours of his death. According to Modi's jurisprudence, the typical signs of drowning are seen only in the body of drowned person when it is removed from water, within a few hours after death and examined immediately. Thus, it is clear that the body of deceased was not recovered and examined within a few hours of his death. According to Modi's jurisprudence, the typical signs of drowning are seen only in the body of drowned person when it is removed from water, within a few hours after death and examined immediately. In this situation, mere absence of diatoms will not exclude the possibility that the deceased died due to drowning more particularly when the doctor (PW-3), who conducted the post-mortem, could not detect the exact cause of death through the post- mortem. Needless to say here, if a doctor is not in a position to commit himself as to the manner of death, namely, accident, suicide or homicide; on principles of law relating to appreciation of evidence and burden of proof in criminal cases, it would not be appropriate to say, in point of view of jurisprudence, that death occurring in shallow waters should be considered as homicide unless otherwise proved. If we do so, obviously, we would be putting the burden of proof on the accused in a criminal case to disprove himself of having committed an offence, calling upon him to show that a death by drowning in shallow waters was either suicidal or accidental and, therefore, not homicidal. That is impermissible.” 19. The prosecution failed to conduct a diatom test to ascertain the nature of death either antemortem or postmortem which is fatal for the prosecution. 20. It is the case of no direct evidence, rather conviction is based on circumstantial evidence. Five golden principles which constitute Panchseel of proof of a case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) which states as under:- 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 21. In Ram Pratap (supra), regarding circumstantial evidence, the Hon’ble Supreme Court held that there is not only a grammatical but also a legal distinction between “may” and “must”. It reads thus:- 9. It has been held by this Court in a catena of cases including Sharad Birdhichand Sarda v. State of Maharashtra, that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt. This Court has held that there is not only a grammatical but also a legal distinction between “may” and “must”. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused. Further, it has been held that the facts so established must exclude every hypothesis except the guilt of the accused. Conclusion:- 22. In view of the above, there is nothing on record to conclusively establish that the appellant is the author of the crime in question. She was the biological mother of the deceased children, and the strong maternal bond she shared with them casts doubt on the accusations. Additionally, the cause of death has not been established as homicidal. Conclusion:- 22. In view of the above, there is nothing on record to conclusively establish that the appellant is the author of the crime in question. She was the biological mother of the deceased children, and the strong maternal bond she shared with them casts doubt on the accusations. Additionally, the cause of death has not been established as homicidal. There is an inconsistent statement of the husband of the appellant and unreliable testimony fails to provide this Court with the necessary confidence to support a conviction. Given these circumstances and the principle of giving the benefit of the doubt, this Court finds insufficient evidence to hold the appellant responsible for the death of her children. 23. As far as the questioned cloth worn by the appellant on the date of the incident is concerned, only the husband of the appellant had seen her wearing a blouse and petticoat lying on the floor of the house. The appellant in her statement recorded under Section 313 of the CrPC has categorically stated that her husband was having an affair with PW/1-Anarkali, and both used to drink alcohol in the house of PW/1. Further, in order to protect his step-son, namely, Mukesh, PW/11 is making a false statement. 24. The seizure of the Green Saree from the well has not been proved by the witnesses. None of the witnesses has deposed that the accused threw her children into the well. So far as the evidence adduced by the prosecution in the instant case is concerned, in our opinion, the prosecution has failed to adduce clinching evidence to enable the Court to conclude that the appellant/accused had committed the murder of her children. 25. All the circumstances even if taken together do not lead to the inference that it is the accused and accused only who committed the crime in question. The chain of evidence is also not complete and thus, in our view, the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In these circumstances, the appellant is entitled to the benefit of doubt. 26. For the foregoing reasons, we allow the appeal filed by the appellant. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of all the charges and she be released forthwith, if not required in any other case.