JUDGMENT : B.K. Behera, J. - What an unfortunate case is this one ? The appellant stands convicted under section 302 of the Indian Penal Code (for short, 'the Code') for having committed the murder of a newly born son by strangulation during the night of June 30, 1981, in village Gopalpur in the district of Balasore, whereafter she is alleged to have thrown the dead body of her murdered son into the waters of a pond nearby. She has been sentenced to undergo imprisonment for life. 2. It is not disputed at the Bar that the appellant, a widow then, had given birth to an illegitimate child. There was no paucity of evidence that the child had cried after birth. The evidence of the doctor (P.W. 7) who had conducted the autopsy would establish that the child had 'died a homicidal death. 3. No one had witnessed the appellant committing the murder of her child or throwing the dead body of the murdered child into the waters of the pond. There was no evidence that the appellant was the sole occupant of her house. There was no evidence either that at the time of the birth of the child or shortly thereafter, there was no one but the appellant in the house. The prosecution sought to build its case on an extrajudicial confession said to have been made by the appellant and her statement before P.W. 2 that the child was in the pond and the evidence of P.W. 2 that the appellant brought out the dead body of the child from inside the waters of the pond. The learned trial Judge did not accept the evidence with regard to the extrajudicial confession said to have been made by the appellant. Basing on the other circumstantial evidence referred to above, the learned Judge has found that the charge had been brought home to the appellant. Appearing on her behalf, Mr. M.R. Panda has contended that the circumstances against the appellant had not been established and even if established could not warrant her conviction. 4. The settled principles with regard to the appreciation of circumstantial evidence may be kept in mind. Appearing on her behalf, Mr. M.R. Panda has contended that the circumstances against the appellant had not been established and even if established could not warrant her conviction. 4. The settled principles with regard to the appreciation of circumstantial evidence may be kept in mind. In a case depending on circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof the circumstances from which the conclusion of guilt is to be drawn should be fully established and the circumstances 'should be' and not 'may be' established. The facts so established should consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and should be such as to exclude every possible hypothesis except the one proposed to be proved. 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 must show that within all human probability, the act must have been done by the accused. A case can be said to be proved only when there is certain and explicit evidence and no person can be indicated on pure moral conviction. (See Hanumant Govind Nargundkar and another v. State of Madhya Pradesh AIR 1952 S.C. 343 and Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 S.C. 1622 ). 5. Judged in the light of the aforesaid principles, we find, for the reasons to follow, that the evidence in the instant case was far short of the mark and the order of conviction based on suspicions and surmises cannot be allowed to stand. 6. The only evidence against the appellant worth the name was that of Sania Dasi (P.W. 2), her neighbour and she had testified thus : ".... About 8 or 9 months back at night I had been to a deity, it was one or two hours after the evening. I distributed Prasad. When I came back home, P.W, 1 told me that he heard cries of a baby. I then went towards the house of the accused and was calling her. The accused was coming from her pond. Radhamani had washed her clothes but there were some stains of blood. I asked her as to how this happened, she at first kept mum. I then went towards the house of the accused and was calling her. The accused was coming from her pond. Radhamani had washed her clothes but there were some stains of blood. I asked her as to how this happened, she at first kept mum. I then again requested her and asked her as to where was the child. Thereafter she told that the child was in the pond. She and I went to the pond and from inside it, the accused brought a dead male child. The accused was widowed long back, may be 10 years. The accused did not tell me whether she gave birth to a dead or a living child, but on being questioned by me she told me that she had put the child in the pond. Villagers came and they asked the accused. I had not seen any mark of injury on the body of the child." Washing of clothes containing some stains of blood could not be taken to be a guilt-pointing circumstance as stains of blood would normally come to the clothes of a lady giving birth to a child whereafter she would wash her clothes. The only circumstance deposed to by P.W. 2 is that the appellant had told her that the child was in the pond and the appellant went to the pond and brought out a dead male child. The learned Sessions Judge ought to have, but has not taken serious notice of the fact that in her statement to the Investigating Officer, P.W. 2 had not stated about the appellant bringing the child from the waters and this important omission amounting contradiction within the meaning of the Explanation to section 162 of the Code of Criminal Procedure had duly been brought on record during the cross-examination of the Investigating Officer (P.W. 12). The evidence of P.W. 2 with regard to this incriminating circumstance cannot be accepted and in the absence of other evidence, it would not be reasonable, legal and proper to hold the appellant to be guilty of the charge solely on the evidence of P.W. 2 that the appellant had given out that the child was in the pond. It was not in evidence that the appellant had stated that she had thrown the child into the waters of the pond. 7. It was not in evidence that the appellant had stated that she had thrown the child into the waters of the pond. 7. It is, indeed, unfortunate that the order of conviction has been based purely on conjectures and without legal and cogent evidence sustaining the charge. The learned Additional Standing Counsel has very fairly submitted that on the evidence on record, it would not be possible to uphold the order of conviction. We appreciate the very fair stand taken by him which a Public Prosecutor is always supposed to do. 8. For the foregoing reasons, we would allow the appeal and set aside the order of conviction and sentence passed against the appellant who shall be set at liberty forthwith. P.C. Misra, J. - I agree. Final Result : Allowed