Delhi District Court
State vs Gudia on 31 March, 2012
IN THE COURT OF SH. LAL SINGH, ASJ02/FTC, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0637672006
Session Case No. 48/12
State versus Gudia
W/o Sh. Chander Prakash.
R/o C402, Inder Puri,
New Delhi. ...... (Accused)
FIR No. 348/06
U/s: 302 IPC
PS: Mandir Marg
Date of institution of the case : 11.01.2007
Case received by transfer to this court : 02.01.2012
Date when the case reserved for judgment : 28.03.2012
Date of announcement of judgment : 31.03.2012
JUDGMENT
1. Accused Gudia was arrested by the police of PS Mandir Marg vide FIR No. 348/06 and was challaned to the court for the trial for the commission of offence punishable under section 302 IPC.
2. Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistence with her innocence? For an answer facts gain importance.
3. On 03.09.2006, DD No. 17 B was received by ASI Gopi Ram as SC No. 48/12 1/27 per which duty constable Om Prakash informed through telephone from Lady Harding Hospital that one new born female baby of Gudia 24 hours was declared brought dead in Lady Harding Nursery. On receiving DD no. 17 B, ASI Gopi Ram alongwith Ct. Mahinder went to the Lady Harding Hospital, where they met Dr. Somya Tiwari in the children nursery and she handed over MLC no. 9627/06 of female baby of Gudia to ASI Gopi Ram and also shown the dead body of the female baby of Gudia in the nursery to ASI Gopi Ram. ASI Gopi Ram inspected the body and noticed that some marks were present on the neck of dead body of female baby of Gudia. ASI Gopi Ram had requested the doctor for postmortem of the dead body, but postmortem could not be done, as it was Sunday. Thereafter, he took the photographs of the dead body and got preserved the dead body in the mortuary.
4. On 04.09.2006 the postmortem of the dead body was conducted and ASI Gopi Ram received the postmortem report bearing no. 311/06. As per the postmortem report cause of death was mentioned as Asphxcia as a result of constriction of neck due to manual strangulation (throttling). After postmortem, the dead body of female baby was handed over to Chander Prakash, the father of female baby. ASI Gopi Ram got registered the FIR no. 348/06 u/s 302 IPC in the present case. Thereafter, the investigation was carried out by inspector Suresh Kaushik. During the course of investigation the IO had recorded the statements of witnesses and on 05.09.2006, on the pointing out of ASI Gopi Ram prepared the site plan of the spot. The accused SC No. 48/12 2/27 Gudia was was arrested from her rental accommodation at house no. C402, Inderpuri, New Delhi. The IO had also recorded the disclosure statement of the accused Gudia and accused was medically examined. The police has also obtained two pullandas, containing blood samples and nails of accused Gudia from the hospital alongwith sample seals and seized the same. On 09.09.2006, the IO had obtained four photographs of the deceased baby girl. IO had also collected the relevant records/documents from the LHMC hospital regarding admission, treatment, discharge of Gudia and giving birth of the female baby.
5. During the course of investigation, the pullandas were sent to FSL, Rohini and reports were collected. On 13.11.2006, draftsman inspector Devender Singh, on the pointing out of inspector Suresh Kaushik, prepared the site plan. The police has also recorded the statements of witnesses and after completion of the investigation, charge sheet u/s 302 IPC was filed against the accused Gudia. After compliance of the provision of section 207 & 208 Cr.P.C, Ld. MM committed the case to the court of sessions.
6. After being heard to the Ld. Addl. PP for the state and counsel for the accused, charge u/s 302 IPC was framed against the accused Gudia. Accused Gudia pleaded not guilty to the charge and claimed trail.
7. To bring home its case the prosecution examined twenty two (22) witnesses in all namely, PW 1 Smt. Sushila, PW 2 Dr. Shrawan Kumar Naik , PW 3 Dr. Soumya Tiwari, PW 4 Sister Sneh Anand, PW 5 Sureshi, PW 6 SC No. 48/12 3/27 Inspector Suresh Kumar, PW 7 ASI Gopiram, PW 8 HC Virender Kumar , PW 9 SI Ramji Lal, PW 10 Shashi Bala, PW 11 Ct. Roop Chand, PW 12 Retired Inspector Devender Singh, PW 13 Maya, PW 14 Firdaus, PW 15 Ct. Sanjay, PW 16 Dr. R.K. Mundra, PW 17 Dr. Ajay Kumar, PW 18 Ct. Mahender Singh, PW 19 HC Pramod Kumar, PW 20 Ct. Jaipal, PW 21 W/ASI Sushila, PW 22 Chander Prakash.
8. PW 1 Smt. Sushila was on duty on 02.09.2006, from 09:00 PM to 07:30 AM and she was attending the room no. 501 to 512 in the lady Harding Medical College. She deposed that wards were locked at 11:00 PM in the night and no outsider and attendant had entered in the wards upto 07:00 AM. PW1 Sushila was informed by one lady Sureshi who was also admitted in the said room that the accused Gudia informed her that the baby of accused Gudia is not moving or feeding breast. Thereafter, PW1 checked the daughter of accused Gudia. PW1 deposed that after seeing the condition of baby of accused Gudia, she felt that the child was not in a good condition. Thereafter, PW1 took the baby of accused Gudia to the nursery at ground floor alongwith accused Gudia and the female baby of accused Gudia was checked and found dead. PW1 further deposed that when doctor was checking the baby of accused Gudia, she noticed some mark of injuries on the neck of baby. Thereafter, the police was called and dead body of female baby of accused Gudia was preserved for postmortem.
9. PW 2 Dr. Shrawan Kumar Naik had conducted the postmortem SC No. 48/12 4/27 examination of the body of deceased baby of the accused Gudia. During the postmortem examination, PW2 detected the following findings over the dead body of baby of accused Gudia which are as follows :
i. Rubber band ligation found at the distal end of umblical stump is 3 cm long and found dry and shrivelled. Face is found congested. Nail beds and both lips are appearing bluish (cyanosed) External Injuries: ii. Abrasion looking red colour of size 0.75 cm x 0.5 cm situated on the right lateral aspect of neck, 2.5 cm below the tip of right mastoid.
iii. Abrasion looking red colour, of size 2 cm x 0.5 cm situated horizontally on the right antero lateral aspect of neck 3.25 cm below the right ear lobule.
iv. Crecentric abraded coceration of size 1 cm x 0.25 cm x skin deep situated on the left side anterior aspect of neck 0.5 cm lateral to mid line and 2 cm above medical end of left clavicle. The concavity of the wound is facing downward and medically.
v. Abraded contusion looking bluish red colour of size 3.5 cm x 1.5 cm situated horizontally on the front of neck on and above the level of thyroid cartilage.
vi. Semi lunar shaped abrasion looking red colour of size 0.5 cm x 0.1 cm situated vertically on the left side back of neck just above and adjacent to shoulder blade concavity of the abrasion is facing medially. SC No. 48/12 5/27
vii. Linear abrasion looking red colour of size 0.5 cm x 0.1 cm situated vertically on the left side back of the neck 0.9 cm medial to external injury no. 5.
10. As per the opinion of PW2 the cause of death of baby of accused Gudia is asphyxia as a result of constriction of neck and due to the manual strangulation (throttling). All the external injuries are ante mortem in nature, fresh in duration and consistent with application of manual force. PW2 stated that the time of death was about within 24 to 36 hours as per the inquest papers. PW2 has proved his detailed report vide Ex.PW2/A.
11. PW 3 Dr. Soumya Tiwari examined the female baby of accused Gudia on 03.09.2006 at about 05:15 AM. PW3 deposed that the child was brought dead by the staff nurse Sushila and there was no sign of life and she noticed the marks of strangulation i.e bruises on her neck. PW3 has proved the MLC vide Ex.PW3/A.
12. PW 4 Sister Sneh Anand informed the police regarding admission of patient Gudia. She deposed that as per record the patient was admitted in the Hospital on 02.09.2006 and after the birth of baby girl she was transferred to maternity no. 9, ward no. 4. PW4 handed over the duty record of the staff members to the police vide Ex.PW4/A
13. PW 5 Sureshi was also stated to be admitted on 02.09.2006 in the Lady Harding hospital. She had also given birth to a female child. PW5 deposed that she was on separate bed and accused Gudia was sharing her bed SC No. 48/12 6/27 with another lady and PW5 further stated that "subah subah accused ro rahi thi or keh rahi thi meri bachchi ki tabiyat kharab hai". PW 5 categorically stated that she does not know anything about this case.
14. PW 6 Inspector Suresh Kumar took over the investigation of the case on 04.09.2006. On 05.09.2006, he prepared the site plan at the Lady Harding hospital at the pointing out of ASI Gopi Ram vide Ex.PW6/A. He had also recorded the statement of the witnesses in the hospital. PW6 arrested the accused Gudia vide arrest memo Ex.PW6/C and recorded her disclosure statement vide Ex.PW6/D. The personal search of accused Gudia was conducted by ASI Sushila vide personal search memo Ex.PW6/B. PW6 got medically examined the accused Gudia and he also seized two pullandas handed over to ASI Gopi Ram by the doctor vide seizure memo Ex.PW6/E. During the course of investigation, he had also collected the four photographs of baby girl of accused Gudia and vide photographs Ex.PW6/F1 to Ex.PW6/F4. PW6 also collected the relevant record from the hospital regarding admission, treatment and discharge of accused Gudia and of giving birth of baby girl vide Ex.PW6/G1 to Ex.PW6/G6. The pullandas were sent to FSL Rohini and report were collected vide Ex.PW6/H.
15. PW 7 ASI Gopiram on 03.09.2006, on receiving of DD No. 17 B reached the Lady Harding hospital where doctor had handed over to him the MLC of female baby of accused Gudia in which she was declared brought dead. Thereafter, he filled in form 25.35 vide Ex.PW7/A. He had also SC No. 48/12 7/27 recorded the statement of Chander Prakash husband of the accused Gudia regarding the identification of dead body vide Ex.PW7/B. PW7 stated that after conducting the postmortem the dead body of female baby was handed over to the father of the deceased baby vide memo Ex.PW7/C. He has also proved the FIR vide Ex.PW7/F. On 05.09.2006, he had again joined the investigation and on his pointing out IO prepared the site plan Ex.PW6/A. In the presence of PW7 the accused Gudia was arrested and her personal search was carried out by ASI Sushila and disclosure statement of accused Gudia was also recorded. He had identified the accused Gudia during the trial. PW7 took accused Gudia to hospital alongwith women ASI for the medical examination of accused Gudia.
16. PW 8 HC Virender Kumar is a formal witness who had sent sealed pullandas to FSL Rohini vide RC No. 98/21 through Ct. Sanjay. PW 9 SI Ramji Lal recorded the FIR no. 348/06, u/s 302 IPC in the present case vide FIR Ex.PW7/F and made his endorsement on the rukka vide Ex.PW9/A. PW 10 Shashi Bala had examined the parcels Ex.1 Nail clippings, Ex. 2 dark brown liquid. PW10 deposed that blood was detected on Ex. 2 and blood could not be detected on Ex. 1 and skin could not be detected on Ex. 1. She proved her detail report vide Ex.PW10/A. PW10 has also conducted serological examination of Ex. 2 and prepared report vide Ex.PW10/B.
17. PW 11 Ct. Roop Chand had taken the photographs Ex.PW6/F1 to Ex.PW6/F4 of the deceased girl child on the direction of the IO. He has also SC No. 48/12 8/27 proved the negatives of the photographs vide Ex.PW11/A collectively. PW 12 Retired Inspector Devender Singh stated that he had taken rough notes and measurements of the place of incident i.e room no. 506 maternity ward LHMC on the pointing out of Inspector Suresh Kumar on 13.11.2006. Thereafter, on the basis of the rough notes and measurement he prepared scaled site plan Ex.PW12/A. PW 13 Maya had also stated to have had given birth to the child in the Lady Harding hospital. PW13 deposed that when she was present in the ward she had come to know that child of one lady was not taking milk from her and the doctor had taken the child from that lady. PW13 categorically stated that she does not know what happened to the child. This witness was cross examined by the Ld. Addl. PP for the state as she resiled from her previous statement.
18. PW 14 Firdaus, was also admitted in room no. 505 at ward no. 9 alongwith accused Gudia. She deposed that she can not identify those ladies who were admitted in the aforesaid wards due to lapse of time. However, PW14 identified the accused Gudia, who told PW14 in the morning of 03.09.2006 that her daughter was not moving and also not taking feed. PW 15 Ct. Sanjay is a formal witness, who took the sealed exhibits of this case from MHCM vide RC No. 78/21 and deposited the same in the FSL. PW 16 Dr. R.K. Mundra, had proved the admission sheet of accused Gudia vide Ex.PW6/G1 and also proved the delivery of female baby by accused Gudia vide Ex.PW6/G2. He had also proved the record of new born baby of accused SC No. 48/12 9/27 Gudia vide Ex.PW6/G3 and Ex.PW6/G4.
19. PW 17 Dr. Ajay Kumar,who was working as a paediatrician at Kalawati Saran Children Hospital on 03.09.2006. This witness was informed on telephone that new born baby has been brought to the nursery with cardio respiratory arrest and there were some marks around the neck of the baby. He deposed that that the doctor on duty carried out the resuscitation but the baby could not be survived and he instructed the doctor on duty to inform the police and for making medico legal case.
20. PW 18 Ct. Mahender Singh went to Lady Harding Medical college alongwith ASI Gopi Ram on receiving of DD no. 17B on 03.09.2006, where they met Dr. Somaya, who handed over to ASI Gopi Ram, MLC of baby girl of accused Gudia. In the presence of PW18 ASI Gopi Ram took the photographs of the dead body of the baby girl of accused Gudia.
21. PW 19 HC Pramod Kumar recorded the DD no. 17B on 03.09.06 vide Ex.PW7/D regarding the information of death of female baby of accused Gudia and he had handed over the copy of the aforesaid DD to ASI Gopi Ram for investigation. PW 20 Ct. Jaipal is a formal witness who gave the copy of FIR to the DCP, (ND), Galf Seven Office, PHQ and residence of concerned MM.
22. PW 21 W/ASI Sushila went to LHMC Hospital in room no. 505 alongwith Inspector Suresh Kumar, ASI Gopi Ram and Ct. Kishore on 05.09.2006. In the presence of PW21, IO prepared the site plan at the instance SC No. 48/12 10/27 of ASI Gopi Ram and in her presence the IO made interrogation from doctor and staff nurse concerned and recorded their statement. Thereafter, they went to the house of accused Gudia at C402, Inderpuri, where IO arrested the accused Gudia vide arrest memo Ex.PW6/C and conducted the personal search of accused Gudia vide personal search memo Ex.PW6/B and also recorded the disclosure statement of accused Gudia vide Ex.PW6/D. Thereafter, she accompanied accused Gudia who was brought to LHMC Hospital, where accused Gudia was medically examined.
23. PW 22 Chander Prakash is the husband of accused Gudia who got admitted accused Gudia in LHMC Hospital on 02.09.2006. He deposed that after 3540 minutes her wife gave birth to a female child. He further deposed that he met his wife at about 6.00 PM and he saw his new born daughter and his wife was feeling well. He stated that they were feeling happy due to new born female child. Thereafter, on 03.09.2006, he again went to the hospital, but he did not find his wife and her new born baby on her bed. Thereafter, he went towards veranda, where he found his wife and she was weeping and two police officials were also present there with her. On inquiry he was told by his wife that new born child was not well and nurse had taken the new born child to the doctor. PW22 was arrested on 03.09.2006. After Postmortem of the deceased baby of accused Gudia, PW22 received the dead body vide receipt memo Ex.PW7/C.
24. The accused Gudia while examining her U/Sec. 313 Cr.P.C. SC No. 48/12 11/27 pleaded that she is innocent and she had been falsely implicated in the present case. She further pleaded that she had not given any disclosure statement to the police and her signatures were obtained on blank papers.
25. Accused brought Ramesh Chand Yadav who is fatherinlaw of accused Gudia in her defence evidence and he was examined as DW1. DW1 Ramesh Chand Yadav deposed that on 02.09.2006, her daughterinlaw gave birth to a female child in Lady Harding Hospital and he received information regarding this fact from his son Chandra Prakash. DW1 stated that he told his son that 'Ek Lakshami ghar main thi ek aur aa gayi khush raho.'. DW1 stated that some musical programme had been done at his residence and thereafter, he distributed the sweets to the villagers.
26. I have heard the arguments on behalf of Ld. Addl. PP for the State as well as Ld. Counsel for the accused.
27. Ld. Addl. PP for the State submitted that the testimonies of PW1, PW2 and PW3 are very crucial and important in the present case and the testimonies of these witnesses clearly indicts the guilt of the accused. He further submitted that it is for the accused to show as to from where the marks on the neck of the new born baby was found present, as the baby was in the possession of the accused. He further argued that since the accused Gudia was nervous as she gave birth to a female girl and due to that accused strangulated her new born female baby and the injuries on the neck of the female baby were found and accused failed to explain as to how these injuries were inflicted on SC No. 48/12 12/27 the neck of the new born baby girl. He submitted that the PWs had categorically stated that after 11 p.m. in the night till 7 a.m. no outsider or attendant had entered in the Ward as Wards were locked at 11 p.m. He argued that when the new born girl child was in the possession of the accused and moreover, it has come on evidence that no outsider or any attendant had entered in the Ward then it is for the accused to explain satisfactorily as to how the injuries were received on the neck of the new born deceased girl. He has further argued that the prosecution has fully established the chain of evidence against the accused.
28. On the other hand, Sh. Maninder Singh, Advocate for the accused submitted that PW5 Sureshi, PW13 Maya, PW14 Firdos, PW22 Chandra Prakash were the best witnesses of the prosecution but in their testimonies nothing has come on record against the accused. He further submitted that in the present case motive assumes importance as the prosecution has alleged that accused killed her new born female baby as she wanted a male child but the motive was not proved as PW22 has not supported the prosecution version. Further, at the first instance, PW1 did not notice injury mark on the baby, however, she is stated to have had noticed the injury mark in nursery where female baby was taken for checking by the Doctors. He vehemently argued that the FSL report does not support the prosecution case. Further, the nail clippings of other inmates in the Ward were not taken nor the nail clippings of the Doctors and Sisters who attended the new born baby were SC No. 48/12 13/27 taken. He contended that the accused was not having exclusive custody of her female baby child and moreover, the postmortem of the baby was conducted after one and a half day i.e. on 04.09.2006. He further argued that as per site plan Ex.PW6/A there is no place shown as where the baby was strangulated, but in the site plan prepared by the Draftsman, he had shown the place of strangulation and therefore, the site plan prepared by the draftsman is an improvement. It is contended that the baby girl was sent to mortuary at 5.15 a.m. but the police was informed at 9.50 a.m. and police reached at 10.30 a.m. and further the prosecution has not produced Ct. Om Prakash who had stated to have had informed P.S. Mandir Marg regarding the incident. He vociferously argued that PW 17 was not working in the LHMC, therefore, his testimony is full of suspicion and he was introduced to fill up the lacuna and further the statement of PW 17, u/s 161 Cr. P.C was never recorded by the police during the course of investigation. Ld. counsel for the accused submitted that as per crossexamination of PW 3 she stated that police did not meet her after 03.09.2006. However, her statement us/ 161 Cr.P.C was recorded on 05.09.2006. Moreover, IO of the case also stated that he did not record the statement of PW 3 or any of the witness on 03.09.2006. He further argued that as per arrest memo the accused was arrested from H.No. C402, Inderpuri, but as per document Ex. PW 6/G1 to G 6, the address of the accused is Z248, Loha Mandi, Naraina, therefore, the address of C402 has not been proved, as it is a wrong address and further submitted that the SC No. 48/12 14/27 accused was already arrested in the hospital and was kept in illegal custody and she was never arrested from C402, Inderpuri. Ld. counsel argued that the clothes of the accused and her new born child were not seized by the police. As per the document Ex. PW 6/G, the accused was discharged in presence of the police, but PW 7 Gopi Ram stated in his crossexamination that when he met doctor accused Gudia was not present. He further argued that IO of the case had taken to the Draftsmen to the Hospital on 13.11.2006 after two months of the alleged incident and also did not make any entry in the register of the hospital when he visited the hospital alongwith draftsman. He submitted that there is overwriting in the document Ex.PW6/D in which date has been changed as 05.09.2006.
29. Ld. counsel for the accused relied upon the case of Ramreddy Rajesh Khanna Reddy & Anr. vs. State of A.P., (2006) 10 SCC 172, wherein it was observed that the last scene theory furthermore comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead, if so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.
30. He further relied upon the case of Ravishwar Manjhi & Ors. vs. State of Jharkhand, (2008) 16 SCC 561, wherein it was observed that the investigation was carried out in a slipshod manner. The FIR clearly showed SC No. 48/12 15/27 that even before lodging of the FIR, investigation had started. The inquest was conducted, bloodstained grass and soil had been seized and the dead body was sent for postmortem.
31. It was further observed in the case of Ravishwar Manjhi & Ors. vs. State of Jharkhand (supra) that the investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor.
32. Ld. counsel for the accused further relied upon the case of State of Punjab vs. Ajaib Singh & Ors., 2004 (2) Crimes 459 (SC), wherein it was observed that in both the sketch plans neither a wooden staircase nor cots on the roof have been shown. The prosecution has failed to explain why the wooden staircase and the cots were not shown in the sketch plans prepared by the investigating officer and later by the draftsman. The absence of these things from the sketch plans created a doubt about the truthfulness of the two eye witnesses. It also raised a serious doubt as to whether they slept in the house of Jeon Singh on the night of occurrence at all. The High Court noticed the fact that the wooden staircase and cots on the roof were not shown in either of the sketch plans and, therefore, the evidence of the investigating SC No. 48/12 16/27 officer who prepared the rough sketch plan did not support the evidence of the eye witnesses that on the night of occurrence they had slept on two separate cots on the roof of the house. We also find that the investigating officer who reached the place of occurrence soon after the report was lodged could not have missed to notice the wooden stair case and the two cots if they were really there, because there was mention of these things in the first information report itself.
33. Ld. counsel for the accused argued that in the present matter also the investigation was not properly carried out and as per site plan Ex. PW 6/A prepared by the IO, no place had been shown as to where the baby of accused Gudia was strangulated and scaled site plan, prepared by the draftsman, was an improvement as it was prepared after the lapse of considerable time and in the scaled site plan the draftsman had shown the place of strangulation.
34. Ld. counsel for the accused further relied upon the case of Mousam Singha Roy & Ors. vs. State of W.B., (2003) 12 SCC 377, wherein it was held that before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victim in particular, by the fact that a heinous crime like this goes unpunished, but then the lax does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable SC No. 48/12 17/27 doubt on the basis of acceptable evidence.
35. Ld. counsel for the accused further relied upon the case of Rahisa vs. State of NCT of Delhi, 2011 (3) JCC 1532, wherein it was observed that the court is of the opinion that even the motive behind the commission of the offence was not proved by the prosecution. The prosecution had urged that the accused had rented a cycle rickshaw from the deceased and as he (accused) was not able to pay the rent, the deceased had scolded him and abused him and as the appellant felt insulted, he killed the deceased. The prosecution failed to prove the motive as the IO was not able to obtain sufficient evidence as to there being strained relations between accused and deceased for nonpayment of rent. He did not record the statement of any witness in support of the fact that accused had in fact rented a cycle rickshaw from deceased and was having trouble paying the rent.
36. Counsel for the accused also relied upon the case of state of Uttar Pradesh vs. Nandu Vishwakarma & Ors. (2009) 14 SCC 501, wherein it was observed that it is settled principle of law that when on the basis of evidence on record two views could be taken one in favour of accused and the other against the accused the one favouring the accused should always be accepted.
37. Ld. counsel for the accused submitted that in the present case also, the prosecution has failed to prove the motive.
38. I have gone through the record and perused the file and also SC No. 48/12 18/27 analyzed the evidence on record. In this case, testimonies of PW 1, PW 2, PW 3 and also the testimonies of PW 5, PW 13 and PW 14 are very crucial. PW 1 Shushila stated that when she checked the daughter of accused Gudia, after seeing the condition she felt that child is not in a good condition and she took her to nursery alongwith accused Gudia. Thereafter, she further stated that the female baby of accused Gudia was checked and was found dead and she noticed injury marks on the neck of female baby when doctor was checking the baby. In her cross examination, she stated that doctor had examined the female baby for about 3045 minutes. In her cross examination, PW1 stated that accused Gudia was arrested in the hospital itself on 03.09.2006, however as per the arrest memo Ex.PW6/C she was arrested from C402, Inderpuri, Delhi on 05.09.2006 at 02:30 PM. Even PW6 Inspector Suresh Kumar IO of the case and PW7 ASI Gopi Ram stated that the accused Gudia was arrested from C402, Inderpuri, Delhi on 05.09.2006 at 02:30 PM. However, as per document Ex.PW6/G1, Ex.PW6/G3, Ex.PW6/G5 and Ex.PW6/G6 and Ex.PW4/A her address has been shown as Z248, Loha Mandi, Naraina, New Delhi. There is no explanation as to why the accused Gudia was not arrested on 03.09.2006 in the hospital and how she was arrested from C402, Inderpuri, Delhi on 05.09.2006, whereas her address is some of the documents is shown as Z248, Loha Mandi, Naraina, New Delhi. Moreover, there is contradiction regarding her arrest as the PW1 stated that accused Gudia was arrested in the Hospital on 03.09.2006 itself, whereas PW6 and PW7 stated accused was SC No. 48/12 19/27 arrested on 05.09.2006 from Inderpuri, Delhi.
39. PW3 Dr. Soumya Tiwari, stated that child was brought dead by staff nurse Sushila and there was no sign of life but PW Sushila did not say that when she took the child, the child was dead. Further in the MLC Ex.PW3/A in the column of nature of injuries, there were cutting and when the PW3 was asked regarding these cuttings she admitted that the cutting was made by her because it was written in improper column. However, she stated that she noted down the word "opinion reserved at point B thinking that the final opinion would be given by the forensic expert". In her cross examination PW3 further stated that the police did not meet her after 03.09.2006, however, as per record her statement u/s 161 Cr.P.C was recorded on 05.09.2006.
40. PW 5 Sureshi, who was also admitted in the same room, where accused Gudia was admitted, had categorically stated that she does not know anything about this case. PW 5 deposed that subah subah accused ro rahi thi or kah rahi thi ki meri bachi ki tabiyat kharab hai. Thereafter, she called the nurse. In her crossexamination, she categorically stated that she did not tell the police that the accused Gudia was with her on the bed alongwith her daughter. She further stated that she cannot tell who had killed the baby of accused Gudia. Therefore, PW 5 had not supported the prosecution's case.
41. PW 13 Maya was also stated to have had admitted in the Lady Harding Hospital and she also gave birth to a child. PW13 deposed that she had come to know that the child of one lady was not taking milk from her and SC No. 48/12 20/27 doctor had taken the child from that lady. She categorically stated that she does not know what happened to the child. In her cross examination she specifically stated that she did not give any statement to the police alleging that accused had caused death of her girl child.
42. PW14 who was also stated to have had admitted in the Lady Harding Hospital in room no. 505, at ward no. 9, stated that one lady called the nurse and the nurse took accused Gudia and her daughter in other room and thereafter she came to know that the daughter of accused Gudia had expired due to strangulation and there were marks on her neck. In her cross examination she categorically stated that the accused Gudia did not tell her that she was nervous after birth of baby girl and further in her presence till 04.09.2006, police did not make any site plan. Therefore, it is amply clear that PW 5, PW13 and PW14 who were stated to be admitted in the aforesaid hospital alongwith accused Gudia but these witnesses had not stated that they had ever seen accused Gudia strangulating the neck of her new born female baby. All the three witnesses, who were stated to be admitted with the accused Gudia in the same room, had not supported the prosecution version and despite of cross examination nothing favourable had come in favour of the prosecution. Moreover, the other women who were also stated to be admitted in the aforesaid Hospital alongwith accused Gudia were not examined by the prosecution. The things would have been different, if the PW 5, PW13 and PW14 would have stated that they had seen strangulating the new born baby by SC No. 48/12 21/27 the accused Gudia but there is no evidence regarding this aspect. Moreover, PW 4 Sneh Anand stated in her crossexamination that there were two ladies on single bed and there were three lady patients on another third bed. But it is not clear who were sharing the bed with whom. The PWs, who were admitted in the same room, where accused Gudia was also admitted, were the best witnesses to tell about the death of the baby of accused Gudia or to narrate regarding the alleged nervousness of accused Gudia, after the birth of her baby, but in their evidence nothing has come against the accused Gudia, as they did not state that as to how baby of accused Gudia had expired.
43. Even in the DD no. 17B dated 03.09.2006, vide Ex.PW7/D the address of the accused Gudia is mentioned as Z248, Loha Mandi, Naraina, New Delhi. There is no explanation that when the address of the accused Gudia is of Z248, Loha Mandi then how she was arrested from Inderpuri and as to who disclosed the address of Inderpuri of accused Gudia. PW7 ASI Gopi Chand had admitted in his cross examination that the place of strangulation of girl child is not shown in the site plan Ex.PW6/A, however, on 13.11.2006, Inspector Devender Singh had stated to have had taken the rough notes and measurement of the spot on the pointing of IO Inspector Suresh Kumar and thereafter on the basis of rough notes and measurement he prepared the scaled site plan Ex.PW12/A on 17.11.2006. In the site plan Ex.PW12/A prepared by the draftsman the place A has been shown as the place where the baby girl was strangulated. The scaled site plan was prepared SC No. 48/12 22/27 by the draftsman after more than two months from the alleged incident. Moreover, ASI Gopi Chand categorically stated that in the site plan prepared by the IO Suresh Kumar vide Ex.PW6/A at his instance, the place of strangulation had not been shown. Why the IO of this case had not shown the place of incident in the site plan prepared by him vide Ex.PW6/A there is no explanation regarding this fact. Moreover, PW 12 stated in his examination in chief that he had visited the place of incident, i.e. Room No. 506, Maternity Ward and there he had taken rough notes and measurements and on the basis of which he prepared the scaled site plan Ex. PW 12/A, but as per the other witnesses, the place of occurrence, where the accused was admitted, was room no. 505. Therefore, on this aspect also there is contradiction in the testimonies of PW 12.
44. Further, none of the witnesses who were also stated to be admitted in the same ward of the hospital stated that they had seen accused Gudia strangulation (throttling) the female baby. The PW's who were admitted in the same ward alongwith the accused Gudia had not stated in their deposition that accused had ever told them that she was upset or nervous due to the birth of female baby. PW6 Inspector Suresh Kumar stated that he had mentioned the place of strangulation in the site plan Ex.PW6/A, however, PW7 ASI Gopi Chand stated that the place of strangulation was not mentioned in the site plan Ex.PW6/A. From the perusal of site plan Ex.PW6/A though three beds were shown in room no. 505 and at point A is a bed shown in the SC No. 48/12 23/27 site plan where accused Gudia was stated to be admitted with her new born baby. But in the site plan Ex.PW6/A is not shown, where the baby was strangulated.
45. PW1 Sushila stated in her cross examination that accused Gudia was arrested in the hospital itself on 03.09.2006 but accused Gudia was arrested from House no. C402, Inderpuri on 05.09.2006. Therefore, the arrest of accused Gudia from Inderpuri on 05.09.2006, also creates doubt as the address of the accused Gudia in the documents of the hospital were of Z248, Loha Mandi, Naraina, particularly when PW1 Sushila stated that accused Gudia was arrested in the hospital itself on 03.09.2006. As per PW10 Shashi Bala, the blood was detected on Ex.2, blood could not be detected on Ex.1 and skin could not be detected on Ex.1. I have gone through the report Ex.PW10/B regarding Ex.2 blood sample, as per which the sample was putrefied and hence no opinion. Therefore, nothing has come against the accused in the FSL report.
46. In the cases of circumstantial evidence, motive assumes great importance. In the present matter, it is alleged that accused killed her new born baby as she was nervous, as she gave birth to a female baby. But PW 22 Chander Prakash, husband of the accused denied that his wife was disturbed due to birth of female child. He categorically stated that they were feeling happiness due to the birth of new born female child. Accused brought her fatherinlaw Ramesh Chand Yadav in her defence and he was examined as SC No. 48/12 24/27 DW1. DW 1 deposed that on 02.09.2006 her daughterinlaw gave birth to a female child in Lady Harding Hospital and he received this information from his son Chander Prakash. He specifically stated that he told his son Chander Prakash that ek laxmi ghar me thi, ek or aa gai, khush raho and some musical programme had been done at his residence. He further stated that thereafter he distributed sweets to the villagers.
47. In the case of Varun Chaudhary vs. State of Rajasthan, AIR 2011 SC 72, wherein it was held that where there is no eye witness or where there is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that there was some motive behind commission of the offence of murder of the deceased.
It is further observed in the case of Varun Chaudhary vs. State of Rajasthan that it is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else.
In the present case also the prosecution could not establish the complete chain of evidence, so as to connect the accused with the offence.
48. In the case of Dudh Nath Pandey vs. State of U.P., (1981) 2 SCC 166, wherein it was held that defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their SC No. 48/12 25/27 traditional, instinctive disbelieve in defence witnesses. Quite often, they tell lies, but so do the prosecution witnesses.
49. Therefore, the testimonies of DW 1 cannot be discarded simply he being the fatherinlaw of the accused. Moreover, PW 22 Chander Prakash had also categorically stated that after the birth of female child they were feeling happiness. Hence, the motive in the present case has not been established.
50. In the case of Ashish Batham vs. State of M.P., (2002) 7 SCC 317, wherein it was held that realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a SC No. 48/12 26/27 dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
51. In the instant case, the prosecution could not established the complete chain of evidence against the accused Gudia. Moreover, the motive was also not established. The PWs, who were also stated to be admitted in the same ward, where the accused Gudia was admitted, did not support the prosecution's case and nothing has come in their evidence against the accused Gudia as they did not state as to how baby of accused Gudia had expired.
52. Therefore, keeping in view all the above facts and circumstances I am of the considered view that the prosecution has failed to prove the offence against the accused Gudia for the offence punishable u/s 302 IPC Accordingly, accused Gudia is acquitted in this case. The previous bail bonds of the accused Gudia is cancelled and her surety is discharged. Accused be released forthwith, if not required in any other case. Accused Gudia to furnish the bail bond in terms of section 437 Cr.P.C in the sum of Rs.20,000/ with one surety in the like amount for the period of six months.
File be consigned to the record room.
Announced in the open court (LAL SINGH)
on 31st March, 2012 ASJ02/FTC, PHC/ND
31.03.2012
SC No. 48/12 27/27