JUDGMENT B. N. Katju, J. 1. SMT. Shahjahan and her mother Fatia alias Shakuran have filed this appeal against the judgment of II Temp. Civil and Sessions Judge, Moradabad dt. 23-8-1972 passed in Sessions Trial No. 120 of 1972. SMT. Shahjahan appellant has been convicted under Sees; 302, 201 and 318 IPC and has beem sentenced to life imprisonment and a fine of Rs. 400/- and in default of payment of fine to four months' R. I., fivs years R. I. and a fine of Rs. 200/- ami in default of payment of fine to two months' R. I., and one year R. I. respectively. SMT. Fatia appellant has been convicted under Sees. 201 and 318 IPC and has been sentenced to five years R. I. and a fine of Rs. 200/- and ito default of payment of fine to two months R. I., and one year R. I. respectively. 2. THE case of the prosecution is that Smt. Shahjahan appellant was married to Saddiq jabout seven or eight years before the occurrence and two children were born from this marriage. About five or six years before the occurrence Saddiq died and Smt. Shahjahan began to live alon? in her house in village Bhainsia and! did tailoring. She became pregnant and gave birth to an illegitimate male child on the night between the 4th and 5th November 1970. On 6-11-1970 in the evening when Shakooran (PW 1) went to her house she saw Smt. Shahjahan appellant placing the dead body Of a child inside a pit which had been dug inside the house and Fatia appellant was telling her to bury the child quickly. Smt. Shakooran (PW 1) thereupon raised an alarm on hearing which Itwari (PW 2) Jahir Ahmad (PW 3) arid Kallu (PW 4) came inside the house of Smt. Shahjahan and saw the dead body of a child lying in a pit. Bhikka Chaukidar (PW 5) was thereafter informed about the incident and he came to the house of Smt. Shahjahan appellant and took out the dead body of the child from the pit and placed it near the door of the house of Smt. Shahjahan appellant. The first information report was lodged by Bhikka (PW 5) at police station Shukulpura on the same day (6-11 -1970) at 8.30 p. m., the distance of the police statibn from village Bhainsia being three miles. 3. The first information report was lodged by Bhikka (PW 5) at police station Shukulpura on the same day (6-11 -1970) at 8.30 p. m., the distance of the police statibn from village Bhainsia being three miles. 3. THE post-mortem examination of the deceased was conducted by Dr. I. P. Chandrawati on 7-11-1970 at about 4 p. m. and the under mentioned ante- mortem external injury was found on the body of the deceased. 1. Contusion 4V X 2" in front of the neck. On internal examination the right hyoid bone was found to be fractured and the membranes (brain) and both the lungs were found to be congested. In the opinion of Dr. Chandrawati, the cause of death was asphyxia due to strangulation. 4. SMT. Shahjahan appellant was examined by Dr. (Miss) K. Sharma on 7-11-1970 at 4.50 p. m. In her opinion SMT. Shahjahan had given birth two or three days earlier to a full time child by normal delivery. The prosecution examined Shakuran (PW 1). Itwari (PW 2), Jahir Ahmad (PW 3), Kallu (PW 4) and Bhikka (PW 5) to connect the appellants with the crime. 5. BOTH the appellants pleaded not guilty and stated that they were implicated falsely due to enmity. 6. THE trial court after considering the evidence on record came to the conclusion that the prosecution bad succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. Shakuran (PW 1) has narrated the prosecution case as mentioned earlier. It is true that she is related to Smt. Shahjahan appellant as Smt. Shahjahan appellant is her husband's aunt. We are, however, not prepared to accept her statement that when she went to the house of Smt. Shahjahan appellant in the evening of 6-11-1970 she saw Smt. Shahjahan appellant placing the dead body of the child inside a pit and at the time Fatia appellant was telling her to bury the body of the child quickly as all this appears to be highly improbable. It is also difficult to believe that Fatia appellant would be instigating Smt. Shahajahan appellant to bury the dead body of the child quickly as it appears to us quite unnecessary for her to do so. It is also difficult to believe that Fatia appellant would be instigating Smt. Shahajahan appellant to bury the dead body of the child quickly as it appears to us quite unnecessary for her to do so. It was stated by Smt. Shakuran (PW 1) that the dead body of the child which was placed in the pit was covered with a cloth which is contrary to the statement made by Kallu (PW 4) who clearly stated that some cloth was kept under the body of the dead child but there was no covering on the body and there was also no mud on the body of the dead child. The evidence of Bhikka (PW 5) is in conflict with the evidence of both Smt. Shakuran (PW 1) and Kallu (PW 4) as he stated that some mud had been sprinkled on the body of the dead child which he removed. It is significant to note that Sri M. P. Bhatnagar S. I. (PW 8) the Investigating Officer stated that he did not note the depth of the pit whereas the other prosecution witnesses have stated that it was only about one foot deep. It is extremely difficult to believe that Smt. Shahjahan appellant would be burying the dead body of the child in a pit which was only about one foot deep. It appears to us that Smt. Shakuran (PW 1) went to the house of the Smt. Shahjahan appellant in the evening of 6-11-1970 and found her digging a pit and the body of the dead child was seen by her inside the house which made her raise an alarm which attracted the other witnesses to the house of Smt. Shahjahan appellant. We are not inclined to accept the evidence of Smt. Shakuran (PW 1) and the evidence of the other witnesses produced by the prosecution namely Itwari (PW 2), Tahir Ahmad (PW 3), Kallu (PW 4) and Bhikka (PW 5) that the body of the deceased child had been placed in the pit and was taken out from the pit by Bhikka (PW 5). It is true that the deceased child was strangulated to death inside the house of Smt. Shahjahan appellant but in view of the fact that both Smt. Shahjahan appellant and her mother Fatia appellant were living in the house it cannot be determined as to which of these two appellants did so or whether it was done by one of them in the furtherance of the common intention of both. It is quite possible that the strangulation of the deceased child may [have been individual act of either Smt. Shajahan appellant or of her mother Fatia appellant in order to hide the shame which must have resulted from the birth of the illegitimate child. In these circumstances the conviction of Smt. Shahjahan appellant under Section 302 IPC is unjustified. The conviction of both the appellants under Section 201 IPC also appears to be unjustified as we are not prepared to accept the evidence of the prosecution witnesses that the body of the deceased child had been placed by Smt. Shahjahan appellant in the pit, which had been dug inside her house, for burial and that Smt. Fatia appellant was instigating Smt. Shahjahan appellant to bury the deceased child quickly. It appears that a pit was being dug by Smt. Shahjahan appellant for the purpose of burying the body of the deceased child as a Khurpi was found lying near the pit when Smt. Shakuran (PW 1) had gone inside the house of Smt. Shahjahan appellant. But this would amount only to preparation for the burial of the deceased child and would not amount to an offence under Section 201 IPC or even an attempt to commit that offence. The conviction of both the appellants under Section 318 IPC is also unjustified as neither the burial of the deceased child had taken place nor even an attempt to do so had taken place. 7. FOR the reasons given above the conviction of Smt. Shahjahan appellant under Sections 302, 201 and 318 IPC is erroneous and the conviction of Smt. Fatia alias Shakuran appellant under Sections 201 and 318 IPC is also erroneous. 8. THIS appeal is accordingly allowed and the conviction and the sentences of the appellants are set aside. Both the appellants are on bail. They need not surrender. Their bail-bonds are discharged. Appeal allowed.