King-Emperor vs Antakke on 18 July, 1901

Madras High Court
King-Emperor vs Antakke on 18 July, 1901
Equivalent citations: (1901) ILR 24 Mad 662
Bench: A White, Benson


1. The accused, who is a beggar woman and a widow, deposited her illegitimate child about three months old close by a channel some 200 yards from the house of one Kartha and went away to another village without informing any one of her movements, and evidently without any intention of returning to the child. The child was found by Kartha and was taken care of by him, but it was a sickly child previously and died after a few days. The evidence does not show whether the exposure caused, or contributed to, the death of the child.

2. The Sessions Judge came to the conclusion that the accused intended that the child should be found and cared for by Kartha, as she left it near the spot when his household draw their water from the channel. The Sessions Judge therefore acquitted the accused of the offence with which she was charged under Section 317, Indian Penal Code, observing that that section “must be interpreted on the principle expressed in the English Statute, and that, in order to be criminal, the exposure and abandonment must be under such circumstances as endanger the safety of the child. Here the child was deliberately placed, where it would be, as it was, found and looked after. Hence the offence with which the prisoner is charged was not committed Queen-Empress v. Felani Harniani 16 W.R. (Cr.R.) 12.

3. The Public Prosecutor now on behalf of the Government appeals against the acquittal. The case cited by the learned Sessions Judge is not an authority for the view taken by him and the same observation applies to the case of Queen-Empress v. Mirohie I.L.R. 18 All. 364 referred to by the Public Prosecutor.

4. We have no doubt but that the view taken by the learned Sessions Judge is incorrect. The language of Section 317 of the Indian Penal Code is altogether different from the language of the English Statute 24 and 25 Vict., chapter 100. Section 27. The words of the latter are “whosoever shall unlawfully abandon or expose any child being under the age of two years whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured shall be guilty of a misdemeanour. The words of the Indian Penal Code are whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child shall be punished, &c.” Under the English Statute, it is necessary to prove that the life of the child was endangered, or that its health was permanently injured or was likely to be so injured by the exposure. Under the Indian Law there is no such limitation. The gist of the offence under the Indian law is the exposure or leaving of the child in any place with the intention of wholly abandoning it. Here as in many other places in the Penal Code, the legislature looks mainly to the intention of the accused person rather than to the consequences of the act done, which form an essential element of the offence under the English law. The language used in Section 317, Indian Penal Code, is perfectly clear and unambiguous, and where this is so, it is contrary to correct canons of interpretation to go outside that language and to read into the section words which do not find any place in it and which altogether alter its scope and effect. Had the Legislature desired to re-produce the English law, it would have found no difficulty in doing so in appropriate words.

5. The manner of the exposure or leaving and the consequence likely to ensue from it are not essential ingredients of the offence under the Indian law, though they may often be properly taken into consideration in estimating its gravity and in apportioning the sentence.

6. We must set aside the acquittal and convict the accused Antakke of an offence under Section 317, Indian Penal Code, Looking to the destitute condition of the accused and to the finding that the child was left where it would probably be found and cared for, we think that the ends of justice will be satisfied by a comparatively light sentence.

7. We direct that the prisoner Antakke be punished with six months’ rigorous imprisonment.

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