Delhi District Court
State vs . 1. Disha Raina on 15 October, 2018
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IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Disha Raina
W/o Sh. Late Som Nath Raina,
2. Payal D/o Sh. Dina Nath,
Both R/o H. No. 527, Lane No. B3,
Upper Shiv Nagar,
Subhash Nagar, Jammu.
● CNR No. : DLSW010012982014.
● Registration No. of the Case : SC/440960/2016.
● SC Number : SC/65/2014.
● FIR Number : 669/2013.
● PS : Dabri
● Under Section : 120B/302/318 IPC.
● Date of Institution : 07.03.2014.
● Case Committed to the Court of
Sessions for : 24.03.2014.
● Case Reserved for Judgment on : 26.09.2018.
● Judgment Announced on : 15.10.2018.
Page No. 1 of 18. State Vs. Disha Raina & Another;
FIR No. 669/13 of PS Dabri.
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● Final Order : Convicted for offence
punishable u/s 318/34
IPC, whereas, acquitted
for offences punishable
u/s 302/120B IPC.
JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 In this case, the FIR was registered on the basis of DD No. 25A dated 07.12.2013 of PS Dabri Ex.PW17/A, recording that PCR call was made to the effect that foul smell was coming from house no. RZ32, Old Raja Puri, Uttam Nagar, New Delhi, and it seems that one child is lying dead. Thereafter, the said DD was marked to SI Bhagwan Singh (PW17), who accompanied Const.
Narender Kumar (PW9) to the spot i.e. shaft of the said flat, where a new born child's dead body was found and its head was found separated from the trunk. Thereafter, on inspecting the bathroom of the first floor flat, blood stains were observed on the tiles and the window of the said bathroom. 1.2 During investigation, the dead body was sent for Page No. 2 of 18. State Vs. Disha Raina & Another;
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3 postmortem and one shaving blade was found partly embedded in the trunk part of the neck and it was opined that the possibility of strangulation/homicide cannot be ruled out. Further, it was found that accused Payal had given birth to an illicit child and immediately after the birth, the baby was strangulated and its head was severed from the trunk by using a saving blade and further the dead body was thrown in the shaft through the window to hide the crime. Further, accused Disha Raina, relative of accused Payal, helped/assisted her in committing the said crime.
2. After culmination of investigation, both the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 13.10.2014, Ld. Predecessor framed charges under Section 120B/302/318 IPC against both the accused persons, to Page No. 3 of 18. State Vs. Disha Raina & Another;
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4 which they pleaded not guilty and claimed trial.
4. For proving its case, prosecution has examined 20 witnesses.
4.1 PW1, Dr. B.N. Mishra, proved postmortem report Ex.PW1/A and further stated that existence of bruises on the neck, as seen in the photographs of the dead body clicked at the spot before postmortem, are conclusively suggestive of the fact that foetus was alive at the time of delivery and such bruises can be inflicted by strangulation or otherwise. 4.2 PW2, Dr. Ramesh Kumar, proved MLC Ex.PW2/A of the deceased child.
4.3 PW3 Ashwani Raina and PW5 Sandeep Srivastava were examined to prove the stay of the accused persons in the said flat during the relevant time.
4.4 PW20, Seema Nain, Assistant Director, Biology, FSL, proved DNA report Ex.PW20/1 to conclude that accused Payal was biological mother of the deceased baby. 4.5 Rest of the witnesses were formal or related to the investigation of the case.
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5. Statement of the accused persons was recorded u/s 313 CrPC. When accused persons were briefed on all the incriminating ocular and documentary evidence, they denied the allegations.
5.1 Accused Disha Raina further mentioned that few days prior to registration of the case, accused Payal delivered a child in bathroom and on her calling, she went inside the bathroom and found that blood was all around there and the newly born child was inside the pot and thereafter, when the child was checked, it was found that he was not breathing and was born dead and the delivery was premature and then she came out of the bathroom to call others for help, but in the meantime, accused Payal threw the dead body out of window. 5.2 Further, accused Payal filed her written statement u/s 313(5) CrPC, wherein she denied the allegations and mentioned that she delivered a premature baby, which was born dead. She further mentioned that she checked the baby in every manner and he was neither breathing nor having any movement in any part of the body. It was further mentioned by her that she lost her consciousness and thereafter, she does not know as to what was done with the dead body of new born baby.
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6. Both the accused persons opted not to lead evidence in their defence.
APPRECIATION OF EVIDENCE:
7. I have heard the State through Sh. Girish Kr. Manhas, ld. Additional PP and both the accused persons through ld. counsel Sh. Manoj Yadav. Case record is also gone through.
8. Ld. Additional PP summed up that the DNA report Ex.PW20/1 and admission of the accused persons proved it on record that the deceased baby was delivered by accused Payal. Further, it was mentioned that postmortem report Ex.PW1/A and the testimony of the doctor (PW1) make it quite clear that the baby was born alive and he was murdered by strangulation and thereafter, on severing the head from the trunk of the child, the dead body was thrown in the shaft and thus, charges stand proved on record. On the other hand, ld. defence counsel argued that no conclusive medical opinion has come on record that the baby was born alive and, therefore, the defence of the accused persons that the baby was born dead should be accepted and Page No. 6 of 18. State Vs. Disha Raina & Another;
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7 benefit of doubt should be given to the accused persons.
9. In this case, there are following important points of determination:
(A) Whether the child was born alive;
(B) If born alive, whether the child was murdered
by the accused persons by strangulation; and (C) Whether the accused persons threw the dead body of the child in the shaft after severing the head from the trunk in order to conceal its birth.
10. The fact that accused Payal was biological mother of the deceased child is not disputed. The DNA report Ex.PW20/1 confirms this fact and moreover, accused Payal has also admitted it during her statement u/s 313 CrPC.
11. It the prosecution case that accused Payal gave birth to an illicit child, as she was not married at that time, and, therefore, both the accused persons murdered the child by strangulation. On this aspect, the prosecution case is completely dependent on the medical opinion. PW1 Dr. B.N. Mishra has Page No. 7 of 18. State Vs. Disha Raina & Another;
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8 given the following opinion regarding cause of death in postmortem report Ex.PW1/A:
"1. Due to highly decomposition of the body, it cannot be ascertained whether the cutting of the head from the trunk was done antemortem or postmortem. However, the possibility of strangulation on the part of death (?) cannot be ruled out.
2. The possibility of homicide cannot be ruled out.
3. ... ... ..."
12. Thus, there is no doubt that no conclusive opinion was given regarding death of the child in the postmortem report. However, ld. Additional PP emphasized that PW1 has mentioned during his examination in chief that the photographs of the deceased, which are part of judicial record and shown to him, make it manifest that bruises were visible on the marginal part of neck of the deceased, from where the head was separated by cutting and slashing and the said bruises are conclusively suggestive of the fact that the foetus was alive at the time of delivery, because such bruises could be inflicted during strangulation and cannot appear in case of postmortem injuries.
13. First of all, it is found that the photographs of the dead body placed on record are not very clear. It can be seen that many photographs are hazy and moreover, the photographs have Page No. 8 of 18. State Vs. Disha Raina & Another;
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9 been taken from a distance. This being the case, this Court is not convinced as to how PW1 gave his opinion regarding presence of bruises on the marginal part of neck of the deceased. Otherwise also, PW1 has deposed during his cross examination that the body was highly decomposed and partly eaten by maggots and effected part of the body i.e. neck area was devoid of specific nature of injuries and it was not showing any injury, either antemortem or postmortem. Moreover, he has clarified in his examination in chief that the neck part of the body was disturbed during its transportation to the hospital and during its washing in the mortuary before conducting its postmortem. Further, he clarified that the trace evidences i.e. minor bruises on the neck would be washed out or removed from the body and same were not observed by him during postmortem. In view of this, it is clear that the doctor did not find any injury (bruises) showing signs of strangulation at the time of postmortem and, therefore, his opinion given on the basis of injuries seen by him in the photographs, cannot be relied upon to fix the culpability of the accused persons in this case involving heinous offences.
14. Secondly, the doctor did not specify the colour of Page No. 9 of 18. State Vs. Disha Raina & Another;
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10 bruises, which assumes significance when the death was caused few days prior to recovery of the body. In the present case, the dead body was recovered 45 days after the alleged murder and in normal circumstances, the colour of bruises changes from dark red to blue/bluishblack/brown/livid red after two days of injury and the colour becomes greenish around 5th or 6th day after injury. Thus, the witness was required to clarify the colour of bruises/injury, so as to ascertain its age and only in that case, it would have further corroborated the cause of injury.
15. Though PW1 has deposed that the bruises found on the marginal part of neck of the deceased could not emerge on account of postmortem injury, however, this opinion can be challenged on the basis of observations mentioned in Modi's Medical Jurisprudence and Toxicology (23rd Edition - Chapter
23). The relevant findings found at page nos. 693694 may be reproduced as under:
"Differences between Antemortem and Postmortem Bruises Some swelling and colour changes are found in a bruises caused during life. This is usually the result of coagulation of the effused blood in the subcutaneous tissues and infiltration of the blood in the muscular tissue. These signs are absent in a bruise caused after death. According to Prof. Polson, if the red blood cells have not haemolysed, and blood is in a liquid state, then severe trauma, Page No. 10 of 18. State Vs. Disha Raina & Another;
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11 like a forcible blow with a hammer, or stick, or any injury of a crushing nature may forcibly drive the blood into the tissues through ruptured blood vessels and produce a bruise similar to an antemortem bruise. However, it is mostly restricted to bony prominences while antemortem can be anywhere. It is found on microscopic examination of the affected tissue for evidence of infiltration of the blood that it is more in antemortem bruises. A bruise is likely to be disfigured by putrefaction, and it is difficult to differentiate between a bruise caused during life and that caused immediately after death. Sir Robert Christison proved by experiments that it was possible to produce a bruise within two hours to three hours and a quarter after death which would make it difficult to distinguish from one caused during life; but he found that very great violence had to be used and even then the resulting bruise was much smaller than what would have been produced by similar means during life."
16. Thus, PW1's testimony that the bruises cannot be produced antemortem, cannot be accepted. This aspect assumes importance considering the defence of the accused persons that the child was born dead. Therefore, if the neck of the dead child was severed immediately after his death, that exercise would certainly apply reasonable amount of force on the neck of the child and that may result into bruises around neck even after the death.
17. Further, ld. defence counsel has rightly pointed out that sometimes the death of child may take place during delivery on Page No. 11 of 18. State Vs. Disha Raina & Another;
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12 account of strangulation by umbilical cord, but PW1 has denied the suggestion in this regard. In Chapter32 of the Modi's book, it is clearly mentioned that the process of birth itself may be traumatic event for an infant especially without medical aid and death of child may occur accidentally during birth as sometimes child is strangled before birth by knots or loops of the cord being tightened, or the cord being coiled round its neck during delivery (page 996).
18. Since the crime of infanticide is generally committed at the time of or within a few minutes or hours after the birth of the child, in such cases, the medical officer is required to examine the woman, the alleged mother of the child, and the dead body of the child. He has to examine the woman to determine if she has been recently delivered of a fullterm child. However, accused Payal was not medically examined to ascertain whether the delivery was fullterm or premature. The lack of medical evidence on this aspect given strength to the defence that the delivery was premature. Moreover, the postmortem report discloses that the gestation period was about 8 months.
Page No. 12 of 18. State Vs. Disha Raina & Another;
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19. Further, in order to ascertain whether the child was born alive, number of medical examinations could have been done. On this aspect, the relevant observations made in Modi's book (page nos. 984985) are reproduced as under:
"In criminal cases, the judge requires the medical witness to prove from postmortem examination that the child showed signs of life as a separate existence after it had wholly or partially emerged from its mother's womb. The most important sign is the establishment of respiration, which can be determined from examining the chest and the lungs. The appearances that show whether respiration has taken place or not are:
(i) the shape of the chest;
(ii) the position of the diaphragm;
(iii) the changes in the lungs;
(iv) the changes in the stomach and intestines;
(v) the changes in the kidneys and bladder.
The shape of the chest: The chest is flat before respiration is established, but it expands and becomes arched or drum shaped after full respiration.
The position of the diaphragm: The abdomen should be opened before the thorax, and the position of the diaphragm should be noted by passing a finger upto its concave arch, the highest point of which is found at the level of the fourth or fifth rib, if respiration has not taken place, but the arch becomes flattened and depressed, and descends to the level of the sixth or seventh rib after respiration has been completely established. The position of the diaphragm may be affected by pressure of the gases of decomposition developed within the thorax or abdominal cavity.
The changes in the lungs: These are considered with reference to:
(i) volume;
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(ii) consistence;
(iii) colour; and
(iv) weight.
Volume: Before respiration has taken place, the lungs are small with sharp margins, covered by wrinkled loose pleural membranes, lie in the back part of the chest on either side of the vertebral column and are hardly seen on opening the chest, as the cavity is filled up by the heart and thymus. After complete respiration, the lungs increase enormously in volume, they are covered with thin tense pleura, have rounded margins and occupy the cavity, the left lung covering more or less the thymus and heart. However, any mechanical obstruction to breathing, either natural or unnatural, may cause some over distended bullae along the margins of the lung.
Consistence: Before respiration, the lungs are dense, firm, non crepitant and liver like. After respiration, they are spongy, elastic and crepitant. The upper portion of the right upper lobe shows these changes first.
Colour: Before respiration, the colour of the lungs is uniformly reddishbrown, like that of the liver, but may become bright red at the margins from greater translucency owing to the thin walls. ... ... ..."
20. Further, the gist of all the relevant symptoms, which can appear during postmortem examination, showing signs of life in the child, as detailed in Modi's book (page no. 989), are reproduced as under:
"In conclusion, the medical officer is justified in affirming that the child had lived during and after its birth if he finds the following Page No. 14 of 18. State Vs. Disha Raina & Another;
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15 appearances on postmortem examination of the body of a newly born infant:
• a fullterm mature foetus judged from its length, weight and other characteristics, especially the centres of ossification in the lower epiphysis of the femur, in the tarsal cuboid bone, and the proximal end of the tibia which is usually found at fullterm or shortly after fullterm.
• the diaphragm standing at the sixth or seventh rib. • the fully expanded lungs occupying more or less the thoracic cavity and covering a portion of the heart and thymus gland. • the marbled or mottled appearance of the lungs. • bloody froth exuding from the cut surface of the lungs on slight pressure.
• the lungs are spongy and crepitant.
• the lungs responding to the hydrostatic test.
• microscopic examination of the lungs shows alveolar
expansion and patent blood vessels or presence of alveolar duct membrane and areas of atelectasis."
21. Thus, it is clear that during postmortem, no effort was made to look for most of the aforesaid symptoms and that has certainly made it difficult for this Court to find the exact cause of death. No doubt, PW1 observed putrefaction of most of internal organs during postmortem, but some extra efforts were required to be done on his part to find out some clues of life in the child post birth.
22. In view of discussion made above, it is held that the evidence on record is not sufficient to conclude that the child was Page No. 15 of 18. State Vs. Disha Raina & Another;
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16 born alive. Resultantly, the charge of murder would fail.
23. Further, ld. Additional PP rightly argued that the conduct of the accused persons prior to the incident, at the time of incident and subsequently was quite suspicious. It is evident that PW3 Ashwani Raina, relative of the accused persons, with whom the accused persons were residing at the time of incident, was not even aware about the pregnancy of accused Payal. It is also strange that PW3 had no idea about the delivery and the post delivery events.
24. It is not disputed fact that the dead body of the child was found in the shaft of the flat, where the accused persons were residing at the time of incident. The recovery of the dead body from the shaft is also proved by PW3 Ashwani Raina, PW5 Sandeep Srivastava, PW9 Const. Narender Kumar, PW17 SI Bhagwan Singh and PW19 Inspector Mahender Kr. Mishra. Further, presence of blood stains on the tiles and the window of the bathroom of the said flat opening in the said shaft was also proved by PW3, PW17 and PW19. Thus, it is clear that the dead body of the child was thrown in the shaft from the window of the Page No. 16 of 18. State Vs. Disha Raina & Another;
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17 said bathroom.
25. Even accused Disha Raina disclosed in her statement u/s 313 CrPC that accused Payal had thrown the dead body of the child through the said window. However, accused Payal in her statement u/s 313 CrPC stated that after seeing the dead baby, she lost her consciousness and thereafter, she did not remember what was done with the said dead baby.
26. The explanation furnished by both the accused persons is not convincing as both the accused persons were well aware that a dead child was born in their house and they were expected to do its last rites. Accused Disha Raina failed to explain as to why, even after coming to know that accused Payal had thrown the dead body out of window, she did not reveal this fact to other family members and neighbours. Similarly, accused Payal, being the mother of the deceased child, was required to look for the dead body after regaining consciousness. In view of this Court, the evidence on record is sufficient that both the accused persons, in furtherance of common intention, disposed of the dead body in the shaft deliberately. Furthermore, since accused Page No. 17 of 18. State Vs. Disha Raina & Another;
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18 Payal was unmarried at that time, it can be safely inferred that she wanted to conceal birth of illicit child and coaccused Disha Raina actively assisted her as both of them had come to Delhi from their native place at Jammu few days prior to the incident. In view of above, all the ingredients of offence u/s 318/34 IPC stand proved on record.
CONCLUSION:
27. For the reasons recorded above, both the accused persons are acquitted in respect of offences punishable u/s 302/120B IPC, whereas, they stand convicted for offence punishable u/s 318/34 IPC.
Announced in the open Court Digitally signed
on 15th day of October 2018. VIVEK by VIVEK
KUMAR GULIA
(total 18 pages)
KUMAR Date:
GULIA 2018.10.16
15:17:07 +0530
(VIVEK KUMAR GULIA)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
Page No. 18 of 18. State Vs. Disha Raina & Another;
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