JUDGMENT - DAS T.K. CHANDRASHEKHARA, J.:---This is a tragic story of a young mother who is alleged to have killed her new born child out of frustration and desperation, presumably out of social compulsion and stigma attached of having delivered a child without marriage. Ku. Geetabai Tukaram Ambre appellant herein was charge-sheeted and tried by the Additional Sessions Judge, Thane for the offence punishable under sections 302 and 201 of Indian Penal Code. As per the impugned judgment, the appellant was sentenced for life under section 302 of Indian Penal Code. Though she was found guilty and convicted by the Court below for the offence punishable under section 201 of Indian Penal Code, no separate sentence has been awarded by the Court below. 2. According to prosecution, the appellant was serving as nurse in the Government Hospital at village Sakhurla in September, 1981 and was residing at neighbouring village called Valvanda. She was living alone. It is alleged that in September, 1981 she delivered a male child in her house at Valvanda. That delivery was performed by one Sitabai Laxman Bambre who was also serving as mid-wife in the Government Hospital at village Sakhurla. It is the case of the prosecution that on September 29, at night the appellant had started delivery pains. One Chaitibai who was a close neighbour of the appellant rushed to the house of Sitabai, a mid-wife. Sitabai then went with Chaitibai to the house of the appellant and assisted the appellant for delivering a male child. Sitabai however, went back after the delivery at 12.00 mid night. According to the case of the prosecution, when Sitabai again went to the house of the appellant on the next day morning for bathing the child, the appellant told her that she had already taken bath and also bathed the child and asked Sitabai to go away. She again went to the house of the appellant in the evening. But she got the same reply from the appellant. On both the occasions, Sitabai did not see the child in that house. Sitabai again went to the house of the appellant in the morning on 3rd day. At that time she also did not find child in the house. This arose suspicion in the mind of Sitabai. But she got the same reply from the appellant. On both the occasions, Sitabai did not see the child in that house. Sitabai again went to the house of the appellant in the morning on 3rd day. At that time she also did not find child in the house. This arose suspicion in the mind of Sitabai. She went to the Sarpanch of the village Janu Guna and told him that she suspect some foul play with regard to the child and she suspected that the child must have been died. Thereupon Janu Guna prepared a report and sent to the Police Station, Jawhar. 3. P.S.I. Gopichand Patil, P.W. 7 on receipt of the said report on 1-10-1981 started enquiry. He went to Valvanda. However, he found the house of the appellant locked. He went to Jawhar in search of the appellant, but he could not find her. After collecting permanent address of the appellant from the office of the B.D.O. sent a Head Constable Dalvi at the address of Bombay directing to bring the appellant. Accordingly Head Constable Dalvi went to Bombay and brought the appellant and produced her before P.S.I. Patil on 4-10-1981. P.S.I. Patil then made an enquiry with the appellant about the child and she gave evasive reply. He sent the appellant for medical examination and she got examined by Medical Officer, Medical certificate shows that she had recently delivered a child. Thereafter P.S.I. Patil lodged complaint against appellant Crime No. 60/1981 was registered and appellant was arrested. 4. It has come out in the evidence that on 5-10-1981 while appellant was in police custody, made a statement in the presence of panchas that she would show the place where child was buried. Thereafter, it is alleged that police, panchas and the appellant and other police party went to village Valvanda. Appellant led them to her house. The appellant then opened the lock of the room with the key which was in her possession. Then all the members of the party entered into the house. The appellant then removed two stones which were lying on the floor and then excavated the earth in that place and took out dead body of a child from the ditch. It is the case of the prosecution that body of the child was covered with pieces of cloth. Face was also covered with one piece of cloth. The appellant then removed two stones which were lying on the floor and then excavated the earth in that place and took out dead body of a child from the ditch. It is the case of the prosecution that body of the child was covered with pieces of cloth. Face was also covered with one piece of cloth. When that piece of cloth covering the face was removed it was found that one other piece of cloth was thrust in the mouth of the child closing the mouth cavity. Inquest panchanama of the dead body of the child was drawn. Medical Officer who was with the party did autopsy on the dead body of the child in the same house and according to doctor the child was died due to asphyxia and suffocation caused by the piece of cloth in the mouth cavity. After that statements of the witnesses were recorded. Blood stained piece of cloth, knife and the blood stained earth was sent to C.A. After completing investigation, charge was led to the J.M.F.C., Jawhar on 16-12-1981 who in turn committed the matter to Court of Sessions, Thane on 17-12-1981. The appellant pleaded not guilty and faced the trial. 5. The prosecution has examined in all seven witnesses P.W. 1 Janu Guna Police Patil, P.W. 2 Sitabai Laxman a mid wife, P.W. 3 Arvind Nisa, Civil Surgeon, Sangli, who examined the appellant on 4-10-1981, P.W. 4 Shrikant Abhyankar, a pancha who accompanied the police party and the appellant to her house, P.W. 5 Ishwarlal Rawal, the other pancha who also accompanied the police party and the appellant to her house, P.W. 6 Rajaram Salvi, Police Constable who brought the appellant to Jawhar Police Station from Bombay and P.W. 7 P.S.I. Gopichand Patil, the Investigation Officer in this case. 6. The trial Court has thrashed out the evidence to find out the circumstantial evidence to bring home the guilt of the appellant as there is no eyewitness to the offence. The lower Court has found the circumstances unfurled in this case strongly indicate the fact that the death of the child is caused by the appellant and no other circumstance could be inferred or probablise in the light of the evidence adduced in this case. The lower Court has found the circumstances unfurled in this case strongly indicate the fact that the death of the child is caused by the appellant and no other circumstance could be inferred or probablise in the light of the evidence adduced in this case. It also found that the prosecution has established all the chains without break in any of the aspect prone to indicate culpability of the appellant of the matter and thereby the lower Court found the appellant guilty for the charges framed against her. 7. The lower Court has come to the conclusion that on 29-9-1981 the appellant has given birth to a child and that child was not there after 5-10-1981 when the police party visited the house of the appellant. P.W. 2 Sitabai in her evidence narrated with clarity and precision every minute stage right from Chaitibai informing her about the delivery pain of the appellant and rushing to the appellant's house and attending the delivery of the appellant and given bath to the child and to the appellant and going back to her house. It has come out in her evidence that on the next morning she again went to the house of the appellant, for bathing the child and appellant but she was told nothing. She however, did not find the child there. In the evening also she went there and asked for the child for bathing. In the evening also the child was not there. The appellant replied that she had already given bath to the child and Sitabai should go. On the next morning also P.W. 2 went to the house of the appellant and she found that there was no child. Accordingly she went to Sarpanch P.W. 1 and reported the matter. She was not cross-examined on the material points therefore, we do not find any fault in the trial Court in fully relying upon the testimony of P.W. 2. Her evidence inspires confidence to establish the fact that the appellant has given birth to a child alive and she has been the appellant with the child. 8. Then Court below has relied upon the evidence of P.W. Janu Guna Dandekar who has spoken that Sitabai, a mid wife of the Government Hospital reported the matter to him and he made an enquiry and he has sent report Exh. 8. Then Court below has relied upon the evidence of P.W. Janu Guna Dandekar who has spoken that Sitabai, a mid wife of the Government Hospital reported the matter to him and he made an enquiry and he has sent report Exh. 8 in his report he has stated that he made an enquiry with the appellant about the disappearance of the child and he reported that the appellant had told him that she had sent the child to her native home and P.W. 1 had requested the Police Inspector Jawhar Police Station to enquire into the matter. I.O. P.W. 7 deposed that when the appellant was giving evasive reply about the child, she was sent for examination by the doctor and after detaining the opinion of the doctor that she recently has delivered a child offence was registered as C.R. No. 60 of 1981. He further deposed that on 5-10-1981 at about 7.00 a.m. the appellant made a statement that she would show the place where the child was buried in the presence of panchas P.W. 4 Shrikant Damodar and P.W. 5, Ishwarlal Rawal. These panchas were witnessing disclosure made by the accused and also they were accompanying the party to the house of the appellant and witnesses the dead body of the child being taken out from the ground. The lower Court also relied upon the medical evidence Exh. 12, post mortem report of the Cottage Jawhar Hospital. As per this report a body was covered in a continuous cloth covering neck and head in the separate cloth for the remaining body, clothes stained with blood is removed from the mouth. Though these panchas P.W. 4 and P.W. 5 turned hostile, the lower Court has relied upon their statement that they were following the party and went to the house of the accused/appellant. Though they deposed before the Court in cross-examination that they did not see the dead body of the child being taken out of the ground and that the house which was closed was being opened by the key given by the appellant, the lower Court has found those contradictory statements made by the panchas would not affect the prosecution case. The Court found that though in certain material aspects, their evidence cannot be relied upon, the other evidence adduced by the prosecution will not be totally erased. The Court found that though in certain material aspects, their evidence cannot be relied upon, the other evidence adduced by the prosecution will not be totally erased. In view of this, the trial Court has found that all the circumstances necessary for establishing the guilt of the accused were present in this case. The lower Court has come to the conclusion that when it is unquestionably established that the appellant has given birth to a child and principle of last seen will apply with the burden is heavily on the accused to explain as to what happened to the child. On this premise, the Court below has found her guilty. 9. It is true that there is unquestionable and un-challengeable evidence to the effect that the appellant was pregnant without marriage and appellant has given birth to a child on 29-9-1981 and P.W. 2 Sitabai helped her in delivering the child and she was giving evasive reply to the questions asked about query made by her about the child. However, it is difficult for us to agree with the finding of the trial Court that all the chain in the circumstances for establishing the guilt is complete in this case. 10. In this context, firstly, we have to consider in this case the circumstance that on the query made by the Police Patil, reply of the accused was that she had sent the child to her native home. The prosecution has not considered this statement made by the accused. Secondly taking out the dead body of the child from the ditch in pursuance of the statement made by the accused. Here the panchas turned hostile on this aspect and prosecution have solely relied upon the official evidence for the appellant having made such statement. Another aspect of the matter is that the lower Court has placed reliance on the evidence that the house was closed and it was opened with the key which was handed over by the accused at the spot. This aspect of the matter has been belied by the evidence of the panchas. According to panchas when they reached the house, the door was opened and when they were taken by the police to the inside of the house, they saw dead body of the child was lying there. They did not actually see the taking out of the dead body of the child from the pit. According to panchas when they reached the house, the door was opened and when they were taken by the police to the inside of the house, they saw dead body of the child was lying there. They did not actually see the taking out of the dead body of the child from the pit. In her statement under section 313 of Criminal Procedure Code the appellant has answered in negative to a specific question put to her by the Court that she had opened the lock of the room and led them inside of the room, she totally denied and added that the police had taken the key from her in the Police Station itself. In the light of this statement of her coupled with the statement of the panch witnesses, it cannot be said that the prosecution has established the fact that at the instance of the appellant, the body of the child was recovered from the pit and at her pointing out the place where she had buried the child. This part of the narration of the prosecution case appears to us to be very weak. Therefore, we cannot agree with the observation of the Court below that all the chain of circumstances pointing towards guilt of the accused has been established, as observed by the Supreme Court in A.I.R. 1976 S.C. 917, (Chandmal v. State of Rajasthan)1. The Supreme Court has stated in the aforesaid decision that the circumstances from which an inference of guilt of the accused is inferred by the Court, should be cogently and firmly established. These circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. And lastly if all the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and accused alone. 11. In this context, it has to borne in mind that Sitabai was not present at the time of the taking out the dead body of the child from the pit from the room of the accused and Sitabai is the only person who could identify the child. Therefore, as argued by the learned Counsel for the appellant, the prosecution has not established the identity of the deceased. Therefore, as argued by the learned Counsel for the appellant, the prosecution has not established the identity of the deceased. In other words, the evidence is lacking to the effect that the dead body which was taken out of the pit, is the same that of the body of the child which was delivered by the appellant. Therefore, this is a vital and important circumstance which go to weaken the chain of the circumstances implicating the accused. The appellant gave birth to a child on 29th September, 1981. She was arrested on 4-10-1981 in Bombay. Witness has spoken about the appellant and the child only on 30-9-1981. What happened thereafter till 4-10-1981 is only a matter of guess. This is another circumstance which fatally affect the chain of circumstances required to be established by the prosecution in this case, apart from the strong suspicion about the identity of the dead body of the child. This cast reasonable doubt about the guilt of the accused. Therefore, this weakness of the prosecution case should be inured to the benefit of the accused. In view of the above discussion, we are of the opinion that from the entire circumstances of the case, guilt of the accused has not been established by the prosecution, beyond all reasonable doubt. 12. However, even though the accused could not be found guilty of the offence under section 302 of Indian Penal Code, there is enough evidence to indicate that she had erased the signs of the evidence and caused disappearance of evidence with the intention to screen herself of the offence and as found by the trial Court, particularly in the context of giving evasive reply about the new born child. 13. In this context, we are constrained to observe that the trial Court has committed grave error in framing charge against the appellant under section 201 of Indian Penal Code. Section 201 of Indian Penal Code is a general section applicable to all the offenders who try or attempt to cause to disappear the evidence of offence and the said section has prescribed different terms of imprisonment for various categories of the offences according to its gravity. The section itself is scaling down the imprisonment to be awarded for the capital offence-the offence which is punishable for life imprisonment and the offence punishable less than 10 years. The section itself is scaling down the imprisonment to be awarded for the capital offence-the offence which is punishable for life imprisonment and the offence punishable less than 10 years. But here in this case, an attempt is alleged to have been made by the appellant to erase the trace of evidence for having given birth to a child and secretly deposed of the dead body. In view of the allegations made in the charge, for this offence specific section is incorporated in the Indian Penal Code. Section 318, Indian Penal Code takes care of the circumstances disclosed in this case. Section 318 reads as follows : "Concealment of birth by secret disposal of dead body.---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 or 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." 14. Therefore, in view of the above specific section, the charge framed under section 201, Indian Penal Code which is a general section stands excluded in the circumstances of the case. The trial Court ought to have framed the charge against appellant only under section 318 of Indian Penal Code instead of section 201 of Indian Penal Code. The lower Court has not applied its mind properly in this aspect of the case. Therefore, we find that the proper charge that would have been framed against the appellant would be under section 318, Indian Penal Code instead of section 201 of Indian Penal Code. Since the evidence and material are one and the same and no prejudice would be caused to the appellant in convicting her for an offence under section 318, Indian Penal Code without framing a charge on the said count, in our view she can be convicted for the said offence despite being formally charged thereunder. We find from the circumstances of the case and the aforesaid discussion, the offence under section 318, Indian Penal Code has been proved against the appellant. 15. Next point to be considered here is to what punishment to be awarded to the accused for the offence committed by her under section 318 of Indian Penal Code. We find from the circumstances of the case and the aforesaid discussion, the offence under section 318, Indian Penal Code has been proved against the appellant. 15. Next point to be considered here is to what punishment to be awarded to the accused for the offence committed by her under section 318 of Indian Penal Code. As we have pointed out in the earlier part of our judgment, the accused has committed offence by social compulsion while she was in her teen age. The learned Counsel for the appellant submits that she is a chronic. T.B. patient and she has lost her job because of this offence. Therefore, in the circumstances, we have to take lenient view as far as the punishment to be awarded to the appellant is concerned. 16. As we have seen section 318, Indian Penal Code provides for punishment for two years with or without fine. In the circumstances of the case, we feel that the imprisonment already suffered by the appellant will be adequate punishment if she is made label to pay a fine of Rs. 500 in default three months S.I. 17. In the result, appeal is partly allowed and partly dismissed. The appellant is acquitted of the offence punishable under section 302, Indian Penal Code and 201, Indian Penal Code and the judgment of the trial Court to that extent is set aside. Instead she is found guilty of the offence punishable under section 318, Indian Penal Code and is sentenced to the period of imprisonment she has already suffered and is directed to pay a fine of Rs. 500/- i/d. to suffer S.I. for three months. The said fine should be paid within a period of three months from today in the trial Court failing which she would undergo S.I. for three months. In case the appellant pays the fine within the stipulated time, her bail bonds will stand cancelled and sureties discharged. -----