1. This is an appeal against the judgment, dated 30-6-1949, of the Ses. J. Baran sentencing the appellant Mt. Motia to 3 years' R. I. under Section 304 and 3 years under Section 317, Penal Code, both the sentences to run concurrently. Mt Motia is the widow of one Bhanwaria Carpenter & was living with her mother in the village of Khajurna situated within the jurisdiction of the Police Station at Anta. She was challaned under Sections 302 & 318, Penal Code, & was committed to Sessions, charged under the same offences by the Mag. I class, Mangrol. The learned Ses. J Baran, convicted her under Sections 304 & 317, Penal Code, holding that the offence under Section 318, is not proved against her.
2. The case against the applts. as disclosed by the prosecution witnesses & as found by the lower Cts. is that Mt. Motia was pregnant with an illegitimate child & this fact was known to several persons in the village & specially to some of the prosecution witnesses. On 12-2-1949, suddenly the protuberance of her belly disappeared & she was seen by Mt. Ganpati, P. W. 5 & Mt. Mangi, P. W. 4, drying her blood stained clothes in the sum which were just washed by her. On an enquiry, Mt. Motia told them that the presence of the blood on her clothes was due to menses which she had very recently. This answer did not satisfy the woman & hence a direct question was put that she was pregnant, how is it that the pregnancy has disappeared? Mt. Motia denied the fact that she was ever pregnant. On this both the women got suspicious & Mt. Mangi, P. W. 4, informed her brother Ghasial, P. W. 3, who was the chaukidar in the village, that Mt. Motia has caused herself to miscarry. Ghasilal, on the same day, reported the matter to the Sub-Inspector, in charge of the Police station Anta. The Sub Inspector, treating the case as one of miscarriage & hence non. cognizable, did not start any investigation but filed the report. A few days later, on 16-2-1948, the dead body of a child was recovered from the khari (a pool of standing water), situated at a furlong & a half from the village. This dead body was shown to Mt. Motia & both Mt. Motia & the dead body of the child were taken to the police station Anta by Ghasilal Chowkidar along with a Rukka, Ex. P 1, from Mathuralal Patel, P. W. 1. The dead body was sent to Dr. Chhoteylal, P. W. 8, who conducted the post mortem examination & gave his report to the police with the opinion that the child was born alive & its death took place by suffocation. Owing to such a report of the Doctor, Mt. Motia was challaned under Sections 302 & 318, Penal Code.
3. The statement of Mt. Motia is very significant in this case. She admits that she was pregnant with an illegitimate child. She had illicit connection with one Shyamlal of the same village, & this pregnancy was caused by him. One day before the delivery Shyamlal gave some medicine to her, half of which was taken in the morning & half in the evening. Early in the next morning of 12-2-1948, before dawn, she felt throes of child birth. She went to Khari which is situated in the jungle, along with Shyamlal, her lover. At the khari, she gave birth to a child who was born alive. Shyamlal asked her to murder the child but she refused. Afterwards she became unconscious on account of acute pain of delivery. Shyamlal killed the child. How he killed it she does not know as she became unconscious. Shyamlal buried the dead body of the child in khari After that Shyamlal asked her not to disclose the matter to anybody, otherwise be will beat her & both of them will be punished for the offence & hence she refrained from disclosing the real fact to anybody.
4. These are the bare facts of the case put before the Ct by the prosecution. Eight witnesses were examined by the Crown to prove their case against the applt. In order to see whether the conviction of the applts. as recorded by the learned Ses. J. is justified on the fact, as disclosed by the prosecution or not, it seems necessary that a brief description of the statements of the prosecution witnesses should be given in this judgment. The eight prosecution witneeses are Mathuralal Patel P. W. 1, Dewa P. W. 2, Ghasilal P. W. 3, Mt. Mangi P. W. 4, Mt. Ganpati, P. W. 6, Narendar Singh, Sub. Inspector P. W. 6, Dr. Ohandrawati P. W. 7 & Dr. Chhoteylal P. W. 8.
5. Mathuralal Patel deposed that Mt. Motia was pregnant with an illegitimate child. One day Mt. Mangi, P. W. 4, told him that Mt. Motia has caused herself to be miscarried. Three or 4 days after. wards, Dewa, P. W. 2 came to him & told him that a dead body of a child is lying in the khari. The dead body was brought to the village & shown to Mt. Motia. The child was of full term. Mt. Motia admitted that the child was born to her. She requested that the dead body of the child along with herself should be taken to the house of Shyamlal who was the father of the illegitimate child born to her. This was done. Shyamlal denied his ever having any connection with the woman. Dewa, P. W. 2 testifies to the fact that the applt. was pregnant with an illegitimate child & one day he saw the dead body of the child lying in the khari. The dead body was brought to the village by Mathuralal Patel & himself. Beyond this Dewa does not say anything. The testimony of Ghasilal chowkidar is only to the effect that on the information given by his sister Mt. Mangi, P. W. 4, he reported the case of miscarriage at the police station Anta, & the Sub-Inspector Police Anta, declaring the case to be a non cognizable one, did not take away (sic) any action on the report. A few days afterwards, Mathuralal Petel called him & asked him to take the dead body of a child & Mt. Motia to the Police Station, Anta which he did. At the time when he was about to start for the Police Station, Mt. Motia told him that the pregnancy was caused to her by Shyamlal. Shyamlal is the father of the child, whose dead body he was carrying to the Police Station. She prayed that the dead body along with herself should be taken to Shyamlal's house, which was done. Shyamlal did not admit the fact. Mt Mangi & Mt Ganpati in their statements do not take the matter any further, but simply depose that the applt. was pregnant & that she did not disclose to them the fact of a child having been born to her. Dr. Chhoteylal is a very important witness. The Doctor deposes that in his opinion the child was born alive & after its birth it seems to have sucked Borne milk, as semi-digested milk was discovered in its stomach, & the child was suffocated to death after 2 or 3 hours of its birth. This is all the evidence of the prosecution.
6. Keeping in view the case as put forth before the Ct. by the Crown, & keeping in view the depositions of the prosecution witnesses, the conviction of the applt. under Section 317, Penal Cede, becomes fundamentally wrong. The prosecution never alleged facts which disclose a case under Section 317 Penal Code, & the witnesses tendered by the prosecution never made any attempt to prove an offence under Section 317, I. P. C, against the applt. Section 317 runs as follows:
'Who ever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child shall be punished with imprisonment of either description for a, term which may extend to seven years, or with fine, or with both.'
7. In the words of Blair J. in Queen-Empress v. Mirchia, 18 ALL. 364,
'to expose literally means to physically put outside. So that such putting outside involves some physical risk to the person put out. Having reference to a child, it would mean putting it somewhere, where it could not receive the protection necessary for its tender age, as for instance putting it out side the house, whereby it would be exposed to the risks of climate, wild beast & the like.'
The exposure, as contemplated by Section 317, Penal Code, must be one, by which some danger to the life of the child may ensue. In order to make it an offence under Section 317, Penal Code, it is essential that the child must have been exposed alive. The explanation to Section 317, I. P. C., makes it perfectly clear that the section applies only where the child is exposed alive If the child is dead before exposing, or if the parson exposing remains with the child till it is dead, or if the person exposing murders the child & then leaves its body somewhere a case under Section 317, I. P. C. is not made out. In the present appeal before me, the allegations of the prosecution are that the child was milled by Mt. Motia & the same ease was established by both the lower Cts. This was the reason that she was challaned under Section 302, Penal Code, whatever may be the case of the prosecution or the defence, one fact is significantly clear from the file & that is this, that the woman remained on the khari till the child was dead. If the child was killed by her or, as she alleges, if it was killed by Shyamlal, a case of exposure is not made out & the applt. cannot, even by farthest strength of imagination, be convicted under Section 317, I. P. C.
8. Before closing my observations, with regard to the offence under Section 317, Penal Code, I must also make it clear that even in a genuine case of exposure, if a child dies on account of the exposure, the accused cannot be convicted for both the offences under Sections 317 & 804, Penal Code. It is only before the death of the child that the person exposing the child can be convicted for the offence under Section 317, Penal Code. If the death of the child occurs on account of the exposure, the accused can be convicted for an offence under Section 304 I. P. C., but not for an offence under Section 317, I. P. C., because the offence under Section 317, I. P. C. becomes merged into a bigger offence under Section 304, Penal Code. In Empress of India v. Banni, 2 ALL. 349, the conviction of the accused under Section 317, I. P. C. was set aside on Similar reasons. The learned Judge delivering the judgment in that case observed on p. 350 as follows:
'In disposing of this appeal, it is necessary I should correct a mistake of procedure into which, according to my judgment, the Ses. J. has fallen, by making two convictions of the applts. for offences against Sections 304 & 317, I.P.C. & passing sentence for each. As long as the child remained alive the charge under Section 317 of 'exposure with intent to abandon' could have been properly sustained, & had Mt. Banni been tried before its death for this offence, she could rightly have been convicted, & as provided by the expln. at the end of Section 317 such conviction would have been no bar in the event of the child's death to a prosecution for culpable homicide. To give an analogous case. A commits an assault upon B & undergoes his trial for an assault before B's death, which ultimately takes place in consequence of the injuries inflicted by A. A's conviction for the assault is no bar to an indictment for manslaughter, the lesser crime having merged into the greater & the offence committed relating to one & the same transaction. In the present case when the child died the offence of Mt. Bani, under Section 317, became absorbed in the more serious charge of culpable homicide, & the unlawful act of exposure having directly caused the death & being done with knowledge it was likely to cause death, brought the accused within the operation of Section 304.'
9. Now the question of the conviction of the applt. under Section 304, Penal Code, remains to be discussed. From the case, as put forth by prosecution, & from the depositions of the prosecution witnesses, this fact is significantly prominent that the prosecution does not know anything as to what; happened at the khari. There is no eye witness of the occurrence at khari. The prosecution does not even attempt to prove that Sbyamlal was not there. It is only the solitary statement of the applt. that throws any light on the actual occurrence at the khari. Now the question arises whether the statement of the woman should be believed or not. The statement may or may not be believed, the benefit of doubt under the circumstances of this case must go to the woman. The prosecution cannot expect conviction of the accused at the hands of the Ct. unless & until it proves its case beyond any reason able doubt. Where the prosecution alleges perfect ignorance of the actual occurrence, explanation given by the accused cannot be lightly put off. The woman alleges that she did not murder the child. It was murdered by her lover Shyamlal against her will, when she was unconscious. The story related by the woman is not improbable. Man is not less interested in the murder of his illegitimate children. He often contrives in order to conceal his shame from the general public. Perhaps he is the more interested party. Moreover, it is not also improbable that a woman may not consent to kill even her illegitimate child. This often happens & is but natural. Even unmarried girls do not dare to kill their illegitimate children. The motherly love is so intense. It is some outside agency that accomplishes the job. I am not at all prepared to say that conclusive presumption should always be taken in favour of woman but what I mean to say is that it is not improbable that a woman may not consent to the killing of her illegitimate child & the lover may kill it against the wishes of the woman. It was at the earliest possible opportunity that the applt. mentioned the name of Shyamlal, when she was about to be taken to the thana. The evidence of Dr. Chhoteylal discloses that the child sucked milk before its death. I have no difficulty in holding that this milk must be the milk of mother of the child. Who made the child to suck milk from the breast of its mother? The only answer in the present case can be, the mother. The child at the time of its birth, does not generally begin to suck milk of its own accord. It in made to suck by anybody else. A mother, who made her illegitimate child to suck milk from her breast at the time of its birth, is entitled to the benefit of doubt that probably she did not, according to her statement, consent to the murder of the child just after its birth, but the child was murdered by her lover who was present by her side at the time of the birth. Mt Motia says that she became unconscious. Women often become unconscious or semi-unconscious after the delivery of a child or at least they become so weak & emaciated that they are rendered wholly unable to resist the attempts of their vicious lovers by their side, who are bent upon doing any mischief. Even here Mt. Motia is entitled to get the benefit of the doubt.
10. The learned Govt. Advocate has contended before us that the statement of the accused should not be believed, because she has not examined any witness in order to prove the correctness of her statement. There is no question of believing or dis-believing the statement of the woman, the question is of giving the benefit of doubt to the accussed. The benefit of doubt is not to be given only in case where the theory of the defence is accepted to be true, but on the assumption that the story of the defence might be perfectly true. Where the prosecution fails to prove its case, or where the prosecution is not certain as to what happened at the actual scene of occurrence, the accused need not examine any witness in support of his statement. The burden of proving the guilt of the accused, in all criminal cases, is on the prosecution. Even if there may be Borne defect or lacuna in the defence, not directly consistent with the innocence of the accused, the prosecution must prove the guilt of the accused beyond all reasonable doubts. The conviction of the accused cannot be recorded because of the presence of that lacuna in his defence. There is no obligation on the accused to produce any evidence in his defence in the first instance. Unless & until the prosecution has established a prima facie case against the accused, no adverse inference can be drawn against him from the non-production of evidence by him.
11. For all these reasons, I think that the appeal of Mt. Motia mast be accepted. Her conviction under Sections 317, 304, I. P. C., cannot be sustained. I accept the appeal of Mt. Motia & acquit her.
12. I agree.