JUDGMENT: This is an appeal by Vidyamati, aged about 17, against her conviction by the learned Additional Sessions Judge of Jubbal under Section 302, I.P.C., and the sentence of transportation for life imposed upon her.

2. She is the daughter of one An Das of village Bamhnoli, police station Rohru in district Mahasu. She was married to Chain Ram (P. W. 8) of the same village on 6-3-1950 and four days later, on 10-3-1950, she was delivered of an illegitimate female child in her fathers cattle-shed. She buried it in a Khud, or gorge. The prosecution case is that the child was borne alive and the appellant caused its death by severing the head from the body with an axe. The appellant pleaded that the child was born dead.

3. The first question that arise is whether the child was born alive. The prosecution relies in this connection on the testimony of one Mt. Herpati, a mid-wife of Bamhnoli, and of Dr. Jiwan Lal, Medical Officer-in-charge of the Civil Hospital at Jabbal, who held the post-mortem on 20-3-1950 on the dead body of the alleged child. The prosecution also relies upon the appellants confession. The dead body was discovered in the Khud by Shankar Lal (P.W. 2), of Bamhnoli at about 9 A.M. on 17-3-1950. It appeared to have been exhumed by wild animals. The head was lying at a short distance from the body. The lower jaw, left arm, ribs of left side, anterior abdominal wall in catches and all the internal viscera (lungs, heart, spleen, liver, kidneys, stomach, intestines, urinary bladder etc.,), had been eaten up by wild animals.

4. The medical evidence in this case is most unsatisfactory and inconclusive. The first thing unsatisfactory was the manner of recording the doctors evidence in the Sessions Court. The doctor proved the post-mertem report Ex. P. E., and the only material part of it about which he deposed in Court was that in his opinion death had been caused by cutting off the head with a sharp weapon. No question was put to him with regard to other material portions of the report, e.g., portions having a bearing on whether it was a mature delivery. The lawyer conducting the prosecution and the Sessions Judge seem to have been unaware of the elementary rule that it is the doctors statement in Court, and not his post-mortem report, which is substantive evidence, and that the report can only be used by the doctor under Section 159, Evidence Act, for refreshing his memory while under examination, provided he had prepared it at the time of holding the post-mortem or so soon afterwards that the Court considers it likely that the facts noted at the post-mortem were still fresh in his mind. Rohunl Singh v. The Empress, 9 Cal 455; Queen Empress v. Jadub Das, 27 Cal 295; Rangappa Goundan v. Emperor, AIR (23) 1936 Mad 426.

5. The doctor also did not record in the postmortem report, as it was no doubt his duty to do in a suspected case of infanticide, any 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. Presumably, he did not at all direct his attention towards the necessity of doing so. The result was that he broke down completely on both the points when subjected to cross-examination. For the determination of either of the above two questions it was not enough for him to have recorded merely that in his opinion death had been caused by cutting off the head with some sharp weapon. So far as the first point is concerned, he should have tried, if possible, to ascertain whether the child showed any signs of life after being born. In the Court of the committing Magistrate he stated that respiration was the only test for this. As a scientific person he should rather have said that it was the most important, and not the only, test. He improved upon that statement in the Sessions Court for he stated that establishment of normal circulation as well as of respiration were the two tests for determining whether an infant was born alive or dea

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