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1. Miss Lulano Lotha, a Naga tribal girl, appeals from jail against her conviction for infanticide, concealment of birth and secret disposal of dead body, under Sections 302 and 318, I.P.C. and concurrent sentences of life imprisonment and two years S. I., respectively.

2. The following facts transpire from evidence on record: On 9-9-1974 P. W. 5, D. S. Rawat, Officer-in-Charge North P. S., Kohima, received a telephonic information to the effect that there was a suspicious human placenta lying in the nallah located below Greenland Hotel and above the New Market, Kohima. He made G. D. entry No. 49 dated 9-9-1974 (not produced) and accompanied by ASI, R. Chaberliang, T. S. C. Japhohol Angami and Constable Sanicho Chahesang (None examined) went to the spot and discovered some material suspected to be human placenta, collected it from a nallah behind the house of Mrs. Videtsenuo Angami (P. W.) in a coloured plastic bag, and sent the same to the Medical Officer, Civil Hospital, Kohima with a requisition slip (Ext. P. 2). He continued to search the nearby area to recover the dead body of the child, if any or the mother and ultimately traced Miss Lulano Lotha (the appellant) on 11-9-1974 at Kohima town near one Khasi Hotel. On being questioned, the girl, according to P. W. 5, confessed that she gave birth to a child, killed it squeezing its neck and wrapped it with her half shirt and concealed it behind a bush, whereto she led the witness, who recovered the dead body in presence of Hazeto Angami (P. W. 1) and others. At 5 P. M. on 11-9-1974 he (P. W. 5) held inquest over the dead body, photographed it and sent the accused-appellant to hospital for medical examination with a requisition slip (Ext. P. 2). He also challaned the dead body for post-mortem examination with a letter (Ext. P. 5) soliciting report on specified points.

20. The mental condition of the mother at birth of a child may not enable her to know for certain whether the child is born alive. Glanville Williams in Text book of Criminal Law (London, 1978) discussed the English law of infanticide as distinguished from murder, as follows:

At common law, infanticide by the mother was murder, but there were generally circumstances of mitigation which prompted a widespread desire for change in the law.

The present law rests on the Infantis cide Act, 1938:

Where a woman by any wilful act or omission causes the death of her child under the age of 12 months, but the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then...she shall be guilty of ...infanticide. Discussing about the puerperal mental disturbance he writes:

Puerperal psychosis' appears in the books, but at the first sign of depression the baby is removed from its mother, so that women now rarely kill their babies from this cause. In Sanctity of Life and the Criminal Law Williams criticised the Infanticide Act as follows: It may be said to be an illogical compromise between the law of murder and human feeling. It recognises inadequacy of the present law of insanity for the case of infanticide, and has the advantage of sparing the woman the agony of a murder trial where there are strong circumstances of mitigation. Yet it allows the conviction of a woman who may in fact have been afflicted by puerperal mania, a real temporary insanity, If the woman was insane, the verdict should be one of insanity and conviction should be out of the question.

21. Thus there is no doubt that immediately on delivery of a child the mother suffers from a mental depression verging on temporary insanity and she may not be in a position to observe the condition of the child minutely at birth. Considering from this angle, unless it is otherwise proved beyond reasonable doubt that the child was born alive, it is unsafe to convict the accused-appellant of murder. The standard of proof should be commensurate with the gravity of the crime.

22. In India infanticide is included in murder. It is therefore, incumbent on Courts to apply the law cautiously in cases of infanticide in the interest of justice. In the instant case in the face of the Doctor's vacillating opinion about stage of rigor mortis in the body, the state of the lungs, and whether it was born alive, there being no other reliable evidence, the accused-appellant must be given the benefit of doubt and acquitted of the charge of murder.