M.M. Punchhi, J.
1. This judgment will dispose of Criminal Appeals Nos. 788 and 815 of 1979.
2. Three women were put up for trial to face charges Under Sections 315, 315/109 and 318, Indian Penal Code. According to the allegations of the prosecution, Dalwinder Kaur, an unwed girl and the daughter of Joginder Kaur, had taken steps with the aid of Leela Wati. a nurse, in order to prevent the child of the unwed mother to be born alive, or had caused it to die after its birth, and that such act of the accused-appellants was not caused in good faith for the purpose of saving the life of the mother. After the death of the child, it was stated that its birth was sought to be concealed by secret disposal of its dead body when it was found in the possession of Joginder Kaur accused-appellant at Bus Stand, Amritsar, duly concealed in a cloth wrapped around with reeds. Two men namely Ajit Singh (P.W. 3). a station wagon driver, and his brother Pritam Singh (P W. 4) a taxi driver, spotted Joginder Kaur on 30-4-1978 at 6 P. M. in that condition and on questioning by them, she stated that the dead child was born to her unwed daughter Dalwinder Kaur. It was further stated by her that her daughter had been brought to Leela Wati a nurse at Amritsar and the girl was in the house of Leela Wati. Ajit Singh is stated to have come across A. S. I. Amariit Singh, S. H. O. 'D' Division. Amritsar. at the Bus Adda itself when he gave statement, Exhibit P, D. On the basis thereof, formal first information report came to be recorded at the police station. Since Joginder Kaur accused-appellant was present there, the recovery of the dead body of the child was effected vide recovery memo, Exhibit P, E.. attested by the P. Ws. Sub-Inspector Gian Singh (P.W. 6) was also present at that time. Later he went to the house of Leela Wati accused and found her present in the company of Dalwinder Kaur accused, the unwed mother.
3. After completion of the investigation, the accused-appellants were sent up for trial. The prosecution in order to connect the appellants with the crime examined Dr. Shakuntla Devi (P.W. 1) Registrar of the Government Women Hospital, Amritsar. who opined on the examination of Dalwinder Kaur that she had delivered a child within 24 hours of 1-5-1978. The doctor was definite that Dalwinder Kaur had given birth to a child, whether it was natural or induced, she could not be sure. Dr. Dil-bagh Singh Waraich (P.W. 2) was produced to disclose the cause of death of the infant. According to him, the infant was born alive. There was about 5 cc. milk present in his stomach and had died due to general debility. He found no sign of violence on the dead child. He could not rule out the possibility that the child must have been born bv a natural delivery. He could not distinguish between a premature child or a child having poor nutritional health status, due perhaps to the state of the pregnant mother. Besides these medical experts, there came the evidence of Ajit Singh (P.W. 3) and Pritam Singh (P.W. 4). Ajit Singh resiled from his statement, Exhibit P. D., the basis of the first information report with which he was duly confronted. Pritam Singh of course supported the case of the prosecution and identified in Court the lady carrying the dead child to be Joginder Kaur, present in Court. Rest of the evidence pertained to investigation of the case.
4. When confronted with the prosecution evidence, the appellants denied involvement therein. Dalwinder Kaur put up the plea that she had given birth to a premature male child on 30th April, 1978, but in a hospital and that he had died. She admitted that the child was born alive. She defied that her mother had to conceal the birth of the child. Surprisingly, Dalwinder Kaur at the time of her statement Under Section 313, Criminal Procedure Code, was not described either as the daughter or wife of someone. No question was put to her if she was unwed. Leela Wati appellant, the nurse denied totally the prosecution allegations. Joginder Kaur, the mother, was put a question that her daughter Dalwinder Kaur was unmarried on 30th April, 1978, but she denied that it was so and countered that her daughter was married at that time. She denied the other allegations of the prosecution. The appellants led supportive defence evidence. Amrik Singh (D. W. 1) was produced who owned that Dalwinder Kaur was his wife and he denied the suggestion that she was married to him after 30th April, 1978.
5. The learned trial Judge believing the prosecution case, rejecting the defence version, convicted Joginder Kaur Under Section 318, Indian Penal Code, and sentenced her to two years' rigorous imprisonment and Dalwinder Kaur Under Section 315/109, Indian penal Code, to three years' rigorous imprisonment and to pay a fine of Rs. 1,000/- in default six months' rigorous imprisonment. A similar sentence was imposed on Leela Wati Under Section 315, Indian penal Code.
6. In order to sustain the conviction of Leela Wati and Dalwinder Kaur appellants, one has to read discreetly the language of Section 315. Indian Penal Code, which is to the following effect :
315. Act done with intent to prevent child being born alive or to cause it to die after birth, Whoever before the birth of any child does any act the intention of thereby preventing,t child from being born alive or it to die after its birth, and does fey such act prevent that child from .benign born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
7. It is necessary that to attract the employment of the said section, the act or omission of the accused must be such that there should be prevention for the child to: be born alive or it must be caused to die after its birth. It is plain that the act or omission of the accused must be timed during the while when the child is in the womb of the mother, But if a child is allowed to b- born alive without any such act or omission and killed thereafter, then it is homicide of an alive human-being. Section 302, Indian Penal Code, would then be attracted. Now it is to be seen in the instant case Whether by any act or omission of the aforesaid two appellants, the child was prevented to be born alive. That is not the case of the prosecution. Then whether the act or omission of the accused was done so that the child was caused to die after its birth. There is no evidence pointing towards that suggestion. Neither the child had any mark of injury nor had its mother. It had been born alive. It even sucked some milk and had died on account of natural debility. However suspicious the death of the child might have been on account of neglect suggestedly comjng from the supposed unwed mother and the mid-wife attending on her, but tons of suspicion is meaningless unless the prosecution can put forth an ounce of proof. There is none whatsoever in this case and I have no hesitation to hold that the charge Under Section 315, Indian Penal Code, against Dalwinder Kaur and Leela Wati appellants is utterly groundless, There is plenty to be said that Dalwinder Kaur was not an Unwed mother at the time of the alleged crime. The documents prepared, while effecting her release on bail indicating that she was named therein as the daughter of someone and not the wife, are being cashed upon merely because nobody realised the cynical employment of these terms to the detriment of the interest of the appellants. These can be of no avail to the prosecution.
8. As far as Joginder Kaur appellant is concerned, the only allegation against her is that she was found with the dead body of the child at Bus Stand, Amritsar. That on the face of it is ridiculous and unbelievable. On 30th April, lp78 at 6 P. M., sufficient day-light was expected. If she had to conceal the birth of the child and had secretly to dispose of the dead body, it was not expected of her to go in a busy locality like the Bus Stand and attract attention. Amritsar town in the outskirts had plenty of places for the child to be disposed of during night. The first informant having resiled from his statement and his brother Pritam Singh (P W. 4) being a taxi-driver and a chance witness can inspire no confidence to the manner of the recovery of the child. And what comment the aforesaid two witnesses have attracted can equally apply to the Investigating Officers.
9. For the foregoing reasons, these appeals deserve acceptance. Resultantly, they are allowed and the appellants are acquitted of the charges. Fine, if paid, be refunded.