H. N. G. FERNANDO, J.—Weerai v. Samarakoon
I960Present: H. N. G. Fernando, J.WEERAI, Appellant, and D. A. SAMARAKOON, Respondent
S. C. 593—M. G. Kandy, 8,637
Penal Code—Section 309—Concealment of birth by secret disposal of dead body—Ingredients of offence.
In a prosecution for the secret disposal of the dead body of a child and thus'intentionally concealing the birth of the child, section 309 of the Penal Coderequires proof of three matters : firstly that there has boon a dead body of achild, secondly that the person charged secretly buried or otherwise disposedof the dead body, and thirdly that there was an intention to conceal thebirth of the child.
/APPEAL from a judgment of the Magistrate’s Court, Kandy.
George Canda'p'pah, for the accused-appellant.
P. Nagendran, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
February 11, 1960. H. N. G. Fernando, J.—
The appellant has been convicted on a charge of secretly disposing ofthe dead body of a new bom child and thus intentionally concealing thebirth of the chi’d. The midwife of Rockwood Estate, Hewaheta, testifiedthat she examined the appellant on 16th March 195S and found her tobe about six months advanced in pregnancy. The midwife again ex-amined the appellant on 20th June 1958 and formed the opinion that theappellant had recently given birth to a. child. This evidence wasconfirmed by the Judicial Medical Officer, Kandy, who examined theappellant on 22nd June. According to him the condition of the appellantwas such that she must have given birth to a full term child a few daysprior to his examination. There was ample circumstantial evidence toestablish the correctness of the doctor’s opinion that the appellant had.given birth on or about 20th June 1958 to a full term child.
Section 309 of the Penal Code requires proof of three matters : firstlythat there has been a dead body of a child, secondly that the personcharged secretly buried or otherwise disposed of the dead body, andthirdly that there was an intention to conceal the birth of the child.In the present case there was ample evidence to justify the inferencethat the appellant gave birth to a live infant. But no single witness couldtestify to the fact that the infant had died or to any circumstance fromwhich it could have been inferred that the child had died. Furthermorethere was no evidence whatever to indicate that the dead body of theinfant had been buried or otherwise disposed of. The first two elementsI have mentioned were therefore not established and there could be nocall even to consider whether the third element was established. I cannot
Grundwardena v. Roscdin
agree with the learned Magistrate that the fact that the infant could notbe found either dead or alive constitutes proof that the appellant dis-posed of its dead body. While an inference of guilt can of course beinferred from the circumstances, many other inferences arise none ofwhich can with certainty be excluded : assuming that the child was“ unwanted ” for the reason that its mother was unmarried, the childmay still be alive in some place the identity of which the mother and herrelatives are unwilling to disclose ; again the appellant may have aban-doned the child while alive and thus may be guilty of an act punishableunder section 308, but not under section 309 : yet again it may havebeen not the appellant herself, but some relative, anxious to protect herreputation, who disposed of the child alive or dead. At the best the evid-ence in this case was only sufficient to create a suspicion that the appellantor some other person may have committed an offence under section 309or else under section 308 or else some more serious offence. But sucha suspicion alone does not justify the conviction.
'X accordingly allow the appeal and set aside the convictionand sentence.
WEERAI, Appellant, and D, A, SAMARAKOON, Respondent