MALAYARA SEETHU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant has been convicted of an offence under Section 312, I. P. C., for having caused miscarriage on or about 30-11-1952 to a girl Ammayya and sentenced to rigorous imprisonment of two years and to pay a fine of Rs. 300/- with a direction that in default of payment she should suffer R. I. for a further term of six months. The girl Ammayya, who was accused 2 in the case, was also convicted of the said offence and her mother and brother who were accused 3 and 4 respectively were found guilty of abetment of the said offence. All the four accused were similarly charged with having committed an offence under Section 315, I. P. C., but have been acquitted of the same on the ground that the intention to prevent a child being born alive or of causing the child to die after its birth by thrusting a stick into the womb of A-2 was not made out. There is no appeal against this acquittal or against the convictions of A-2, A-3 and A-4 so that what has to be considered in this appeal is only the correctness of the conviction of the appellant who was the 1st accused in the case for the offence under Section 312, I. P. C.

(2.) The act constituting the offence is alleged to be the insertion of a green stick into the womb of Ammayya the 2nd accused although this had not been expressly mentioned in the charge framed against the appellant. Nor is there any reference to it in the First Information Report, Exhibit P-1, sent by P. W. 3 the Fatel to the Sub-Inspector of Police on 1-12-1952. What is stated therein is : "On 30-11-1952 M. Animaiah's elder brother Uthiah went and brought a nurse called Seeth-amma and took medicine from her hand and has given medicine to the girl." There is no direct evidence concerning the act as no one examined in the case has deposed to having seen a stick with the appellant or its being used by her in the manner alleged. The conviction must, if at all, rest on circumstantial proof and as has been often pointed out, it should be such as to be incompatible with the innocence of the accused.

(3.) The learned Judge has set forth the evidence of the prosecution witnesses in detail and in para 32 of the Judgment stated the facts' established to be that A-2 while unmarried became pregnant, that A-4 on 30-11-1952 engaged the taxi of P. W. 15, took it to Marnad and brought appellant to Madapur, then both went to Boothankad Estate, where A-4 and A-1 had a talk with the manager there and stopped at the Meenkolli river owing to difficulty of crossing the river: that thereafter A-4 went to his house and brought A-2 and A-3, A-1 got down from the taxi, joined A-2 and A-3 who were on the other side of the river and that all these "disappeared from the view of persons that were near the taxi": after about a quarter of an hour A-1 came back to the taxi and A-2 and A-3 returned to their house. The appellant in her statement denied this version but admitted that she was taken by A-4 to his house and came away without doing anything. The learned Judge has disbelieved her statement and we think rightly since there is ample evidence such as that of P. Ws. 8 and 15 the cleaner and driver of the taxi, P. W. 3 the Patel and P. W. 7 about movements of the persons in the taxi. The learned Sessions Judge has also accepted the testimony of P. W. 7 though it is uncorroborated that after A-1 crossed the river he observed A-2 and A-3 accompanying her to a spot on the other side of the river. What happened there is a matter of suspicion or speculation. Even A-3 in her statement only alleges that she saw A-2 lie down cross-wise and nothing more. It is however undisputed that after the return of A-2 and A-3 to the house, A-2 delivered a female baby on the next day and the child died an hour or two later. P. W. 11 a relation of the girl was present at the time of the delivery and she says that the child was born alive and after" the birth, the placenta came out along with a stick of about 6 inches. The placenta and the stick were sent to the Chemical Examiner but as stated in the judgment of the lower Court in paragraph 4 the report of the Chemical Examiner does not disclose anything that would throw any light upon the facts relevant for this case. P. W. 9 the Assistant Surgeon who conducted the post mortem examination of the child stated that it was not possible to say whether the delivery was natural or forced, that there were no external marks of injury on the child, that the child was born alive and that illness of the mother was also one of the causes for the premature delivery of a child. P. W. 10 the Lady Assistant Surgeon who examined the 2nd accused has stated that she was not keeping good health at the time, was bloodless, running temperature and that there was no injuries at the uterus of accused 2. She too is unable to say whether the delivery was natural or forced.