1984 Supreme(MP) 860

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Seth, J.
Asha – Appellant
Vs.
State of M.P. – Respondent
Cr. A. No. 757 of 1980 (J)
Decided On : 10-08-1984

Headnote:Indian Penal Code, 1860 – S.318 – ingredients to be proved – not only concealing the birth but disposal of the body of child is also to be proved – disposal not proved – offence not made out.

        Short Note

       1. The trial Court vide its judgment dated 27 – 5 – 1980 convicted accused Asha under section 318 of the Indian Penal Code but giving her benefit of the provisions of the Probation of Offenders Act directed her release on probation of good conduct. It is being aggrieved by the said judgment that the accused has filed the present appeal in this Court.

       2. Held: As the appeal deserves to be allowed on a short ground, it is not necessary to go into the facts of the case in detail. It was no doubt established from the evidence produced in the case that the accused – appellant had given birth to a child during the relevant period. But then, even if it be assumed that the dead body of a child that was found in the Khandbar situated on the other side of the road in front of the house of her father was that of the child born to the accused – appellant, there was no evidence available in the case on the basis of which the accused – appellant could be convicted of the offence under section 318 of the Indian Penal Code. In order that a person could be convicted of an offence under the said section, it is not only necessary to establish that he or she had any intention of concealing the birth of a child but also that the said intention found expression in he or she secretly burying or otherwise disposing of the dead body of the said child. In the present case it is true that the circumstances of the accused – appellant were such that she could have had the intention of concealing the. birth of the child born to her. But, then, as pointed out by the trial Court itself, there was no evidence on the record to indicate that she had been seen by anyone with the child going in the direction of the Khandhar. If the prosecution case is to be believed, apart from her quite a few other persons including her parents had known about the birth of the said child. In the said situation, from the mere circumstance that the accused appellant could have had the intention of concealing the birth of the child, it was not safe to jump to the conclusion that it was she who was responsible for disposing of the body of the said child by leaving it in the Khandhar. The ingredients of offence under section 318 of the Indian Penal Code having not been established against her, the accused• appellant could not be convicted of the said offence.

       Appeal allowed.