Crl.A.No.1268 of 2013

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1268 OF 2013

Manju             ....Appellant     

Versus

State of Delhi               ....Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. This criminal appeal is filed by the sole accused,

aggrieved by the judgment dated 12th March 2010 passed

in Criminal Appeal No.168 of 2010 by the High Court of

Delhi at New Delhi, by which the appellant herein was

convicted and sentenced to life imprisonment for the

offence punishable under Section 302, IPC.

2. The appellant herein was admitted in the maternity

ward of the Lady Hardinge Medical College Hospital and

delivered a baby girl around 12:30 in the afternoon on

24th August 2007. It is the case of the prosecution that

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as the new born was a baby girl, as such the appellant-

mother has caused her death by strangulation after baby

was handed over to her at 04:30 p.m. on the said date.

On 26th August 2007 post-mortem was conducted on the

dead body and the doctor opined that cause of death was

asphyxia  due  to  ante  mortem  strangulation.   On  31st

August 2007 a case was registered against the appellant

for  the  offence  under  Section  302  IPC,  for  causing

death of her new born baby.  She was tried for the

charge under Section 302 IPC by the court of Additional

Sessions Judge, Fast Track Court, New Delhi. In her

statement,  she  has  not  pleaded  guilty  and  claimed

trial, as such, she was tried in Sessions Case No.78 of

2009 by the Additional Sessions Judge, New Delhi.  To

prove the charge against the appellant, prosecution in

all, has examined 23 witnesses. The evidence against

the  accused  was  put  to  her  and  her  statement  was

recorded under Section 313, Cr.P.C. she has pleaded her

innocence  and  deposed  that  she  has  been  falsely

implicated  by  the  police  in  connivance  with  the

hospital authorities, to shift the blame from doctors

on duty.

3. The trial court, by judgment dated 19.12.2009, by

recording a finding that prosecution has been able to

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prove complete chain of circumstances and proved its

case beyond reasonable doubt, has held the appellant-

accused is guilty for the commission of offence under

Section 302 IPC and by order dated 22.12.2009 imposed

the sentence of imprisonment for life and to pay a fine

of Rs.2000/-.

4. As  against the  conviction recorded  and sentence

imposed the appellant carried the matter in appeal to

the  High  Court  and  the  High  Court  by  the  impugned

judgment, confirmed the conviction and sentence imposed

on the appellant.

5. We  have  heard  Ms.  Mahalakshmi  Pavani,  learned

senior  counsel  appearing  for  the  appellant  and

Mr. Anmol Chandan, learned counsel appearing for the

State of Delhi.  

6. It  is  contended  by  learned  senior  counsel

appearing  for  the  appellant  that  there  are  no  eye

witnesses to the incident, and the incident is said to

have happened in the ward of the hospital, where the

delivery took place.  The conviction is based solely on

circumstantial evidence and the chain of circumstances

is not complete. It is submitted that the appellant had

no reason to commit the murder of her new born baby

girl as she already had a male child and her parents-

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in-law  had  died  even  before  she  was  married.  By

referring to the oral evidence of PW-8 and PW-9, it is

submitted that even according to the deposition of said

witnesses it is clearly established that the new born

was kept in the incubator with an oxygen mask. Further

the appellant-mother was sleepy in view of the drugs

administered on her and by the time she has seen the

child, the new born was dead.  It is submitted that the

trial court as well as the High Court has committed

error in convicting the appellant in absence of proving

chain of circumstances, leading to her conviction. It

is also brought to the notice of this Court that though

incident occurred on 24th August 2007 post-mortem was

conducted on the body only on 26th August and further,

crime  was  registered  on  27th August  2007.  It  is

submitted, if the totality of evidence is taken into

consideration, the guilt of the accused-appellant is

not proved beyond reasonable doubt and the judgments of

the High Court as well as the trial court are based on

surmises and conjectures.

7. On the other hand, it is contended by the learned

counsel appearing for the State, after the birth of the

child the new born was kept in the incubator upto 04:30

p.m. and after 04:30 p.m. baby girl was handed over to

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the appellant herein.  Thereafter she was found dead by

nursing staff of the hospital.  Further it is submitted

that  though  the  conviction  rests  on  circumstantial

evidence, chain is established to prove the guilt of

the  accused-appellant,  and  there  are  no  grounds  to

interfere  with  the  well  considered  judgment  of  the

trial court, as confirmed by the High Court.

8. Having  heard  learned  counsel  on  both  sides,  we

have perused the impugned judgments and other material

placed on record.

9. In this case it is clear from the record that the

conviction  of  the  appellant  herein  is  based  on

circumstantial evidence. The trial court mainly relied

on the evidence of two staff nurses – PW-8 and 9, who

have deposed that baby girl was placed with the mother

at about 04:30 p.m. and the child was found dead by

06:30 p.m. The husband of the appellant was examined by

the  prosecution  as  PW-7.  In  his  deposition  he  has

stated that on 24th August 2007 he had taken his wife,

i.e.,  the appellant  herein to  Lady Hardinge  Medical

College Hospital, for delivery and on the same day at

around  12:00  noon  appellant  gave  birth  to  a  female

baby.  He was called to the labour room and the nurse

had shown him the new born baby and at that time eyes

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of the baby were closed. She was not moving and she was

not weeping.  He has also stated that there was also a

red mark on the nose of the child. At around 05:00 p.m.

again  when  he  was  called  by  the  nurse  and  he  was

informed  that child  had expired  and on  questioning,

staff have not given any reason for death. Further it

is also stated that he was not allowed to meet his wife

and he was allowed only after post-mortem was conducted

on the body of the child on 26th August 2007. None of

the  doctors  on  duty  on  the  date  of  delivery  was

examined.  PW-8,  staff  nurse  was  examined.  In  her

deposition  she  has  stated  that  new  born  was  under

observation in incubator. She has deposed that the new

born was handed over to the mother at around 04:30 p.m.

by  taking  her  out  of  the  incubator.  Thereafter  at

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 oxygen mask in the incubator. Another staff

nurse, by name, Sangeeta Rani was examined as PW-9 who

has deposed that on the date of incident she joined

duty at 03:00 p.m. and new born baby had been kept in

the incubator and had been on oxygen mask.   

10. By  considering  the  oral  evidence  on  record  and

taking into consideration the post-mortem report, the

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appellant was convicted for the offence by attributing

motive that she has strangulated her because the new

born is a baby girl.  There is no evidence on record to

draw such a 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 5 years.

He has also stated that as they already had a male

child,  they  wanted  a  female  child  to  complete  the

family. He further stated that his brother had three

daughters which shows that the family was not orthodox

and was not averse to have a female child. It is clear

from  the  evidence  on  record  that  immediately  after

birth the baby was put in incubator with oxygen mask

and it is also clear that she has not opened the eyes

and  she  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 room at

05:00 p.m. to inform that his baby had expired and he

was not allowed to see her wife who is the appellant

herein upto 26th August 2007 on which date dead body of

the baby girl was sent for post-mortem. It is also to

be noticed that there is no reason for sending the body

for post-mortem on 26th August when the baby girl died

on 24th August 2007.  At the same time, it is also to be

noticed  that  the  crime  was  registered  against  the 7

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appellant only on 31st August 2007. It is true that in

the post-mortem, doctor has opined that death is due to

asphyxia and there were marks of strangulation, but at

the same time if totality of evidence on record is

considered, motive is not established and it is totally

unnatural for the appellant-mother to kill her own baby

by strangulation. It is also clear from the record that

in view of the drugs administered on her she was sleepy

and drowsy. In absence of any clear evidence on record,

High Court as well as the Trial Court committed error,

in attributing motive 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  on

presumptions  without  any  basis.  It  is  fairly  well

settled  that  to  base  conviction  solely  on  the

circumstantial evidence, unless chain of circumstances

is established conviction cannot be recorded.  From the

totality of evidence on record it is clear that the

baby girl was put in incubator with an oxygen mask and

she has also not opened her eyes and 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 of death is asphyxia but in absence of any

clear evidence on record it is not safe to convict the

appellant for the offence under Section 302 IPC.  As 8

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the evidence on record is not sufficient to bring home

the guilt of the accused, beyond reasonable doubt. We

are  of  the  considered  view  that  the  appellant  is

entitled to benefit of doubt, for acquittal from the

charge framed against her.

11. For the aforesaid reasons, this criminal appeal is

allowed.  The  judgment  of  the  trial  court  dated

19.12.2009, as well as the impugned judgment of the

High Court dated 12.03.2010, in Criminal Appeal No. 168

of  2010  by  the  High  Court  of  Delhi  are  set  aside,

consequently the appellant is acquitted of the charge

framed against her. As the appellant is on bail, her

bail bonds stand cancelled.

  .................... J.    [MOHAN M.SHANTANAGOUDAR]

  .................... J.    [R. SUBHASH REDDY]

New Delhi. December 17, 2019.

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