JUDGMENT 1. - These two appeals are by appellants Jamni and Thavra against the judgment dated 25-2-1976 of the learned Sessions Judge, Udaipur. By the impugned judgment appellant Jamni was convicted under section 304 Part II I.P.C. and Thavra under section 304 Part 11/114 I.P.C. As both these appeals relate to the same judgment and incident, are disposed of by this one judgment. 2. Appellant Jamni is the wife of Dalla. She had a child Prema aged about 7 months. Thavra appellant is the father of appellant Jamni. On 23-4-1973 Thavra came to the house of Dalla in the morning and took away Jamni with him Jamni did not return to her husband for 3-4 days. She had left behind her son Prema with her husband. She left the house of her husband knowing that her child would die without his mothers milk. The child was put on goat milk. Dalla sent five persons of his village namely Amardas, Hena, Jeeva, Kulu and Kauwa to the house of Thavra to bring back Jamni, but she did not return, On 25-4-1975 the boy died in the morning. A report of the incident was lodged at Police Station Panrwa by Dalla. A case under section 302 I.P.C. etc. was registered and the usual investigation including the postmortem examination of the body of the child was done. The appellants were challaned in the court of Additional Munsif and Judicial Magistrate No. 3, Udaipur. They were committed to the Sessions. The learned Sessions Judge gave a detailed judgment and held the appellants guilty. In this regard the learned Sessions Judge thus observed:- "It is true that according to the testimony of these witnesses Thavra was most unwilling to send Jamni with these five person and she was a willing party to this denial because if she was ready and willing no body could have prevented her from going from there, specially when 5 persons were present there and came only to take her. Thavra has stated in his statement under Section 313 Cr. P.C. that Jamni refused to go with these five persons because they were strangers otherwise he was willing to send her with them. Thavra has stated in his statement under Section 313 Cr. P.C. that Jamni refused to go with these five persons because they were strangers otherwise he was willing to send her with them. If Thavra was really willing and he felt that these 5 persons are strangers it was quite expected of him to go to leave his daughter to her husbands house because he is a grown up man expected to be quite cognisant of the fact that what consequences would follow if the child is kept without the mothers milk for a long time. Under these circumstances although the prosecution witnesses have tried to exonerate Mst. Jamni I feel from the prosecution evidence itself coupled with the admissions made by the accused persons in their statements, it is absolutely clear and proved beyond doubt that Mst. Jamni conspired with Thavra to for sake her own child of 5-7 months and she never wanted to return back to her husband. Actually it appears that Mst. Jamni wanted to forsake her husband and all that which belongs to him. There was no specific cause of annoyance against the child and be there would not have been any intention to kill him. What is apparent from the circumstances of the case is that Mst. Jamni and Thavra could very well have known that by forsaking the child it is likely that he will die of hunger. Thus the act of Mst. Jamni is covered by Part II of sec. 304 I.P.C and Thavra is guilty of the offence under Section 304 Part II read with sec. 144 I.P.C. He actually instigated the crime, conspired for it and was throughout present with Jamni and prevented the villagers from taking away Mst. Jamni with them." 3. I have heard the learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case carefully. It is argued in the first instance by the learned counsel for the appellant that it is not proved beyond reasonable doubt that the child died as a result of starvation. Medical evidence was not led in the case to substantiate this fact. The report of the death of the child was made on the same day. However, there is a postmortem report available on the record of the case marked Ex. Medical evidence was not led in the case to substantiate this fact. The report of the death of the child was made on the same day. However, there is a postmortem report available on the record of the case marked Ex. P.l. From its perusal it appears that the postmortem examination of the child was conducted on 1-5-1975. The First Information Report of the incident was made on 26-4-1975. No reason is brought out on the record of the case why the postmortem examination was conducted five days after the death of the child. In the postmortem report it is stated by the doctor that no definite opinion can be given regarding the cause of death due to advanced stage of petrification. 4. The learned Sessions Judge did not rely upon any evidence to come to a finding that Prema died because of lack of mothers milk and hunger. He reached to this inference only because Prema was not fed by his mother for about 24 hours. In my opinion from this fact such a conclusion or an inference cannot be arrived at. It is not always necessary that a child should be provided with breast feeding. There are numerous cases where children have survived even without breast feeding with the help of the milk of cow or goat or with sprayed milk available in the market. It is, therefore, held that the prosecution miserably failed to proved that child died of starvation. 5. It is further argued by the learned counsel for the appellants that the learned Sessions Judge was grossly in error in coming to a finding of guilt under section 304(11) I.P.C, It could not be said that the act of Jamni was likely to cause the death of the child. If at all the deprivation of the breast feeding to the child was the cause of his death, it cannot be said that such an act was likely to cause death. I have considered-this aspect carefully. Each case will depend upon its own facts. It could not be said that the death of the child was the natural consequence of the act or illegal omission of Mst. Jamni There should be some likelihood of causing death by an act. In the present circumstances the chances of the death of the child by the illegal omission of Jamni was not even one in one hundred. It could not be said that the death of the child was the natural consequence of the act or illegal omission of Mst. Jamni There should be some likelihood of causing death by an act. In the present circumstances the chances of the death of the child by the illegal omission of Jamni was not even one in one hundred. Moreover, the cause of death i.e. starvation for want of mothers milk cannot be directly associated with this illegal omission. For these reasons I am of the opinion that Mst. Jamni was wrongly convicted for the offence under section 304 (II) I.P.C. and she richly deserves an acquittal. In that view the incident of abetment of the offence does not arise and it lead to the acquittal of Thavra. 6. The appeal is, therefore, accepted and the judgment of the learned Sessions Judge is set aside and appellants Jamni and Thavra are acquitted of the offences under sections 304 (11) and 304 (II) 114 I.P.C. respectively. The appellant: are on bail and need not surrender to their bail bonds which are hereby cancelled.Appeal Accepted. *******