- (1.) THIS is an appeal against the judgment, dated the 30th June 1949, of the Sessions Judge, Baran, sentencing the appellant Mst. Motia to 3 years' R. I. under Section 304, and 3 years under Section 317 of the Penal Code; both the sentences to run concurrently. Mst. Motia is the widow of one Bhanwarta Carpenter and was living with her mother in the village of Khajurna, situated within the jurisdiction of the Police Station at Anta. She was. challaned under Section 302 and 318 of the Penal Code, and was committed to sessions, charged under the same offences by the Magistrate 1st Class, Mangrol. The learned Sessions Judge, Baran, convicted her under Secs. 304 and 317 of the Penal Code, holding that the offence under Sec. 318 is not proved against her.
(2.) THE case, against the appellant, as disclosed by the prosecution witnesses and as found by the lower courts, is that Mst. Motia was pregnant with an illegitimate child and this fact was known to several persons in the village and specially to some of the prosecution witnesses. On the 12th February 1949, suddenly the protuberance of her belly disappeared and she was seen by Mst. Ganpati, P. W. 5, and Mst. Mangi, P. W. 4, drying her blood-stained clothes in the sun, which were just washed by her. On an enquiry, Mst. 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 women and hence a, direct question was put that she was pregnant,how is it that the pregnancy has disappeared? Mst. Motia denied the fact that she was ever pregnant. On this both the women got suspicious and Mst. Mangi, P. W. 4, informed her brother Ghasilal P. W. 3, who was the Chowkidar in the village, that Mst. Motia has caused herself to miscarry. Ghasilal, on the same day, reported the matter to the Sub-Inspector, incharge of the Police Station Anta. THE Sub-Inspector, treating the case as one of miscarriage and hence noncognizable, did not start any investigation but filed the report. A few days later, on 16th February 1948, the dead body of a child was recovered from the Khari (a pool of standing water-), situated at a furlong and a half from the village. This dead body was shown to Mst. Motia and both Mst. Motia and the dead body of the child were taken to the Police Station Anta by Ghasilal Chowkidar, along with a Rukka, Ex. P. I, from Mathuralal Patel, P. W. 1. THE dead body was sent to Dr. Chhoteylal P. W. 9, who conducted the post mortem examination and gave his report to the Police with the opinion that the child was born alive and its death took place by suffocation. Owing to such a report of the Doctor, Mst. Motia was challaned under Sec. 302 and 318 of the Penal Code. The statement of Mst. Motia is very significant in this case. She admits that she was pregnant with an illegitimate child. She had illicit connection with one Shyam Lal of the same village, and this pregnancy was caused by him. One day before the delivery, Shyam Lal gave some medicine to her, half of which was taken in the morning and half in the evening. Early in the next morning of 12th February 1948, before dawn, she felt throes of child birth. She went to the Khari which is situated in the Jungle, along with Shyam Lal, her lover. At the Khari, she gave birth to a child who was born alive. Shyam Lal asked her to murder the child, but she refused. Afterwards she became unconscious on account of acute pain of delivery. Shyam Lal killed the child. How be killed it she does not know, as she became unconscious Shyam Lal buried the dead body of the child in the Khari. After that Shyam Lal asked her not to disclose the matter to any body, otherwise he will beat her and both of them will be punished for the offence and hence she refrained from disclosing the real facts to any body. These are the bare facts of the case put before the Court by the prosecution. Eight witnesses were examined by the Crown to prove their case against the appellant. In order to see whether the conviction of the appellant, as recorded by the learned Sessions Judge, is justified on the facts, 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 witnesses are Mathuralal Patel P, W. 1, Dewa P. W. 2. Ghasilal P. W. 3, Mst. Mangi P. W. 4, Mst. Ganpati P. W. 5 Narendar Singh Sub-Inspector P. W. 6, Dr. Chandrawati P. W, 7, and Dr. Chhotey Lal P. W. 8. Mathuralal Patel, deposes that Mst. Motia was pregnant with an illegitimate child. One day Mst. Mangi, P. W. 4, told him that Mst. Motia has caused herself to be miscarried. 3 or 4 days afterwards, Dewa P. W. 2, came to him and told him that a dead body of a child was lying in the Khari. The dead body was brought to the village and shown to Mst. Mot a. 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 connection with the woman. Dewa, P. W. 2, testifies to the fact that the appellant was pregnant with an illegitimate child and one day he saw a dead body of a child lying in the Khar'. The dead body was brought to the village by Mathuralal Patel and himself. Beyond this Dewa does not say any thing. The testimony of Ghasilal Chowkidar is only to the effect that on the information given by his sister Mst. Mangi, P. W. 4, he reported the case of miscarriage at the Poice Station Anta, and the Sub-Inspector Police Anta, declaring the case to be a non-cogniza ble one, did not take any action on the report. A few days afterwards Mathuralal Patel called him and asked him to take the dead body of a child and Mst. Motia to the Police Station Anta which he did. At the time when he was about to start for the Police Station, Mst. Motia told him that the pregnancy was caused to her by Shyamlal. Shyamlal is the father of the child, whose dead body she 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. Mst. Mangi and Mst. Ganpati in their statements do not take the matter any further, but simply depose that the appellant was pregnant and that she did not disclose to them the fact of a child having been born to her. Dr. Chhotey-lal is a very important witness. The Doctor deposes that in his opinion the child was born alive and after its birth it seems to have sucked some milk, as semi-digested milk was discovered in its stomach, and the child was suffocated to death after 2 or 3 hours of its birth. This is all the evidence of the prosecution. Keeping in view the case, as put forth before the court by the Crown, and keeping in view the depositions of the prosecution witnesses, the conviction of the appellant under Sec. 317 of the Penal Code becomes fundamentally wrong. The prosecution never alleged facts which disclose a case under Sec, 317 of the Penal Code, and the witnesses tendered by the prosecution never made any attempt to prove an offence under Sec. 317 I. P. C. against the appellant. Sec. 317 runs as follows: - "whoever 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. " In the words of Blair Judge in Queen Empress V. Mirchia, (Indian Law Reports, 19 AM. 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, it could not receive the protection necessary for its tender age, as for instance putting it outside the house, whereby it would be exposed to the risks of climate, wild beasts and the like". The exposure, as contemplated by Sec. 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 Sec. 317 of the Penal Code, it is essential that the child must have been exposed alive. The explanation to Sec. 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 person exposing remains with the child till it is dead, or if the person exposing murders the child and then leaves its dead body somewhere, a case under Sec. 317 I. P. C. is not made out. In the present appeal before me, the allegations of the prosecution are that the child was killed by Mst. Motia and the same case was established by both the lower courts. This was the reason that she was challaned under Sec. 302 of the Penal Code. Whatever may be the case of the prosecution or of the defence, one fact is significantly clear from the file, and 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 and the appellant can not, even by a farthest stretch of imagination, be convicted under Sec. 317 L P. C. ' Before closing my observations with regard to the offence under Sec. 317 of the 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 Ss. 317 and 304 of the Penal Code. It is only before the death of the child that the person exposing the child can be convicted for the offence under Sec. 317 of the Penal Code. If the death of the child occurs on account of the exposure, the accused can be convicted for an offence under Sec. 304 I. P. C, but not for an offence under Sec. 317 I. P. C, because the offence under Ss. 317 I. P. C. becomes merged into a bigger offence under Sec. 304 of the Penal Code. In Empress V. Banni, (Indian Law Reports 2 Alld. 349) the conviction of the accused under Sec. 317 I. P. C. was set aside on similar reasons. The learned Judge delivering the judgment in that case observed on page 350 as follows: - "in disposing of this appeal, it is necessary that I should correct a mistake of procedure into which, according to my judgment, the Sessions Judge has fallen, by making two convictions of the appellant for offences against Ss. 304 and 317 of the Indian Penal Code, and passing sentence for each. As long as the child remained alive the charge under Sec. 317 of "exposure with intent to abandon" could have been properly sustained, and had Musammat Banni been tried before its death for this offence, she could rightly have been convicted, and as provided by the explanation at the end of S. 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 and 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, and the offence committed relating to one and the same transaction. In the present case when the child died the offence of Musammat Banni, under S. 317, became absorbed in the more serious charge of culpable homicide, and the unlawful act of exposure having directly caused the death and being done with knowledge that it was likely to cause death, brought the accused within the operation of S. 304. " Now the question of the conviction of the appellant under Sec. 304 of the Penal Code remains to be discussed. From the case, as put forth by the prosecution, and from the depositions of the prosecution witnesses, this fact is significantly prominent that the prosecution does not know any thing as to what happened at the Khari. There is no eye-witness of the occurrence at the Khari. The prosecution does not even attempt to prove that Shyamlal was not there. It is only the solitary statement of the appellant which 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 court, unless and until it proves its case beyond any reasonable doubt. Where the prosecution alleges perfect ignorance of the actual occurrence, the 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 it, 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 and 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 the 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 and the lover may kill it against the wishes of the woman. It was at the earliest possible opportunity that the appellant mentioned the name of Shyamlal, when she was about to be taken to the Thana. The evidence of Dr. Chhotey-lal discloses that the child sucked milk before its death. I have no difficulty in holding that this milk must be the milk of the mother of the child. Who made the child to such 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 is made to suck by some body 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. Mst. Motia says that she became unconscious. Women often become unconscious or semi-conscious after the delivery of the child, or at least they become so weak and 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 Mst. Motia is entitled to get the benefit of the doubt. The learned Govt. Advocate has contended before us that the statement of the woman should not be believed, because she has not examined any witness in older to prove the correctness of her statement. There is no question of believing or disbelieving the statement of the woman, the question is of giving the benefit of doubt to the accused. 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 probably 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 some 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 can not 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 and 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. For all these reasons, I think that the appeal of Mst. Motia must be accepted. Her conviction under Section 317 & 304 I. P. C. cannot be sustained. I accept the appeal of Mst. Motia and acquit her. . ;