MANJU versus STATE OF DELHI on 17 December 2019

1. This criminal appeal is filed by the sole accused, aggrieved byCthe judgment dated 12[th] March 2010 passed in Criminal Appeal No.168of 2010 by the High Court of Delhi at New Delhi, by which the appellantherein was convicted and sentenced to life imprisonment for the offencepunishable under Section 302, IPC.

2. The appellant herein was admitted in the maternity ward of theDLady Hardinge Medical College Hospital and delivered a baby girl around12:30 in the afternoon on 24[th] August 2007. It is the case of the prosecutionthat as the new born was a baby girl, as such the appellant-mother hascaused her death by strangulation after baby was handed over to her at04:30 p.m. on the said date. On 26[th] August 2007 post-mortem wasEconducted on the dead body and the doctor opined that cause of deathwas asphyxia due to ante mortem strangulation. On 31[st] August 2007 acase was registered against the appellant for the offence under Section302 IPC, for causing death of her new born baby. She was tried for thecharge under Section 302 IPC by the court of Additional Sessions Judge,FFast Track Court, New Delhi. In her statement, she has not pleadedguilty and claimed trial, as such, she was tried in Sessions Case No.78 of2009 by the Additional Sessions Judge, New Delhi. To prove the chargeagainst the appellant, prosecution in all, has examined 23 witnesses. Theevidence against the accused was put to her and her statement wasrecorded under Section 313, Cr.P.C. she has pleaded her innocence andGdeposed that she has been falsely implicated by the police in connivancewith the hospital authorities, to shift the blame from doctors on duty.

3. The trial court, by judgment dated 19.12.2009, by recording afinding that prosecution has been able to prove complete chain ofcircumstances and proved its case beyond reasonable doubt, has heldH

the appellant-accused is guilty for the commission of offence underSection 302 IPC and by order dated 22.12.2009 imposed the sentenceof imprisonment for life and to pay a fine of Rs.2000/-.

4. As against the conviction recorded and sentence imposed theappellant carried the matter in appeal to the High Court and the HighCourt by the impugned judgment, confirmed the conviction and sentenceimposed on the appellant.

5. We have heard Ms. Mahalakshmi Pavani, learned senior counselappearing for the appellant and Mr. Anmol Chandan, learned counselappearing for the State of Delhi.

6. It is contended by learned senior counsel appearing for theappellant that there are no eye witnesses to the incident, and the incidentis said to have happened in the ward of the hospital, where the deliverytook place. The conviction is based solely on circumstantial evidenceand the chain of circumstances is not complete. It is submitted that theappellant had no reason to commit the murder of her new born baby girlas she already had a male child and her parents-in-law had died evenbefore she was married. By referring to the oral evidence of PW-8 andPW-9, it is submitted that even according to the deposition of saidwitnesses it is clearly established that the new born was kept in theincubator with an oxygen mask. Further the appellant-mother was sleepyin view of the drugs administered on her and by the time she has seenthe child, the new born was dead. It is submitted that the trial court aswell as the High Court has committed error in convicting the appellant inabsence of proving chain of circumstances, leading to her conviction. Itis also brought to the notice of this Court that though incident occurredon 24[th] August 2007 post-mortem was conducted on the body only on26[th] August and further, crime was registered on 27[th] August 2007. It issubmitted, if the totality of evidence is taken into consideration, the guiltof the accused-appellant is not proved beyond reasonable doubt and thejudgments of the High Court as well as the trial court are based onsurmises and conjectures.

7. On the other hand, it is contended by the learned counselappearing for the State, after the birth of the child the new born waskept in the incubator upto 04:30 p.m. and after 04:30 p.m. baby girl washanded over to the appellant herein. Thereafter she was found dead bynursing staff of the hospital. Further it is submitted that though the AB

CDEF

G

H

Aconviction rests on circumstantial evidence, chain is established to provethe guilt of the accused-appellant, and there are no grounds to interferewith the well considered judgment of the trial court, as confirmed by theHigh Court.

8. Having heard learned counsel on both sides, we have perused Bthe impugned judgments and other material placed on record.

9. In this case it is clear from the record that the conviction of theappellant herein is based on circumstantial evidence. The trial court mainlyrelied on the evidence of two staff nurses – PW-8 and 9, who havedeposed that baby girl was placed with the mother at about 04:30 p.m.Cand the child was found dead by 06:30 p.m. The husband of the appellantwas examined by the prosecution as PW-7. In his deposition he hasstated that on 24[th] August 2007 he had taken his wife, i.e., the appellantherein to Lady Hardinge Medical College Hospital, for delivery and onthe same day at around 12:00 noon appellant gave birth to a femaleDbaby. He was called to the labour room and the nurse had shown himthe new born baby and at that time eyes of the baby were closed. Shewas not moving and she was not weeping. He has also stated that therewas also a red mark on the nose of the child. At around 05:00 p.m. againwhen he was called by the nurse and he was informed that child hadexpired and on questioning, staff have not given any reason for death.EFurther it is also stated that he was not allowed to meet his wife and hewas allowed only after post-mortem was conducted on the body of thechild on 26[th] August 2007. None of the doctors on duty on the date ofdelivery was examined. PW-8, staff nurse was examined. In herdeposition she has stated that new born was under observation inFincubator. She has deposed that the new born was handed over to themother at around 04:30 p.m. by taking her out of the incubator. Thereafterat around 06:30 p.m. during rounds Ward Doctor found baby was sick.PW-8 in her cross-examination has stated that baby was on oxygenmask in the incubator. Another staff nurse, by name, Sangeeta Rani wasexamined as PW-9 who has deposed that on the date of incident sheGjoined duty at 03:00 p.m. and new born baby had been kept in the incubatorand had been on oxygen mask.

10. By considering the oral evidence on record and taking intoconsideration the post-mortem report, the appellant was convicted forthe offence by attributing motive that she has strangulated her becauseH

the new born is a baby girl. There is no evidence on record to draw sucha conclusion against the appellant. It is clear from the evidence on record,as deposed by PW-7, they already had a male child of the age of 5years. He has also stated that as they already had a male child, theywanted a female child to complete the family. He further stated that hisbrother had three daughters which shows that the family was not orthodoxand was not averse to have a female child. It is clear from the evidenceon record that immediately after birth the baby was put in incubator withoxygen mask and it is also clear that she has not opened the eyes andshe did not cry. PW-7, though he was declared hostile by the prosecution,but he has stated in his deposition that he was called to the labour roomat 05:00 p.m. to inform that his baby had expired and he was not allowedto see his wife who is the appellant herein upto 26[th] August 2007 onwhich date dead body of the baby girl was sent for post-mortem. It isalso to be noticed that there is no reason for sending the body for post-mortem on 26[th] August when the baby girl died on 24[th] August 2007. Atthe same time, it is also to be noticed that the crime was registeredagainst the appellant only on 31[st] August 2007. It is true that in the post-mortem, doctor has opined that death is due to asphyxia and there weremarks of strangulation, but at the same time if totality of evidence onrecord is considered, motive is not established and it is totally unnaturalfor the appellant-mother to kill her own baby by strangulation. It is alsoclear from the record that in view of the drugs administered on her shewas sleepy and drowsy. In absence of any clear evidence on record,High Court as well as the Trial Court committed error, in attributingmotive to the appellant that, she has killed her baby as she was female.The Trial court as well as the High Court has based conviction onpresumptions without any basis. It is fairly well settled that to baseconviction solely on the circumstantial evidence, unless chain ofcircumstances is established conviction cannot be recorded. From thetotality of evidence on record it is clear that the baby girl was put inincubator with an oxygen mask and she has also not opened her eyesand she did not cry after birth. There was a possibility of natural death.Though the doctor has opined in the post-mortem report, the cause ofdeath is asphyxia but in absence of any clear evidence on record it is notsafe to convict the appellant for the offence under Section 302 IPC. Asthe evidence on record is not sufficient to bring home the guilt of theaccused, beyond reasonable doubt, we are of the considered view that AB

C

DE

F

G

H

Athe appellant is entitled to benefit of doubt, for acquittal from the chargeframed against her.

11. For the aforesaid reasons, this criminal appeal is allowed. Thejudgment of the trial court dated 19.12.2009, as well as the impugnedjudgment of the High Court dated 12.03.2010, in Criminal Appeal No.B168 of 2010 by the High Court of Delhi are set aside, consequently theappellant is acquitted of the charge framed against her. As the appellantis on bail, her bail bonds stand cancelled.

C

Kalpana K. Tripathy

Appeal allowed.

D

E

F

G

H