Judgment

VAIDIALINGAM, J. :- This appeal by the first accused, on certificate, is against the judgment and order dated the 15th November, 1967, of the Allahabad High Court confirming the conviction and sentence for an offence under Section 368, I. P. C.

2. According to the prosecution, the second, the second accused kidnapped a minor child of Smt. Gomti Devi at about 4.00 A.M., on November 6, 1963. P. W. 1 had given birth to a male child at the Dufferin hospital at Bareilly on the evening of November 5, 1963. The second accused, who was the sister of an aya working in the said hospital, was noticed on the evening of November 5, moving about near the bed where Gomti was lying with her new-born baby. She was noticed by P. W. 12 and on enquiry, she told the latter that she was waiting to see some patient in the clean ward. At about 4.00 A. M. on November 6, 1963, the second accused took away the new-born male child from P.W. 1 on the representation that the staff nurse wanted to do the cord dressing of the child. Believing her representation, P.W. 1 allowed her to take the child. As the child was not returned to the ward even after the lapse of about an hour and a half, P. W. 1 informed the sister on duty about the same. A search was made for the second accused, as well as the child, in the hospital premises. As she was not found, the doctor as well as the Superintendent of the hospital informed. After preliminary enquirities by the Superintendent of the hospital the matter was reported to the Police. The investigation was taken up by R. W. 14 and in consequence of vigorous search made by the Police party, the child was recovered at about 9.00 A.M. from the first floor of the house owned by one Ram Dass, which was occupied as a tenant by the appellant. At the time of seizure of the child, the appellant was lying on the cot with the child beside her and the second accused was sitting in their company in the same room. The child was identified by the mother and other hospital authorities. The identification was easy in view of the fact that the child was in the hospital s dress and it was also having the ticket number given in the hospital.

3. The second accused was prosecuted for an offence under S. 363 and the appellant under Sec. 368. After consideration of the evidence adduced in the case, the learned Sessions Judge has convicted the second accused of the said offence and sentenced her to undergo rigorous imprisonment for five years. The said conviction and sentence have been confirmed by the High Court. We are not concerned with that accused, as she is not before us.

4. So far as the appellant was concerned, she denied that the child had been recovered from her room. She has further pleaded that the second accused was not at all with her in her room. She specifically pleaded that the landlady of the house was inimical to her and had arranged to implicate her by foisting a false case. In order to establish enmity of the landlady towards her, the appellant examined a witness to prove a report that had been lodged by her on September 20, 1963.

5. The learned Sessions Judge rejected the appellant s plea that the case had been foisted on her due to enmity by the landlady. The learned Sessions Judge accepted the prosecution evidence that the child was recovered from the room occupied by the appellant and that, at the time of recovery, the second accused also was in the same room along with the appellant and the child. The learned Sessions Judge has accepted the evidence of the investigating officer to the effect that the appellant had no explanation to offer regarding the presence of the child along with her in the same bed at the time when the police party visited her room. The appellant had been examined by a doctor and it had been found that she had never given birth to a child. The second accused also was examined by the doctor who has given opinion to the effect that the said accused also had not given birth to any child within 15 d