JUDGMENT 1. - D B. Criminal Appeal No. 476 of 1972 filed by Mst Satiama through her counsel Mr. Bhimraj Purohit, D B Criminal appeal No. 512 of 1972 preferred by Kaloolal through Superintendent Central Jail Udaipur, D. B Criminal Appal No 523 of 1972 filed by Mst. Kaduwa and Kaloolal through their Advocate Mr. Maghraj Bhansali and D B Criminal Appeal No. 525 of 1972 filed by Mst. Satiama through Superintendent Central jail, Jaipur arise out of one and the same judgment of the learned Sessions Judge, Udaipur and 5th July 1972 by which Satiama was convicted under section 302 Indian Penal Code and sentenced to undergo imprisonment for life while Mst. Kaduwa and Kaloolal were held guilty under section 302 read with section 114 Indian Penal Code and each of them also were sentenced to imprisonment for life. 2. The prosecution case against the three appellants was as follows:Mst. Kaduwa appellant is the wife of Amerji Suthar. Her daughter Mst. Durga was married to one Kooplal resident of village Basi Rooplal went away to the State of Maharashtra for earning his livelihood about three months after his marriage with Mst. Durga who lived with her parents during her husband's absence. After about four months on the occasion of Deepawali festival, Roop Lal returned to his village Bisi & brought Mst. Durga to his house after performance of Gona ceremony. He lived with his wife Mst Durga for a month only and then again went to the State of Maharashtra where from he returned after one or one and a half year to his village Basi. After his return he went to the house of the parents of Mst. Durga for bringing her back to his house. When he saw Mst. Durga at her parents' house he suspected her to be pregnant. He thereupon asked his wife Mst. Durga how she had become pregnant when he had not committed sexual intercourse with her for about one & a half year. Mst Durga admitted to have been pregnant and so Rooplal turned her out of his house. Mst Durga then went to the house of her parents and began to live there. In the night between 2nd and 3rd November, 1971 she felt pangs of delivery and so Mst. Mst Durga admitted to have been pregnant and so Rooplal turned her out of his house. Mst Durga then went to the house of her parents and began to live there. In the night between 2nd and 3rd November, 1971 she felt pangs of delivery and so Mst. Satiama appellant who was serving as a nurse in the Family Planning Centre was called for to assist in the delivery of he child. Mst. Satiama came to the house of the parents of Mst Durga along with Mst. Tulsi peon who also was serving in the same department. Apart from Mst Satiama, another mid wife, namely, Mst. Navalbai also was invited to attend to Mst. Durga at the time of delivery. At about 9 in the night Mst. Durga gave birth to a female child who was born alive. After the birth of the child, Satiama took the child in her hands and threw her away on the ground. There upon, Mat. Tulsi peon told Satiama that the child should not be thrown in that manner and that she was prepared to take upon herself the duty of nurturing and protecting the child if the latter is given to her but Mst. Kaduwa and Kaloolal appellants immediately spoke that the child being an illegitmate one should be done away with. Thereupon Satiama nurse pressed the mouth of the child as a result of which she latter died. Seeing this Mst. Tulsi peon and Mst. Nawalbai mid wife ran away from there out of fear. They were followed by Kaloolal who asked them not to run away and not to disclose to any person about the murder of the child. Kaloolal then went back to his house and Mst. Tulsi rushed to Police Out-post Bamania and reported the whole of the incident to Jeevansingh, Head Constable, who promised Mst. Tulsi that he would soon go to the place of occurrence. Mst Tulsi after making the report went to her house. Upon receiving the report Jeevan Singh went to the spot along with Shivji and Mogaram Constable who met him in the way while patrolling the area. Jeevan Singh saw Mst. Durga lying asleep in the house of her father. By her side a newly born female child was lying dead in a Topli. Upon receiving the report Jeevan Singh went to the spot along with Shivji and Mogaram Constable who met him in the way while patrolling the area. Jeevan Singh saw Mst. Durga lying asleep in the house of her father. By her side a newly born female child was lying dead in a Topli. He deputed Shivji constable to guard the place of occurrence till the arrival of the Investigating Officer Jeevan Singh then went to Salumber as he came to know the Head Constable Incharge of Police Station Jhalara had gone towards Salumber. When he reached Salumber at 1 P M he did not find Head Constable and came to know that Head Constable had gone to Police Outpost Bamania. Jeevan Singh came back to Police Outpost at Bamania and lodged a written report Ex P 5 about the incident with Head Constable Kalekhan of Police Station Jhalara. Kalekhan upon receiving the report went to the house of the father of Mst Durga and saw a dead body of the newly born female child lying in a basket by the side of Mst. Durga who was sleeping there. He inspected the dead body, prepared a Panchnama on it and then inspected the site, prepared a site inspection memo and a site plan and sent the dead body to Udaipur along with Jeevan Singh and Ajit Singh Constable for post mortem examination. Dr Ramesh Chandra Ojha conducted an autopsy over we dead body on 4-11-71 at Udaipur and found the following: "Body of newly born infant, body's decomposition did not start, weight was (five) 5 Lbs., length 19", hair 1" nails projecting from the nail bed, umbilicus 31" long not dried tied with threat, lips were deeply cyanosed skin of the nostrils (ala) was blenched of the both sides. There was faint bruise 1" in diameter on the left frontal region, which was ante mortem in nature, possibility of its being caused by a blunt object. Internal appearance both the lungs were congested and hydrostatic test was positive. Lever, spleen and kidneys were congested." In his opinion the death of infant was due to asphyxia as a result of suffocation On 6-11-1971 Kalekhan arrested the three appellants and after collecting other necessary evidence in the case submitted a charge-sheet against them under section 302 and section 302 read with section 114 Indian Penal Code in the court of Munsif Magistrate Salumber. The learned Magistrate to held an inquiry preparatory to commitment and upon finding a prima facie case exclusively triable by the court of sessions committed all the appellants to the court of Sessions Judge, Udaipur, for trial under section 302 & section 302 read with section 114 Indian Penal Code The learned Sessions Judge tried the appellants and convicted and sentenced them in the manner stated above. 3. As common questions of law and fact do arise in all the four appeals and as they are directed against one and the same judgment of the learned Sessions Judge they are disposed of together by one juagment. 4. We have carefully perused the record and heard Mr Bhimraj, learned counsel for Satiama appellant and Mr. Maghraj Bhansali appearing on behalf of Mst. Kaduwa and Kaloolal appellants and Mr. N S. Acharya Public Prosecutor for the State. 5. The following contentions have been raised before us on behalf of the appellants:- "(1) The story narrated by the so-called eye-witnesses to the occurrence is highly improbable and full of contradictions in material particulars. The learned Sessions Judge committed an error in placing implicit reliance upon such evidence without properly scanning it and assessing its value. (2) The prosecution could not adduce any evidence to prove an adequate motive on the part of the appellants to commit murder of the newly born infant nor has it succeeded in establishing prior meeting of their minds or criminal conspiracy to put an end to the life of the newly born child. (3) The medical evidence is not certain whether asphyxia or suffocation took place in the course of delivery or after the child was born alive Dr. Ramesh Chandra furnished no data nor any cogent reason for his opinion about the cause of the death of the child and, therefore, in the absence of necessary data or cogent reasons his evidence was not entitled to any weight. Besides, there was no proof that the newly born infant had met a violent death because no where in his deposition the medical officer stated that the suffocation or asphyxia was the result of violence. The learned Sessions Judge went wrong in treating the medical evidence as a corroboration of the testimonies of the two eye- witnesses. Besides, there was no proof that the newly born infant had met a violent death because no where in his deposition the medical officer stated that the suffocation or asphyxia was the result of violence. The learned Sessions Judge went wrong in treating the medical evidence as a corroboration of the testimonies of the two eye- witnesses. (4) The investigation was not fair and it appears that there was manipulation and conspiracy on the part of the interested parties to take vengeance upon the appellants out of enmity and personal grudge. (5) The prosecution could not establish beyond reasonable doubt that Kaloolal and Mst Kaduwa appellants abetted the commission of the offence of murder by instigating Satiama to finish the child. 6. The learned Public Prosecutor, on the other hand argued that the evidence of two eye witnesses examined by the prosecution in support of its case is reliable and trust worthy and it cannot be brushed aside merely on the ground of trifling discrepancy which should be ignored because discrepancies do occur even in the statements of perfectly truthful witnesses on account of difference in individual faculties with regard to observation, recollection and recital of details. It was further argued that the two eye witnesses in this case have deliberately made no attempt to suppress the real facts or to depart from the truth and in the versions there is general agreement as to material points or circumstances. In short the learned Public Prosecutor supported the judgment of the trial Judge and refuted the contentions raised by the learned counsel of the appellants in their arguments. 7. We have given our best consideration to the rival contentions. At the out set we may observe that there is direct evidence of Mst. Tulsi, peon and Mst. Nawalbai mid wife to prove the connection of the appellants with the murder of the newly born female child. Mst. Tulsi PW2 clearly stated at the trial that she accompanied Mst Satiama appellant to the house of Amerji Suther father of Mst. Durga at the latter's instance in the night between 2-11-71 and 3-11-71. When she reached there she saw Mst Durga lying in a room situated on the ground floor of the house. Mst. Kaduwa appellant, mother of Mst. Durga also was sitting by the side of her daughter Mst. Satiama examined Mst. Durga and told that the delivery would take some time. When she reached there she saw Mst Durga lying in a room situated on the ground floor of the house. Mst. Kaduwa appellant, mother of Mst. Durga also was sitting by the side of her daughter Mst. Satiama examined Mst. Durga and told that the delivery would take some time. At about 1 A M. Mst Nawalbai mid wife also came there. Thereafter at about 2 or 2 30 A.M Mat Durga gave birth to a child Mst. Tulsi asked Mst. Satiama nurse whether the child was a male or a female. Thereupon, Satiama replied that Mst Durga had given birth to a female child. At the time of delivery the child did not weep Mst. Satiama caught hold of her legs over turned her body and after tossing her to and fro threw her on the ground. The child began to weep. Thereupon, Kaloolal and Mst Kaduwa appellants asked Satiama not to permit the child to weep and to stifle her cries. Mst. Tulsi thereupon asked them not to do so and to handover the child to her care as she was prepared to nurture the child. Mst Kaduwa and Kaloolal appellants refused to hand over the child and told that the child being an illegitimate one would be done away with Mst. Nawalbai mid wife P W.3 also requested, the appellants not to commit the sin but at the verbal investigation of Kaloolal and Mst Kaduwa appellants. Mst. Satiama placed her hand on the mouth of the child as a result of which the mouth and nose of the child were closed and the child died on account of prevention of respiration. Thereafter Mst. Shanti and Mst. Nawalbai went away from there. When they were going out of the house Kaloolal appellant asked them not to disclose the fact of killing the child to any other person, but Mst. Tulsi went to the Police Outpost of the village and related the whole of the incident to Jeevansingh Constable. 8. Similar is the evidence of Mst. Nawalbai midwife PW 3. She claimed to have visited the house of Amerji Suthar father of Mst. Durga at the call of the latter. In her presence Mst Durga gave birth to a child. At the time of the delivery of the child Mst. Tulsa asked Mst. Satiama appellant whether the child was a male or a female. Mst. Nawalbai midwife PW 3. She claimed to have visited the house of Amerji Suthar father of Mst. Durga at the call of the latter. In her presence Mst Durga gave birth to a child. At the time of the delivery of the child Mst. Tulsa asked Mst. Satiama appellant whether the child was a male or a female. Mst. Satiama replied that the child was a female. The child began to weep. Then Mst. Kaduwa and Kaloolal appellants asked Mst. Satiama not to permit the child to weep. Thereupon Mst. Satiama placed her hand on the mouth of the newly born infant as a result of which the mouth and nose of the child ere closed. Mst. Satiama then caught hold of the legs of the child and threw her down on the ground. The child stopped weeping, fluttered a little and died at the spot. Mst. Nawalbai P.W. 3, also testified to the fact that Mst. Tulsi asked Mst. Satiama appellant to hand over the child to her care but Mst. Kaduwa appellant refused to do so. This witness also claimed to have told Mst. Kaduwa and Mst. Satiama appellants not to kill the child, but they did not pay any heed to her entreaty. She further stated that Kaloolal appellant asked her and Mst. Tulsa to keep it a secret and to refrain from disclosing the incident to any other person. In this manner, the evidence of these two eye witnesses is of discrepant on material points. Both of them have clearly stated in their depositions that Mst. Satiama appellant placed her hand on the mouth of the newly bron infant at the verbal investigation of Kaloolal and Mst. Kaduwa appellant as a result of which the female child died on account of prevention of respiration or suffocation. 9. The learned counsel for the appellants laid much emphasis on certain trifling discrepancies appearing in the statements of these two eyewitnesses and argue on their strength that the value at their testimonies is seriously affected. The main discrepancy pointed out by the learned counsel for the appellants is that Mst. 9. The learned counsel for the appellants laid much emphasis on certain trifling discrepancies appearing in the statements of these two eyewitnesses and argue on their strength that the value at their testimonies is seriously affected. The main discrepancy pointed out by the learned counsel for the appellants is that Mst. Tulsi stated in her deposition that the newly born child did not weep after his birth and so Mst Satiama caught hold of her legs, overturned her body, tossed it to and fro and threw it on the ground as a result of which the child began to weep & thereafter at the oral investigation of Kaloolal arid Kaduwa appellants placed her hand on the mouth of the infant as a result of which the child fluttered and died on account of her mouth and nose being closed, while Mst. Nawalbai mid-wife PW 3 stated that the child wept after her birth and so Mst. Kuduwa appellant asked Mst. Satiama nurse not to permit the child to weep. Thereupon Mst. Satiama placed her hand on the mouth of the child as a result of which the mouth and the nose of the child were closed and then Mst. Satiama caught hold of her legs and tossed her body to and fro and threw it on the ground with the result that the child stopped weeping, fluttered a little & died on the spot. The above discrepancies in the Statement of the two eye-witnesses appears to be an honest difference of a trifling nature with regard to the consequence in which the occurrence took place. In our opinion, this is not a discrepancy of falsehood because such a discrepancy does occur even in the statements of perfectly truthful witnesses on account of their individual faculties with regard to observation, recollection and recital of details being not the, same. On careful review of their evidence we do not find that their evidence disagrees on material points. On the other hand, there is a general agreement in their versions as to material circumstances. Both of them have stated in clear and definite terms that it was Mst. Satiama who placed her hand on the mouth of the newly born infant at the oral investigation of Mst. On the other hand, there is a general agreement in their versions as to material circumstances. Both of them have stated in clear and definite terms that it was Mst. Satiama who placed her hand on the mouth of the newly born infant at the oral investigation of Mst. Kaduwa & Kaloolal appellants as a result of which the mouth and nose of the child were closed and she died at the spot on account of suffocation or prevention of respiration. The evidence of these two witnesses further agrees on the material point that both of them asked Mst Satiama and Kaduwa appellants not to kill the child in that manner but despite their protest and inspite of the fact that Mst Tulsi asked for the custody of the child the infant was done away with both Mst. Tulsi and Mst. Nawalbai further stated that after the death of the child they were asked by Kaloolal appellant to keep secret all that they had seen and not to divulge it to any other person. Hence we have no doubt in our mind that the evidence of the two eye witnesses it, this case is worthy of credence and the learned Sessions judge committed no error in placing reliance on it for convicting the appellants. 10. We are reinforced in our above conclusion by the fact that Mst Tulsi and Mst. Nawalbai were rot interested witnesses in the case. The presence of Mst. Tulsibai at the time of delivery of the child was admitted by Mst. Satiama appellant also in her statement recorded in the trial court Likewise the presence of Mst. Nawalbai mid wife could not be doubted because it is quite natural that Amerji Suthar father of Durga might have called for her to attend to his daughter at the time of her delivery. Besides, nothing has been elicited from their cross examination which may tend to show that they bore any ill will or grudge on any score against any of the appellants prior to the occurrence. Mr. Bhimraj Purohit learned counsel for Mst. Satiama appellant vehemently argued that the evidence of Mst Tulsi should not be believed because she was a woman having no means and could be allured to give a false evidence for monetary gain as she herself admitted in her cross-examination that for some time she resorted to begging. Mr. Bhimraj Purohit learned counsel for Mst. Satiama appellant vehemently argued that the evidence of Mst Tulsi should not be believed because she was a woman having no means and could be allured to give a false evidence for monetary gain as she herself admitted in her cross-examination that for some time she resorted to begging. In our opinion, the evidence of this witness cannot be discarded on this score. On the other hand she appeared to be a truthful witness when she admitted that during the period of her unemployment she had to maintain herself by begging bread. Another ground on which the evidence of Mst Tulsi is assailed before us is that she was on close relations with Jeevan Singh Head Constable who used to live in those days in the same Gwari in which she resided. The above criticism about her evidence is not well founded Mst Tulsi stated in her cross examination that she lived in the house of one Raichand while Head Constable Jeewansingh used to live in the house of Raichand's younger brother Govindji, although the two houses were situated in the same Gwari. Hence it is not borne out from the record that Mst. Tulsi used to live in the same house in which Head Constable Jeewansingh was residing at the relevant time. Apart from this, there is no proof that Mst Tulsi had developed any intimacy with the said Head Constable or that she was under his influence. In her cross-examination she categorically denied that Mst. Satiama had filed a complaint against her in order to get her transferred to village Karovali. She further denied that she had made any complaint against Mst Satiama. There is nothing on the record to show that these two witnesses have made an attempt to suppress the real facts or have departed from the truth in order to falsely implicate any of the appellants. 11. Absence of motive: Next it has been argued by the learned counsel for the appellants that there was no impelling a motion or motive on the part of Mst. Satiama and the other two appellants to commit the murder of the newly born child and so the absence of proof of inducing-cause affords a reasonable ground for a strong presumption ref their innocence. Satiama and the other two appellants to commit the murder of the newly born child and so the absence of proof of inducing-cause affords a reasonable ground for a strong presumption ref their innocence. The Public Prosecutor on the other hand urged that very slight and insignificant motives some times have led to the commission of heinous crimes and in the question whether absence of motive or the existence of inadequate motive is crucial has to be judged or determined in the whole context of the fact of each particular case. It was further submitted by the Public Prosecutor that there was mutual love and affection between Mst. Satiama nurse and Kaloolal appellant as proved by the evidence of Onkarpuri P.W.4 and so Kaloolal and his mother Mst Kaduwa sought the help of Mst. Satiama nurse in getting rid of the child about whose legitimacy there was considerable doubt in their mines. We have considered the above contention. It is undoubtedly true that some times motive is helpful in finding out the state of mind of the doer of the crime and in coming to a correct estimate of the probables of the case, motive cannot always be safely excluded from consideration but where direct and credible evidence has been brought on the record connecting the accused with the crime, a person of motive or existence of inadequate motive does not assume an importance. OF course proof of motive is of great importance where the guilt of the accused hinges on circumstantial evidence alone but even in such cases conviction is not vitiated if after giving due weight to the absence of motive or existence of inadequacy thereof the Court is satisfied that the circumstances proved in the case are capable of unmistakably pointing to the only conclusion that in all human probabilities the crime was committed by the accused. In Atley v. State of U.P. reported in AIR 1951 S.C 807 it was held that where the prosecution evidence fails to clearly prove the motive for crime the Court will have to closely scrutinise and assess the other evidence relating to the guilt of the accused. In Atley v. State of U.P. reported in AIR 1951 S.C 807 it was held that where the prosecution evidence fails to clearly prove the motive for crime the Court will have to closely scrutinise and assess the other evidence relating to the guilt of the accused. The relevant observations made by their Lordships in the referred to above case are quoted below:- "Where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this effect only, that the other evidence hearing on the quit of the accused has to be very closely examined." Hence we are of the view that motive, if clearly prove i, in a case is a satisfactory circumstance of corroboration as it lends support to other evidence proving the guilt of the accused but it can never be considered as sufficient evidence of the commission of a crime by him. In the instant case the prosecution has led evidence to move the motive. Rooplal P.W.8 stated at the trial that Mst. Durga was married to him about three years ago. After his marriage with Mst. Durga, he went to the State of Maharashtra presumably for earning his livelihood and his wife Mst. Durga stayed with her parents. After four months he came to his village Basi on the occasion of Deepawali festival and brought his wife Mst. Durga to his house for living together after performance of their Gona ceremony. He lived with Mst. Durga for one month and then again went away to the State of Maharashtra. From there he came to his village after one or one and a half year and went to his father-in-law's house for bringing his wife Mst. Durga. When he saw Mst. Durga he suspected her to be pregnant. On being questioned by him Mst. Durga admitted that she was pregnant. Thereupon, he turned her out of his house as she has become pregnant inspite of the fact that she did not have any sexual intercourse with her husband during the period of one or one and a half year. the evidence of Rooplal has not been shaken is cross-examination and so we see no reason to disbelieve this witness. Thereupon, he turned her out of his house as she has become pregnant inspite of the fact that she did not have any sexual intercourse with her husband during the period of one or one and a half year. the evidence of Rooplal has not been shaken is cross-examination and so we see no reason to disbelieve this witness. From the evidence of Rooplal it is established that the child which Mst. Durga was going to deliver was an illegitimate child and her parents had a motive to do away with such an infant. Apart from the evidence of Rooplal PW 8 the prosecution has examined Himatram PW 8 who corroborated the evidence of Rooplal and further stated that he had made a report Ex P 6 to Dy. S.P. Rikhabdeo as he reasonably apprehended that Mst. Durga either had been killed or herself had committed suicide or had been kept concealed some where for abortion. The evidence of this witness Himmatram was assailed on the ground that he was inimical to Kaloolal appellant and his parents but no such enmity has been established Himmatram, no doubt, admitted in his cross- examination that a case of 'Maar Peet' was instituted against his brother Bhanwarlal by Kaduwa and Kaloolal in the Panchayat, but he categorically denied that he had any enmity with these appellants on this score and that he threatened to get them arrested and sent to Jail. Even if his evidence is brushed aside, the evidence of Rooplal PW 8 is sufficient to establish motive on the part of Kaloolal and Mst. Kaduwa to finish the newly born infant. The motive ascribed to Mst. Satiama appellant is that there was mutual love and affection between her and Kaloolal appellant as deposed to by Onkar Puri PW 4. The evidence of Onkar Puri PW 8 has not been assailed on this point. He appears to be an independent witness having no enmity with any of the appellants. Hence in our opinion there is evidence on the record that Kaloolal and Mst. Kaduwa appellants had a motive to do away with the newly born infant about whose legitimacy there was considerable count and that Mst. Satiama was motivated to cause the death of the child by suffocation at the oral instigation of Kaloolal and Mst Kaduwa appellants because there Has love and affection between her and Kaloolal. 12. Kaduwa appellants had a motive to do away with the newly born infant about whose legitimacy there was considerable count and that Mst. Satiama was motivated to cause the death of the child by suffocation at the oral instigation of Kaloolal and Mst Kaduwa appellants because there Has love and affection between her and Kaloolal. 12. The next contention put forward by the learned counsel for the appellants is that it cannot reasonably be ascertained from the medical evidence whether asphyxia or suffocation took place in the course of delivery of the female infant or after she was born alive. The above contention is without substance. Dr. Ramesh Chandra who conducted an autopsy on the dead body of the child clearly opined that the child showed signs of life as a separate existence after it has emerged from its mother's womb. He found that the lungs of the child were congested and hydrostatic test was positive, and liver spleen and kidneys also were congested. In his cross-examination although he expressed his inability to say definitely how long child survived after its birth, but he deposed that the child was alive within six hours immediately preceding its birth. Shri N.J. Modi in his book Medical Jurisprudence and Toxicology 18th Edition observed on this point at page 363 that it is not possible to determine with exactitude how long the child has lived after its death, but an approximate length of time may be given from considering changes in the external and natural appearances of the body such as charges in the skin, in the umbilical cord and in the circulation etc. in the medical evidence in this case after performing a valuable hydrostatic test came to a conclusion that the appearance showed that respiration had taken place. He further opined that the child died on account of asphyxia caused by suffocation. Hence it is clearly proved by the medical evidence that suffocation took place after the child was born alive. 13. The learned counsel for the appellants further contended that the medical evidence did not disclose such symptoms as could justifiably lead to an inference that suffocation or asphyxia was due to an) physical violence. This contention also is not acceptable because Dr. 13. The learned counsel for the appellants further contended that the medical evidence did not disclose such symptoms as could justifiably lead to an inference that suffocation or asphyxia was due to an) physical violence. This contention also is not acceptable because Dr. Ramesh Chandra found a bruise 1" in diameter on the left frontal region of the infant which was ante-mortem in nature & was possibly caused in his opinion by a blunt object. He further detected upon examination of the dead body that the lips of the child were cyanosed and skin of the nostrils was blenched both sides and the size was of finger tips. He further found that the pupils were dilated and the lungs, brain membrane liver spleen and kidneys were congested. On the basis of the above data the medical officer opined that the death of the infant had taken place from asphyxia as a result of suffocation which as observed by Shri N.J. Modi in his book Medical Jurisprudence & Toxicology 18th Edition is the commonest form of infanticide. The relevant observations made by Shri N.J. Modi in his said bock at page 368 are quoted below:- "This is the commonest form of infanticide. A newly-born infant is easily suffocated by pressing the fact into some soft material such as pillow or bed cloth, or by closing the mouth and nostrils by a towel, handkerchief or some other cloth or by the hand. The mother may suffocate her child by intentionally overlying it, or by forcing mud, rag or cotton-wool into its mouth and throat." Hence suffocation by closing newly-born infant's mouth and nostrils by the hand amounts to infanticide by the use of mechanical violence and it is not always necessary that in such a case bruise or other injury must be present on the nose, lips and angles of the mouth. The newly born child may be suffocated to death by closing the mouth and the nostrils by hand only. 14. It was further urged in this connection that the medical evidence does not corroborate in any manner the testimonies of the two eye-witnesses with regard to the use of mechanical violence. The above contention also is not well founded. The newly born child may be suffocated to death by closing the mouth and the nostrils by hand only. 14. It was further urged in this connection that the medical evidence does not corroborate in any manner the testimonies of the two eye-witnesses with regard to the use of mechanical violence. The above contention also is not well founded. The two eyewitnesses as stated above definitely stated in their depositions at the trial that the infant immediately after its birth was swung on its legs and thrown on the ground by Mst. Satiama appellant. The medical officer found a bruise 1" in diameter on the infant's left frontal region which was ante mortem in nature and which was possibly caused by a blunt or hard object. The eye-witnesses further deposed that Mst Satiama appellant placed her hand on the mouth of the infant as a result of which the mouth and nostrils of the child were closed and she died of suffocation after fluttering a little. The doctor also opined that the lips of the child were cyanosed and the skin of the nostrils was found blenched both sides and the size was of finger tips. He further found that the pupils were dilated and the lungs and brain membrane, lever, spleen and kidneys were congested and the child died of asphyxia due to suffocation. Consequently, we are of the view that there is no conflict between the medical evidence and the testimonies of the two eyewitnesses with regard to the use of mechanical violence and the cause of death. 15. The learned counsel for the appellants laid much stress on the fact that Jeevansingh Head Constable failed to reduce to writing the information given to him by Mst. Tulsi peon soon after the occurrence and to obtain her signatures. According to the learned counsel such a failure on the part of Jeevan Singh Head Constable rendered it difficult to know the informant's earliest version of the alleged criminal activity and therefore destroyed the very fabric of which the prosecution case was made. The above contention also has no force Jeevan Singh Head Constable was in-charge of police out-post of village Bamania where the occurrence took place. He was not an officer incharge of Police Station within the meaning 154 Cr.P C. and so he was not empowered to record first information reports. The above contention also has no force Jeevan Singh Head Constable was in-charge of police out-post of village Bamania where the occurrence took place. He was not an officer incharge of Police Station within the meaning 154 Cr.P C. and so he was not empowered to record first information reports. When he was informed of the commission of the crime by Mst. Tulsi at the Out post he went to the spot without loss of time and deputed Shivji constable to guard the site occurrence and the dead body of the infant till the arrival of the investigating officer. He then proceeded to Police Station Jhalara to make a report of the incident. In the way at village Kholari he came to know that Head Constable of the said Police Station had gone to Salumber and the S.H.O. had already been transferred to some other Police Station. He then went to Salumber in a bus and reached there at 1 P.M but at Salumber he was informed that the Head Constable Incharge of Police Stallion Jhalara had gone to Police out-post Bimania. Jeevaa Singh therefore came to the police out-post Bamania and lodged a written report with the Head Constable Kalekhan which is Ex.P.5 on the record and in which he incorporated the earliest version given to him by Mst. Tulsa Hence there is satisfactory explanation for the delay in giving the first information report & the delay is not of material significance in this case. The contention of the learned counsel for the appellants that the delay in giving the F.I.R, must be held to be a reason for rejecting the evidence of Mst. Tulsa cannot be accepted because Mat. Tulsa was not at fault as she related the whole of the incident without loss of time to Jeevan Singh Head Constable and went away to her house. 16. It was further contended that the investigation in this case was not fair because Jeevansingh Head Constable after consultation with the enemies of Kaloolal and Mst. Kaduwa appellants tried to foist the crime of murder on the appellants. This contention also is not well founded. There is nothing on the record to show that Jeevansingh Head Constable had any ill will, ulterior motive or personal gruoge against any of the appellants & for this reason tried to implicate them in a false and concocted case. Kaduwa appellants tried to foist the crime of murder on the appellants. This contention also is not well founded. There is nothing on the record to show that Jeevansingh Head Constable had any ill will, ulterior motive or personal gruoge against any of the appellants & for this reason tried to implicate them in a false and concocted case. The learned counsel for the appellants further urged that before the F.I R was lodged in this case Jeevan Singh and Kalekhan Head Constable had visited the spot in the morning and deliberately failed to make any investigation into the case which shows that a false case of murder was later on concocted by them after consultation with the enemies of Kaloolal and Mst Kaduwa appellants. In support of their above contention they invited cur attention to the statement of Shivji constable P W. 1 who stated that Kalekhan Head Constable accompanied by Jeevansingh H C. had come to the place of the occurrence at about 4 in the morning when he was guarding the dead body. It is no doubt true that Shivji PW 1 stated in his deposition that at about 4 in the morning Kalekhan Head Constable had come to the spot along with Jeevansingh, but this statement of Shivji P.W 1 does not appear to be true because Kalekhan Head Constable Incharge of Police Station Jhalara clearly stated in his cross-examination that he started from Police Station Jhalara fer village Bamania on 3.11.71 at about 10 A.M. for conducting investigation in a case No.28 of 1971. He further stated that he reached village Bamania at 3 PM. He further stated that he reached village Bamania at 3 PM. He categorically denied that he had reached Bamania at about 4 A.M. in the night between 2nd and 3rd November, 1971 Jeevansingh P.W.6 also stated in his deposition that after deputing Shivji constable on the spot for guarding the dead body and the site of occurrence he proceeded to go to police station Jhalara but in the wav at village Kolari he came to know that the Head Constable Incharge of Police Station Jhalara had gone towards Salumber and so he boarded a bus and reached Salumber at 1 P.M He further deposed that when he came to know at Salumber that Head Constable Incharge of Police Station Jhalara had gone to village Bamania he came back to village Bamania & lodged a written report E P 5 with the Head Constable Kalekhan the very day on 3-11 71 at 3 P M. There is no reason to disbelieve the evidence of Jeevan Singh and Kalekhan Head Constables on this point specially when it is supported by the statement of Mst. Tulsa who clearly stated that at about 3 or 4 PM on the next day of the occurrence, Head Constable Kalekhan had come to the house of Kaloolal appellant along with Jeevan Singh Head Constable and inspected the site, prepared the site inspection memo and a site plan and a Panchanama in her presence. There is another circumstance which renders it difficult for us to believe the statement of Shivji PW 1 The circumstance is that the earliest information about the occurrence was given by Mst. Tulsa peon to Jeevansingh Head Constable at about 3 AM in the night between 2nd and 3rd November, 1971 as is evident from the first information report Ex P 5 and the statement of Shri Jeevan Singh. The FIR was read over to Mst. Tulsa in the trial court in the course of her examination-in-chief. After hearing the contents of the FIR Mst. Tulsa admitted that she had given this information to Jeevan Singh Head Constable. After this information was given by Mst. Tulsa to Jeevan Singh Head Constable at about 3 AM, Jeevan Singh went to the spot and deputed Shivji constable to guard the body. After hearing the contents of the FIR Mst. Tulsa admitted that she had given this information to Jeevan Singh Head Constable. After this information was given by Mst. Tulsa to Jeevan Singh Head Constable at about 3 AM, Jeevan Singh went to the spot and deputed Shivji constable to guard the body. It must have taken some time how ever little it may be, it does not stand to reason how Kalekhan Incharge, Police Station, Jhalara could reach the spot along with Jeevan Singh at about 4 AM after covering a distance of 10 miles which lies between village Bamania and Police Station Jhalara. Hence there are no reasonable grounds for believing or suspecting that the investigation in this case was not fair. 17. Another contention raised by the learned counsel for the appellants is that no criminal case was registered on the basis of the first information report Ex P 5 earlier than 3 PM on 4-11-1971 and there is no satisfactory explanation for the delay in the registration of the case and so it may be safely presumed that the case was later on concocted after consultation with the enemies of the appellants. The above contention also is, devoid of substance because when the written report was lodged by Jeevan Singh with Kalekhan Incharge Police Station Jhalara at village Bamania, Kalekhan made an endorsement on it in his own hand and under his signatures in the following terms:- "(1) This information in writing was submitted by Jeewan Singh Head Constable No. 171 at village Bamania before me i e. Head Constable Incharge Police." (2) From the contents of the report, an offence under section 302 Indian Penal Code appears to have been committed and so investigation was commenced on the spot. (3) A case shall be registered on the FIR by me (i.e H. M. Police) after reaching the police Station. As report was lodged with Kalekhan Head Moharir incharge Police Station jhalara at village Bamania where the occurrence took place and as he thought it proper to immediately investigate into the matter and in fact started investigation the very day after 3 PM it cannot be said that the investigation was not fair merely because he kept the FIR with him and did not send it through some other constable to police station for formal registration of a case. 18. 18. It was further argued by the learned counsel for the appellants that there is no reliable proof on the record that Kaloolal and Mst. Kaduwa appellants instigated Mst. Satiama nurse to finish the new born child and so the Sessions judge committed an error in holding them guilty of the offence of abetment. The above contention cannot be accepted because the two eye witnesses clearly stated in their depositions that Mst. Kaduwa and Kaloolal appellants asked Mst. Satiama nurse not to prevent the child from weeping and to stifle its cries and thereupon Mst Satiama placed her hand on the mouth of the newly born infant as a result of which the infant's mouth and nose were closed and she died of suffocation. As dismissed above, the evidence of these eye-witnesses has been found worth of credence upon careful and close scrutiny thereof and so we have no hesitation in holding that Kaloolal and Mst. Kaduwa appellants actively suggested or stimulated the commission of the offence of murder and the offence was committed in consequence of their abetment. In order to constitute the offence of abetment there must be guilty intention, or knowledge. In this case there is evidence of Mst. Tulsa eye-witness that when Kaloolal aid Mst. Kaduwa appellants asked Mst. Satiama nurse who prevent the child from weeping and to stifle its voice, she (Mst. Tulsa) requested them to hand-over the child to her care and custody for returning it but the two appellants replied that they would not hand over the custody of the child to her and would finish it because it was an illegitimate infant. Mst. Navalbai mid wife PW 3 also stated that she asked Mst. Kaduwa appellant not to kill the child but the latter told her not to raise an out cry. She further professed to have asked Mst. Satiama sister not to kill the child, be despite her protest Mst. Satiama placed her hand on the mouth of the child & suffocated it to death. There is further evidence that when the eye-witnesses began to return from his house, Kaloolal asked them not to divulge the incident to any other persons in the village. On the basis of these proved Bets mens rea that is guilty intention can safely be attributed to the three appellants. Consequently the learned Sessions fudge committed no error in convicting Kaloolal and Mst. On the basis of these proved Bets mens rea that is guilty intention can safely be attributed to the three appellants. Consequently the learned Sessions fudge committed no error in convicting Kaloolal and Mst. Kaduwa appellants of the offence of abetment under section 114 IPC. 19. Lastly it was contended by the learned counsel for the appellants that the Sessions fudge did not consider and attach due weight to the evidence adduced by the appellants to prove their innocence. It appears from the record that the appellants have examined DWI Roopji, DW 2 Gangantsingh, DW3 Badansingh, DW 4 Amerchand &, D.W 5 Dr. S.S Bakshi and DW6 Mst Durga at the trial in their defence. The evidence of DW1 Roopji is that Mst Durga wat married to Rooplal about three years ago and that after marriage she used to pay visits to her husband house frequently. According to his version, Mst. Durga lived with her husband Rooplal a year prior to the last Holi festival and came to the house of her parents after one month and thereafter was again taken by her husband to his house. The evidence of Roooji is of no value because the husband of Mst. Durga clearly stated in his deposition that his wife became pregnant during the period he had no access to her and had gone to the State of Maharashtra. When cross-examined this witness admitted that he did not see the stomach of Mst Durga bringing out but her father-in-law had informed him that she was pregnant. In the next breath he further stated that he also had seen the stomach bulging out a little. No reliance can be placed on such a witness who could not definitely say during which period the husband and wife lived together. DW2 Gangasingh merely stated that the relation between Modji and Amerji are strained. His, evidence is not relevant DW3 Badansingh stated that a day before Mst. Durga delivered a female child her brother Kaloolal came to him and told that Mst. Durga was feeling pain in her stomach and so a doctor should be called for. Thereupon this witness claimed to have gone to Salumber along with Kaloolal in search of a doctor but the doctor was not available and so they came back to village Bamania on the next day and heard that Mst. Durga was feeling pain in her stomach and so a doctor should be called for. Thereupon this witness claimed to have gone to Salumber along with Kaloolal in search of a doctor but the doctor was not available and so they came back to village Bamania on the next day and heard that Mst. Durga had delivered a female child which later on died Badansingh had tried to prove that Kaloolal appellant was with him at Salumber in the night of the occurrence. His oral evidence regarding alibi of Kaloolal appellant is not entitled to any weight specially when the eye witness clearly stated at the trial that Kaloolal was present at the time when Mst Durga gave birth to the female child. DW4 Amerchand merely stated that Himmatram, Balji Shivpuri and Onkarpuri had strained relations with Kaloolal and Shivpuri gave a beating to Mst Kaduwa about 7 or 8 years ago. He further stated that the relations between Kaloolal appellant and Head Constable Jeevansingh were not cordial and that Kaloolal came to him on 2-11-71 for making an arrangement of a car for taking Mst Durga to Salumber, but he could not make any arrangement He claimed to have seen Kaloolal appellant going alone towards Salumber He further stated that he accompanied Kaloolal upto his field. The evidence of Amerchand is highly unsatisfactory because there is no proof on the record that the relations between Kaloolal and Jeevansingh Head Constable were strained Amerched could not even tell why their relations were not cordial. Nothing could be elicited from the cross examination of Jeevansingh Head Constable which may tend to show that he had enmity or personal guide with Kaloolal appellant. Amerchard stated that Kaloolal appellant met him at about 8 in the evening and that he started alone for Salumber immediately after the former expressed his inability to make an arrangement of a car. He further claimed to have accompanied him to his village, but on the contrary Badansingh DW 3 stated that he and Kaloolal had gone to Salumber and stated there in the night. DW 5 Dr S.S Bakshi merely stayed that the injury on the left frontal region of the infant was possible in normal course of its delivery and that asphyxia in this case does not appear to be on account of the negligence of the nurse attending the delivery. DW 5 Dr S.S Bakshi merely stayed that the injury on the left frontal region of the infant was possible in normal course of its delivery and that asphyxia in this case does not appear to be on account of the negligence of the nurse attending the delivery. He further stated that suffocation may take place on account of reasons other than the closure of the nostrils & mouth of the infant. According to him, if the uniblical cord is not tied after deliver the child may die, if the mouth is not cleaned that is mucus in the mouth is not removed, then also the child may die on account of asphyxia. The evidence of Dr. S S. Bakshi is not entitled to any weight because there is definite evidence of the eye witnesses that the child was swung on its legs after its birth and thrown on the ground. The bruise on the left frontal region of the infant could probably be caused by its frontal region having cutting into contact with a hard substance. It is not doubt true that besides by use of it mechanical violence a child may die from suffocation after birth if it is born under a calue that is with membrane over the head covering the mouth and nostrils and if its face is pressed accidently in cloth or submerged in the discharge or if there is pressure of or prolapse of the cord or by knots of the cord or its twisting round on the neck, but such is not the case here. the eye witnesses clearly, stated that the child was suffocated to death by Mst. Satiama appellant after putting her hand on its mouth as a result of which the mouth and nose of the child were closed and it died after fluttering a little. Dr S.S. Bakshi DW5 admitted that the post mortem repent Ex P 2 revealed that the umblical cord was tied after delivery and the trachea was cleaned. Dr. S.S. Bakshi had not given arty definite opinion that in this case suffocation by closing the mouth arid nostrils of the infant by the hand had not taken place. DW6 Mst Durga is the mother of the infant. Dr. S.S. Bakshi had not given arty definite opinion that in this case suffocation by closing the mouth arid nostrils of the infant by the hand had not taken place. DW6 Mst Durga is the mother of the infant. She tried to prove that the female child which she delivered was not an illegitimate child & that she was turned out by her husband at the instigation of her in laws who were annoyed with her father. She further stated that her brother Kaloolal appellant was not present at the time of delivery as he had gone to Salumber for bringing a doctor. The evidence of Mst. Durga is not entitled to any weight because she admitted in her deposition that she became unconscious. Before the child was born, she even could not say whether the child was born alive or dead. She further stated that Mst Satiama appellant alone was called for to attend to her and that Mst Nawalbai was not present there. Her above statement is not entitled to weight because Navaloai clearly stated that she was called for by Kaloolal to his house before the delivery and in her presence the child was born and suffocated to death. DW6 Mst. Durga is an interested witness, her evidence cannot be believed in view of the reliable and trust worthy evidence of the two independent eye-witnesses. Hence upon careful review of the entire defence we have no hesitation in holding that the evidence adduced in the defence is highly unsatisfactory and unworthy of belief. 20. The result of the above discussion is that the appeals filed by the appellants have no force and are hereby dismissed.Note:- Appellants Mst. Satiama, Kaloolal and Mst. Kaduwa are on bail. They shall surrender to their bail bonds. The Chief judicial Magistrate, Udaipur, shall get there arrested and sent to jail to serve out the sentences imposed on them by the trial Judge.Appeal dismissed. *******