1. One Sampat Teli (P.W 7) of Telhara in the Akot taluk is the husband of the appellant Shevanti who was married to him when she was 8 or 9 years old. After attaining the age of puberty she lived with her husband. In Divali of 1926 she was brought to Danapur to stay with her mother and brothers Shiva (D.W 1) and Pundalik (P.W 15). One Baliram (P.W 16), who is her cousin, also lives in Danapur. At a caste panohayat held some time in May 1927 the appellant's brothers, Shiwa and Pundalik, were remonstrated for having kept their sister Shevanti away from her husband for a very long time. Within a few days of this, Sampat came and took her away to Telhara.

2. On 24th August 1927 Shevanti came back from Telhara to Danapur with her husband Sampat. The police patel Sukdeo (P.W 8) saw them both that evening at the house of Baliram (P.W 16). She was then lying ill and groaning on a cot. The next day Sukdeo Patel learnt that the dead body of a child had been found in the river wen of the village. Sukdeo Patel accordingly went to the bank of the river and saw the body entangled among thorns at some distance from the bank. At some distance from the body, a piece of red chhit being a shirt or upper bodice of a Mahomedan woman was also found in the water. After taking out the body and wrapping it in the said cloth he caused it to be kept on the bank and sent a report (Ex. P-12) to the Hiwarkhed station house. The usual inquest was held by the police and the body of the child was sent for post-mortem examination to Akot. Ex. P-2 is the inquest report. The post-mortem report (Ex. P-10) made by Pandurang, Assistant Medioal Officer (P.W 9), shows that the child was born alive and that its death was due to drowning. The police investigation brought to light certain facts which created suspicion about Shevanti being pregnant with an illegitimate child and having been recently delivered and being concerned in drowning the new-born child in the river. Acting on this suspicion a search was caused to be made at the houses of Pundalik and Baliram, and certain bloodstained clothes were got hold of (Ex. P-6, P-7 and P-8). On a report of the Sub-Inspector of Hiwarkhed put up before the Sub-Divisional Magistrate, Akot, the latter officer ordered the appellant to be examined by the Civil Surgeon, Akola, with a view to ascertain whether she was recently delivered. She was accordingly examined on-29th August 1927 by the Assistant Civil Surgeon (P.W 14) and Ex. P-9 is his report. A challan under S. 302, I.P.C, was accordingly drawn up and lodged before the Sub-Divisional Magistrate, Akot, on 5th September 1927 implicating the appellant, Shevanti. The committing Magistrate, after examining several witnesses, disbelieved the story as to Sheventi having gone to the river at 9 p.m and to have delivered on the road as shown in the map (Ex. P-13). He also held that it was impossible for a woman recently delivered to walk all the distance to and fro, and that the probability was that the delivery took place before evening at the place where she was found lying by the police patel (P.W 8). He inferred, that her husband Sampat (P.W 7) had a hand in the disposal of the child; but that matter was of no consequence as the commitment was only of Mt. Shevanti under S. 302, I.P.C

3. The trial commenced in the Sessions Court on 5th December 1927. To the charge of murder under S. 302, the Sessions Judge, that very day, added an alternative charge of secretly disposing of the dead body of the child by throwing it into the river, Wan, and in the alternative of handing over the child to some one else with the intention that it should be so disposed of, under S. 318 or 318-109, I.P.C, and then proceeded to examine the witnesses for the prosecution. After having examined 16 witnesses for the prosecution on 5th and 6th December 1927, the learned Sessions Judge on 7th December 1927 added a further alternative charge under S. 317 or 317-109, I.P.C, to the effect that the appellant was exposing or allowing to be exposed, her newly-born alive child with the intention of wholly abandoning it. Thereafter the appellant was examined and her defence also recorded and the evidence of two of her witnesses was taken down. The case was then argued and the assessors were required to state their opinions. The assessors are all agreed that the appellant was pregnant and that a child was born to her. Two of them are agreed that she was confined and the child was born to her at Baliram's house, and that it was legitimate; one called it illegitimate, and the remaining fourth assessor doubted whether it was legitimate or illegitimate. One of the assessors says that the child found on the river was of Shevanti, but the rest three others think that there is no proof of the identity of the child found on the bank of the river wan with that born of Shevanti. The assessors differ as to the child being born alive: one being doubtful, and the other three being positive that it was not born alive. All of them are, however, agreed that as Shevanti was insensible and did not know anything, she was not responsible for what may have happened to her new-born babe. It is noticeable that the learned Sessions Judge did not require the assessors to state their opinion as to whether the appellant, if not guilty of the substantive offence punishable Under S. 317, was, at any rate, guilty of the abetment thereof.

4. The Sessions Judge found that Sheventi's denial of pregnancy was futile. The evidence of Assistant Civil Surgeon (P.W 14), her husband Sampat (P.W 7), the professional dai or midwife Manji (P.W 11) and her mother-in-law Soni (P.W 13) clearly shows that she was pregnant. Her pregnancy being thus satisfactorily proved, the further fact that she was recently confined is proved by the medical evidence given by P.W 14, according to whom the confinement must have taken place a week before his examination. The circumstances detailed in para. 11 of the Sessions Judge's judgment and the evidence discussed therein clearly point to the conclusion that the child born of Shevanti was illegitimate. The Sessions Judge has also rightly held that her delivery took place at Baliram's house and not on the river or on the road. The point that the death of the child whose dead body was found in the river was due to drowning is also clearly established by the medical evidence of Pandurang (P.W 9). But the important point still remains whether the identity of the child whose dead body was found in the river with that born of Shevanti is satisfactorily proved by the prosecution. As to this there is really no direct or satisfactory proof on record; the Sessions Judge had to depend upon certain inferences from the surrounding facts and circumstances of the case. The question, therefore, is whether the inferences drawn in the case have been correctly drawn by the Sessions Judge.

5. It is argued before me that both Shevanti and her husband are of dark colour and the child found in the river being of fair complexion, the proper inference to be drawn from this was that it was not theirs. It appears that from these very premises the Sessions Judge has drawn the inference that it was not Sampat's. So far his conclusion is unimpeaohed. The learned pleader, who appeared for the appellant before me, has asked me to draw the further inference that it was not Sbevanti's. In this connexion my attention is drawn to the additional circumstance that the cloth found in the river at some distance from the dead body of the child had the appearance of a shirt or upper bodice of a Mahomedan woman, the suggestion being that the dead body is of a child of Mahomedan origin. The learned Sessions Judge has discarded a similar suggestion, in the penultimate sub-paragraph of para, 14 of his judgment for two reasons: firstly that the police investigation did not bring to light any other case of the birth of an illegitimate child in the neighbourhood; and secondly that it was quite possible that the cloth might have been left there by some woman when washing her clothes and been carried away by the stream. There is nothing to show how far the investigation probed the matter, and, as to the second reason suffice it to say that it appears to be a mare conjecture and cannot supply the place of positive evidence. The conclusion that the dead body was of the child of Shavanti is to my mind not fully supported by the evidence on record and the probabilities of the case. I differ from the Sessions Judge on this point of identity.

6. Naturally, then the question arises, firstly, as to what has become of the child whom Shevanti had recently given birth, and whether she had any hand in disposing it of and secondly, who must account for the absence of the child? The medical evidence of the Assistant Civil Surgeon (P.W 14) affords sufficient data for holding that the first delivery is more painful than subsequent ones, and that pain may start days before or 24 hours before. The Sessions Judge has discussed this question in para. 19 to 23 of his judgment. He thinks that in this case the burden of explaining certain facts was upon the accused. The explanation elicited by the examination of the accuser was that she did not know what happened, and it must be taken for what it is worth. The Sessions Judge, however, has rejected the explanation on a theory of his own that women are not unconscious on delivery in normal cases. But in doing so he has assumed that the present was a case of a normal delivery. He based his assumption on the fact that the appellant was going about her household duties soon after and performed her journey on Saturday following, and did not complain of the loss of her new-born child. I think the Sessions Judge was not justified in the circumstances of the case, in making such assumptions by throwing the burden on the appellant of offering explanation in this connexion. I cannot but observe that it would have materially helped the case for the defence if Shevanti had offered a true explanation of the real state of affairs as they happened, instead of suggesting the very improbable story that the whole case was a concoction, by going to the length of even denying her own pregnancy. But that could not lighten the burden of proof that lay heavily on the prosecution to prove her guilt.

7. The following observations of Tindal, C.J, in Regina v. Frost(1) quoted in Amrita Lal Hazra v. Emperor(2) show that the burden must lie entirely on the prosecution, and that the law does not cast on the accused any burden of proving his innocence:

On the part of the prisoner, the learned counsel who appear for him state, and I think they are justified in so stating, that he is not bound to show what was the object or purpose or intent of the acts that ware undoubtedly done by the prisoner at the Bar. His counsel say the offence charged against him must be proved by those who made the charge, that he stands only to hear the evidence that is given against him, and therefore he is not bound to show at all or in any way whatever what his real object or design was, Undoubtedly the proof of the case against the prisoner must depend for its support not upon the absence or want of any explanation on the part of the prisoner himself, mt upon the positive affirmative evidence of his guilt that is given by the Grown. It is not, however, an unreasonable thing, and it daily occurs in investigations both civil and criminal that if there is a certain appearance made out against a party, if he is involved by the evidence in a state of considerable suspicion, he is called upon, for his own sake and his own safety, to state and to bring forward the circumstances, whatever they may be, which might reconcile Each suspicious appearances with perfect innocence.

8. In this particular case as shown above the case against the appellant must depend for its support not upon the absence or want of any explanation on her part but upon the positive affirmative evidence of her guilt that is given by the Crown. The denial of guilt by the appellant and absence of any true explanation by her did not in any way lessen the burden which lay on the prosecution of proving her guilt. In para. 20 of the judgment under appeal the learned Sessions Judge very candidly remarks as to the details of what happened, we cannot say clearly from the record.

9. In this state of things it was wrong to infer that Shevanti must have been a consenting party to the disposal of her new-born child. The Sessions Judge also observed:

It is of course quite possible physicilly that Shevanti might have performed the journey to the river. But it is more probable that the child was taken there and thrown in by one of her brothers.

10. I think that in the case of a recently confined woman and that too of a first delivery it would practically be an impossible feat for the woman to perform of going herself to the river to throw away the child with a view to get rid of it. It was, therefore, right for the Sessions Judge to have held that Shevanti herself did not take the child and dispose of it. He was also right in holding that she was not liable to be convicted of the murder of the child. Similarly, the charge for an offence under S. 318 or for abetment thereof could not hold good in her case. He, however, thought that he could convict her of an offence of abetment of murder and abetment of exposure and abandonment of the child. But admittedly she was not charged with abetment of murder and the assessors have not been questioned on that point. On the whole the learned Sessions Judge very rightly gave her the benefit of doubt based on the possibility that she did not contemplate that the child should be killed.

11. This narrowed the compass of her so-called guilt and the Sessions Judge addressed himself in para. 22 of his judgment to consider the question as to whether the appellant was guilty of an offence of abandonment or of its abetment. In this connexion the Sessions Judge had candidly remarked:

The principal offence seems to have been committed by some one who had assumed the care of the child for the time being. The child was exposed and left in the river with the intention of wholly abandoning it.

12. Here the Sessions Judge proceeds on the assumption that the child whose dead body was found was of the accused, but as pointed out above such proof is wanting. Moreover, the investigation has not, as remarked by the Sessions Judge, disclosed-particular person or persons connected; with the commission of the offence under S. 317, I.P.C, but thinking that the conviction of the principal was not a necessary condition to the punishment of an abettor, the Sessions Judge proceeded to discuss the question whether Shevanti abetted the offence of abandonment. He drew the inference that she must have conspired with her relatives in arranging the removal of the child and that she must have, at least, known that they were thinking to get rid of the child somehow, and actually convicted her under Ss. 317-109, I.P.C

13. It is contended before me that this conviction is bad as it is of the essence of offence under S. 317-109 that the intention of wholly abandoning such child, must be proved. Proof of such intention is, it is said, wholly wanting. On the facts proved in this case it is difficult to concur with the Sessions Judge's-conclusions in this respect, as it is not clearly established that, between the delivery and the disappearance of the child from her, the appellant was in a condition to know what was being done with it, so as to justify the imputation to her of an intention of wholly abandoning it; if there was any omission on her part I am not prepared to hold that it was an illegal omission. The Sessions-Judge's remarks that she was bound for the protection of her child to resist its being taken away and to give the alarm, and to disclose the facts as soon as she, could, and that all this she failed to do, proceed on the assumption that she was in full possession of her senses at the time the child was taken away. If the appellant was in a temporary swoon, as is very likely, she could have neither handed over the child nor protested against its removal by any person interested in getting rid of it. The conviction must, therefore, fail on this ground.

14. The Sessions Judge, while adding the alternative charge under S. 317, I.P.C, made it sufficiently comprehensive so as to include even the abetment thereof. The provisions of law having been complied with, it was open to him to convict the appellant for abetment of the offence under S. 317, though not of the substantive offence itself, if the evidence on record was sufficient to warrant such conviction. A person abets by aiding when by any act done either prior to or at the time of the commission of an act he intends to facilitate and does in fact facilitate the commission thereof. The intention should be to aid the commission of a crime. A mere giving of an lid will not make the act an abetment of an offence if the person who gave the aid did not know that an offence was being committed or contemplated. The intention should thus be to aid an offence or to facilitate the commission of an offence. But if the person who lends his support does not know or has no reason to believe that the act which he is aiding or supporting was in itself a criminal act it cannot be said that he intentionally aids or facilitates the doing of the offence: per Mukerjea, J., in Emperor v. Ram Nath(3). In order to convict a person of abetment by legal omission it is necessary to show that the accused intentionally aided the commission of the offence by his non-interference, Khajah Noorul Hossein v. C. Fabre-Tonnerre(4), and that the omission involved a breach of a legal obligation. Abetment by omission would only be punishable if the omission were an illegal omission: Emperor v. Cooverji Nasarwanji(5). In order to convict a person of abetting the commission of a crime, it is not only necessary to prove that he has taken part in those steps of the transaction which are innocent but in soma way or other it is absolutely necessary to connect him with those steps of the transaction which are criminal: The Queen v. Nim Chand Mookerjee(6). In this case there is no evidence or material on record tending to show that the appellant was in a mental as also physical condition to abet either by act or by illegal omission the commission of the offence under S. 317, I.P.C

15. The mere circumstance that, after the commission of the offence by soma one else she did not bewail the loss or bestir herself to report the offence is not inconsistent with her innocence. It may be due to her physical inability or mental incapacity to interfere at the time of the removal of the child from her custody or even want of inclination on her part to do anything, for suffering as she must have then been from the after-effects of a painful first delivery. Her subsequent failure to do any of these things does not aid the commission of the offence, though it might aid the concealment of an offence already perpetrated. But a further objection is taken before me that the Sessions Judge convicted the appellant of the abetment of the offence under S. 317, I.P.C, without taking the opinion of the assessors on the point. This is not permissible in view of the clear provisions of Section 309 of the Cr PC, which makes it obligatory on the Session Judge to require each of the assessors to state his opinion orally on all the charges on which the accused has been tried and record such opinion. The words “on all the charges” have been interpreted to mean that distinct opinion on each charge must be taken and recorded: of The Queen v. Matam Mal(7). There is no doubt an omission to do so in this case. But in the view I take, it is unnecessary to quash the conviction merely on this one ground.

16. In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The proof of guilt must displace all reasonable doubt. Such proof of the appellant's guilt as regards the abetment of the offence under Ss. 317-109, I.P.C, by her, being lacking, the interests of justice require that I should quash the conviction and set the appellant at liberty. I accordingly do so and cancel her bail bond.

17. Conviction quashed.