Case No.:

AC-CP.4231960-

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Low—Penal Code, s. 268—Abandonment of children—Must threaten child’s existence

The accused gave her illegitimate child to an unknown woman immediately after its birth. She was acquitted of the charge under Penal Code, S. 268.
Held: to constitute an offence under Penal Code, s. 268. abandonment  must endanger life.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MUNA BAKHIT FADLALLA

 AC-CP.4231960-

M.A. Hassib, Acting C. January10, 1961 :—This case is not easy. The evidence shows that accused gave birth to an illegitimate child, in good health, which disappeared immediately after its birth. Accused claimed, and the court found, that she disposed of the child by giving it to a woman unknown to her.

The evidence available in the record does not show an act causing death of the child, or abandonment of the child coming under Penal Code, s. 268. This section follows the general policy adopted in all countries for ensuring full publicity to births and deaths and is directed against the secret disposal of the offspring of illegitimacy. Various modes are, adopted for their disposal. The Code makes an offence only those which threaten danger to their existence. Such children may be given into adoption or made over to a foundling institution but they must not be killed or abandoned. Abandonment must be distinguished from desertion or neglect; and abandonment must be in any place as distinct from leaving with any person. In India, where a beggar women delivered her illegitimate child. six months old, to a blind woman, promising to return with food, which she never did, the court did not convict her. Therefore, there is no case under Penal Code, s. 268, which punishes only abandonment. which in this case was not proved by evidence.

There remains to consider whether there is a case under Penal Code, s. 269, making accused liable under her confession of delivery of her child to a person unknown to her.

Penal Code, S. 269, is not originally Indian. It is quoted from the English law of cruelty to children. Children and Young Persons Act, 1933 This section reads:

Whoever having the charge or care of a child of under 15 years of age or being ii a position of authority over him wilfully ill-treats or neglects him in such a way as to cause him Unnecessary

suffering shall be punished with imprisonment for a term which may extend to one year or with fine or with both; and, if the ill-treatment or neglect results in serious injury to the health of such child, the offender shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”

Again I am unable to find the provisions of this section applicable to the present case where there is no evidence showing wilful ill-treatment or neglect in a rn causing the infant unnecessary suffering. I therefore confirm the finding of not guilty though I am doing it most reluctantly.