An appeal by convict against life sentence for murdering newborn due to unwed mother's shame. High Court analyzed medical evidence including post-mortem findings that confirmed strangulation and upheld conviction and sentence.
Appeal dismissed. Appellant to serve the sentence of rigorous imprisonment for life.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.65 of 2009
An appeal under Section 74 of the Code of Criminal Procedure.
Srujya @ Surya Banua ……. Appellant -Versus- State of Orissa ……. Respondent ___________________________________________________________ For Appellant : Mr. Prabhav Behera, Advocate. For Respondent : Ms. S. Patnaik, Addl. Government Advocate ___________________________________________________________ CORAM: THE HONOURABLE MR JUSTICE S. TALAPATRA THE HONOURABLE MISS. JUSTICE SAVITRI RATHO
JUDGMENT 16th May, 2023
S.Talapatra, J. This is an appeal by the convict under Section 374(2) of the Cr.P.C. challenging the Judgment and order of conviction and
sentence dated 08.01.2009 delivered in S.C. No.78/2007 by the Sessions Judge, Kalahandi-Nuapada.
2. The appellant has been convicted under Section 302 of the
IPC for causing murder of the new born baby of the daughter of P.W.12 (her grandchild) on 01.02.2007.
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3. Briefly stated, the prosecution case as emanated from the records is that on 01.02.2007 at about 03.30 p.m., P.W.12 gave birth to a female baby in the labour room of the hospital with the assistance of P.W.1. Laxmipriya Bala who was a staff nurse of Koksara, U.G.P.H.C and the medical officer (P.W.9) Dr. Rusikant Mahant. The appellant and her sister-in-law Mithila Majhi (P.W.10) were present in the labour room during the delivery. The baby was hale and hearty. After delivery
of the baby, the staff nurse and the medical officer went to the operation theater of the hospital for other work. At about 4.30 PM, the medical officer (P.W.9) came back to the labour room for check-up and found that the new born baby missing. He made immediate enquiry. At that time, the appellant brought out the dead body of the female child from her gunny bag and placed it on the baby trolley in the labour room. The Medical Officer P.W.9, Dr. Rusikant Mahant found it to be dead with marks of strangulation and nail mark on its body. The staff nurse (P.W.1) reached there. On interrogation, the appellant confessed before them that she had strangulated the baby and killed her as it was a child of an unwed mother.
4. The medical officer lodged the first information report (Ext.3). P.W.7 the Officer-in-charge of Koksara PS, on the basis of the said report (Ext.3) registered a specific case under Section 302 of the
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IPC and took up investigation. In the course of the investigation, he visited the spot and carried out inquest over the dead body of the infant and prepared the inquest report (Ext.1). Another doctor, Dr. Pitabas Sa conducted the post-mortem over the dead body of that dead infant on requisition of police.
5. The investigating officer had seized the gunny bag in which the dead body was kept. He had also seized the bed head ticket of
the hospital showing that P.W.12 Kausalaya Banua, the daughter of the appellant was admitted to that hospital at 02.30 PM of 01.02.2007 and she gave birth to a new born baby. He arrested the appellant and forwarded her to the court. After due investigation, charge sheet was filed against her under Section 302/201 of the IPC.
6. On commitment the charge was framed under Section
302/201 of the IPC. The charge was completely denied by the appellant and claimed to be tried in accordance with law. To substantiate the
charge, prosecution had examined as many as 14 witnesses including P.W.12 the mother of the deceased infant, P.W.1 the staff nurse, P.W.8
Dr. Pitabas Sa, P.W.9 Dr. Rusikant Mahant and also P.W.7 the Investigating Officer. The prosecution had also adduced as many as eight documentary evidence (Ext.1 to 8) including the inquest report (Ext.1), FIR (Ext.3) and post-mortem examination report (Ext.7).
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7. Having evaluated the evidence as led by the prosecution,
the trial Judge came to the finding that when P.W.12 gave birth to a female child in the Koksara Hospital, she became an unwed mother and after the doctor (P.W.9) left the labour room, the infant was found dead with marks of strangulation and bruises all over her neck and subcutaneous blood on her Sterno mastoid muscle. Her death was homicidal in nature. When the accused (the appellant) had concealed the baby in a gunny bag and after the doctor returned to the labour room, on inquiries, the appellant had brought out the new born baby from her gunny bag and confessed the truth that she had committed the murder of the new born child as her daughter became an unwed mother. It is clear that the accused had committed the murder of the newly born infant of her daughter P.W.12 Kausalaya Banua which is punishable under Section 302 of the IPC. Accordingly, in consequence of the finding of the conviction, the appellant was sentenced to suffer rigorous imprisonment for life for committing offence under Section 302 of the IPC but without any fine which is mandatorily required to be imposed on a convict who commits the offence under Section 302 of the IPC.
8. Mr. P. Behera, learned counsel appearing for the appellant
has quite strenuously submitted that P.W.12 Kausalaya Banua who was
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all through in the labour room did not state anything against the appellant (her mother) as regards causing death of her new born infant. At the time of death, neither P.W.1 (the staff nurse) and P.W.9 (the medical officer) who assisted P.W.12 to give birth of a girl child were present and as such, they are not eye witness over the transaction of crime. That apart, the trial Judge has failed to analyse the medical evidence and absence of due medical evidence as regards the following:
(i) Whether the child was still born or born dead (ii) Whether the child was born alive (iii) If born alive how long did the child survive the birth and what was the cause of the death.
9. According to Mr. Behera, learned counsel, this part is very important because neither the appellant nor P.W.12 is educated sufficiently to understand the distinction whether the child has been
born dead or alive. The still born child is one who was alive in utero until the process of delivery began but did not show any sign of life after complete expulsion from the mother.
10. Mr. Behera, learned counsel having referred to the MODI’s Medical Jurisprudence and Toxicology (Twenty-Third Edition) has contended that the following features in the post-mortem examination of
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the body of the newly born infant are to be noticed if the infant is born alive:
(4) The marbled or mottled appearance of the lungs. (5) Bloody froth exuding from the cut surface of the lungs on slight pressure.
(6) The lungs are spongy and crepitant. (7) The lungs responding to the hydrostatic test. (8) Microscopic examination of the lungs shows alveolar expansion and patent blood vessels or presence of alveolar duct membrane and areas of atelectasis.”
He has stated that none of the signs or syndrome have been
recorded either in the post-mortem examination report nor has P.W.8 stated so in his testimony or in the report that he has submitted to the police.
11. Mr. Behera, learned counsel has also submitted that even
an infant which is pre-maturely born generally dies immediately after
birth. In the case of the premature birth of a child, the question may arise as to whether the birth was criminally induced or not, for under
Indian Penal Code 1860, the criminal induction of premature labour is
an offence, but not culpable homicide, though under the English Law, a
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person is guilty of murder, if he does an act by which a child is born prematurely so that it is not capable of living, and dies in consequence of its exposure to the external world. This phenomenon is called immaturitya . As it is not easy to opine the maturity of a new born child, an X-ray of the entire body will be helpful.
12. These aspects were not inquired into, the cause of death of the infant is shrouded by serious doubt. Mr. Behera, learned counsel has
submitted that since there was negligence as both the staff nurse and the medical officer (P.W.9) had left the labour room, leaving the infant in the care of the appellant, they later on realized and it is for their negligence the infant had expired and to shield themselves from dereliction of duty, they have concocted the above story. According to him, no motive has been established as to why the appellant will strangulate the infant to death. On a query, as to why we should disbelieve the public servant P.Ws.1 and 9, in response, Mr. Behera, learned counsel had stated that the negligence in taking care of the new born is apparent in the face of record. And as such, P.Ws.1 and 9 had weaved the story that the appellant had throttled the infant as her daughter had become an unwed mother.
13. Mr. Behera, learned counsel has submitted that the veil has
to be lifted to bring out the truth, but the prosecution has not done so.
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As a result, the appellant is liable to get the benefit of doubt and is entitled to be acquitted from the charge brought against her under Section 302 of the IPC.
14. Ms. S. Pattnaik, learned Addl. Government Advocate appearing for the State has quite succinctly submitted that it would be apparent from the bed head ticket (Ext.8) that the infant was born hale and hearty, there are no reasons to suffer any immaturitya .
15. Moreover, on the dead body of the female infant, P.W.9
had found the marks of strangulation on the neck of the infant and the nail marks. The opinion of the doctor is very categorical and hence, the Judgment of conviction and order of sentence do not suffer from any infirmity.
16. For purpose of appreciating the rival contentions as
advanced by the counsel for the parties, we need to make a meaningful survey of evidence on the record. P.W.1 Laxmipriya Bala, a staff nurse
at Koksara UGPHC has clearly stated that Kausalaya Banua (P.W.12) gave birth to a female baby inside the labour room of the said hospital in her presence attended by Dr. Rusikant Mahant (P.W.9).
17. After delivery, the female baby was handed over to her mother Kausalaya Banua and both stayed inside the labour room. P.W.1
and the medical officer left the indoor ward and returned after sometime
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to find that new born infant was lying dead inside the labour room while Kausalaya Banua and her mother (the appellant) were inside the labour room. The medical officer had lodged the first information report alleging that the appellant had committed the murder of the new born infant. The Police seized the dead body of the child and inquest was conducted thereafter, post-mortem examination over the dead body was
carried out.
18. In the cross-examination P.W.1 has stated that the medical officer had advised Kausalaya Banua and her mother to take Kousalaya to Bhawanipatna Hospital as it was a complicated case. Mithila Majhi and Surya Banua (the appellant) were present in the labour room as they could not be driven away in a village area. Labour room is a small room she conducted the physical delivery and it was her first case. She has categorically denied the suggestion that a dead child was born and in order to prevent public outrage, she described that one healthy child was born.
19 . P.W.2 Kesaba Chandra Naik is a seizure witness. The police seized the admission register of Darlipada school (Ext.2).
20. P.W.3 is a witness to the inquest procedure who scribed
his signature on the inquest report (Ext.1).
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21. P.W.4 stated that he did not know anything about this case.
He was declared hostile and the prosecution cross-examined him but could not bring out anything material which favours the prosecution
case.
22. P.W.5 Rupesh Kumar Purohit, only stated that the appellant purchased some medicine on 01.02.2007.
23. P.W.6 Bidyadhar Naik has denied to have any knowledge
about the occurrence. As a result, he was declared hostile to the prosecution case and was allowed to be cross-examined. But nothing
material could be brought out.
24. P.W.7 Pravat Kumar Sethi being the officer-in-charge of
Koksara PS took up the investigation and at his instance inquest and post mortem examination over the dead body of the infant were carried
out. The inquest report (Ext.1) and the post mortem examination report (Ext.4) has been admitted by P.W.7 in the evidence. Several seizure lists were introduced by him without any opposition from the defence.
25. P.W.7 has admitted that he had not requisitioned for
medical examination of the daughter of the appellant said to have delivered the infant. He denied that his investigation was perfunctory.
26. P.W.8 (the medical officer) Dr. Pitabas Sa has categorically
stated that at Koksara PHC he had carried out the post-mortem
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examination on 02.02.2007 at the requisition of the police. He had admitted in the evidence the report of such examination (Ext.7) in the trial. He has clearly stated that it was a new born female baby, pre-term child having ligature mark over its neck, bruises throughout the neck and over the sternuo mostoid muscle, subcutaneous blood was present. He has also stated that the cause of death was due to cardio respiratory
failure following the strangulation by ligature. It was homicidal in
nature and death was within twenty four hours of the post-mortem.
27. P.W.9 Dr. Rusikanta Mahanta assisted P.W.12 (Kausalaya Banua) to give birth the female infant on 01.02.2007, more than 7 months of the pregnancy. On examining the mother and child, he found them hale and hearty. So he went to the hospital operation theater from the labour room and at 04.30 PM, he came to the labour room for check up and found the baby was “ missing ”. He asked Surya Banua about the baby. She brought out the dead body of the female child from a bag. He examined the infant and found marks of strangulation on the neck of the infant. Thereafter P.W.9 has made the following statement which is of serious consequence:
“2. Being asked accused Sruya Banua admitted that she had throttled the baby, as she was un-married. Accordingly I reported the matter to P.S. This is the said report and this is my signature marked Ext.3/2 and 3/3 respectively.”
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He had also introduced in the evidence Ext.8 which is the
bed head ticket. In the cross examination he has stated that the delivery was made physically by P.W.1 and thereafter he called her to the labour room for postpartum treatment. In the case of a still born child, due to winding of umbilical cord around the neck, ligature mark may be marked. He has categorically stated that he did not know the accused and her daughter. The appellant being asked about the death, did not say about the cause of death. When P.W.1 Laxmipriya Bal had grilled her, the accused had to confess that she had committed the death of the new born baby. Many public gathered by that time, but none made hulla that the doctors had killed the newly born child. There was complication in the delivery of the baby. He has categorically denied that the death to the infant has been caused due to mishandling by the inexperienced nurse (P.W.1) and to save her and also others from the wrath of the general public, he has stated falsely. He reasserted his statement that the infant died due to throttling.
28. P.W.10 Mithila Majhi is sister-in-law of the appellant and P.W.12 is her niece. She has stated that Kousalaya (P.W.12) was her niece and became pregnant though she was unmarried. The appellant herself and others had taken her to Koksara Hospital. There Kausalaya gave birth to a female child with the assistance of the nurse. The child
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did not cry. The umbilicus surrounded her neck and she had died. So the accused had kept that body in her plastic bag. P.W.9 came and inquired about the baby, accused had shown the baby from her bag. But she was declared hostile and allowed to be cross-examined by the prosecution. In the cross-examination, she denied to have made any statement to the police that the new born child did not cry and her umbilicus surrounded her neck and thereby she died. Even she has denied that the appellant
had confessed before the P.W.9 and herself that a female baby was born to one unmarried mother and she throttled it to death. She denied to
have made the statement falsely.
29. P.W.11 Bidyadhar Naik, is the brother of the appellant. He expressed that he did not know anything about the case. Even he did not say whether his son has any physical relation with the daughter of the appellant resulting in pregnancy. His son had expired before the alleged occurrence.
30. P.W.12 (Kousalya Banua) who gave birth to the girl infant
is at the centre stage of the entire controversy. She has testified that on 01.02.2007 she gave birth to a female baby at Koksara Hospital. At that
time her mother (the appellant) was in attendance in the labour room.
The baby expired but she does not know how it expired as she was senseless and had undergone treatment in the hospital. When she
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regained her sense, she found the baby was taken for post-mortem examination. Later on her mother (the appellant) was arrested and sent to the jail custody. She has categorically stated that she cannot say whether the child was still born or alive.
31. P.W.13 (Prahallad Nayak) has testified that the police recovered the dead body of the newly born child from the bag of the accused (the appellant) and then seized the bag at the hospital and on
the next date police made inquest over the dead body and prepared the
inquest report (Ext.1).
32. Similarly, the police had also seized the bed head ticket (Ext.6). P.W.13 has also stated that he was not there at the time of the delivery in the hospital. P.W.14 Satyanarayan Rao an acquaintance of the appellant P.W.12 heard that a still born baby child was kept by the appellant in her plastic bag and the same was recovered by the police and she was arrested by him. It is apparent that P.W.9 has categorically
stated that the newly born infant was hale and hearty and on seeing that he and the staff nurse (P.W1) went out of the labour room for attending the other duties but after half an hour when they returned in the labour
room, the infant was missing from the labour room. When he asked the appellant, she had brought out the dead infant from the gunny bag. On
her interrogation by P.W.1, she had stated that she killed her as the
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female infant is a child of unwed mother. The statement of P.W.8, is
very material in this regard, as he clearly observed that the newly born female baby was pre-term child but having ligature mark over its neck
bruises through the neck and over the sterno-mastoid muscle, the subcutaneous blood was present. According to him, the cause of death was the respiratory failure following the strangulation by ligature. He
has said a ligature mark on the neck is possible if the umbilicus
surrounded the neck. P.W.9 did not corroborate that umbilicus surrounded the neck and as such, is very difficult to believe that story as primarily introduced by P.W.10 Mithila Majhi. But there is no explanation for the bruises which were evident on the neck of the deceased. Therefore, the theory of ligature by the umbilicus cannot be accepted in the present case.
33. On evaluation of the evidence, we are of the view that out of the social shame that would fall on P.W.12 being the unwed mother,
the appellant had killed the infant and put the body in her gunny bag. But could not withstand when she was interrogated regarding missing of the infant and death of the infant. Her confusion is voluntary in as much as, there is no reason for the appellant to get threatened by P.W.1. This part of the confession survives the stare of the legal scrutiny and hence, it can be treated as a legal evidence.
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34. Having read the evidence with the post-mortem
examination report and the inquest report, it would be apparent that the infant has been killed by the appellant. As such, we decline to interfere with the Judgment and order of conviction and sentence as challenged in this appeal.
35. In the result, the appeal stands dismissed. The appellant shall serve out the sentence.
Orissa High Court, Cuttack. The 16th May, 2023/ R.R. Nayak, Jr. Steno.
Signature Not Verified
Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 03-Oct-2023 14:58:53
2 issues framed by the court
Whether the trial Court erred in convicting the appellant for murder of a newborn given the medical evidence.
Whether the medical evidence conclusively established que the death was caused by strangulation rather than natural causes.
2 provisions across 2 enactments
Srujya @ Surya Banua
State of Orissa
S. Talapatra
Savitri Ratho
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
