R.L. Gupta, J.
1. This is an appeal through jail by one Mst. Sajjan, a girl aged 21 years, against the judgment of the Sessions-Judge, Udaipur, dated 31st March, 1972 by which he has convicted her under Sections 364 and 302 IPC, for committing the murder of Pannalal son of her uncle Ganesh, a young child of 1 years, by throwing it into the well of Sri Mahadev temple, situated an village Bichiwara, on 27-11-1970, at about 4.30 P.M. resulting in its death. She has been sentenced to life imprisonment under Section 302 I.P.C. and to rigorous imprisonment for 10 years under Section 364 I.P.C.
2. The appellant abjured her guilt, denied the commission of alleged offences, and pleaded innocence. While she admitted that she was carrying the child near the well of the temple, the appellant alleged that she got an epileptic lit and was therefore not in a position to state what happened to the child thereafter, i.e., she pleaded an accidental death of the child.
3. There is no direct evidence to connect the appellant Mst. Sajjan with the commission of the alleged offence of murder. The only evidence led by the prosecution in proving her guilt, is circumstantial evidence. The circumstances relied upon by the prosecution are:
(1) The appellant was last seen with the deceased child Panna Lal. She was seen going from the house of her uncle Ganesh towards the temple carrying child in her arms, at about 8 P.M., by Mst. Pyari PW 4 and later on by Amar Singh PW 1 and Mst. Kaloo P.W. 2, who saw her going towards the temple and thereafter, the child was found missing.
(ii) the fact that Mohabat Singh P.W. 5 heard the sound of something allen in the well of the temple and also that the appellant was standing near the well at about 4 P.M.
(iii) That soon thereafter, at about 5 P.M. Mst. Bachhu P.W. 9 saw the dead body of the child floating in the well.
4. Though these circumstances have been fully established by the prosecution, but the circumstances taken together, do not, in our view, exclude the possibility of an accidental fall of the child into the well.
5. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused That test is clearly not fulfilled in the instant case.
6. The prosecution also led evidence of motive. Mst. Parbati PW 3 mother of the deceased child, asserts that the appellant used to abuse her saying meaning that she would die heirless. That assertion of hers is supported by Mst. Pyari PW 4, a cousin of Ganesh. But these two witnesses during their cross-examination, have admitted that the relation between the appellant and the family of Ganesh were highly strained and they were neither on visiting nor speaking terms. If that be so, it does not stand to reason that. Mst. Parbati P.W. 3 would have allowed the appellant to take away her infant child. The testimony of there witnesses in proof of the alleged motive does not inspire confidence. The appellant Mst. Sajjan had been discarded by her husband due to her epileptic fits. She could have no apparent motive in doing away with the chilo. It is admitted by these witnesses that the appellant had two sisters and, therefore, she would not stand to gain in any way.
7. The learned Sessions Judge has relied upon the so-called admission made by the appellant, in her statement Ex. P. 11 before the Magistrate under Section 164 CrPC which reads as follows:
eSaus dksbZ tqeZ ugha fd;k gSA cPpk dSls ejk eq>s ;kn ughaA eq>s fejxh dh fcekjh vkrh gSA eSa ml fnu cPps dks dq,a rd t:j ys xbZ FkhA ysfdu eq>s fejxh vk xbZA blfy;s irk ugha pyk fd cPps dk D;k gqvkA eSa tc cPps dks ys xbZ xksjklk dk ugha FkkA esjh ekWa dks eSaus lkjh ckr crk
eSa esjs dkdk ds cPps dks xksn esa ysdj] dkdk ds ?kj ls ykbZ Fkh] tks iBkj esaA** eSa mls xksn esa mBkdj ys xbZA lqcg tks eSaus ml fnu cPps dks mBk;k Fkk vkSj dkdk dh vkSjr us ys fy;k FkkA nksigj esa Hkh eSaus bl cPps dks xksn essa mBkdj ys xbZ rks xksjth dks vkSjr ys fy;k FkkA xksnkj 'kke xks/kwyh ds oDr esa cPps dks xksn esa mBkdj iBkj ls mBkdj] dkywflag ds ?kj dh rjQ gksdj tSuh;ksa ds dqWa, ds ikl fejxh vk tkus ls eq>s irk ugha fd cPps dk D;k gqvkA eq>s FkksM+h nsj ckn gks'k vk;k ls eq>s irk ugha fd cPps dk D;k gqvkA eq>s FkksM+h nsj ckn gks'k vk;kA eSaus ;g lc ckr esjh ekWa dks crkbZA
Reading the statement as whole, we find that there is no admission of guilt. On the contrary, the appellant disavows the knowledge of the circumstances in which the child was drowned. In that statement he categorically stated that she was suffering from epileptic fits and stated that when she was carrying the child, she got an epileptic fit near the well. She disapproves all knowledge of circumstances resulting in the drowning of the child. This admission however is of no avail to the prosecution.
8. In reaching the conclusion that he did, the learned Sessions Judge has relied upon the alleged extra-judicial confession made by the appellant to her mother Mst. Meera P.W. 10 and that before Amar Singh P.W. 1 Mohabat Singh P.W. 5 Vallabhji P.W. 7 and Fateh Singh P.W. 1. The evidence of these witnesses does not prove that the appellant made any unequivocal admission of the guilt. From the testimony of Mst. Meera P.W. 10 as recorded in the committal court Ex. P. 7, it cannot be said that the appellant had told her that she had deliberately thrown the child into the well with intention to cause its death. That statement reads as fellows:
lTtu ls iwNk fd vius dkdk ds yM+ds dks Dq,Wa esa Mky vkbZ rks lTtu us dgk fd eSa rks Mky vkbZ eSaus lTtu dks ekjk fd cPps dks D;ksa dq,Wa esa Mky vkbZA NksVk cPpk ej x;kA
9. In the court Mst. Meera P.W. 10, has resiled from her earlier statement. She states that the appellant got an epileptic fit and the child slipped through her hands. She was then confronted her statement in the committal court Ex. P 7, but could give no plausible explanation for having given that statement earlier. Both the statements are self-contradictory, and it will not be safe, to rely on her statement in the committal court Ex. 7, in coming to conclusion that the appellant made an extra judicial confession.
10. To the same effect, is the evidence of Amar Sinqh P.W. 1, Mohabat Singh P W. 5, Vallabhji P VV. 7 and Fateh Singh P.W. 11. These witnesses state that after the dead body of child was reconverted from the well, the called the appellant at Panchayat, where she admitted that she had thrown the child into the well. If that be so, then there was no reason why they should not have got a First Information Report lodged. The fact remains that none of these witnesses nor any of the relations of the decease d made any such report. It appears that the dead body of the child was carried to the Primary Health Centre, Bichiwara. The Medical Officer made repot Ex. P. 1, stating that the child Pannalal had died of drowning. Thereupon the police started an enquiry under Section 174 Cr.P.C., 1898, i.e. treated it to be a case of accidental death. Besides, extra-judicial confession is a weak type of evidence and cannot be made the sole basis for conviction.
11. The defence plea that the appellant got epileptic fits is probablised by the fact that the appellant, in reality, suffers from such epileptic fits. This is also borne out by the testimony of Dr. Puran Singh Gehlot, Reader in Psychiatry DW 1. Dr. Gehlot has stated that the appellant used to get epileptic fits almost daily and there fits would occur at any time due to any stressful situation or any noise or refreshing of the light etc. During these fits the patient remains unconscious.
12. The totality of the evidence does not warrant the conviction of the appellant under Sections 302 and 364 I. P. C. In the facts and circumstances of the case, the circumstances relied upon by the prosecution are on die contrary not compatible with the guilt of the appellant. From the circumstances appearing, it is not possible to exclude the possibility of an accidental death of the child, faking these circumstances into consideration we must give her the benefit of doubt.
13. Accordingly, the appeal is allowed. The convictions an-d sentences under Section 302 and 364 I.P.C. passed by the Sessions judge, Udaipur, are set aside. The appellant who is in jail be set at liberty forthwith unless required in any other case.