123-NLR-NLR-V-03-QUEEN-v.-VINASITAMBY-et-al.pdf
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1899.
March 20.
QUEEN r. V1NASITAifB Y et at.
D. C., Jaffna, 1,575.
Concealment of birth of child—Evidence of concealment—Penal Code,
Where three women were present at a-confinement, including themidwife and a married daughter of the woman confined, and thestillborn child was handed to two men for burial, and they buriedit according to the custom of the village in a private compoundwithout taking it to a burial ground—
Held, that such burial was not a secret disposal intended t o concealthe birth of the child.
HE indictment charged the three accused in the case with
endeavouring to conceal the birth of a child delivered by oneValliammai, by secretly disposing of the dead body of the saidchild on the 26th November last, and so committing an offenceunder section 309 of the Penal Code.
The District Judge acquitted the third accused, who was themidwife who helped at the delivery, as there was no evidenceagainst her, but found the first and second accused guilty andsentenced them to rigorous imprisonment for six months and one.month respectively.
The District Judge rested the conviction of the first accused(who kept Valliammai as his mistress), on his own admission andthe evidence of the Police Sergeant. The admission referred towas that he was the father of the child, and that after its deaththat the body was handed by some one in the house to the secondaccused, and that he and the second accused buried it in his (thefirst accused's) land. The Police Sergeant deposed that the firstaccused denied that the body was buried in his premises, butafterwards admitted it and pointed out the place of burial, whichwas “ between two tobacco nurseries, and the whole place was“ covered up to prevent detection.” As regards the secondaccused, Ponnachi deposed that she handed the body to the secondaccused, who and the first accused buried it in the compound ofthe first accused, as the compound of Valliammai was flooded
a. 309.
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with water. It was elioited in cross-examination of two of thewitnesses for the prosecution that, if a child Was stillborn or died .soon after its birth, it was not usual to take the body to a burialground, but to bury it in a private compound.
On appeal, Asserappa appeared for accused, appellants; andBamanaihan, 8.-0., for respondent.
29bh March, 1899. Withebs, J.—
It is proved that the dead body of the illegitimate child of thewitness Valliammai was buried by the first and second accusedin the compouud of the first accused, which adjoins that of thewitness Valliammai. The first accused was at the time livingwith his lawful wife in the compound where the child was buried.The witness Valliammai had lost her husband some sixteen monthsbefore, and the first accused used to cohabit with her. The firstaccused admits that he is the father of the child, and that he buriedits body in the compound. Twp questions arise here : Was thisa secret burial ? And did the aocused by this secret burialintentionally conceal or endeavour to conceal the birth of thischild ?
The District Judge has answered both questions affirmativelyagainst the accused. He says, the only conclusion to be drawnfrom the above facts is that the accused intentionally endeavouredto conceal the birth. There are, however, important facts in thecase to which the District Judge has not adverted in his judgment.There were three women present at the birth of the child. Themother’s married daughter Pohnachi, another Valliammai, and thethird accused, who was called in as a midwife.
It is not alleged that either of the accused even denied the birthof the child. Further, it is proved that it is customary to bury astillborn child in the compound of the house in which it was bom.Here it was not buried in its mother’s compound because theground was all under water at the time. It was a wet day when thebody was buried, and first accused says there was no other placeto bury it but his compound. The evidence is that the child wasstillborn, and this is not contradicted by the statement of thedoctor that the child had breathed, for a child may breathe anddie before the child is bom. I mention this as there is nothingto indicate the perpetration or concealment of a crime.
Taking all the circumstances into consideration, it is in myopinion not made out by the prosecution that the accused intendedto conceal the birth of the child.
I therefore set aside the judgment and acquit the acoused.
Vol. m.12(56)29
1899.
March Z9i