MANJUversusSTATE OF DELHI

                         [2019] 15 S.C.R. 151                             151


                               MANJU                                      A
                                  v.
                         STATE OF DELHI
                 (Criminal Appeal No. 1268 of 2013)
                       DECEMBER 17, 2019                                  B

           [MOHAN M. SHANTANAGOUDAR AND
                R. SUBHASH REDDY, JJ.]
      Penal Code, 1860:
                                                                          C
       s.302 – Prosecution under – For killing new-born baby girl
by strangulating her – Courts below convicted the accused on the
basis of circumstantial evidence – Appeal to Supreme Court – Held:
Conviction cannot be based solely on circumstantial evidence, unless
chain of circumstances is established – The facts of the case show
that there was possibility of natural death of the child – The evidence   D
is not sufficient to bring home the guilt of the accused beyond
reasonable doubt and hence acquitted.
      Allowing the appeal, the Court
       HELD: 1. To base conviction solely on the circumstantial           E
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 had also not opened her eyes and she did not cry
after birth. There was a possibility of natural death. Though the         F
doctor had opined in the post-mortem report that the cause of
death was 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 the evidence on record is not sufficient to
bring home the guilt of the accused beyond reasonable doubt,
the appellant is entitled to benefit of doubt for acquittal from the      G
charge framed against her. [Para 10][155-F-H; 156-A]
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1268 of 2013.
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                                 151
152             SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A           From the Judgment and Order dated 12.03.2010 of the High Court
      of Delhi at New Delhi in Crl. A. No. 168 of 2010.
            Ms. Mahalakshmi Pavani, Sr. Adv., Ms. Shiva Vijay Kumar,
      Neeleshwar, Mrs. Rama, Mrs. Anjani Aiyagari, Advs. for the Appellant.
            Anmol Chandan, Pranay Ranjan, B. V. Balaram Das, Advs. for
B
      the Respondent.
            The Judgment of the Court was delivered by
            R. SUBHASH REDDY, J.
             1. This criminal appeal is filed by the sole accused, aggrieved by
C     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
D     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 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
E     conducted on the dead body and the doctor opined that cause of death
      was asphyxia due to ante mortem strangulation. On 31 st 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,
F     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
G     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 prove complete chain of
      circumstances and proved its case beyond reasonable doubt, has held
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     MANJU v. STATE OF DELHI [R. SUBHASH REDDY, J.]                             153


the appellant-accused is guilty for the commission of offence under             A
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           B
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.
                                                                                C
       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          D
as she already had a male child and her parents-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          E
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               F
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.                                                       G
       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 the appellant herein. Thereafter she was found dead by
nursing staff of the hospital. Further it is submitted that though the          H
154             SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     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
B     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.
C     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
D     baby. He was called to the labour room and the nurse had shown him
      the new born baby and at that time eyes 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.
E     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
F     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
G
      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 appellant was convicted for
      the offence by attributing motive that she has strangulated her because
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     MANJU v. STATE OF DELHI [R. SUBHASH REDDY, J.]                            155


the new born is a baby girl. There is no evidence on record to draw such       A
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       B
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       C
to see his 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          D
against the 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
                                                                               E
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         F
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.     G
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
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
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156             SUPREME COURT REPORTS                          [2019] 15 S.C.R.


A     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.
B     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.


      Kalpana K. Tripathy                                           Appeal allowed.
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