JUDGMENT Beg, J. - This is an appeal by Srimati Annu alias Anandawati who has been convicted u/s 318/34, IPC and sentenced to pay a fine of Rs. 1,000 or, in default, to undergo four months'simple imprisonment. 2. The Appellant is the daughter of one Harish Chander alias Hari Babu, a general merchant in the town of Farrukhabad. The prosecution case against the Appellant was that on the night between the 12th & 13th May, 1955, she had given birth to a male child. Her father Hari Babu had gone to one Smt. Gomti, a midwife, and brought her to his house to attend on her on this occasion. According to the Statment of Smt. Gomti, the Appellant had given birth to a living child at about 10 p.m. that night. As soon as the child was born, the father had asked Smt. Gomti to throw him away somewhere, and promised to pay her handsomely for that Smt. Gomti did not agree. She went away immediately. When she was leaving the place, Hari Babu had asked her not to divulge the matter of the birth of the child to anyone as the honour of the family was at stake. Smt. Gomti, accordingly did not disclose the matter to anyone. The child was then strangulated, killed and wrapped in some pieces of cloth, and eventually kept in a Jhola Ext. I and carried by Hari Babu at about noon of 13-5-1955. Hari Babu threw the child in a Khandhal near the house of one Somwati PW 2. At about 3 p.m. Smt. Somwati PW 2 came out of her house, and then noticed this Jhola. She opened it and discovered a dead child in it. She immediately ran to her uncle Kamta Prasad (PW 1) and told him about it. Kamta Prasad came to the place along with her. He also saw the dead child in the Jhola. Kamta Prasad then went to the police station Farrukhabad, and lodged a first information report there at 5-10 p.m. 3. Sri Rampal Singh a sub inspector attached to the thana took up the investigation of the case. He went to Mohalla Arahatiyan where the child was said to be lying. The sub inspector found the dead body of the newly born child lying in the Khandhal close to the house of Smt. Somwati. He took possession of the Jhola Ext. Sri Rampal Singh a sub inspector attached to the thana took up the investigation of the case. He went to Mohalla Arahatiyan where the child was said to be lying. The sub inspector found the dead body of the newly born child lying in the Khandhal close to the house of Smt. Somwati. He took possession of the Jhola Ext. I. He opened it before the witnesses, and found the dead child wrapped in a blouse Ext. II and pieces of dhoti cloth. The child was tied with a rope Ext. 5. A strip of cloth was tied round the neck of the child. It is Ext. 3. Exts. 4 and 5 are the other pieces of dhoti in which the child was wrapped. All these articles were tied in a bundle and sealed recovery memo of the same is Ext. I. 4. The dead body of the child was sent for postmortem examination which was done by Dr. A. M. Hakim, Civil Surgeon, Fatehgarh, on 14-5-1955, at 3 p. m. In the opinion of the doctor, the child was a full term baby born alive, and subsequently strangulated. 5. The Investigating Officer look the Appellant in custody on 24-5-1955. He then searched the house of Hari Babu. He recovered one blouse Ext. 10, and three more Jholas of the same cloth and pattern as Jhola Ext. 1. from the said house. These Jholas are Exts. 7, 8 and 9 in the case. The investigating officer submitted a charge sheet showing Harish Chandra alias Hari Babu as absconding. 6. The Appellant was charged and tried for offences u/s 302/34 and 313/34 IPC. On the first count she was charged with having murdered the child on 12-5-1955, in furtherance of the common intention of herself and her father. On the second count she was charged with having secretly disposed of the dead body of the newly bom child by leaving it in a Khandhal in furtherance again of the common intention of herself and her father. 7. The trial court acquitted her on the first count. It, however, convicted her on the second court, and sentenced her as above. 8. In defence the Appellant pleaded not guilty. Her case was that her prosecution was the result of the enmity between Shyam Sunder Lal Vakil and her father. 7. The trial court acquitted her on the first count. It, however, convicted her on the second court, and sentenced her as above. 8. In defence the Appellant pleaded not guilty. Her case was that her prosecution was the result of the enmity between Shyam Sunder Lal Vakil and her father. She further stated that she was married in Baisakh 1954 which would be April-May 1954, and that she had given birth to a female child in May 1955 in Ganjdudwara, where her husband Radhey Shayam resided. She denied having given birth to an illegitimate child in mohalla Ghamandi Kuncha. 9. Having heard the Learned Counsel for the Appellant, I am of opinion that this appear should be allowed. Before me the Learned Counsel for the Appellant has not tried to rely on the defence case. He has invited my attention to the provisions of S. 318, IPC which runs as follows: Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals on 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. 10. He has argued that this section lays down two essential ingredients of the offence. They are as follows: (1) Secret burial or disposal in any manner of the dead body of a child whether such child died before, during or after its birth: (2) Intention to conceal the birth of such a child by such act. 11. In the present case he argued that the first ingredient is not proved. There is no evidence to indicate that the accused secretly buried or otherwise disposed of the dead body of the child or participated in any such act or design. 12. The question of intention to conceal the birth which is the second ingredient arises only after the first ingredient has been found to be present. If the first ingredient is wanting, then there is no question of the existence of the second ingredient. I am of opinion that the argument of the Learned Counsel is correct. The first ingredient specifies the act. The second ingredient specifies the intention that should permeate the act. If the first ingredient is wanting, then there is no question of the existence of the second ingredient. I am of opinion that the argument of the Learned Counsel is correct. The first ingredient specifies the act. The second ingredient specifies the intention that should permeate the act. The act is the means through which a certain end is to be achieved, the end being to conceal the birth of the child. The act thus forms the foundation on which the fabric of intention stands. If the evidence of the commission of the deed or participation in it is lacking, then the mere existence of in tention is insufficient to constitute the offence. In the present case, the prosecution examined a large number of witnesses. Kamta Prasad (PW 1) stated that he had been informed by Smt. Somwati about the presence of the dead child in the Khandhal, and he had, therefore, made a report to that effect. Smt. Somwati (PW 2) stated that she had noticed the Jhola containing a dead child lying in the Khandhal close to her house. Smt. Gomti (PW 3) stated that she had attended on the Appellant who had given birth to a child, and stated that her father was present at the time. Bhagat Ram (PW 4) and Nanhey Lal (PW 5) are witnesses of the recovery of the Jhola Ext. I Shiam Sunder Lal (PW 6) and Ram Chander (PW 7) are witnesses of the recoveries of blouse Ext. 10 and Jholas and Ext. 7, 8 and 9 from the house. Ram Chander (PW 7) further deposed that he had seen Hari Babu taking the Jhola at about noon time. He also saw Hari Babu stopping near the Khandhal at the time. 13. Subhan Ali Khan (PW 9) was the mortuary clerk of the Municipal Board, Farrukhabad. He stated that the birth and death of this child was not intimatad to the Municipal Board. Bhagwat Prasad (PW 10), Jagannath Prasad (PW 11) and Manzoor Ali (PW 12) were produced to prove that the marriage of the Appellant took place on 29-6-1955. Shiam Lal(PW 13) is a washerman who used to wash the clothes of Hari Babu and his family. He stated that the blouses Ext. 2 and 10 belonged to the Appellant, and he used to wash them. Shiam Lal(PW 13) is a washerman who used to wash the clothes of Hari Babu and his family. He stated that the blouses Ext. 2 and 10 belonged to the Appellant, and he used to wash them. Munney Khan (PW 14) stated that these blouses were sewn by him for the Appellant. He had also tailored the Jholas Ext. 1,7,8 and 9. 14. The above is the entire evidence against the Appellant. Even accepting the above evidence to be correct, the charge against the Appellant u/s 318/34 IPC has not been made out beyond any shadow of doubt. The above evidence only indicates that a male living child was born to her, and that this male child was subsequently killed and kept in a Jhola most probably by the father, and thrown by him in a Khandhal near the house of Smt. Somwati. There is no evidence in the present case to connect the Appellant with the act of burial or disposal of the dead body of the child On the other hand, the prosecution evidence in the present case indicates that if any one is to be held responsible for the said act, it is the father of the Appellant, namely Hari Babu alone. In this connection the evidence of Smt. Gomti (PW 3) and Ram Chander (PW 7) is important. Smt. Gomti stated that she was brought to the house by the father of the Appellant. She further stated that as soon as the child was born, the father had asked her to throw him away somewhere. She also stated that the father had promised to pay her handsomely if she agreed to do that. She, however, refused to agree to this proposal and went away. According to her evidence, when she was going away, the father had again asked her not to divulge the matter to anyone as the honour of the family was involved in it. It is, therefore, apparent that the father of the Appellant had probably felt the birth of this illegitimate child very keenly, and was overwhelmed with a sense of humiliation,shame and disgrace. He deeply felt the slur that this event might cast on the honour of the family. The evidence of Smt. Gomti further shows that the father had deliberately avoided bringing the midwife of his own mohalla and had gone to a different mohalla to bring a midwife from there. He deeply felt the slur that this event might cast on the honour of the family. The evidence of Smt. Gomti further shows that the father had deliberately avoided bringing the midwife of his own mohalla and had gone to a different mohalla to bring a midwife from there. The evidence of Ram Chander (PW 7) also corroborates the same conclusion. He stated that he seen the father Hari Babu taking the Jhola (Ext- 1) at about noon time. He had also seen him stopping near the Khandhal. Thus the entire prosecution evidence on question of the destruction, burial or disposal of the body points to the conclusion that it was the father who had done the whole act. There is nothing to implicate the Appellant in it. In fact, the finding of the trial court itself is to the effect that the Appellant had no common intention with her father Hari Babu to strangulate or kill him. The finding of the trial court on this aspect of the case is as follows: Unless there could be some evidence that the child was strangulated in presence of the girl, her common intention in the murder of the child cannot be inferred. It is quite possible that Hari Babu may have told her that he will give away the child to someone. Hari Babu may not have intimated his design to strangulate the child. So, it cannot be said that the girl had common intention with Hari Babu to strangulate the child and kill him. Gomti did not state that the child was strangulated in her presence and in the presence of the accused. There is, thus, no evidence at all that the accused had any common intention with Hari Babu to strangulate the child or that she herself strangulated and killed the child. I, therefore, clearlv think that the offence of S. 302/34, IPC has not been brought home to the accused. That offence, if at ali, was committed undoubtedly by Hari Babu. 15. Once it is found that the Appellant was not a consenting party to the murder of the child, it is very difficult to hold in the present case merely from the circumstantial evidence that she was a consenting party to its secret burial or disposal or a guilty participant in it. 16. 15. Once it is found that the Appellant was not a consenting party to the murder of the child, it is very difficult to hold in the present case merely from the circumstantial evidence that she was a consenting party to its secret burial or disposal or a guilty participant in it. 16. On behalf of the State, it has been strenuously argued that even if the father wanted to dispose of the child by handing it over to someone with the consent of the girl, the girl would be guilty of the offence. This argument seems to ignore the requirements of the section that the child should be dead at the time when participation in its secret burial or disposal should have taken place. If the child was living at the time, and the girl merely consented at the instance of the father to the said child being delivered to a third person or otherwise disposed of, the offence u/s 318, IPC would not be made out. 17. The next argument on behalf of the State was that the mere fact that the girl had in the present case tried to wrongly conceal the birth of this child, would be sufficient to prove that she was a guilty partner in the crime. I am unable to accept this contention. In a case where the guilt of the Appellant rests on circumstantial evidence alone, the evidence should be of such a nature as to be incapable of explanation on any other hypothesis except the guilt of the Appellant. It it is possible to construe the circumstances in a manner reasonably compatible with the innocence of the accused, then it is not possible to hold that the case is proved on circumstantial evidence alone beyond any shadow of doubt. In the present case, the conduct of the girl in wrongly trying to conceal the birth of the child may very well be attributed to an attempt on her part to save her father from being implicated in a criminal offence. It may also be due to an attempt on her part to save herself or her family from disgrace. The situation is capable of a number of explanations all of which might be the off springs of an innocent intention. Under the circumstances, I, am of opinion tha. It may also be due to an attempt on her part to save herself or her family from disgrace. The situation is capable of a number of explanations all of which might be the off springs of an innocent intention. Under the circumstances, I, am of opinion tha. the mere fact that she subsequently tried to conceal the birth of the child would not be enough to bring the charge home to her. In this case, particularly pointed out by me above there is direct evidence to indicate that the father of the girl had taken the matter to heart. He was smarting under a sense of disgrace and was extremely anxious to have the child removed in order to prevent any reflection being case on the honour of the family. In fact in the present case there is evidence also to the effect that the father was actually seen carrying the Jhola which contained the dead body of the child. There is further prosecution evidence to the effect that the father had absconded and is still absconding. There is also a clear finding of the trial court to the effect that the Appellant had no hand in the murder of the child and was not a party to any such design-a finding which is not assailed on behalf of the State and with which I agree. Under the circumstances, I am of opinion that in the present case the prosecution has failed to bring the charge home to the Appellant. The Appellant is, therefore, legitimately entitled to the benefit of doubt. 18. I, accordingly, allow this appeal, set aside the conviction and sentence of the Appellant and acquit her of the offence. The payment of fine was stayed by an interim order passed by this Court. She need not pay the fine.