Alzira Ferrao vs State

T.V. Nalawade, J.—The revision is filed against the judgment and order of Criminal Appeal No. 60/2011 which was pending in the Court of Addl. Sessions Judge, South Goa, Panaji. The appeal was filed by the petitioner against the judgment and order of Criminal Case No. 274/S/1999/III, which was pending before the learned J.M.F.C., Margao. In the case filed by the police for the offence u/s 317 of I.P.C., the petitioner is convicted and sentenced by the learned J.M.F.C. and the period of imprisonment is two years. She has also been directed to pay fine of Rs. 10,000/- The Statement was made that the fine amount has been deposited. Both sides are heard.

The crime was registered on the basis of report given by Police Sub-Inspector when he was informed on 31/1/1999 that one new born infant was abandoned by its mother near the Dispensary of Dr. Christopher Dias. Police visited the spot to verify the information. It was learn that somebody had already admitted the child in hospital in Margao. Investigation was made and it revealed that the present petitioner had delivered the said child in Kudchadkar Nursing Home from Navelim. After that the petitioner came to be arrested and charge sheet came to be filed for the aforesaid offence.

Before the J.M.F.C., the Investigating Officer and other witnesses like persons from hospital were examined. DNA test was taken to ascertain that the petitioner is the mother of the baby. DNA report showed that the petitioner is the biological mother of the baby. In view of this circumstance, the conviction was given.

It appears that Counsel through legal aid was given to the petitioner. The judgment delivered by the learned JMFC shows that some witnesses were crossed examined by the learned Counsel appointed through legal aid but he remained absent when the matter was posted for arguments. The Court directed the petitioner to submit written arguments, but she could not do so.

The scope of the present proceeding is limited one. The evidence on record is sufficient to prove that it is the petitioner who had delivered the baby which was found abandoned. However, the evidence also shows that while leaving the hospital the petitioner had expressed to the doctor that she had apprehension that her husband would cause harm to the baby, as the baby was a female child. She had obtained discharge against medical advice on the same date. She hails from labour family.

In view of the aforesaid circumstances, the learned Counsel for the petitioner submitted that a lenient view ought to have been taken by the learned JMFC. He submitted that the petitioner was behind bars in this case for about 15 days and she has already deposited the money towards fine amount. The provisions of section 317 show that the offence is punishable with imprisonment which may extend to 7 years or fine or with both. The record shows that the offence is proved on the basis of the circumstances which are mentioned above, this Court holds that a lenient view needs to be taken. This Court holds that sentencing the petitioner to undergo sentence of 15 days already undergone and with fine of Rs. 10,000/- would be just and sufficient. In the other part of the judgment delivered by the learned JMFC or by the learned Addl. Sessions Judge no fault can be found. Only to take a lenient view, the following order is made.

Order:

The revision is allowed. The judgment and order of the learned J.M.F.C. in Criminal Case No. 274/S/99/III and the judgment and order of Criminal Appeal No. 60/11/delivered by the learned Addl. Sessions Judge, Margao are modified to reduce the sentence of two years imprisonment to the period undergone and fine of Rs. 10,000/- (Rupees Ten thousand only). Bail bonds stands cancelled.