Delhi District Court
State vs Reeta Devi on 16 December, 2023
IN THE COURT OF MS. AMBIKA SINGH :ASJ-02
WEST DISTRICT, TIS HAZARI COURT : NEW DELHI
STATE VS. REETA DEVI
DLWT-010-10079-2018
SC No. 759/2018
PS Moti Nagar
SC No. 759/2018
FIR NO. 292/2018
PS Moti Nagar
Date of commission of offence 29.07.2018
Name of complainant State
Name of accused person. Reeta Devi
Offence complained of 302 IPC
Plea of the accused Pleaded not Guilty
Arguments heard/ order reserved 23.11.2023
Final order Accused Reeta Devi Convicted for
offence u/s 302 IPC
Date of such order 30.11.2023
BRIEF STATEMENT OF THE REASONS FOR THE
DECISION:
1.This case pertains to murder of newly born baby girl. The allegations against the accused is that on 29.07.2018 in between 7:30 AM to 9:10 AM inside the labour room, ESIC Hospital, FIR No. 292/2018 State Vs. Reeta Devi Page No.1 of 48 PS Moti Nagar Basai Dara Pur, Delhi, accused Reeta Devi caused murder of her newly born child, born on the same day at 3:50 AM by smothering and throttling.
INVESTIGATION & OTHER PROCEEDINGS:
2. Upon completion of investigation, chargesheet for offence u/s 302 IPC against the accused Reeta Devi was filed and it was committed to Sessions Court on 03.11.2018.
3. Vide order dated 19.11.2018 after considering the material on record and hearing the Ld. Addl. PP and accused, a prima facie case for the offence punishable under section U/s 302 IPC was made out against the accused Reeta Devi and explained to her in vernacular, to which she pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION:
4. In order to prove its case, the prosecution has examined 16 witnesses:-
5. PW-1 Asharfi Mehto has deposed that in the year 2018, he was doing the work of baildar at Bharat Vikas Group on daily basis. His wife i.e. accused was pregnant on 28.07.2018. Accused was admitted at ESI Hospital, Basai Darapur Delhi at 12:00 Noon for her delivery. At the time of her admission, the doctor told him that they came late for the delivery as the pregnancy was in its tenth month and there may be complications as the size of the child was increased and he may consume the fluids of the FIR No. 292/2018 State Vs. Reeta Devi Page No.2 of 48 PS Moti Nagar womb and may die after the delivery. He asked them to admit the accused and he was taking the responsibility. As his children were alone at the home, he requested his neighbour i.e. PW Rita Devi (Winess) to stay at the hospital to look after his wife i.e. accused Reeta Devi. He alongwith PW Rita left the hospital. He further deposed that at about 6:00PM -6:30 PM, he alongwith PW Rita again went to the hospital. At about 7:00-7:15 PM, accused told him that the doctor has given the medicines and accused may have delivery in the night and asked him to go to the house. Thereafter, he went to his house and PW Rita stayed at the hospital. He has further deposed that at about 4:45 AM, PW Rita, w/o Sh. Jaleshwar called him on his mobile phone and told him that accused had delivered the child and asked him to come to the hospital. He reached at the hospital at about 6:00 AM. He went to the labour room and told to the nurse that he was the husband of accused, thereafter, the nurse brought his baby girl in a basket. She was wrapped in clothes. He saw some marks on the nose, lips, below the eyes and on cheeks of the baby. He asked the nurse about the reason of the marks and she told him that as it was 10 months pregnancy, hence during delivery these marks were caused as the size of the child was comparatively large, however, there is no problem to the baby and asked him to sign a document that accused has delivered baby girl and baby is healthy. Thereafter, she took her baby to the accused and he came outside. He further deposed that at about 9:00 AM, he received a call on mobile phone from the doctor of the hospital who asked FIR No. 292/2018 State Vs. Reeta Devi Page No.3 of 48 PS Moti Nagar him to come immediately to the hospital and did not tell any reason despite his asking. He alongwith his son went to the hospital in an auto-rickshaw. He went to the labour ward where nurse told him to meet the CMO, at the emergency of the hospital. He went to the emergency and asked CMO about the cause of death of his baby girl. CMO told him that his baby girl has expired and if he want to take the body then he will prepare the discharge papers, upon which he stated that he would like to see the body first. The CMO sent a boy with him to the nursery where he saw the body of his girl child and after seeing the body, he came back to emergency to the CMO office. There he started raising voice that his daughter has died because of the negligence of the hospital staff and doctor and he will make complaint to the police in this regard. CMO called the police. Police arrived at the hospital. He further deposed that at about 11:00-11:30 AM, ACP also reached at the hospital told him that the postmortem of his baby girl will be conducted and thereafter, an appropriate action shall be taken. He alongwith his relative shifted to his baby girl child to the mortuary of DDU Hospital where he identified the dead body Ex. PW1/A.
6. PW-2 ASI Om Prakash has deposed that on 05.09.2018, he visited the labour room and Gynae emergency and the child ward of ESI Hospital, Basai Darapur, Delhi alognwith SI Sunil Chandra and Insp. B.S. Guliya where he took rough notes and measurements at the instance of SI Sunil Chandra. He further deposed that on 17.09.2018, on the basis of rough notes and FIR No. 292/2018 State Vs. Reeta Devi Page No.4 of 48 PS Moti Nagar measurements, he prepared scaled site plan Ex. PW2/A and handed over the same to IO. He destroyed the rough notes after preparation of site plan.
7. PW-3 Ct. Manish has deposed that in the intervening night of 31.07.2018/01.08.2017, he was present at PS and at about 10:00 PM, duty officer handed over him the copies of present FIR with direction to deliver the same to concerned official. He delivered the copy of FIR at the residence of Ld. MM, DCP and Joint CP.
8. PW-4 Ms. Rita has deposed that in the month of July 2018, however, exact date she does not remember, she had accompanied accused to ESI Hospital, Basai Darapur, Rajouri Garden as per request made by accused because accused was in advance stage of her pregnancy. In the said night at about 4.45 AM, accused gave birth to a female child. She had not seen the said child. She was outside the labor room in the hospital at the time of birth of child. She has further deposed that at about 6.00 AM, husband of accused reached in the hospital. The nurse had shown the baby girl to husband of accused but the same was not in her presence. She has further deposed that when she was informed that one newly born child has expired. Except this fact, she know nothing about the present incident. When she woke up, she was not allowed to talk with accused by nurse on duty.
9. PW-5 Dr. Sunita Jindal has deposed that he had brought the summoned record i.e. Discharge Slip/summary of patient i.e. FIR No. 292/2018 State Vs. Reeta Devi Page No.5 of 48 PS Moti Nagar accused. As per record, accused was admitted in the hospital on 28.07.2018 at 12.53 PM and accused was treated in the hospital by the doctor on duty. Accused was discharged on 01.08.2018 and he had issued the discharge slip of the patient and attested copy of the same is Ex.PW-5/A(OSR). Accused was not examined by her however, accused was examined by Doctor Pallavi, Dr. Kirti, Dr. Prithvi and Dr. Shashi.
10. PW-6 Smt. Poonam has deposed that on 28.07.2018, she gave birth to a male baby child on 29.07.2018 at about 4:00 AM.
After delivery, she was shifted to labour room. There were total four beds in the labour room and one bed was empty while except her two more women were present alongwith their new born babies. Out of those two women, accused was there alongwith her newly born baby girl. She has further deposed that accused told her that there is some reddishness on the nose of her newly baby girl and she told her to inform the doctor in this regard. In the labour room, no outsider was permitted and only staff could visit.
11. PW-7 Dr. Shashi Prabha has deposed that she has been deputed by Medical Superintendent, ESIC Model Hospital to deposed on behalf of Dr. Pruthviraj on MLC no. 558/18 and MRD no. 19213 pertaining to baby of accused Reeta Devi. She had seen the attested copy of the MLC from judicial record. Except the portion mentioned in encircle X the remaining portion of the MLC is prepared by Dr. Pruthviraj. She has further deposed that as per MLC the newly born baby of accused was in FIR No. 292/2018 State Vs. Reeta Devi Page No.6 of 48 PS Moti Nagar well condition till 7:30 AM on 29.07.2018. Thereafter, at about 9:10 AM, accused/mother of newly born baby girl had complained about no activity by the baby and this fact was also told by the nursing officer on duty. The nursing officer on duty had checked the baby girl and found cherry red discoloration over the both side of nostrils. Thereafter, Dr. Prithviraj advised that the baby girl be immediately shifted to NICU (Neonatal Intensive Care Unit) for further evaluation and resuscitation. The attested copy of the MLC is Ex. PW7/A (OSR). Since Dr. Pruthviraj had left the services from hospital and his present whereabouts are not known or available in the hospital record, however, she is identifying his writing and signature on the MLC mentioned above as she had worked with him in the same hospital and she had seen him signing and writing during the normal course of business.
12. PW-8 Ms. Kiran Bisht has deposed that she had inquired of all the patients and about the newly born babies by visiting on each bed. She asked to check, accused and her baby girl by visiting her bed and both were in well condition. She touched the baby girl and she started weeping and was having normal movement at that time. At about 8:30 AM, hospital kitchen staff had brought the breakfast for all the patient present in the labour room in trolley. Accused also took her meal from the said trolley. She has further deposed that at about 9:00 AM, accused brought her newly born baby girl to her and produced the same before her stating that accused's baby girl is not weeping. She checked the FIR No. 292/2018 State Vs. Reeta Devi Page No.7 of 48 PS Moti Nagar baby girl and stimulate her but she did not find any movement in the baby girl. She also noticed reddish colour abrasion on the nose of baby girl. She immediately took the baby girl to pediatrician, Dr. Dushyant, who was on duty in the NICU. After examining the baby doctor declared the baby "as dead". During the admission in the labour room no person from outside is allowed to enter in the labour room and no outsider has visited there during the period from 8:00 AM to 9:00 AM as nobody is allowed to enter in the labour room.
13. PW-9 Dr. Dushyant Rastogi has deposed that on the night intervening 28/29.07.2018, he was on night duty from 9:00 PM to 9:00 AM. At about 7:30 AM, he was taking round of the ward. He saw the accused (patient) alongwith her newly born baby girl child in the labour room. Both mother and child were well and the baby girl was taking feeding properly. He has further deposed at about 9:05 AM, one nurse on duty, namely, Kiran Bisht came to him in nursery with accused's baby girl and she told him that there is no movement in the baby girl. Then, he examined the baby girl and found no activity in her body and also found no respiratory efforts and pallor. He tried to revive the baby girl but no pulse/activity was revived and after examining for about 30 minutes baby girl was declared as dead by him at 9:45 AM. MLC of the baby girl was already prepared in the gynecologist department. The notes mentioned in encircle 'X' on MLC already Ex. PW7/A are in his handwriting.
14. PW-10 Ms. Bharti Kumari has deposed that on the night FIR No. 292/2018 State Vs. Reeta Devi Page No.8 of 48 PS Moti Nagar intervening 28/29.07.2018, she was posted as Staff Nurse in ESI Hospital, Basai Darapur, New Delhi and was on night duty in labour room from 8:00 PM to 8:00 AM. Accused alongwith her newly born baby girl was also present in the labour room alongwith other patients and their newly born kids were present there. Till her duty hours i.e. upto 8:30 AM on 29.07.2018, she found the accused and her newly born baby girl in well condition. Thereafter, she had handed over the charge to other staff nurse. During her duty hours, no other outsider or stranger had entered in the labour room.
15. PW-11 ASI Satya Narayan has deposed that on 29.07.2018 at about 12:51 PM, he received information through wireless operator that baby of accused had injury mark on the nose of the baby, had died. He recorded the message in the daily diary vide DD no. 19A and the copy of the DD was handed over to SI Sunil for necessary action. He has brought the original DD register. The said entry is in his hand and photocopy of the same is Ex. PW-11/A (OSR).
16. PW-12 Ms. Satvinder Kaur Saini has deposed that during her duty hours, she had checked the mothers and new born kids present in the labour room including accused and her newly born baby girl and she found them baby and mother alive and active. No outsider is permitted to enter in the labour room. Only once lady attendant can see the patient.
17. PW-13 HC Pappu Ram has deposed that on 31.07.2018, SI FIR No. 292/2018 State Vs. Reeta Devi Page No.9 of 48 PS Moti Nagar Sunil Chandra handed over a tehrir to him for registration of FIR. He recorded the FIR no. 292/2018. Copy of same is Ex. PW- 13/A. He made his endorsement on the rukka. Same is Ex. PW- 13/B. FIR was typed by CIPA operator on the computer installed at police station for this purpose. He had issued certificate u/s. 65B of Evidence Act in respect of registration of FIR. The same is Ex. PW-13/C. The investigation of this case was assigned to Inspector B.S. Guliya.
18. PW-14 Dr. Jatin Bodwal, Specialist, Department of Foresinc Medicine, DDU Hospital has deposed that on 30.07.2018, he was posted as above at DDU Hospital. On that day, he had conducted postmortem on the body of one baby of Reeta. He found 9 external injuries on the body of deceased which are mentioned at point X of the report. In his opinion the cause of death was "asphyxia consequent upon combined effect of smothering and throttling and all the injuries were ante- mortem and fresh in duration. Manner of death was homicidal". His report is Ex. PW14/A.
19. PW-15 SI Sunil Chandra has deposed that on 29.07.2018 at about 1:00 PM, DD no. 19A Ex. PW-15/A was assigned to him. He alongwith Ct. Hemant went to ESI Hospital Basai Dara Pur. A female child of one or two days old was found in nursery of the hospital in unconscious condition. He noticed that there were blue mark on her nose on both the sides. He conducted inquiries in the hospital and informed SHO about the status of the child. He shifted dead body to DDU hospital mortuary. The call FIR No. 292/2018 State Vs. Reeta Devi Page No.10 of 48 PS Moti Nagar was kept pending till receiving of postmortem report. He has further deposed that on the next day, he got postmortem of the deceased baby child was conducted vide inquest papers Ex. PW- 15/B (colly). Since the postmortem report was not collected on the very same day so the call was kept pending for next day. He has further deposed that on 31.07.2018, he collected postmortem report. According to postmortem report, cause of the death of child was smothering and throttling. The manner of death was homicidal. He informed all the facts to SHO and he prepared rukka Ex. PW-15/C. He got FIR registered vide FIR no. 292/18, U/s 302 IPC. The investigation of this case was assigned to Inspector B.S. Gulia. He got scaled site plan prepared through draftsman.
20. PW-16 Insp. Bahadur Singh Gulia has deposed that on 31.07.2018, investigation of this case was assigned to him after registration of FIR. He examined the documents which were handed over to him by SI Sunil Chandra. During the course of investigation, he recorded statement of one attendant of accused. He also recorded statements of nursing staff of the hospital. He collected medical record of accused. He also collected record related to duty of staff of the hospital. He has further deposed that on 01.08.2018, accused was discharged from the hospital. He interrogated accused and arrested accused vide arrest memo Ex. PW-16/A. The personal search was taken by W/Ct. Rekha in his presence vide memo Ex. PW-16/B. He recorded disclosure statement of accused which is Ex. PW-16/C. He collected CCTV FIR No. 292/2018 State Vs. Reeta Devi Page No.11 of 48 PS Moti Nagar footage of the hospital. He also obtained certificate u/s. 65 B of Indian Evidence Act in respect of CCTV Footage. The same is Ex. PW-16/D. On seeing the CCTV Footage, it was confirmed that no one has entered in the ward. He got the scaled site plan prepared. The rough site plan prepared by SI Sunil Chandra is Ex. PW-16/E. He recorded statement of witnesses and on completion of investigation, he prepared the charge sheet and filed the same in the court.
STATEMENT OF ACCUSED U/S 313 Cr.P.C:
21. After the conclusion of prosecution's evidence, matter was fixed for Statement of the accused. Statement of accused was recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to her. The accused controverted and denied the allegations levelled against her. It is stated by accused that she has been falsely implicated in the present case and PWs are police witnesses and they are interested in the case. She is poor and illiterate lady and she has been falsely implicated by the police officials just to save the hospital staff and reputation of the Hospital and she is innocent.
She opted out to lead any defence evidence.
FINAL ARGUMENTS:
22. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their FIR No. 292/2018 State Vs. Reeta Devi Page No.12 of 48 PS Moti Nagar testimony has remained unrebutted. It is further submitted that the medical evidence also prove the homicidal death of the newly born baby girl. That on a combined reading of testimony of prosecution witnesses, offence U/s 302 IPC is proved against the accused beyond reasonable doubt. It is argued by Ld. Addl. PP that the prosecution has been able to establish a water tight case against the accused and that even though the evidence against the accused is circumstantial, however, the chain of circumstances has been duly proved and the guilt of the accused stands established beyond reasonable standards of doubt. It was argued that from the evidence brought on record, it stands proved that the accused Reeta Devi was present with the deceased at the time of the incident and that she had the motive as well as the opportunity to kill the deceased and that the circumstances surrounding the death of the victim prove that it was the accused and accused alone who had killed her newly born baby girl.
23. On the other hand, Ld. Counsel for accused have stated that there is no legally sustainable evidence against the accused Reeta Devi. It is further argued that the main material witnesses have not supported the case of the prosecution. There is no eye witness in this case and there is no circumstantial evidence that proves the guilt of the accused. Thus, on the aforesaid grounds accused deserves to be acquitted. It is further argued that the story of the prosecution suffers from various lacunas and that no evidence has been brought on record to show as to who killed the baby girl. It was further argued that there are no independent FIR No. 292/2018 State Vs. Reeta Devi Page No.13 of 48 PS Moti Nagar witnesses to the incident. It is further argued that it was the negligence of the hospital staff that the baby has died and accused has been falsely implicated in the present case just to save reputation of the hospital by the police officials.
24. I have heard the arguments of Ld. Addl. PP for the State and Ld. counsel for the accused and perused the record carefully.
APPRECIATION OF EVIDENCE AND FINDINGS:
SECTION 302 IPC READS AS UNDER:
25. Punishment for murder.-"Whoever, commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine".
The offence of murder u/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for an inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed.
FIR No. 292/2018 State Vs. Reeta Devi Page No.14 of 48PS Moti Nagar The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice versa. Reliance placed on case titled Narsingh Challan V. State of Orissa (1997) 2 Crimes78.
26. Before proceeding to appreciate the evidence on record, it is pertinent to mention here that two of the Prosecution's material witnesses have turned hostile. PW-1 Asharfi Mehto and PW- 4 Reeta Devi has deposed that on 28.07.2018, the accused was admitted at ESI Hospital, Basiderapur, Delhi and she has given birth to a female child. It is the case of the prosecution that the accused has confessed regarding her crime in front of these two witnesses, however, both of them have turned hostile. It is argued by the Ld. Defence Counsel that no credence can be attached with testimonies of these witnesses.
27. In the present case, since, PW-1 Asharfi Mehto and PW-4 Rita Devi have turned hostile; it would be necessary and appropriate to examine and weigh the evidentiary value of the testimony of the hostile witnesses. The Hon'ble Supreme Court of India in the case of Govindaraju v. State, reported as (2012) 4 SCC 722, whilst holding that the evidence of a hostile witness ought not to stand effaced altogether, and that the same can be accepted on a careful scrutiny, to the extent found dependable, FIR No. 292/2018 State Vs. Reeta Devi Page No.15 of 48 PS Moti Nagar and duly corroborated by other reliable evidence available on record, observed as follows.:
"36. It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eyewitness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused."
28. In this regard, it is pertinent to point out that, in the case of Mrinal Das v. State of Tripura, reported as (2011) 9 SCC 479, the Hon'ble Supreme Court of India has held as under:
" 67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally; it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent; he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to FIR No. 292/2018 State Vs. Reeta Devi Page No.16 of 48 PS Moti Nagar what extent he has supported the case of the prosecution. xxxx....xxxx....xxxx...
It is well settled that in a criminal trial, credible evidence of even hostile witnesses can form the basis for conviction. In other words, in the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence"
29. Therefore, the legal position that obtains is that, the evidence of a hostile witness remains admissible, and is available for a Court to rely on the dependable part thereof, as found acceptable and duly corroborated by other reliable evidence, available on record. Whether the testimony of a hostile witness subject to scrutiny may be relied or nullified would depend on the circumstances of each case. It could be used for corroboration or be corroborated and relied upon or nullified for availability of better evidence. [Ref. Koli Lakhman Bhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624].
30. It is now well settled law that the testimony of such witnesses should not be rejected in toto and their testimonies can be read in evidence, even if they have turned hostile on some aspects. In this regard, the present court place reliance upon Ramesh Kumar and Ors. v. State 2013 VIII AD (Delhi) 617 Crl.A. Para 4 of the said judgment is relevant which is reproduced as follows:-
"...................... It is settled legal preposition that statement of hostile witnesses can not be rejected in toto. The evidence of such witnesses can not be treated as effaced or washed of the record altogether. It can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. Statement of PW9 (Neer Singh) can be taken into FIR No. 292/2018 State Vs. Reeta Devi Page No.17 of 48 PS Moti Nagar consideration to the extent it is in consonance with the testimony of PW6 (Jagjit Singh)....."
Therefore, that part of the testimony can be read in evidence which finds the corroboration from testimony of other witnesses. We shall be keeping in view the aforesaid law when appreciating the testimony of PW-1 Asharfi Mehto & PW Rita Devi. Another contention urged by the learned counsel appearing on behalf of the accused is that, since the prosecution's witnesses had turned hostile, the prosecution was not able to establish the motive for the commission of offence, and therefore, in absence of a strong motive, the accused cannot be held guilty of the charges framed against her.
MOTIVE & INTENT OF CRIME:
31. The case of the prosecution is that the accused Reeta Devi was earlier having two daughters and when the third daughter was born she was so upset that she killed her newly born daughter by throttling and smothering and she confessed regarding the crime to PW-1 Asharfi Mahato & PW-4 Rita Devi. PW-1 Asharfi Mahato is her husband and PW-4 Rita Devi is the neighbor and the attendant to her on that day at the hospital.
32. As far as the testimony of PW -1 Asarfi Mahato and PW-4 Reeta Devi is concerned, none of the said witness have supported the case of the prosecution on the aspect of motive of killing. PW-1 Asharfi Mahato was cross-examined by the Ld. Addl. PP and denied the suggestion that when he met his wife in the FIR No. 292/2018 State Vs. Reeta Devi Page No.18 of 48 PS Moti Nagar hospital and asked her as to why she had killed the child, upon which she told him that she had committed a mistake. Further he denied the suggestion that he voluntarily gave the statement Ex. PW-1/B to the police in which he had told true facts. Similarly, PW Reeta Devi has also denied the suggestion that when she entered the labour room, after the delivery, accused Reeta Devi was weaping and when she asked her about the reason she told that "Kaya Karu Tsri Ladki Ho Gae" or that she tried to pacify her. Further, she denied that when she came to know about the baby girl of accused, she inquired from accused in this regard or that she admitted her mistake before her and told that "Uska Dimag Ladki Hone ke karan itna Bhari Ho Gya That Ki Usne Ladki Ki Nak Muh Daba Kar Mar Dala V Gala Bhi Dabaya Tha". Further she denied the suggestion that accused has admitted the abovesaid facts before her regarding murder of her girl child by her and further she is not intentionally disclosing true facts that day in the court as won over by the accused being her neighbour.
33. Thus, Perusal of the above-mentioned testimonies of these two witnesses makes it clear that they have retracted from their statement as made before the police. Both these witnesses have tried to point towards the false implication of the accused in the present case, however, they both have not approached court or any other legal authority till the very day of recording of their testimonies in the court regarding false implication of accused in the present case. The testimony of these PWs is of no help to the FIR No. 292/2018 State Vs. Reeta Devi Page No.19 of 48 PS Moti Nagar case of the prosecution for establishing the motive in this case.
34. Be that the case as it may be, it is to be seen whether motive is necessarily required to be proved by the prosecution in such cases. As both the witnesses in front of whom accused has confessed her crime turned hostile, the present court has to now weigh the case of the prosecution on scales of circumstantial evidence. No doubt in the cases based on circumstantial evidence, existence of motive assumes significance and plays crucial link completing the chain of circumstantial evidence, however, if the evidence is clear and unambiguous and the circumstances proves the guilt of the accused, the same is not weakened even if the motive is not established. In judgment passed by Hon'ble Supreme Court of India in Suresh Chandra Bahari v. State of Bihar, 1995 Supp (1) SCC 80 it was held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof, cannot be a ground to reject the prosecution case.
CIRCUMSTANTIAL EVIDENCE:
35. In case like death/murder generally there is hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence FIR No. 292/2018 State Vs. Reeta Devi Page No.20 of 48 PS Moti Nagar which is basically known to be an indirect evidence, deducted from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant v. State of Madhya Pradesh 1953 Crl.L.J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding: of "The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. it must be such as to show that within all human probability the act must have been done by the accused."
36. In the celebrated judgment of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court, while examining the nature and character of proof of circumstantial evidence, reiterated its decision rendered in the aforesaid case of Hanumant's wherein the Hon'ble Court had propounded five golden principles regarding circumstantial evidence. The same are reproduced herein under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.FIR No. 292/2018 State Vs. Reeta Devi Page No.21 of 48
PS Moti Nagar
2. The facts so established should be consistent with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti."
37. The Hon'ble Sarkaria J., in Ramanand & Ors., v. State of Himachal Pradesh, 1981 AIR 738 while enunciating the law relating to circumstantial evidence famously remarked that "perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth".
38. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so FIR No. 292/2018 State Vs. Reeta Devi Page No.22 of 48 PS Moti Nagar as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
39. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance which can help us in arriving at the just decision of the case.
IDENTITY OF THE ACCUSED:
40. In so far as the identity of the accused is concerned, the same is not disputed. The accused Reeta Devi was the mother of deceased i.e. newly born baby girl. PW-1 / Asharfi Mehto, who is the husband of accused has correctly identified her. Further, PW-4 / Rita Devi (witness) who is the neighbour of the accused, has also identified her. PW Poonam, PW Satvinder Kaur, PW Bharti Kumari and PW Dr. PW-9 Dr. Dushyant Rastogi have correctly identified the accused. All the other PWs have also identified the accused correctly. Accused has herself not denied her identity. She has not disputed that she is not the Reeta Devi as mentioned in the FIR. In view of the above, I hereby hold that the identity of the accused Reeta Devi has been established by the prosecution beyond reasonable doubt.
MEDICAL EVIDENCE / CAUSE OF DEATH:
FIR No. 292/2018 State Vs. Reeta Devi Page No.23 of 48PS Moti Nagar
41. The MLC is Ex. PW-7/A and the Post Mortem Report is Ex. PW-14/A. It is mentioned in MLC (Ex. PW-7/A) as under:-
'At 9.15 AM (29.07.2018), B/o Reeta Devi was brought by nursing officer with complaints of 'no activity to NICU. On examination, the baby showed no activity. No respiratory effects and pallor. Baby was immediately inhabited and resuscitation efforts were given for 30 minutes but no activity appeared and declared dead at 9.45 AM and same information was conveyed to attendant (Reeta, neighbour) as no other relative was present despite repeated calls. LE:- obvious red marks over nostrils'.
42. In the Post-mortem report i.e. Ex. PW-14/A which records as many as 09 external injuries as under:
1. Reddish bruise, 2.5cm x 0.5 cm, was present on the tip and both ala of nose.
2. Dark reddish bruise was present on both upper and lower lips.
3. Reddish bruise, 3 cm x 0.5 cm, was present on the right cheek, just below the right eye.
4. Reddish bruise, 2.5 cm x 0.5 cm, was present on the left cheek, 1cm below the left eye.
5. Reddish bruise, 1 cm x 0.5 cm, was present on the right cheek, just below right ala of nose.
6. Reddish bruise, 0.8cm x 0.3 cm, was present on the left cheek, just below left ala of nose.
7. Reddish bruise, 0.4 cm x 0.3 cm, was present on the left upper eyelid (medial aspect).
8. Reddish bruise, 0.8cm x 0.3cm, was present on the right upper eyelid (medial aspect).
9. Reddish bruise, 2cm x 1cm, was present on the right side of front of neck, 1cm from midline.
43. It also contains the opinion related to cause of death. The cause of death is asphyxia consequent upon combined effect of FIR No. 292/2018 State Vs. Reeta Devi Page No.24 of 48 PS Moti Nagar smothering and throttling. All injuries are ante-mortem and fresh in duration. Manner of death is homicidal.
44. MLC i.e. Ex. PW7/A has been proved by PW-7/Dr. Shashi Prabha, she has deposed that as per MLC the newly born baby of accused was in well condition till 7:30 AM on 29.07.2018. Thereafter, at about 9:10 AM, accused/mother of newly born baby girl had complained about no activity by the baby and this fact was also told by the nursing officer on duty. The nursing officer on duty had checked the baby girl and found cherry red discoloration over the both side of nostrils. Thereafter, Dr. Prithvi Raj advised that the baby girl be immediately shifted to NICU (Neonatal Intensive Care Unit) for further evaluation and resuscitation. The attested copy of the MLC is Ex. PW7/A (OSR).
45. PW-9 Dr. Dushyant Rastogi has deposed that on the night intervening 28/29.07.2018, he was on night duty from 9:00 PM to 9:00 AM. At about 7:30 AM, he was taking round of the ward. He saw the accused (patient) alongwith her newly born baby girl child in the labour room. Both mother and child were well and the baby girl was taking feeding properly. He has further deposed at about 9:05 AM, one nurse on duty, namely, Kiran Bisht came to him in nursery with accused's baby girl and she told him that there is no movement in the baby girl. Then, he examined the baby girl and found no activity in her body and also found no respiratory efforts and pallor. He tried to revive the baby girl but no pulse/activity was revived and after FIR No. 292/2018 State Vs. Reeta Devi Page No.25 of 48 PS Moti Nagar examining for about 30 minutes baby girl was declared as dead by him at 9:45 AM. MLC of the baby girl was already prepared in the gynecologist department. The notes mentioned in encircle 'X' on MLC already Ex. PW7/A are in his handwriting. In the cross-examination by the Ld. Defence Counsel he deposed that the foot prints on the LMC Ex. 7/A were taken in the gynecologist department. He further denied the suggestion that he had not examined the baby girl at the relevant date and time and further denied that he had not seen the deceased baby girl as well as her mother (accused) while taking in the ward at 07:30AM.
46. PW-14 Dr. Jatin Bodwal, Specialist, Department of Foresinc Medicine, DDU Hospital has deposed that on 30.07.2018, he was posted as above at DDU Hospital. On that day, he had conducted postmortem on the body of one baby of Reeta. He found 9 external injuries on the body of deceased which are mentioned at point X of the report. In his opinion the cause of death was "asphyxia consequent upon combined effect of smothering and throttling and all the injuries were ante- mortem and fresh in duration. Manner of death was homicidal". Report is Ex. PW14/A. In his cross-examination by Ld. Defence Counsel, he has stated that he had mentioned alleged history as per inquest papers. Injury no.9 were noticed on the neck of the deceased. Finger prints would not be transferred while throttling. Since the injury of the neck was 2cm x 1 cm so throttling was done by fingers and thumb. In his opinion the death was not FIR No. 292/2018 State Vs. Reeta Devi Page No.26 of 48 PS Moti Nagar caused during the process of delivery/birth. He denied the suggestion that is opinion is based upon inquest papers. He further denied the suggestion that his opinion is not based upon actual examination of the dead body. He further denied the suggestion that the death of the child has not occurred due to throttling. He further denied the suggestion that he had prepared his report at the instance of the IO.
47. Perusal of the MLC and PM report makes it crystal clear that the cause of death was homicidal and bruises were present on the face & neck of the deceased baby girl, was in consonance with case of the prosecution i.e throttling and smothering.
48. An argument has been raised by Ld. defence counsel that baby girl was not born healthy as she was over weight and, therefore, she had died due to complications at the time of birth PW-1/ Asharfi Mehato has deposed that when she was born, she was wrapped in a cloth and he saw some marks on her nose and below the eyes of the baby. He asked the nurse about the marks and she told that it was a tenth month delivery, therefore, these marks were caused as the size of the child was comparatively large. However, there is no problem to the baby. He also signed a document in which it was written that the baby was delivered healthy. When he came to know about the death of his new born baby girl, he started raising voice that his daughter had died due to negligence of staff and he would make a complaint in this regard upon which the CMO asked him to go away from the hospital. Meanwhile, the CMO called the police.
FIR No. 292/2018 State Vs. Reeta Devi Page No.27 of 48PS Moti Nagar
49. The present case is based on circumstantial evidence as there is no eye-witness who has actually seen the accused committing murder of her girl child. It is beyond comprehension of the present Court that if there was negligence on the part of the Doctors then as to why PW Ashrfi Mehta or the accused did not call the police and why it was the CMO only, who had called the police. In the cross-examination by the Ld. Addl. PP for the State that PW Ashrfi Mehto had admitted that he did not made any complaint till date of any higher official of the police or any other authority that police had made him to write a false statement and that his wife has been falsely implicated in the present case. PW Ashrfi Mahato further admitted that he had not filed any criminal complaint or application before the Court that his baby girl had died to the negligence of the doctors. He denied the suggestion that he is intentionally concocting a false story and hiding the fact of confession made by accused to him as he wants to save accused from conviction. Further, the discharge summary i.e. Ex. PW-5/A shows that the baby was born healthy. PW-Bharti Kumari is the nurse having duty hours from 08:00 AM to 08:00 PM. She has deposed that till her duty hours till 08:30 PM on 29.07.2018, she found that both the accused & her baby girl were in good condition. PW-8 Kiran Bisht is also the staff nurse and has deposed that she had inquired of all the patients about their newly born babies and when she went to the bed of the accused, she found both the accused and her baby girl in well condition. She even touched the baby girl started weeping and she was FIR No. 292/2018 State Vs. Reeta Devi Page No.28 of 48 PS Moti Nagar having normal movement. Similarly PW Satvinder Kaur is also the staff nurse, she also found the baby well in condition. PW Dr. Dushyant has taken the round at about 07:30 AM and he found both the accused and her child was well and the baby girl was taking the feed properly. Perusal of the aforesaid testimonies clearly show that, the PW/Nurses i.e. Satvinder Kaur Saini, PW Kiran Bisht and PW Bharti Kumari & Doctors i.e. PW-9 Dr. Dushyant Rastogi who were present did not see any bruises just after the delivery of the baby when they check up the baby and the mother.
50. In view of the aforesaid discussion, the cause of death stands proved beyond reasonable doubt by the prosecution that it was homicidal in nature of that being smothering and throttling.
As now, the identity of the accused and death being homicidal in nature has been proved by the prosecution, we shall now proceed to the most important link in the chain of circumstantial evidence i.e. last seen together theory. LAST SEEN TOGETHER:
51. The prosecution seeks to predicate its case on circumstantial evidence as there is no direct evidence available to show that it was the accused who had murdered her baby girl by smothering and throttling. One of the circumstance sought to be proved by the prosecution is based on the last seen theory as the accused was alone with her baby at or around the time of the incident.
FIR No. 292/2018 State Vs. Reeta Devi Page No.29 of 48PS Moti Nagar
52. In the instant case, it is not in dispute that at the time of incident the accused and the deceased i.e. the baby girl were in the same labour room. In fact, they were on the same bed. This fact is not under dispute as it was the accused Reeta Devi only who has told about the inactivity of the baby to PW Poonam and hospital staff. Accused has just taken the defence that it was the fault of the hospital administration as the baby was overweight and therefore, there were certain complications during her delivery which resulted into bruises on the body of the newly born baby girl and she has died because of that only and hospital administration in connivance with police has falsely implicated her.
53. PW-6 Smt. Poonam was in the same labour room and on another bed, she has deposed on 28.07.2018 she gave birth to a male child on 29.07.2018 and after birth she was shifted to labour room and there were total 4 beds in the labour room and one bed was empty and there were two other women along with their new born baby. Out of two, accused Reeta was there along with her new born baby girl and she told her that there is some reddishness on the nose of her newly born baby girl. She informed the Doctor in this regard in the labour room, no outsider was permitted in the room and only staff was permitted to enter. In her cross-examination she has deposed that she had not taken the said baby girl child in her lap to see the injuries. She did now see the injuries on the face of the baby girl child from her own eyes but she only told by the accused. She denied FIR No. 292/2018 State Vs. Reeta Devi Page No.30 of 48 PS Moti Nagar the suggestion that since she was taking rest and sleeping, she did not know as to who used to visit the labour ward. She further denied the suggestion that since she was taking rest, she could not say if the relatives of other women visited them in the ward. It is quite evident from the testimony of PW Poonam that, she was aware as to who visited the accused. She has deposed emphatically on oath that in the labour room, no outsider was permitted and only staff could visit.
54. PW-8 Kiran Bisht, PW-10 Bharti Kumar and PW-12 Satvinder Kaur Sahni are the staff nurses. They all were deputed on the day of the incident in the hospital.
55. PW- 8 Ms. Kiran Bisht has deposed that when she resumed her duty at 08:00AM, sister Bharti Kumar and Satvinder Kaur Nursing Officer were on duty as she took the charge of the mothers and newly born babies which were in the labour room at that time. She had inquired of all the patients and about the newly born babies by visiting on each bed. She asked to check, accused and her baby girl by visiting her bed and both were in well condition. She also identified the accused. She touched the baby girl and she started weeping and was having normal movement at that time. At about 8:30 AM, hospital kitchen staff had brought the breakfast for all the patient present in the labour room in trolley. Accused also took her meal from the said trolley. She has further deposed that at about 9:00 AM, accused brought her newly born baby girl to her and produced the same before her stating that accused's baby girl is not weeping. She checked the FIR No. 292/2018 State Vs. Reeta Devi Page No.31 of 48 PS Moti Nagar baby girl and stimulate her but she did not find any movement in the baby girl. She also noticed reddish colour abrasion on the nose of baby girl. She immediately took the baby girl to pediatrician, Dr. Dushyant, who was on duty in the NICU. After examining the baby doctor declared the baby "as dead". During the admission in the labour room no person from outside is allowed to enter in the labour room and no outsider has visited there during the period from 8:00 AM to 9:00 AM as nobody is allowed to enter in the labour room. In the cross-examination by the Ld. Defence counsel, she stated that when she checked the moment of the baby girl the mother i.e. accused was breast feeding the child and she did not notice any reddish colour abrasion on the nose of the baby girl. She admitted the suggestion that she noticed the reddish color abrasion on the nose of the baby girl when the mother of the baby girl present accused told her.
56. PW-10 Bharti Kumari is also the nurse and she has deposed that on the night intervening 28/29.07.2018, she was posted as Staff Nurse in ESI Hospital, Basai Darapur, New Delhi and was on night duty in labour room from 8:00 PM to 8:00 AM. Accused alongwith her newly born baby girl was also present in the labour room alongwith other patients and their newly born kids were present there. Till her duty hours i.e. upto 8:30 AM on 29.07.2018, she found the accused and her newly born baby girl in well condition. Thereafter, she had handed over her charge to other staff nurse. During her duty hours, no other outsider or FIR No. 292/2018 State Vs. Reeta Devi Page No.32 of 48 PS Moti Nagar stranger had entered in the labour room. In her cross-examination by the Ld. Defence Counsel she voluntarily deposed that she was the staff nurse on contract basis and now she has left the job. Besides her, Sister Satvinder Kaur, Sr. Nurse was also on duty with her. As far as she recollect on the night of 28/29.07.2018, one nursing orderly whose name she do not remember was also on duty in the labour room. In the PNC ward which is part of the labour room, other patients were also there.
57. PW-12 Satvinder Kaur Saini has deposed that after finishing her duty in the morning, she handed over her duty charge to Sister Suman and Kiran. During her duty hours, she had checked the mothers and new born kids present in the labour room including accused and her newly born baby girl and she found them baby and mother alive and active. No outsider is permitted to enter in the labour room. Only once lady attendant can see the patient. She stated in her cross-examination by the Ld. Defence Counsel that as far as she recollect the name of the lady attendant with the accused was Rita Devi. Besides the accused two other patients for the delivery were also present in the said labour ward. Accused gave birth to the child at around 03:50 AM and thereafter two more deliveries were also there and apart from this one more Cesarean section patient was also prepared. The names of other two mothers were perhaps Poonam and Kirti. One official attendant namely Priya was also on duty on the same night.
58. PW-9 Dr. Dushyant Rastogi is the doctor who was also on FIR No. 292/2018 State Vs. Reeta Devi Page No.33 of 48 PS Moti Nagar duty that day, he has deposed that on the night intervening 28/29.07.2018, he was on night duty from 9:00 PM to 9:00 AM. At about 7:30 AM, he was taking round of the ward. He saw the accused (patient) alongwith her newly born baby girl child in the labour room. Both mother and child were well and the baby girl was taking feeding properly. He has further deposed at about 9:05 AM, one nurse on duty, namely, Kiran Bisht came to him in nursery with accused's baby girl and she told him that there is no movement in the baby girl. Then, he examined the baby girl and found no activity in her body. He further denied the suggestion that he had not examined the baby girl at the relevant date and time and further denied that he had not seen the deceased baby girl as well as her mother (accused) while taking in the ward at 07:30AM.
59. Testimony of PW Dr. Dushyant, PW Bharti Kumar, PW Kiran Bisht & PW Satwinder Kaur is clear on the aspect that baby girl was well when they examined her. They all found bruises on the nose only when the accused pointed towards the inactivity. They all have struck to their stand in cross- examination. They have deposed emphatically on oath that baby was in well condition in the morning time till the accused complained about the inactivity. PW Kiran Bisht has deposed to the effect that no outsider entered the room between 08:00 AM to 09:00 AM. Similarly PW Bharti Kumari has also deposed that during her duty hours no outsider or stranger had entered the labour room. PW Satwinder Kaur has deposed that nobody FIR No. 292/2018 State Vs. Reeta Devi Page No.34 of 48 PS Moti Nagar entered the labour room. Perusal of the testimonies shows that the are clear and coherent, they have remained consistent and unshaken during cross-examination which also inspires the confidence of the court.
60. PW Poonam, PW Sukwinder Kaur, PW Kiran Bisht and PW Bharti Kumari has deposed emphatically on oath that nobody was allowed to enter the labour room. PW Insp. B.S. Gulliya has deposed that he has obtained the CCTV footage i.e. Ex.PW-16/D and the CCTV footage confirms that no one has entered or left the room during the relevant period and the accused was only present with the baby girl. The site plan i.e. Ex. PW 16/E shows that there is only one entry and exit door to the room very interestingly no question was put in the cross-examination questioning the CCTV Footage which has been supported with Sec. 65B Indian Evidence Act which is Ex.PW-16/D.Further no question has put to PW Bharti, Kiran Bisht or Satvinder Kaur regarding any outsider entering the labour room.
61. In Arvind @ Chotu v. State, Crl. A.362/01, decided on 10.08.09, the Hon'ble Delhi High Court summarized the legal position with respect to the last seen theory. The relevant portion is extracted hereinunder:
"103. We may summarize the legal position as under:-
(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where a FIR No. 292/2018 State Vs. Reeta Devi Page No.35 of 48 PS Moti Nagar rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory. The above circumstances are illustrative and not exhaustive. At the foundation of the last-
seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last- seen evidence and standing alone would be sufficient to sustain a conviction."
62. In the case of Rajender Vs. State (NCT of Delhi), (2019) 10 SCC 623, it was observed as under:
"12.2.4. Having observed so, it is crucial to note that the FIR No. 292/2018 State Vs. Reeta Devi Page No.36 of 48 PS Moti Nagar reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Indian Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the Court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.
63. Recently, the Hon'ble Supreme Court in the case of Ramgopal Vs. State of Madhya Pradesh, SLP (Crl.) 9221/2018 decided on 17.02.2023 observed as under:
"9. In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a FIR No. 292/2018 State Vs. Reeta Devi Page No.37 of 48 PS Moti Nagar wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence."
64. Applying the aforesaid law to the facts and circumstances of the present case, admittedly, the accused Reeta Devi was present in the same room more specifically in the same bed with the newly born baby girl. As the present court has already discussed, same has not been disputed. PW-8 Kiran Bisht, PW-10 Bharti Kumar and PW-12 Satvinder Kaur Sahni staff nurses have deposed emphatically on oath that nobody was allowed to come and go from the labour room. All the these PWs along with PW- 9 Dr. Dusyant Rastogi has also deposed emphatically on oath that the baby girl of the accused was in good condition at the time of birth and they have seen her last alive with the accused only. In these circumstances, the present court is of the opinion that it is perspicuous that the baby girl was last seen alive with the accused Reeta Devi.
65. In opinion of the court, this is a fit case for invoking Section 106 of the Evidence Act which lays down that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. In Ram Ghulam Chaudhary Vs. State of Bihar 2001(8) SCC 311, the Hon'ble Apex Court had considered the applicability of Section 106 of the Evidence Act. It was observed therein that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable FIR No. 292/2018 State Vs. Reeta Devi Page No.38 of 48 PS Moti Nagar doubt but the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the death. The accused by virtue of their special knowledge were expected to offer an explanation which might lead the Court to draw a different inference.
66. Once the theory of last seen together was established by the prosecution, it was obligatory upon the accused Reeta Devi to offer a reasonable explanation on the basis of facts within her special knowledge. It is true that the burden to prove the guilt of the accused is always on the prosecution, however, in view of Section 106 of the Indian Evidence Act, when any act is within the knowledge of any person, the burden of proving that fact is upon him. Section 106 does not relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, such failure on the part of the accused may be used against the accused as an additional link in the chain of circumstances required to be proved against him.
67. The accused Reeta Devi simply claimed that it is the fault of the Doctors. Accused has taken the defence that she was having ten month pregnancy. PW-1 Asharfi Mahato has deposed that at the time of admission of his wife, the Doctor told him that they came late for the delivery as the pregnancy was in the 10th month and there may be complications as the size of the baby has increased and the baby could consume the fluids of the womb FIR No. 292/2018 State Vs. Reeta Devi Page No.39 of 48 PS Moti Nagar and may die after delivery. In the cross-examination by the Ld. Addl. PP, he deposed that after the pregnancy of his wife started he used to get regular medical check at Maternity Hospital, Naraina. He was asked by Ld. Addl. PP whether he can produce any document to show that the treatment was undergoing at Maternity Hospital, Naraina or to show that pregnancy was in the 10th month. He has deposed that he could not produce the entire record as he has submitted the same is ESI Hospital. There were no such documents ever produced on record. Accused Reeta Devi has not placed these documents by herself or made any application for summoning of these documents whereas the discharge summary Ex.PW-5/A shows that the baby was born healthy and there were absolutely no complications. Even the notes prepared just after the delivery as reiterated in MLC i.e. Ex. PW-7/A shows that baby was healthy and cried immediately after birth. PW-1 Asharfi Mahato himself has admitted that he signed the document that his wife delivered a healthy baby girl. Therefore, the claim of the accused that there were health issues with the baby is not substantiated from any material on record.
68. It is also deposed by PW Asharfi Mahato that after signing of the abovesaid documents, the baby was taken to his wife i.e. accused and he came outside. After about half-a-hour, the nurse called him and asked him to bring some breakfast for his wife. He brought one packet of biscuit and tea for her and handed over the same to the nurse. He left the hospital at about 07:00 AM and at about 09:00AM he received a call on his mobile phone from FIR No. 292/2018 State Vs. Reeta Devi Page No.40 of 48 PS Moti Nagar the Doctor of the Hospital who told him to come immediately. Perusal of the testimony of PW-6 Poonam shows that accused Reeta Devi told her that there is some reddishness on the nose of the baby girl and in these circumstances, it can be safely gathered that the accused was well conscious and well oriented which belies the arguments of the Ld. Defence Counsel that she could not tell how the bruises appeared as she was not in conscious state due to pain killers. The same is also corroborated from the testimony of PW Asharfi Mahto that accused has taken tea and PW Rita (neighbor & attendant) has also admitted that she has given tea to the accused. As discussed earlier testimony of hostile witnesses can be read in evidence which is found reliable. PW Kiran Bisht has also deposed that at around 08:00 AM, breakfast was served to all the patients & accused Reeta Devi also took the same. Meaning thereby, the accused was well active and taking her meals and tea. It totally refutes the story that bruises were already there. If there were reddishness all the time, then why accused Reeta Devi told the PW Poonam about the same when there was inactivity of the baby and why she has not complained earlier. Further no staff nurse or Doctor found the same on baby when they had taken the round and check up the baby. This leads to an irresistible conclusion that it is the accused only who could have caused the injuries resulting in the death of her newly born baby girl.
69. The deceased died in the same room or in the same bed under suspicious circumstances and her death was caused by FIR No. 292/2018 State Vs. Reeta Devi Page No.41 of 48 PS Moti Nagar throttling and smothering. Her mother i.e. the accused Reeta Devi was present with her at her that time and as per the last seen theory, it was for the accused to explain the circumstances within her special knowledge, however, the evasive explanation that she has been implicated by the police officials just to save the reputation of the hospital as discussed above the medical evidence the document Ex.PW-5/A & Ex.PW-7/A pertaining to the birth of the baby girl shows that baby girl was born perfectly healthy. Further, there is nothing on record even to remotely suggest the presence of any other person at the scene of crime who could have murdered the baby girl. Even at the stake of repetition, the present court wants to emphasis that PW Bharti Kumari, Kiran Bisht, Satvinder Kaur and Dr. Dushyant have deposed emphatically on oath that the newly born baby girl was healthy and there was no marks of bruises on the body when they checkup the baby.
70. One of the most important testimony is that of Dr. Jatin Bodwal who has conducted baby girl's post-morterm. PW Jatin Bodwal has cleared the anxiety of Ld. Defence Counsel that as to why there were no finger prints on the baby. He had explained that finger prints do not get transfered while smothering and he also explained the nature of injuries in consonance with throttling only. He further clarified that the death was not caused during the process of delivery. He deposed emphatically on oath that since the injury on the neck was 2cm x 1cm, so throttling was done by fingers & thumb. He further denied the suggestion that the death FIR No. 292/2018 State Vs. Reeta Devi Page No.42 of 48 PS Moti Nagar of the child has not occurred due to throttling. He further denied the suggestion that he had prepared his report at the instance of the IO.
71. All the circumstances point towards only one conclusion that it was the accused Reeta Devi who had killed her newly born baby girl by throttling and smothering. The act of the accused makes it pellucid that she had the requisite intention to cause death of her newly born baby girl. Hence, his act falls squarely within the meaning of Section 302 IPC.
72. Ld. Counsel for the accused has argued that police has not recorded the statement of PW-1 Asarfi Mahato regarding the involvement of Doctors in the death of the newly born baby girl. Perusal of the case file shows that police has investigated the matter and the PM report has been prepared by an independent institution i.e. DDU Hospital which is not in any way related to the ESI Hospital which is where the baby was born. Further the PW-1 Asharfi Mahto has admitted in his cross-examination that he had not made any complaint to any higher official of police or any other authority that police had made him write a false statement and that his wife has been falsely implicated in the present case. Also, he or the accused not filed single complaint to any legal authority or before the court that her baby girl had died due to the negligence of the Doctors.
If the accused had any apprehension in respect of intervention of Doctors she could have made a complainant to the police or any other higher legal authority. However, she along FIR No. 292/2018 State Vs. Reeta Devi Page No.43 of 48 PS Moti Nagar with her husband i.e. PW-1 Asharfi Mehto have failed to do the same. As I have already discussed, Section 106 of the Indian Evidence Act puts a corresponding burden on the person who is last seen together with the deceased to provide cogent explanation as to how the crime has been committed. In the present case, the prosecution has succeeded in establishing the aforesaid circumstances, this court has to presume the existence of certain facts and presumption is a course recognized by the law for the court to rely on in-conditions such as the present case.
73. It was held by the Hon'ble Supreme Court in case titled as Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 where the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
74. It has been held by the Hon'ble Supreme Court of India that presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact FIR No. 292/2018 State Vs. Reeta Devi Page No.44 of 48 PS Moti Nagar from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
75. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of Hon'ble Supreme Court of India. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].
76. In view of the discussion above and the law settled by the Hon'ble Supreme Court, it can safely be concluded that the accused herein failed to give plausible explanation for the injuries on the body of her daughter and also failed to indicate if FIR No. 292/2018 State Vs. Reeta Devi Page No.45 of 48 PS Moti Nagar there was an intervention by any third person and the admitted presence of accused in the room on the date and time of death of her daughter enables the court to draw adverse presumption against the accused being the perpetrator of crime as an important circumstance that completes the chain of circumstances pointing towards unequivocal guilty of the accused Reeta Devi.
CONCLUSION:
77. In the instant case, the murder is not alleged to have been committed by an unknown person rather the allegations are against the mother of the newly born baby girl. When an offence like murder is committed on the same bed/room by the mother, it will be difficult for the prosecution to establish what actually transpired to a mother and what was the motive that she may have at that point of time committed such crime. Thus, in view of the settled position of law in Suresh Chandra Bahari v. State of Bihar, the failure to prove the motive is not fatal as a matter of law when other circumstances completes the chain to show that in all human probability the act must have been done by accused.
78. To summarize, prosecution has successfully established the following circumstances beyond any reasonable doubt i.e.
(i) Spot of incident was in the occupation of accused, she was together with the newly born baby in the labour room on the same bed.
(ii) Presence of the accused at the place and time of death of FIR No. 292/2018 State Vs. Reeta Devi Page No.46 of 48 PS Moti Nagar newly born baby girl.
(iii) Death of baby girl being homicidal in nature of that being throttling and smothering.
(iv) Testimony of PW Satwinder Kaur, PW Bharti Kumari, PW Kiran Bisht and Dr. Dushyant who had found baby healthy before marks and bruises appeared on the face and neck of the baby girl. Meaning thereby, the baby girl was last seen alive with the accused.
(v) The identification of the accused by the PWs witnesses.
(vi) Undisputed CCTV footage and testimony of nurses that no outsider was allowed to enter the labour room.
79. Further, as mentioned above, the accused offered no explanation to the incriminating evidence/circumstances which were put to her in her statement under section 313 Cr.P.C. It is a settled law that though non explanation of accused to the questions posed by the court u/s 313 Cr.P.C., cannot be considered as a circumstance to complete the chain but it can always be used as an additional link, if the prosecution has established the chain of circumstances which is the case herein. Reliance is placed upon judgment of Hon'ble Supreme Court in Shivaji Chintappa Patil v. State of Maharashtra, Crl. Appeal No. 1348 of 2013, wherein it was observed as under:-
"Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under section 313 Cr.P.C. By now it is well settled principle of law, that false explanation or non explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than FIR No. 292/2018 State Vs. Reeta Devi Page No.47 of 48 PS Moti Nagar the guilt of the accused. However, it cannot be used as a link to complete the chain.
80. To sum up, the circumstances establishing guilt of the accused Reeta Devi have been fully established. The facts established on record are consistent only with the hypothesis of guilt of accused Reeta Devi. The circumstances, as proved by prosecution, are conclusive in nature and there is no scope of probability. In all human possibility that the baby girl did not die the natural death as proved from medical evidence. The circumstances proved on record exclude every possible hypothesis except the guilt of accused Reeta Devi. The chain of evidence in the present case is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances proved on record in this case show that in all human probability it was the accused Reeta Devi who had committed the murder of newly born baby girl. In the view of this Court, the aforesaid circumstances are sufficient to form a complete chain which unerringly point towards the guilt of accused Reeta Devi.
81. Thus, it is hereby concluded that prosecution has successfully established its case against the accused. Accordingly, the accused Reeta Devi stands convicted for offence punishable u/s 302 IPC.
82. Let the accused Reeta Devi be heard on the point of sentence.
Announced in the (AMBIKA SINGH) Open Court on 30.11.2023 ASJ-02 West THC Delhi FIR No. 292/2018 State Vs. Reeta Devi Page No.48 of 48 PS Moti Nagar