MUSAMMAT MOTIA Vs. GOVERNMENT

JUDGEMENT

(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.