V.P. Tyagi, J.
1. This appeal has bean filed by Mst. Radha and is directed against the judgment of the Sessions Judge, Ajmer, dated 21st January, 1970 whereby she has been convicted for an offence under Section 302 Indian Penal Code and sentenced to life imprisonntnt and a fine of Rs. 500/--and also for an offence under Section 318 Indian Penal Code and sentenced to rigorous imprisonment for one year.
2. The facts and circumstances giving rise to this prosecution, as, disclosed by the witnesses produced by the prosecution, are, in a nutshell as follow.
3. Mst. Radha gave birth to a child on 26th of April, 1968- On 27th of April, 1968 a dead body of a newly born male child was found lying in the vicinity of the house where Mst. Radha used to live. A report was lodged at the Police Station, Madanganj about the finding of a dead body by Jagdish Chandra (P.W 4). Mst. Radha was arrested in this connection and was sent for medical examination. P.W. 1 Dr. (Mrs) Sharma examined Mst. Radha and came to the conclusion that looking to her organs she must have delivered a child three days before the date of her examination and that the delivery must be a normal delivery as it did not show any signs of difficult or interfered labour. Dr. S.K. Bose (P.W.2) who was the family doctor of Mst. Radha also disclosed that on 15th of April, 1968, Mst. Radha came to his clinic for consultation and complained some swelling in the abdomen and pain all over her body. After examination, the doctor told her that she had an advanced pregnancy of 7 to 8 months. After that Mst. Radha visited the clinic of this witness on 16th, 19th and 21st of April, 1968, and he administered medicines to her for safe and easy delivery.
4. The case of the prosecution, on the basis of these witnesses, was that Mst. Radha wanted to conceal the birth of a child and, therefore, she killed the child and put it in the Gali in the vicinity of her house where the dead body of the child was seen by Babulal (P.W.3), Jagdish Chandra (P.W.4) and Pooran (P.W.6). The police sent the dead body of the child for post-mortem examination and Dr. Darsan Singh, who was examined in the committing court but his statement was taken on record of the Sessions Case under Section 509 Criminal Procedure Code. The post-mortem report (Ex.P.9) shows that the child was near full term and was born alive and had breathed after birth but it was not fed. The death of the child was due to skull injuries caused by blunt weapon and the child died within a few hours of its birth. The injuries that were detected on the dead body of the child were as follows.
5. There were fractures of the left parietal bone in the middle vertically situated. The parieto occipital sutures on both sides were separated and the tronto-parietal suture on the left side was gaping On removing the bones and cutting the membranes there was coagulated adherent blood present underneath both sides below the parietal region. Brain had become semi-solid greyish white, Its parts could not be identified individually.
6. The doctor, however, in his statement (Ex. P. 15) opined that these injuries were sufficient in the ordinary course of nature to cause death.
7. The appellant was challaged in the court of the Magistrate First Class Kishangarb, who, after Enquiry, sent her for trial for the said offences to the court of Sessions, Ajmer.
8. The accused appellant denied the charge and took a plea that she did not deliver any child on 26th of April, 1968.
9. The learned trial Judge placing reliance on the circumstances established by the prosecution, came to the conclusion that these circumstances were sufficient to hold her guilty of the charges under Sections 302 and 318 Indian Penal Code and, therefore he recorded the conviction of the appellant under these two sections. It is in these cirumstances that the appellant has preferred this appeal before this Court.
10. The circumstances that have been established by the prosecution are:
(1) That the appellant was found pregnant by Dr. Bosa (P.W.2) on 15th of April, 1968;
(2). That on her examination by P.W. 1 Dr. Mrs. Sharma, she was found to have delivered three days prior to the examination a child after the normal delivery and the organs of her body did not indicate any sign of difficult or interfered labour when she was examined on 28th of April, 1968;
(3) That Bhag Chand (P.W. 5) saw Mst. Radha on 26th April 1968 at about 9 or 9 30 in the night going out of her house towards the Gali of main gate of the house of Geegalal and that she had a bundle with her;
(4) That a dead body of a fully born child was discovered from the Gali near the house of the accused-appellant in the early hours of 27 th April, 1968;
(5) That the child was found to have sustained injuries on his head which in the opinion of the doctor must have been inflicted by blunt weapon; and
(6) That the child died of the injuries discovered on his body.
11. The question that arises is whether these circumstances are sufficient: to bring home the guilt to the accused for committing the murder of the child and secretly disposing of the dead body of the child with a view to conceal the birth of the child.
12. The entire case depends upon the circumstantial evidence. The Supreme Court in Bakhshish Singh v. State of Punjab 1971 CAR 169 has laid down:
The law relating to circumstantial evidence has been stated by this Court in numerous decisions It is needless to refer to them as the law on the point is well settled In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
13. From these observations it is clear that the Court should pass a verdict of guilt against the accused on the basis of circumstantial evidence, only when these circumstances are consistent with the hypothesis of the guilt of the accused and cannot in any manner exclude any other hypothesis which may by consistent with the innocence of the accused. In the present case, after hiving perused the entire evidence of the prosecution we are of the opinion that the prosecution his proved the circumstances mentioned above, but we feel that a very important link is missing in the chain of circumstances which may go to establish beyond all reasonable doubt the guilt of the accused for upholding the conviction of the appellant under Sections 302 and 318 Indian Penal Code. That important link is that the prosecution has failed to establish by some cogent evidence, mat the child when he was placed in the Gali had sustained the injuries on his head which was found to be the cause of his death. P.W. 5 Bhagchnd has no doubt, stated that he had seen Mst. Radha on 26th April, 1988 at about 9 or 9 30 p.m going out of her house towards the Gali with a bundle in her hand, but he did not say what the bundle contained, not did he see Mst. Radha placing the child in the Gali A any rate, from his statement it is difficult to infer that the bundle contained a murdered child. This possibility cannot altogether be ruled out that the child may have been kept in the Gali when he was still alive. The injuries found on the body of the dead child could be sustained by him while ha was being left by some one in the Gali or thereafter when the child remained in the Gali un-attended by anybody. It may be noted that Mst. Radha was seen by Bhagchand (P.W. 5) going in the Gali with a bundle in her hand on 26th April at about 9.30 p.m. and the dead child was found in the Gali at about 8.00 in the morning of the next day. Such a big time lag between these two actions cannot rule out the possibility that the child might have sustained injuries while lying in the Gali which ultimately caused the death. With the link missing in the entire chain of circumstances, the blame for killing the child cannot be fastened on the shoulders of the accused-appellant. It is true that the circumstances established by the prosecution create a doubt and that too of a serious nature against the accused appellant, but it is a well-settled rule of law that suspicion, however, grave it may be, can never replace the evidence which is required to be brought on the record by the prosecution to fasten the guilt on the accused In these circumstances, we are left with no alternative but to extend the benefit of doubt to the accused-appellant as far as the question of murdering a child goes and we cannot in these circumstances hold her responsible for committing an act which comes within the purview of Section 302 Indian Penal Code.
14. Now (here remains the question whether the prosecution has successfully established a case against the appellant under Section 318 Indian Penal Code. Section 318 Indian Penal Code reads, as follows:
Scetion 318 Whoever, by secretly burying or otherwise disposing of the dead body of the child whether such child dates before or after or during its birth intentionally conceals or endeavours to conceal the birth of such child shall be punished with imprisonment of either description for a term which may extend to two years, or with fine 'or with both.
15. The necessary ingredient of this offence is that the culprit must secretly bury or dispose of the dead body of a child. If he disposes of a living child then the action of the culprit would not fall within the four cornets of Section 318 Indian Penal Code.
16. A person does not commit the offence of endeavouring to conceal the birth of a child, if such person puts it while it it still alive in a place of concealment, even though it may subsequently die. See Halsbury's Laws of England, Volume 10, page 733, We have already observed above that the prosecution has not proved that at the time when the child was removed and left in the Gali it was dead and therefore, in these circumstances, the case against the accused-appellant under Section 318 Indian Penal Code is not established.
17. The appeal is consequently allowed. Accused-appellant Mst. Radha is acquitted of the charges under Sections 302 and 318 Indian Penal Code and the sentences awarded to her under these sections are set aside. She is on bail. She need not surrender to her bail bonds.