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1980 Supreme(Gau) 34
GAUHATI HIGH COURT
D. PATHAK, Actg. C. J. AND K. N. SAIKIA, J.
MISS LULANO LOTHA ACCUSED
VERSUS
THE STATE OF NAGALAND
Criminal Appeal No. 95(J) of 1979,
Decided on : 9 -9 -1980.
In cases of infanticide, the prosecution must prove beyond reasonable doubt that the child was born alive and that the mother intentionally caused its death. The court must also be satisfied that the mother's confession was voluntary and that her plea of guilty was not the result of plea bargaining.
Headnote:
INFANTICIDE - SECTIONS 302 AND 318, I.P.C. - CONFESSION - VOLUNTARINESS - MEDICAL EVIDENCE - INFANTICIDE ACT, 1938 (ENGLAND) - MENTAL CONDITION OF MOTHER AT BIRTH OF CHILD - STANDARD OF PROOF - PLEA BARGAINING - REJECTION.
Fact of the Case:
The appellant, a Naga tribal girl, was convicted of infanticide, concealment of birth, and secret disposal of dead body under Sections 302 and 318, I.P.C. The prosecution's case was based on the appellant's alleged confession to the police and medical evidence suggesting that the child was born alive and strangled to death. The appellant denied the charges and claimed that the child was stillborn.
Finding of the Court:
The court found that the appellant's confession was not voluntary and could not be relied upon. The court also found that the medical evidence was not conclusive and did not prove beyond reasonable doubt that the child was born alive. The court further held that the appellant's plea of guilty was the result of plea bargaining and could not be accepted.
Issues: 1. Whether the appellant's confession was voluntary. 2. Whether the medical evidence proved beyond reasonable doubt that the child was born alive. 3. Whether the appellant's plea of guilty was valid.
Ratio Decidendi: 1. The court held that the appellant's confession was not voluntary because it was made in the absence of an interpreter, the appellant was not given adequate time for reflection, and she was in police custody at the time. 2. The court held that the medical evidence was not conclusive and did not prove beyond reasonable doubt that the child was born alive. The court noted that the doctor's opinion was vacillating and that there was no other reliable evidence to support the prosecution's case. 3. The court held that the appellant's plea of guilty was not valid because it was the result of plea bargaining, which is not encouraged by the court.
Final Decision: The court acquitted the appellant of all charges.
Saikia, J. :- 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 Rallab behind the house of M/s. 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.
3. Afterwards, he examined some other witnesses, arrested the accused-appellant and submitted a report (Ext. P.7) with F.I.R. No. 13 of 12-9-1974 (Ext. P-6) at 11.15 A.M.
4. Dr. Meren Jamir (P.W. 2), Assistant Surgeon, examined the accused-appellant physically including her private part on 11-9-1974 and found that she had recently given birth (within 2/3 days) to a child. The witness states, : "It appeared to be a natural delivery. She did not complain pain. There was no sign of injury or struggle on her body. Post delivery fluid, I could find". It may be noted that he examined the accused-appellant or police requisition (Ex. P.2) on the body of which he gave his notes. That requisition reads as follows :-
To,
The Medical Superintendent,
Civil Hospital, Kohima,
Sub : Medical Examination report,
Sir, I have the honour to send herewith the female noted below for favour of medical examination and furnishing the result thereof as quickly as possible to prove the case of infanticide. She may also be given necessary treatment. In addition the following points may also be explained :
Miss Lulano Lotha,
D/O. Lechamo,
Vill. Tsungiki,
P. S. Wokha.
District - Wokha.
Yours faithfully,
Sd/- D. S. Rawat.
11-9-1974
Officer-in-Charge,
Kohima North Police Station,
NAGALAND.
1). Whether there are signs of recent Delivery in her - Yes.
2). The blood found on the cloth or genital region should be examined and blood group may be determined :- Collected.
3). Whether she delivered mattered child, Depends upon the weight of the baby.
4). Are where any signs of forced labour to cause the delivery - Yes.
5). What may be the actual gaps between time of examinations and delivery - 3 (three) days (approx).
6). Are there general physical changes and local signs - Yes.
7). Whether the period of puer (illegible) (torn) can be determined and if so it may be noted - Third day (approx).
8). Whether any signs of poison or dangerous drug used for causing delivery or killing the child are present in the person of the female. - Not detectable clinically.
9). What may be the age of female - About 18 years.
10). What maybe the possible age of child which might have emp (i
