MT. SHEVANTI Vs. EMPEROR

JUDGEMENT

(1.) ONE Sampat Teli (P.W. 7) of Telhara in the Akot taluk is the husband of the appellant Shevanti who was married to him when she was 8 or 9 years old. After attaining the age of puberty she lived with her husband. In Divali of 1926 she was brought to Danapur to stay with her mother and brothers Shiva (D.W. 1) and Pundalik (P.W. 15). One Baliram (P.W. 16), who is her cousin, also lives in Danapur. At a caste panchayat held some time in May 1927 the appellant's brothers, Shiwa and Pundalik, were remonstrated for having kept their sister Shevanti away from her husband for a very long time. Within a few days of this, Sampat came and took her away to Telhara.

(2.) ON 24th August 1927 Shevanti came back from Telhara to Danapur with her husband Sampat. The police patel Sukdeo (P.W. 8) saw them both that evening at the house of Baliram (P.W. 16). She was then lying ill and groaning on a cot. The next day Sukdeo Patel learnt that the dead body of a child had been found in the river Wan of the village. Sukdeo Patel accordingly went to the bank of the river and saw the body entangled among thorns at some distance from the bank. At some distance from the body, a piece of red chhit being a shirt or upper bodice of a Mahomedan woman was also found in the water. After taking out the body and wrapping it in the said cloth he caused id to be kept on the bank and sent a report (Ex. P-12) to the Hiwarkhed station house. The usual inquest was held by the police and the body of the child was sent for post-mortem examination to Akot. Ex P-2 is the inquest report. The post-mortem report (Ex. P-10) made by Pandurang, Assistant Medical Officer (P.W. 9) shows that the child was born alive and that its death was due to drowning.

(3.) THE trial commenced in the Sessions Court on 5th December 1927. To the charge of murder under Section 202, the Sessions Judge, that very day, added an alternative charge of secretly disposing of the dead body of the child by throwing it into the river, Wan, and in the alternative of handing over the child to some one else with the intention that it should be so disposed of, under Section 318 or 318-109, I.P.C., and then proceeded to examine the witnesses for the prosecution. After having examined 16 witnesses for the prosecution on 5th and 6th December 1927, the learned Sessions Judge on 7th December 1927 added a further alternative charge under Section 317 or 317-109, I.P.C., to the effect that the appellant was exposing or allowing to be exposed, her newly-born alive child with the intention of wholly abandoning it. Thereafter the appellant was examined and her defence also recorded and the evidence of two of her witnesses was taken down. The case was then argued and the assessors were required to state their opinions. The assessors are all agreed that the appellant was pregnant and that a child was born to her. Two of them are agreed that she was confined and the child was born to her at Baliram's house, and that it was legitimate; one called it illegitimate, and the remaining fourth assessor doubted whether it was legitimate or illegitimate. One of the assessors says that the child found on the river was of Shevanti, but the rest three others think that there is no proof of the identity of the child found on the bank of the river Wan with that born of Shevanti. The assessors differ as to the child being born alive : one being doubtful, and the other three being positive that it was not born alive. All of them are, however, agreed that as Shevanti was insensible and did not know anything, she was not responsible for what may have happened to her new-born babe. It is noticeable that the learned Sessions Judge did not require the assessors to state their opinion as to whether the appellant, if not guilty of the substantive offence punishable under Section 317, was, at any rate, guilty of the abetment thereof.