MOTIA Vs. GOVT

JUDGEMENT

(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 and as found by the lower Cts. is that Mt. 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 12-2-1949, suddenly the protuberance of her belly disappeared and she was seen by Mt. Ganpati, P. W. 5 and 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 and 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 and 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 and 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.) 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 and Dr. Chhoteylal P. W. 8.