AIR 1951 RAJASTHAN 123

Rajasthan High Court

Hon'ble Judge(s): Datt, Dave , JJ

(A) Penal Code (45 of 1860) , S.317— Applicability. The exposure, as contemplated by S. 317, must be one, by which some danger to the life of the child may ensue. The section applies only where the child is exposed alive. If the child is dead before being exposed, or if the person exposing remains with the child till it is dead, or if the person exposing murders the child and then leaves its body somewhere, a case under S. 317, is not made out.(Para 7) Anno : Penal Code, S. 317, N. 1. (B) Penal Code (45 of 1860) , S.317, S.304— Child dying on account of exposure - Accused cannot be convicted for offences both u/S.317 and u/S.304 (Obiter per Datt, J.) Obiter (Per Datt, J.) :- Even in a genuine case of exposure, if a child dies on account of the exposure, the accused cannot be convicted for both the offences under Ss. 317 and 304. It is only before the death of the child that the person exposing the child can be convicted for the offence under S. 317. If the death of the child occurs on account of the exposure, the accused can be convicted for an offence under S. 304, but not for an offence under S. 317, because the offence under S. 317, becomes merged into a bigger offence under S. 304, Penal Code.(Para 8) ....