1. This is an appeal by the Government of Bombay against the acquittal of two women by the Sessions Judge of Ahmedabad. The offences with which they were charged were under Sections 317 and 109 of the Indian Penal Code.
2. The facts, which are undisputed, are that the younger of the two accused persons, a girl of fourteen, became pregnant while still unmarried, and in order to conceal her shame from her parents with the connivance of the elder of the two accused, her sister, she was conveyed to the Civil Hospital of Ahmedabad where she was safely delivered of a child. As soon as she was sufficiently recovered the two sisters agreed that it would be advisable to Dispose of the child secretly. Accordingly, the young mother handed the child to her elder sister who carried it by train to Mahomedabad where she left it in a Second Class compartment. The child was carefully wrapped up and a bottle of milk was left by its side, so that as soon as it was discovered by any one there should be means of feeding it.
3. These being the admitted facts, the learned Sessions Judge came to the conclusion that no offence had been committed by either of the accused persons. The mother, in his opinion, was the only one of the two who had the care of the child and she neither exposed nor left it with the intention of wholly abandoning it. Her elder sister, according to the view taken by the learned Sessions Judge-a view which had formerly been expressed in the Madras High Court-was not a person having the care of the child within the meaning of the section, because she was only entrusted with the child for the express purpose of exposing or leaving it. ' ,
4. A further point has been argued before us, viz., that in any view, neither of the accused had the intention of wholly abandoning the child. That, we think, is unnecessary to discuss. It is perfectly clear that having regard to the true objects of sections of this kind, we should not be too nice in fitting facts literally to the words of the section but look to them as a whole, and so looking at them we should have no : hesitation whatever in saying that the intention of both the sisters was to get rid of the child, as far as they were concerned, that is to say, of wholly abandoning it without at the same time providing for its immediate protection and care by other persons.
5. The first point, however, needs a little more consideration although we have no doubt that the learned Judge was wrong. It is not so easy to demonstrate this by dialectical analysis. We cannot help feeling, however, that in cases of this kind, any person receiving an infant from its mother on the distinct understanding, as in this case, that the mother never desired or wished to have the child back again, must in law be regarded as a person having the care of that child until he or she had transferred it to the care and custody of some other person or institution. The difficulty arises in cases where the care or possession-whatever term be used-intended by the mother, would be in the contemplation of both the persons concerned for an extremely short time. Suppose, for example, the mother desires to abandon her child and on that distinct understanding she requests another to leave it in a lonely field some two minutes distance away, we are still of opinion that during that space of time, the second person carrying the child with no other object than that of exposing and leaving it in the appointed place would have the care of it sufficiently within the meaning and contemplation of Section 317. This can be easily exemplified by retaining all other conditions but extending that of time. Suppose a second case in which the mother makes over her child in India to a person with the intention that that second person should carry the child to South America and there abandon it. The intervening period might be several months and during the whole of that time the person in actual possession of that child would, in our opinion, have the care of that child within the meaning and contemplation of the section and we do not think that in such a case the facts would ever occasion any doubt or hesitation at all. But if we are right, mere extension of time could not afreet the underlying principle, and that principle again would have to be applied in each case with reference to its facts and also with that degree of common sense which Judges of experience are supposed to exercise while administering the criminal law. It is sufficient for our purposes to look first at the real intentions of the persons and see whether they fall within the mischief which the particular section of the Indian Penal Code is designed to strike at. If we needed confirmation of this view, we might look to the English statute, where the case with which we are dealing has been expressly foreseen and provided for. There it is enacted that a person, situated exactly as the accused No. 2 was situated in this case, that is to say, having the de facto possession of the child, has the care of the child for the purpose of the statute.
6. While, therefore, we think that the learned Sessions Judge was wrong in his law, we agree with him in his estimate of the moral guilt of the accused, and the learned Government Pleader has been instructed merely to ask for an expression of the law from this Bench and not to press in any way for sentence. Being of opinion, however, that the acquittal was wrong, the law compels us to convict and, therefore, to inflict some sentence.
7. We reverse the acquittal and convict both the accused under Sections 317 and 109 of the Indian Penal Code and direct that each of them do undergo one day's simple imprisonment.
8. As we understand that the accused are in Bombay the sentence will be sufficiently carried out by detaining them until the rising of the Court this evening.
9. I agree. I think this is a very pitiable case, one in which no possible object can be gained by imposing a substantial sentence. But I think the learned Sessions Judge was wrong in the view he took of the law. It seems to me that when the accused No. 2, the elder sister, took or received this child from its mother and conveyed it to a railway carriage and then went off with it leaving the mother behind, she became immediately responsible for the well being of the child. It does not matter that her ultimate object was to leave the child and return without it. She was nevertheless for the time being the person who had the care of the child as, I think, within the meaning and intention of these words as used in Section 317 of the Indian Penal Code.