J.K. Mohanty, C.J.The appellant Miss Ganga Basnet, who was working as an Auxiliary Nurse and mid-wife in a primary health sub-centre was tried for having committed murder of her new born baby, has been convicted u/s 304 IPC Part I and sentenced to 7 years rigorous imprisonment by the Sessions Judge, Sikkim at Gangtok in Criminal Case No. 19 of 1986.

2. The appellant, a spinster was a tenant and occupying a room in the ground floor of one Mrs. Dorjee Doma Bhutiani, PW 2. It is alleged that the appellant locked the doors and remained inside the room and in spite of repeated knocks by PW 2, she did not open the door. In reply the appellant used to say that she was suffering from high fever. After two days, PW 2 became suspicious that something untoward has happened. So he went to the Police Station and lodged information on 26-11-1985 at about 12.00 noon before the Havildar PW 5 who was incharge of Lingtam Out Post. Havildar deputed two constables to go to the spot and take steps in opening the room. The two constables having failed, Havildar himself went at 5 P.M. After repeated knocks and persistent request the appellant finally opened the door round about 2 A.M. (on 27-11-1985). According to PW 5 when he along with others entered the room, they came across a very foul smell. On being asked by PW 5, appellant said that she has delivered a still-born baby which has been kept below the cot where she was sleeping. The dead-body was brought out from below the bed and PW 5 prepared the inquest report. At that time it was noticed that there was some blood stains outside the mouth of the baby. The appellant was in a very bad state of health and she was sent for treatment. The dead body was sent to the Gangtok Hospital on the following day for post-mortem examination. The police conducted the investigation and during the course of investigation post-mortem report was received by the Police with doctors opinion that death was homicidal due to strangulation. After completion of the investigation police submitted charge-sheet. She was tried in the court of Sessions Judge who after considering the evidence found her guilty of having committed offence u/s 304 Part I of the Indian Penal Code and sentenced her to 7 years rigorous imprisonment.

3. The prosecution in order to prove the case had examined 11 witnesses. PW 1 is the Doctor who examined the appellant when she was admitted to the, Primary Health Centre and on examination she found that there were signs and symptoms showing that the appellant had delivered a child recently. Ext-P. 1 is his report. PW 2 is the informant and she has stated that the appellant has been confining herself inside the room which she had taken on rent and in spite of repeated knocks and requests she did not open the door. He suspected some foul play and reported the matter to the Police and Havildar PW 5 came there and the door was opened after several requests and knocks by the Havildar. The body of deadchild was brought out from under the bed. The baby had stains of blood in the mouth. In cross-examination she has stated that she did not hear cries of the baby during the relevant period. PW 3 who is a VLW in the Agriculture Department who was present at the time of opening of the door and she has also stated in the same vein as PW 2. PW 4 is the father of the appellant who said that he had not noticed that his daughter was pregnant at any time. PW 5 is the Head Constable. He stated that PW 2 lodged the information round about 12 noon of 26-11-1985, after which he deputed two constables and as the appellant did not open the door the constables reported the matter to him, thereafter he proceeded to the spot. After a long time appellant at about 2.30 A.M. (on 27-11-1985) opened the door. He led all persons present into the room and as soon as they entered they came across a bad odour in the room. After the repeated questions appellant gave out that "she had actually delivered a baby in the morning but added that the baby was still born and that she kept the dead body below the cot. "The dead body of the baby was brought out and the body of the baby (male) was wrapped in a piece of cloth. He has stated "we did not see any mark of injuries on the dead body but found that the outside portion of the mouth was stained with blood." Thereafter he prepared an inquest report Ext. P-3 in presence of witnesses PW 2, PW 6 and some others. PW 6 is the witness to the inquest, but he was cross-examined by the prosecution as he did not support the prosecution case. PW 7 is another Police Officer. He has sent the dead body of the baby which was lying inside the lock-up of Rongli Out Post by putting the same in a card-board to Gangtok Hospital for the post-mortem examination. In his cross-examination he has stated "it is true that I had not mentioned the presence of bluish mark on the neck of the baby in the requisition slip which was forwarded to the doctor along with the dead body for post-mortem examination." PW 8 is the doctor who conducted the post-mortem of the dead body of the baby and he is the most important witness in this case. He has stated as follows:

I was working as the Medical Officer (at) S. T. N. M. Hospital from October 1982 to April 1986 at Gangtok. On 28th November, 1985 I had conducted the post-mortem examination of newly born child. The dead body of the child has brought from Lingtam by one Constable Tshering Bhutia. During my examination of the dead body I discovered the following injuries:

1. Abrasion on the neck and injury on the left side of the head.

2. Bluish mark on the back of the neck.

3. Haematoma on the occupital region. On di-section of the dead body I found that all the internal organs were healthy except the following:

1. Brain was congested

2. The Larynx and traoeach were congested.

3. Both the lungs were congested.

4. The mouth pharynx and oesophagus were full of blood.

5. Stool was seen on the anus.

6. There were fractures on 2nd, 3rd and 4th cervical vertebrae.

The above symptoms on the dead body indicated that the death was homicidal due to strangulation. This is my report exhibit P-5 which bears my signature marked exhibit P 5/a and is confirmed by the Superintendent whose signature is exhibit P-5/b which I can identify."

In cross-examination he has stated "I had not taken any photographs of the dead body...I had not given the size of lungs... It is also true that I have not given the shape of the lungs in my report. It is true that I have not done any microscopic examination. It is true that I had not done hydrostatic test of the lung as there is no facility in the hospital. It is true that I have not done any test to ascertain whether the baby was born alive or dead but I have already said in the instant case looking at the organs of the body during post-mortem examination the child was born alive... It is true that there were no nail marks on the neck of the baby....It is true that I did not notice the colour of the eyes, eye lids position of the eye balls and the colour of the lips of the dead body.... It is true that there was no blood foams in the mouth nor was there any blood foams in the nose and ears...It is true that I had not taken the weight of lungs. It is true that I had not mentioned the nature of the strangulation, that is how the strangulation is caused." PW 9 and PW 10 are the witnesses who were tendered for cross-examination but were not cross-examined. PW 11 is the Officer-in-Charge, Rhenock Police Station during the relevant period. He completed the investigation and submitted the charge-sheet.

4. Considering all the above evidence, the learned Sessions Judge held that the appellant had given birth to a child who was alive at the time of birth and accepting the evidence of PW 8 and other circumstantial evidence that the death was homicidal due to strangulation.

5. Mr. Khatiwada, learned Counsel for the appellant rightly did not challenge the fact that the appellant gave birth to a child who was found dead by the witnesses as stated above. However, he strongly contended that 1 the child was still-born and there is absolutely no evidence whatsoever to show that the child was born alive and contended that even accepting the entire evidence of PW 8 it cannot be said that the child was born alive and was not still-born or dead-born.

It would be seen whether on the evidence of PW 8 on whose evidence prosecution relies can be accepted and whether the prosecution has been able to prove that the child was born alive and the death was homicidal.

6. In Modis "Medical Jurisprudence and Toxicology", 20th Edition, at page 368, it has been mentioned as to what are the questions doctors have to answer when a body of the child is sent for post-mortem examination. Those are as follows:

i. Was the child still-born or dead-born

ii. Was the child born alive

iii. If born alive, how long did the child survive the birth

iv. What was the cause of death

Doctors will have to find out also whether the child was born alive or not. Following tests are to be done:

1. The shape of the chest.

2. The position of the diaphragm.

3. The changes in the lungs.

4. The changes in the stomach and intestines.

5. The changes in the kidneys and bladder.

In case of strangulation, it is mentioned in Modis "Medical Jurisprudence and Toxicology (20th Edition)" that "during the act of strangulation far greater violence is used than necessary, and severe marks of abrasions and contusions with extravasation of blood in the soft tissues are usually found on the neck"

7. Admittedly in this case, PW 8 has categorically stated" I have not done any test to ascertain whether the baby was born alive or dead." According to him, looking at the organs of the baby during the post-mortem examination, he opined that the child was born alive.

8. In this case as has already been stated a newly born dead baby was found below the cot of the appellant The evidence also shows that the appellant tried to conceal that she has given birth to a child. There is no doubt that there are some circumstantial evidence on which the prosecution wants to rely to show that the baby might have died after being born alive.

It is in the evidence that the appellant was unmarried and evidently she tried to conceal her pregnancy and also the fact that she has delivered a child. As already mentioned the doctors(PW 8) evidence on which the entire prosecution case depends is not convincing as admittedly the doctor has not done any test to find out whether the baby was born alive or not. Even in the inquest report (Ext. P. 3) there is no mention that there were any marks of injury. It has only been mentioned that some blood has been found on the right side of the mouth. This is also the evidence of all the witnesses who entered into the room of the appellant and saw the dead body. While examining a case of a suspected case of infanticide, the doctor should find out data for arriving at the two main conclusions germane to such-cases; that the child was born alive, and that it met with a post natal violent death. In this case the doctor has not directed his attention towards the necessity of doing any of these tests and has candidly admitted that he has not done any test as to whether child was born alive or dead. As has already been indicated in Modis "Medical Jurisprudence and Toxicology" as to what are the duties of the doctor to find out at the time of post mortem in case of infanticide. But these having not been done it cannot be definitely held that in fact the child was born alive and was not still-born. The other evidence in this case only shows that the appellant gave birth to a child which was found dead. The circumstantial evidence, however, strong cannot take the place of legal proof.

9. On a conspectus of the evidence adduced in this case I am of the view that the prosecution has not been able to prove the case beyond reasonable doubt and benefits of this should go to the appellant.

10. In the result, therefore, the appeal is allowed and the conviction and sentences are set aside. The accused be discharged of her bail bond.