Delhi High Court

Manju vs State on 12 March, 2010

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on : 10th March, 2010
                    Judgment Pronounced on: 12th March, 2010

+                      CRL APPEAL NO.168/2010

        MANJU                                  ..... Appellant
                    Through:   Mr.Udai Raj Singh, Advocate

                               versus

        STATE                                ..... Respondent
                    Through:   Mr.M.N.Dudeja, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?            Yes

     3. Whether the judgment should be reported in the Digest?
                                                  Yes

PRADEEP NANDRAJOG, J.

1. She was a baby girl and her arrival was a calamity.

She was a baby girl and was a source of anxiety to her

parents, for in her, they saw a difficult problem of her

marriage. She became their compulsion. The very thought of

her marriage was enough to ruin them. She was a poor little

thing and the blocking of a puff of wind was enough to put her

out.

2. The society had scripted her obituary much before

she was born. Her mother only published it.

3. This is the story of the unnamed infant; probably

this is the first decision which cannot even refer to the victim

by her name. She had none!

4. We do not know whether any spirituality transcends

human life, for what happens after death, we know not. But it

is recognized and accepted that human personality transcends

human life. For her, even this was denied.

5. Her brief existence in the world was reduced to a

piece of mere statistics - A number stood added to the

population of the world. - A number stood added to the female

population of the world. - A number stood subtracted from the

female population of the world. - The male female ratio got

further imbalanced in India i.e. Bharat. - A credit entry was

made in the Register of Births. - A debit entry was made in the

6. The moral regression of the people of India i.e.

Bharat has not been crippled by the penal laws. The policy of

persuasion has failed.

7. But, should the appellant who is not the architect of

the crime which has been created by society i.e. female

infanticide, having acted as a pawn, be made to pay for the

sins of the society. She is an ignorant lady, living in a

wretched condition below the poverty line. That she has

affixed her left thumb impression on her statement under

Section 313 Cr.P.C. is proof of her illiteracy. That she lives

below the poverty line is evidenced by her address which

happens to be a slum area. That she is barely able to keep

intact her soul and body is proved by the fact that her husband

is a daily wager.

8. A reactive process is itself an injudicious and one

sided process, heavily loaded against the ignorant and the

weak.

9. That the appellant was admitted at the maternity

ward of Lady Harding Medical College and was blessed with a

baby girl at around 12:10 noon on 24.8.2007 is a fact which is

not in dispute and has been deposed to by Smt.Shakuntala

Arora PW-1 posted as an Assistant Nursing Superintendent at

the Maternity Ward on 24.8.2007. That the appellant was

removed from the labour room to the ward and custody of the

new born baby girl was entrusted to the appellant at around

4:30 PM is a fact deposed to by Bindu George PW-8, posted as

a staff nurse in the maternity ward on 24.8.2007. That at

around 6:30 PM a panic situation came into existence

concerning the appellant and her baby has been deposed to by

Sangeeta Rani PW-9, another staff nurse posted at the

maternity ward. We reproduce through the mouth of Sangeeta

Rani as to what the panic situation was:-

"At around 6 pm which is the usual time to give medicine to mothers, PNC case, in the present case I saw accused Manju holding baby in a normal and healthy condition. At around 6:30 pm while we staff nurses Bindu and Salikutty were busy in making arrangements in the labour room for next delivery and where labour room is just adjoined PNC, we were called by doctor intern on duty called us by giving a call "sisters Jaldi Aao Bacha sick". PNC intern had picked up the baby of accused Manju and we all tried to resuscitate baby. We also called senior Resident Dr.Nidhi through a student nurse. As pointed out by the doctor myself and other staff nurses saw there were marks a kind of red and bluish on the neck as well as on the nose of that victim baby. Doctor Nidhi found that baby was no more alive and police was informed."

10. The police was informed and the investigating

officer seized the dead body of the baby girl and after filling up

the inquest papers sent the same for post-mortem to the

mortuary of the hospital where Dr.Abhishek Yadav PW-16

conducted the post-mortem of the baby girl in the morning

hours of 26.8.2007 and penned the post-mortem report Ex.PW-

16/A-1 to Ex.PW-16/A-6 i.e. running into 6 pages. He recorded

on the post-mortem report 8 external injuries on the person of

the dead baby girl as under:-

"1. Reddish abraded contusion .7 x .3 cm present obliquely over right ala of nose, 1 cm of upper lip.

2. Reddish abraded contusion .7 x .3 cm present obliquely around left ala of nose, 1 cm from upper lip.

3. Reddish abraded contusion 1.2 x .2 cm present over left side of neck/obliquely placed, lower and touching midline, upper end .5 cm from midline, 5 cm below chin, 5 cm from tip of left shoulder.

4. Reddish abrasion 1 x 2 cm crecentric shape horizontally placed over right side of neck, 1 cm from midline, 5 cm below chin, 5 cm from tip of right shoulder.

5. Reddish abrasion 0.3 x 0.1 cm left side neck .5 cm below injury No.3, .5 cm from midline.

6. Reddish abrasion .6 x .2 cm right lateral side of neck crecentric shape, 3 cm below and behind ear, 5 cm from midline.

7. Reddish crecentric shape abrasion .5 x .1 cm right lateral side of neck, horizontally placed, 0.5 cm below injury No.6.

8. Reddish crecentric abrasion 0.5 x 0.1 cm right lateral side of neck, 1 cm below injury No.7, 3 cm from tip of shoulder, 6 cm from midline."

11. He recorded that the internal examination revealed

as under:-

"1. Head, neck, skull, were NAD. Brain was oedamatous and congested. Meninges were NAD.

2. In neck, extravastion of blood was present in and around carotidsheath, soft tissues and muscles of larynx below injuries. Hyoid bones was intact. Thyroid was intact.

3. Thyrox was NAD, oesophagus was NAD. Trachea and bronchi were congested.

4. Both lungs were congested and patechial Haemorrhage was present at inter labor surface. Patechial haemorrhage was present at ventricular surface in heart.

5. Liver, spleen and kidney were congested.

6. Rest of the body structure was NAD."

12. He opined that the cause of death was asphyxia

due to ante mortem manual strangulation (throttling along

with smothering).

13. Dr.Abhishek Yadav was cross-examined as under:-

"It is correct that before conducting the post-mortem I have gone through the inquest papers. It is not mentioned in the inquest papers that after birth of the female child was kept on incubator. It is wrong to suggest that such type of external injuries mentioned above 1 to 8 in the heading of external injury can be possible when the new born baby has to be washed after immediately birth. According to my findings of post-mortem there was no possibility that the death may be caused by respiratory disease. It is wrong to suggest that I did not coundcuted the post-mortem fairly and as per the requisite medical guidelines. It is wrong to suggest that I gave my wrong findings just to save to doctors of the hospital."

14. With reference to the testimony of Sangeeta Rani

PW-9 it was urged by learned counsel for the appellant that it

was apparent that the baby girl was sick and resuscitation was

tried on the baby. Counsel drew our attention to the

expression „sisters jaldi aao bacha sick' used by Sangeeta Rani

in her testimony with reference to what the doctor intern had

exclaimed when she saw the baby girl lying listless. It was

urged that while resuscitating the baby it is possible that the

injuries noted by Dr.Abhishek Yadav came to be inflicted upon

the baby.

15. The submission is nothing but an attempt to clutch

on to straws. Resuscitation would require some use of force

on the chest of the baby girl while using the balloon pump to

expel the air from the lungs which has been pumped in with

the use of a balloon pump so that the breathing recommences.

No injury has been noted on the chest of the baby girl.

16. With reference to the external injuries recorded in

the post-mortem report and reproduced in para 10 above it is

to be noted that injury No.1 and 2 indicate that the nostrils of

the baby were squeezed to prevent air passing through the

nostrils. Injury No.3 to 8 indicate that the neck was throttled

after it was taken into a pincer like grip and using force the

trachea was pressed.

17. Internal injury No.2 noted in para 11 above shows

extravasation of blood around the larynx with the soft tissue

and muscle being injured.

18. There is no manner of doubt that the unfortunate

young baby was strangulated to death.

19. The baby was in the custody of the appellant and

her contemporaneous conduct has been deposed to by

Shakuntala Arora PW-1 who was the Assistant Nursing

Superintendent on duty. When she saw the baby‟s condition,

as deposed to by Shakuntala Arora, she asked the appellant as

to how the child had died, to which the appellant responded

that inadvertently her hand happened to fall upon the baby.

20. The explanation given by the appellant when she

was examined under Section 313 Cr.P.C. is that she was

sleeping when at around 5:00 PM she was told by the doctors

that her baby had died.

21. In the teeth of the post-mortem report and the

testimony of PW-1, PW-8 and PW-9 it is but apparent that the

appellant has committed the offence of female infanticide i.e.

has murdered her own baby.

22. We quote three stanzas from the poem „Prayer

Before Birth‟ by LOUIS MACNEICE:-

"I am not yet born, console me I fear that the human race may with tall walls wall me, with strong drugs dope me, with wise lies lure me, on black racks rack me, in blood baths roll me.

x x x

I am not yet born; forgive me for the sins that in the world shall commit, my words when they speak me, my thoughts when they think me, my treason engendered by traitors beyond me, my life when they murder by means of my hands, my death when they live me.

x x x

I am not yet born; rehearse me in the parts I must play and the cues I must take when old men lecture me, bureaucrats hector me, mountains frown at me, lovers laugh at me, the white waves call me to folly,

and the desert calls me to doom, and the beggar refuses my gift, and my children curse me."

23. The dramatic monologue with the speaker being

the unborn child brings out the concern of the unborn child as

to how he would face modern humanity and asks of God or

humanity to spare him terrors of modern society as are

personified by blood sucking bats, stoat and club footed ghoul.

There are other fears. There are barriers, drugs, lies, torture

and violence. The unborn child wants to be comforted. The

earth is deteriorating and the unborn child requests God to

provide him these for him to grow physically, intellectually and

emotionally healthy. The unborn child realizes that the

modern society is losing its identity and sins are ingrained in a

person from society, crime is put in him or her by society.

Since the child will be a part of this world he is likely to commit

sins, speak what he is taught, think the way he is trained and

hence seeks forgiveness.

24. The plight of the appellant is akin to that of the

unborn child.

25. No reasonable and rational person would

countenance female infanticide. It is not only a penal offence

but is a sin against God. The greatest gift of God to mankind is

the gift of life. Children are life born not to their parents but

through their parents. The problem in India is acute with

contempt for the female child writ large on the spectrum of the

society. Its proof is the dismal adverse male:female sex ratio

where the biologically stronger sex i.e. the female sex is in the

minority. 60 years of independence and so-called

modernization has not changed the societal attitude towards

the female child. Across the board; rural or urban, educated

and uneducated, rich and poor, the skewed sex ratio adverse

to the female child is a sad mirror image of the social thinking

even in the 21st Century.

26. The reason is dowry at the time of marriage of the

girl child. The result is the female child being looked upon and

treated as a liability and a son being treated as an asset. The

society forgets that a son is a son till he gets married but a

daughter is a daughter all her life.

27. We wonder why India i.e. Bharat, in spite of all its

talent is unable to march with the community of nations, with

the head held high. Probably for the reason we treat 50% of

the fellow citizens i.e. our sisters as inferior and junior partners

in the march ahead without realizing that in the onward march

if your fellow companion is made to lag behind, even your

progress is slowed.

28. The medical papers pertaining to the appellant

show that her parents married her of at the tender and

immature age of 15 years. At this immature age, what role

could the appellant play for herself as a housewife and a

mother, except what was dictated to her and commanded

upon her.

29. No doubt, by the time she became a mother, she

had attained the age of majority, but that would be as per law.

Whether at all can it be said that under the circumstances she

was mature enough to not only think for herself but fight the

social environment around her? We think not.

30. The crime against the female child is a product of

the perverse social norms and the perverse social thinking and

the appellant who is not only illiterate, is not only poor, lives in

a slum and was married at the tender age of 15 years cannot

be attributed the role of scripting the crime. She is a mere

puppet with the strings being pulled by the men who lecture

her. The turbulent waves of social thinking have called her to

folly and the desert has called her to doom.

31. Where do we peg our-self?

32. Conscious of the fact that the jurisdiction we

exercise is under the shadow of: „Satyamev Jayate‟ i.e. „Truth

shall prevail‟ and the Supreme Court exercises jurisdiction

under the shadow of: „Yato Dharmastato Jayah' i.e. „Truth

alone I uphold‟. In other words our jurisdiction relates to Niti

and the jurisdiction of the Supreme Court relates to Nyaya and

hence the Supreme Court alone is vested with the power of

complete justice by virtue of Article 142 of the Constitution of

India and that we cannot follow as precedent decisions from

the Supreme Court where recommendations were made to the

executive to exercise the mercy jurisdiction of the State to

pardon. But for record we note that in the decision reported as

AIR 1974 SC 799 Ediga Anamma Vs. State of A.P. where the

murderer was a young unmarried woman suffering from socio-

economic compulsions and general social pressures had

actuated the crime, it was held that these warrant judicial

notice. In the decision reported as AIR 1981 SC 644 Ram

Shankar Vs. State of M.P., with reference to facts attracting

clemency the Supreme Court recommended to the State to

remit or reduce the sentence. In the decision reported as

1999 Crl. LJ 487 Kethankamani Vs. State of Kerala noting Rule

131 of the Criminal Rules of Practice, Kerala 1982 the Supreme

Court recommended to the Government to consider the matter

of remission of sentence upon the appellant therein.

33. Rule 131 of the Criminal Rules of Practice, Kerala

1982 reads as under:-

"Reference to Government in case of infanticide: In all cases where women are convicted for the murder of their infant children, a reference shall be made through the High Court to the Government with an expression by the Sessions Judge of his opinion as to the propriety or otherwise of reducing the sentence, every such reference shall be accompanied by copies of the material papers of the record."

34. No such rules have been framed by the appropriate

Government in-charge of the administration of criminal justice

in the Union Territory of Delhi and we thus recommend to the

Government of NCT Delhi to consider framing rules on the

lines of the rules framed in the State of Kerala at least

pertaining to women convicted for the murder of their infant

children.

35. We conclude by dismissing the appeal but while so

doing direct the Registrar of this Court to send a copy of this

decision to the Secretary Law & Justice, Govt. of NCT Delhi

with a covering letter drawing the attention to the learned

Secretary, Law & Justice, Govt. of NCT Delhi to place the