Delhi District Court
State vs . : Banne @ Banne Khan on 20 February, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 519/17
FIR No. : 228/17
U/s : 302/307/328 IPC
P.S. : Jahangir Puri
State Vs. : Banne @ Banne Khan
S/o Late Sh. Gaffur
R/o H.No.165/4, Nai Basti, PS:
Gannaur, Distt. Sambhal, U.P
Offence complained of : 302/307/328 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 28.08.2017
Date of Judgment : 20.02.2018
JUDGMENT
1. On 24.05.2017 information was received from BJRM Hospital that Rukhsana D/o Banne Khan R/o Jhuggi No.461, near DDA market, H-2 Block Jahangir Puri, age 5 years and Muskan d/o Banne Khan age-10 years were admitted in BJRM hospital vide MLC's No.134918/17 & 134917/17 respectively after consuming unknown poison by their mother. During treatment Rukhsana was declared dead. Statement of surviving victim Muskan was recorded. She told that her father, who was residing in U.P., visited their house at Delhi where she was living with her mother. She told her State Vs. Banne @ Banne Khan SC No.519/17 :: 1 ::
father that she and Rukhsana have to clean the house. On this her father gave her one iron type bottle having black colour tablets and asked her to take that tablet and also to give to her sister. After consuming the tablet she would become unconscious and thereafter, mother would never ask them to work. He also told her that if anybody ask as to who gave the tablets then tell that Nani gave the tablets. Thereafter, her father left in the evening. In the morning when her mother went out she and her sister Rukhsana took one tablet each. They became unconscious. They regained consciousness in BJRM hospital. Initially she told the doctor that the tablets were given by her Nani which is not true. FIR on the statement of victim Muskan was registered. Post mortem on the dead body was conducted. Rukhsar got recovered the container having the poisonious tablets consumed by Muskan and Rukhsana. Banne @ Banna Khan was arrested. After completion of investigation the charge sheet was filed. Ld. MM after complying with the provisions of section 207 Cr.PC committed the case to the Sessions court as the offence punishable u/s 302/307/328 IPC are exclusively triable by the Sessions Court. Accused was charged for the offences punishable u/s 302/307/328 IPC to which he pleaded not guilty and claimed trial.
2. Prosecution in order to prove its case examined 22 State Vs. Banne @ Banne Khan SC No.519/17 :: 2 ::
witnesses.
3. Dr. N.K. Gunjan was examined as PW-1. He deposed that on 26.05.2017 he conducted post mortem on the dead body of Rukhsana, age-5 years female. No fresh external ante mortem injuries were present over the body. Opinion regarding cause of death was kept pending awaiting FSL report of viscera. Time since death was about 12 hours. After the post mortem examination the clothes, viscera in saturated solution of common salt and blood in sodium fluoride for chemical analysis was preserved, sealed with the seal of NKG FMT BJRM Hospital and handed over to the police along with the sample seal. He proved the post mortem report as Ex.PW1/A. But his further examination was deferred for want of FSL result. Thereafter, Dr. N.K. Gunjan could not be summoned as he left the services of the hospital. Summons were sent to Medical Supdt. and he deputed Dr. Mukesh Kumar Sr. Forensic Medicine to depose in place of Dr. N.K. Gunjan. Dr. Mukesh Kumar was examined as PW-22. After seeing the post mortem report and the FSL result Ex.PW11/A he opined that the cause of death in this case is due to poisoning of Aluminum Phosphide. The testimony of this witness has gone unchallenged and uncontroverted.
4. Inspector Manohar Lal was examined as PW-2. He State Vs. Banne @ Banne Khan SC No.519/17 :: 3 ::
proved the scaled plan of the place of occurrence as Ex.PW2/A. The witness was cross-examined but nothing material came on record to discredit the witness.
5. ASI Rohtash Kanwar was examined as PW-3. He was working as duty officer on 24.05.2017. He recorded DD No.16A after receiving information from BJRM Hospital that "Rukhsana d/o Banne Singh age-5 years, H-Block Jhuggi No.461, Jahangir puri, jo unknown poison khaney par MLC No.134918/17 and Muskan d/o Sh. Banney Singh aged-10 years resident of same address unkown poison khane par MLC No.134917/17 par unki mata Rukhsar Mobile No.9084603747 dakhil BJRM Hospital Karaya hai jo doctor sahab ne Muskan ko daurane ilaz mrit ghosit kar diya, IO bheja jaye". This DD was assigned to SI Naveen. The copy of the DD is proved as Ex.PW3/A. The testimony of witness has gone unchallenged and uncontroverted.
6. HC Sandeep was examined as PW-4. He was the photographer with the mobile crime team, which visited the scene of crime on 24.05.2017. They reached first floor Jhuggie No.461 Muni ki jhuggi near DDA market H2 Block Jahangir Puri. Local police was already there. He took 17 photographs of the scene of crime from different angles. The photographs are Ex.PW4/A1 to A17. The CD prepared from the memory chip of the camera is proved as Ex.PW4/B. The State Vs. Banne @ Banne Khan SC No.519/17 :: 4 ::
certificate u/s 65B Evidence Act is proved as Ex.PW4/C. Nothing material came to discredit the witness during the cross-examination.
7. HC Rakesh Kumar was examined as PW-5. He deposed that on 24.05.2017 he ;along with SI Naveen Kumar went to BJRM hospital on receipt of DD No.16A. IO collected the MLC's of deceased Rukhsana and injured Muskan. Doctor handed over pullanda to the IO duly sealed with the seal of the hospital which was seized vide memo Ex.PW5/A. IO moved application for preservation of body of Rukhsana. He took the dead body to the mortuary of the hospital and got the same preserved.
8. On 26.05.2017 Inspector Ajay Kumar came to the morutary and prepared inquest papers. The dead body was identified by the relatives of the deceased. Post mortem was got conducted. After the post mortem the dead body was handed over to the relatives. After the post mortem doctor handed over the viscera, blood in gauze piece and clothes of Rukhsana to the IO who seized the same vide seizure memo Ex.PW5/C.
9. During cross-examination he deposed that he remained in the hospital for about an hour at the time of his visit. He took the body to the mortuary and got it preserved. He denied the suggestion that he signed the memos and State Vs. Banne @ Banne Khan SC No.519/17 :: 5 ::
documents subsequently at the instance of IO in the police station.
10. HC Bijender was examined as PW-6. He deposed that on 26.05.2017 he along with IO Inspector Ajay Kumar and Ct. Ajeet left the police station in private vehicle and reached at Mangal Bazar road. One secret informer met them. The informer told that accused is present at Mangal Bazar Road at H-2 Block, if raid is conducted he can be apprehended. IO requested public persons to join the raiding team but none agreed. They reached Mangal Bazar Road H2 Block. One person was apprehended at the pointing out of secret informer. IO interrogated him and arrested him vide arrest memo ExPW6/A. His personal search was conducted vide memo Ex.PW6/B. The accused made the disclosure statement Ex.PW6/C.
11. During cross-examination he stated that IO made the DD entry when they left the police station but he does not remember the same. He admitted that accused was apprehended from a public place and residential area. No notice was given to the public persons who refused to join the proceedings. He denied the suggestion that accused was not arrested from the place, manner and time deposed by him. He denied the suggestion that accused did not make any disclosure statement or that accused was forcibly State Vs. Banne @ Banne Khan SC No.519/17 :: 6 ::
removed from his house at village Gannauar, Distt. Sambhal, UP in the morning of 25.05.2017 and kept in wrongful confinement.
12. Ct. Ajeet Singh was examined as PW-7. He corroborated the testimony of PW-6.
13. During cross-examination he stated that he does not remember if any DD entry was recorded when they left the police station. He admitted that place of apprehension is a public thorough fare and situated in residential area. No notice was given to the public persons who refused to join the proceedings. He denied the suggestion that accused was not arrested from the place as deposed by him or that accused did not make any disclosure statement. He also denied the suggestion that accused was lifted from his village Gannaur Distt. Sambhal UP in the morning of 25.05.2017 and kept in wrongful confinement.
14. Dr. R.S. Mishra was examined as PW-8. On 24.05.2017 he was working as CMO in BJRM Hospital. On that day Rukhsana daughter of Banney 5 years girl was brought by Rukhsar with alleged history of ingestion or some black tablet in the morning with complaint of vomiting and abdomen pain. Tablet given by grand mother /Nani as told by the elder sister Muskan. On examination patient was in gasping condition, cardio pulmonary resuscitation done but State Vs. Banne @ Banne Khan SC No.519/17 :: 7 ::
patient could not be revived and declared dead on 24.05.2017 at 10:00 am. Body was handed over to the IO with diagnosis of suspected unknown poisoning. The MLC prepared by Dr. Utkarsh Kumar Teotia, Senior Paediatrician is proved as Ex.PW8/A which was prepared under his supervision.
15. On the same day Muskan d/o Banne 8 years girl was also brought by her mother Rukhsar with alleged history of ingestion of black tablet in the morning with the complaint of vomiting and abdomen pain. The tablet was given by grand mother/nani as told by patient. On examination patient was conscious and oriented. Gastric Lavage sample was taken and sealed with the sample seal and handed over to the IO.
Patient was admitted in ward No.2 under Dr.Tarun. The MLC is proved as Ex.PW8/B prepared by Dr. Utkarsh kumar Teotia under his supervision. The testimony of this witness has gone unchallenged and uncontroverted.
16. ASI Sikander was examined as PW-9. He was working as MHC(M) and proved entries in register No.19 as Ex.PW9/A to Ex.PW9/C. He also proved the entries in register No.21 as Ex.PW9/D. He proved the acknowledgments of the FSL as Ex.PW9/E.
17. During cross-examination nothing material came on record to discredit the witness.
State Vs. Banne @ Banne Khan SC No.519/17 :: 8 ::
18. Sh. Vikram, Ld. MM-01 North Rohini Delhi was examined as PW-10. On 31.05.2017 application Ex.PW10/A for recording the statement of Baby Muskan was assigned to him. The witness was produced before him by Lady Ct. Poonam. After satisfying himself he recorded the statement as Ex.PW10/B. He stated that under his signatures he inadvertently mentioned the date as 30.05.2017 whereas the correct date is 31.05.2017. He appended the certificate Ex.PW10/C under the statement that it is truly and correctly recorded. The preliminary questions put by him to satisfy himself about the capacity of witness are Ex.PW10/B. The copy of the statement was supplied to the IO vide application Ex.PW10/E. The testimony of the witness has gone unchallenged and uncontroverted.
19. Sh. Prem Pal Singh Sr. Scientific Officer Chemistry Division FSL Rohini was examined as PW-11. He deposed that on chemical microscopic and TLC examination Ex.1A i.e. stomach and pieces of small intestine, Ex.2 some greyish sticking substance inside the jar stated to be gastric lavage and Ex.3 seven black colour round tablets found in sealed metallic tube were found to contain aluminum phosphide. Ex.1B and Ex.1C referred in my report were found to contain phosphide. After the examination the remnants were sealed with the seal of PPS FSL Delhi. He proved the report as State Vs. Banne @ Banne Khan SC No.519/17 :: 9 ::
Ex.PW11/A.
20. During cross-examination he admitted that in his report it is not mentioned as to in which condition the tablets were found. It is also not mentioned that the tablets were moist and sticking to each other. If there would have been moisture in the tablets the aluminum phosphide would not have been found and only aluminum would have been found as the phosphide would have been converted into phosphine gas after reacting with the atmospheric moisture.
21. HC Dinesh Kumar was examined as PW-12. On 24.05.2017 he was working as duty officer. He proved the copy of FIR as Ex.PW12/A. His endorsement on the rukka as Ex.PW12/B and the certificate u/s 65B Evidence Act is Ex.PW12/C. He handed over the copy of FIR and original rukka to SI Naveen to hand over the same to SI Ajay Kumar for investigation. Nothing material came on record to discredit the witness during cross examination.
22. SI Sajjan Kumar was examined as PW-13. He deposed that on 24.05.2017 after receipt of call from control room he along with HC Sandeep and other staff reched at jhuggie No.461 first floor Munni Ki Jhuggie near DDA market, H-2 Block. Inspector Ajay and other staff of PS: Jahangir Puri met them there. He inspected the scene of crime and found one metallic tablet container. HC Sandeep took the State Vs. Banne @ Banne Khan SC No.519/17 :: 10 ::
photographs of the scene of crime from different angles. They remained at the spot from 8:55 pm to 10:25 pm. He gave his report as Ex.PW13/A.
23. During cross-examination he denied the suggestion that scene of crime was arranged by police officials of PS:
Jahangir Puri. He denied the suggestion that no metallic tablet container was found at the scene of crime.
24. Muskan was examined as PW-14. She was questioned to find out if she is able to understand the questions and answer rationally and after satisfying, she was examined without administering oath as she is less then 12 years. She deposed that she is living in Delhi with her mother. She deposed that she is living in Delhi with her mother and her sisters Rukhsar and Sania. Rukhsar had died. Her father and her other sisters and two brothers were residing in Gannaur, UP. Her Nani is residing in a house situated in the back street of their house. Whenever she and her sister used to say that they want to go to their father, they used to say "Jayada mat bol abhi kaat ke bori mein daal ke nale mein faink ayenge". One day in the morning during summer season her Nani gave her a silver colour tube, having some tablets and asked her "do goli tum kha lena do apni behan ko de dena." Her mother had already gone out with her younger sister Sania. It was a big tablet. Nani also State Vs. Banne @ Banne Khan SC No.519/17 :: 11 ::
told that if she feel that it will not go down the throat she can break it into two. Before taking the tablet she and her sister had also eaten water melon. As the tablet was very big therefore, she broke it into two. She gave half tablet to her sister who took it with water. She took one tablet with water. After taking the tablet she searched for her mother as froth of black colour started coming out of the mouth of her younger sister Rukhsar. When her mother came back she told her that they had eaten the tables given by Nani. Their mother took them to hospital. Her sister died in the hospital. Thereafter they returned back. Her Nani also met at the house. Police met them at the house. She told the police that she ate the tablets given by her Nani but her Nani stared at her and therefore, she said that tablets were found lying at the door of the house which they ate. Thereafter, police went away. Her Nani threatened her to either name her father or she would also kill her as she killed her sister. She was also brought to the court for making statement along with her Nani and other relatives. At that time her Nani also threated her to be killed if she did not name her father.
25. Court Question was put to her as to with whom she had come to the court today (i.e. date of examination) and she said that she had come to the court along with her mother and two sisters namely shabnam and Shabana and State Vs. Banne @ Banne Khan SC No.519/17 :: 12 ::
also husband of Shabnam. She proved her statement as Ex.PW14/A. Her statement recorded in the court u/s 164 Cr.PC is proved as Ex.PW14/B. She also identified the container as Ex.PW14/Article-1. No question was put to the witness by the defence.
26. Rukhsar was examined as PW-15. She deposed that she had six daughters and two sons. One of her daughter Rukhsar had expired. Her husband Banne Khan was residing with his two sons and three daughters in Distt. Gannaur, UP. She along with her three daughters namely, Muskan, Rukhsar (deceased) and Saniya were residing in Delhi. About 8-9 months ago in the summer days she had gone to the public toilet along with her youngest daughter. It was morning time. She returned home after about 10 minutes. She found that her daughter Muskan and Rukhsar were lying unconscious. She took both of them to BJRM hospital. Her younger daughter Rukhsar died in the hospital and her daughter Muskan survived. Muskan was some time saying that tablet which they ate were given by her Nani and some time saying that those tablets were given to her by her father. She does not know how her daughter Muskan and Rukhsar got those tablets and who gave those tablets to them. She does not know what statement was given by Muskan to the police. She was cross-examined by Ld. APP wherein she State Vs. Banne @ Banne Khan SC No.519/17 :: 13 ::
admitted that she had given one container to the police which was found on the shaft (taand) of the jhuggie which was seized by the police vide memo Ex.PW15/A. Muskan never told her that the tablet eaten by her and Rukhsar were given by their father. She never told this fact to the police. She was confronted with her statement Ex.PW15/A. She also identified the container as Ex.PW14/Article-1. No question was put to the witness by the defence.
27. ASI Satish was examined as PW-16. He delivered the copies of FIR to the senior police officials and area MM on 24.05.2017. The testimony of this witness has gone unchallenged and uncontroverted.
28. Smt. Noor Jahan was examined as PW-17. She deposed that accused Banne Khan is her son-in-law. He is married to her daughter Ruksar. About 5-6 or 7 months back accused came to the house of her daughter Rukhsar whom he had seen while going for work. When she came back at about 1 pm neighbour told her that daughters of her daughter are in BJRM hospital. She went to the hospital. She found that one daughter was under treatment and the other had died. Muskan told her that the tablets she had eaten were given to her by her father. Accused Banne Khan planned to implicate her by giving tablets to her grand daughter Muskan and Rukhsana who told them to mention her name to the State Vs. Banne @ Banne Khan SC No.519/17 :: 14 ::
police.
29. During cross-examination for the defence she stated that when she came back at 1 pm neighbour told her that daughters of her daughter are in BJRM hospital but she was confronted with her statement where it was not found recorded. She was also confronted with her statement where it was not found mentioned that Muskan told her that tablets were given to her by her father. She denied the suggestion that she had not seen Banne Khan at the house of her daughter on the day of incident or that she had given the tablets to Muskan and deceased or she concocted a story to implicate the accused. She denied the suggestion that she is deposing falsely.
30. Md. Saddam was examined as PW-18. He deposed that Noor Jahan is mother of his mother-in-law. Accused present in the court is the second husband of his mother-in- law. Ruksar is his mother-in-law who earlier used to reside in UP with all her children. He received one phone call from Ruby and Shabana who asked him to visit hospital and find out that who had survived. After receiving the call he reached the house of his mother-in-law. His mother-in-law was at home at that time who told him that one daughter had died and one is still hospitalized. He went to the hospital and found Muskan admitted in the hospital. Muskan told him that State Vs. Banne @ Banne Khan SC No.519/17 :: 15 ::
her father gave poison to her.
31. During cross-examination he deposed that police recorded his statement which was read over to him. He was confronted with the statement where it was not found mentioned that Muskan told him that her father gave poison to her. He was also confronted with his statement where it was not found mentioned that he received phone call from Ruby and Shabana or that they asked him to visit the hospital and find out who had survived. He denied the suggestion that he is deposing falsely against the accused at the instance of Noor Jahan. He denied the suggestion that he did not visit the hospital or never met Muskan.
32. Ruby was examined as PW-19. She deposed that accused is her step father. On 23.05.2017 Ruksar, Sania and Muskan came to her house at about 12 noon with the accused. Accused told her that he wants to take his daughters and wife to his native village to attend the marriage of his two daughters but her mother was not willing to accompany. She advised the accused to settle the dispute with her mother. Accused assured that he would not beat her mother. She told the accused that she will discuss the same with her mother. She advised the accused to take the children with him but accused told that he would come on Sunday and take them to Native village for attending State Vs. Banne @ Banne Khan SC No.519/17 :: 16 ::
marriage. Thereafter, accused left with the daughters. Her sister Shabnam who reside in UP made a call to her and informed that Rukhsar and Muskan are admitted in the hospital and their condition is critical. After about half an hour she received call from Shabana to inform that Sania had expired and Muskan is admitted in the hospital. Initially Muskan informed them that tablets were given to her and her sister by her Nani Noor Jahan. Later on she told that tablets were given to her by her father who asked them to tell the name of Nani in order to falsely implicate her.
33. During cross-examination she stated that she had studied upto 10th class. She visited the police station twice in connection with the present case. Once she could not meet the police official. She had not told to the police that initially Muskan informed her that tablets were given to her by Nani Noor Jahan and lateron she told that tablets were given to her by her father. She denied the suggestion that she had improved her statement.
34. SI Naveen Kumar was examined as PW-20. He deposed that on 24.05.2017 after receiving DD No.16A Ex.PW3/A he along with HC Rakesh reached BJRM Hospital. He collected the MLC's of both the victims. Doctor handed over him one sealed pullanda containing gastric lavage and he seized the same vide memo Ex.PW5/A. Rukhsana was State Vs. Banne @ Banne Khan SC No.519/17 :: 17 ::
declared dead. He moved application for preserving the dead body. The dead body was removed to the mortuary through HC Rakesh. SHO Ajay Kumar and other staff also reached at the hospital. The statement of Muskan was recorded which is Ex.PW14/A which is in his handwriting. Ajay Kumar handed over the rukka to him. He went to the police station and presented the rukka to the duty officer who registered the FIR. After registration of FIR he came back and handed over the original rukka and copy of FIR to the IO at the spot i.e. Jhuggi No.461 near DDA Market H2Block, Jahangir Puri. Smt. Ruksar produced one aluminum container in the shape of a tube lying over the taand of the jhuggi. The said container was found containing 7 tablets of black colour. The same was put in a cloth parcel, sealed with the seal of AK and seized vide memo Ex.PW15/A. Crime team also reached the spot and inspected the same. The photographer took the photographs.
35. During cross-examination he deposed that he reached the hospital at about 11:30 am. He cannot tell if NoorJahan grand mother of victim and deceased was also present in the hospital along with other relatives, however, relatives were present in the hospital. It was in his knowledge as mentioned in the MLC of the victims Ex.PW8/A and Ex.PW8/B that the black tablets were given to them by their Nani in the morning. State Vs. Banne @ Banne Khan SC No.519/17 :: 18 ::
He had not made any inquiry from the Nani of victims. He cannot say if second IO had made any inquiry or investigation from the Nani of the victim. At about 5:00 pm doctor declared Muskan fit for statement. In the MLC Ex.XPW8/B the time of declaring the patient fit for statement is not mentioned. He had not mentioned the time when he started recording the statement of witness and at what time he closed the statement. He denied the suggestion that Muskan had never given any statement or that Ex.PW14/A was prepared subsequently at the instance of Nani of the victim. He denied the suggestion that Smt. Ruksar had not produced any aluminum container as deposed by him. He denied the suggestion that the investigation has not been fairly and property conducted.
36. Inspector Ajay Kumar was examined as PW-21. He deposed that on 24.05.2017 on receipt of information regarding admission of Rukhsana and Muskan in the hospital and that Rukhsana has been declared dead. He along with staff reached the hospital. SI Naveen apprised him all the fact and also handed over MLC of both the victims. Victim Muskan was perplexed and under stress and was not in a position to give statement. Statement of Muskan was recorded by SI Naveen on her narration and his dictation. The statement is proved as Ex.PW14/A. He made State Vs. Banne @ Banne Khan SC No.519/17 :: 19 ::
endorsement Ex.PW21/A and handed over the rukka to SI Naveen to get the FIR registered. He along with the staff reached at Jhuggie No.461 near DDA Market H2 Block Jahangir Puri. SI Naveen reached there and handed over copy of FIR to him. Smt. Rukhsar produced one aluminum container lying on the taand of the jhuggi. The container was found containing 7 tablets of black colour. The container was put in a plastic container, sealed with the seal of AK and seized vide memo Ex.PW15/A. He prepared the site plan Ex.PW21/B, crime team was called. They inspected the scene of crime. The crime team report is Ex.PW13/A. The photographer took the photographs of the scene of crime.
37. On 26.05.2017 he went to the mortuary. He prepared the inquest papers Ex.PW21/C1 to C3. The dead body was identified by Md. Sartaj and Ruksar vide statement Ex.D1 and D2. After the post mortem the dead body was handed over to the relatives vide Ex.PW5/B. After post mortem he received the exhibits which he seized vide memo Ex.PW5/C. On the same day in the evening he along with HC Bijender and Ct. Ajeet reached Mangal Bazar. On the pointing out of secret informer the accused was apprehended. He corroborated the testimony of PW-6 regarding arrest and disclosure of the accused. He got recorded the statement of Muskan u/s 164 Cr.PC. On 06.07.2017 the exhibits were sent State Vs. Banne @ Banne Khan SC No.519/17 :: 20 ::
to FSL through HC Ashok. He also got prepared the scaled site plan of place of occurrence from Inspector Manohar lal who visited the scene of crime on 12.07.2017. After completion of investigation he prepared the charge sheet and filed the same. He collected the FLS result and filed the same. He identified the accused and also identified the container as Ex.PW14/Article-1.
38. During cross-examination he stated that he reached the hospital at about 6 pm. He did not mention in the rukka that the statement of Muskan was recorded by SI Naveen on his dictation. He had not obtained the initials of Durgesh Kumari who was from NGO, on the statement of Muskan. He had made inquiries from Noor Jahan the grand mother of victim and deceased who was present in the hospital along with the other relatives. Noor Jahan was present in the same room when he made inquiries from Muskan and recorded her statement. He also made inquiries from Noor Jahan regarding administering of tablets to the victims. He reached the jhuggi No.461 at about 9 pm. He called the neighbours before conducting the proceedings in the jhuggi. The owner of the jhuggi Ms. Munni joined the proceedings. However, her signatures were not obtained. He had not handed over the seal after use to anyone. He denied the suggestion that Banne Khan was already apprehended from the village and State Vs. Banne @ Banne Khan SC No.519/17 :: 21 ::
was kept in wrongful confinement. He denied the suggestion that Muksan had not given any statement as deposed by him or that Ex.PW14/A was prepared subsequently at the instance of Nani of the victim. He denied the suggestion that Ruksar had not produced any aluminum container as deposed by him. He denied the suggestion that he had not conducted the investigation fairly and properly.
39. Thereafter, prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.PC wherein he denied the entire evidence and stated that he has been falsely implicated. He did not wish to lead evidence in his defence. Thereafter the case was fixed for final arguments.
40. I have heard. Ld. APP for the State, Ld. Defence counsel for the accused and perused the record.
41. The case of prosecution is that Banne Khan was living in the village Gannaur with his two sons and three daughters and his wife Rukhsar started living at Jhuggi No.461 near DDA market H2 Block, Jahangir Puri with her three daughters namely Muskan, Rukhsana and Sania. The story as unfolded is on 23.05.2017 accused visited Delhi and gave the tablets of Aluminium phosphide to his daughter Muskan briefing her to take the same and also give one tablet to her sister Rukhsana. On 24.05.2017 Muskan took one tablet and gave half tablet to her sister Rukhsana. They were taken to State Vs. Banne @ Banne Khan SC No.519/17 :: 22 ::
hospital by her mother Rukhsar where Rukhsana died but Muskan survived. Muskan was examined as PW-14. She gave a different story. She stated that the tablets which were consumed by her and her sister Rukhsana were given to her by Noor Jahan their maternal grand mother and not by Banne her father. She stated that initially also she told the doctor that the tablets were given to her by her Nani. This fact is supported by MLC Ex.PW8/B wherein the doctor has mentioned that the tablets given by grand parent (nani) as told by patient. Doctor R.S. Mishra was examined as PW-8. He also deposed in the court that the patient told him that the tablet she and her sister consumed were given to them by Nani. There is no other witness on record to tell as to who provided the poison tablets to Muskan. There was none else at home at the time when Muskan ate the tablets and also gave half tablets to Rukhsana. It is in the evidence of Rukhsar PW-15 that she along with her youngest daughter Sania had gone to the public toilet at that time and when she returned, she found her daughters in unconscious condition. The other witness Noor Jahan examined as PW-17 also said that she was not there but she stated that while going for her work she saw Banne the accused in the house of her daughter Rukhsar i.e. at Jhuggi No.461 near DDA market, H2 Block Jahangir Puri. There is no other evidence on record State Vs. Banne @ Banne Khan SC No.519/17 :: 23 ::
to show that the tablets consumed were provided by accused Banne to Muskan. Even in the testimony of Ruby examined as PW-19 it has come that Muskan initially told that the tablets were given to her by her material grand mother. Keeping in view this fact it is clear that prosecution has failed to bring on record any evidence to show that it was Banne Khan who provided the containers having the poisonous tablets which was seized vide memo Ex.PW15/A. This container having tablet was sent to FSL for analysis. The report is proved on record as Ex.PW11/A. According to the report the tablets were of Aluminum Phosphide. The gastric lavage of Muskan taken in the hospital and seized by IO vide memo Ex.PW5/A and the viscera and blood sample of Rukhsana were seized by the IO vide memo Ex.PW5/C were also sent to FSL for analysis. The report is Ex.PW11/A. According to the report in the viscera as well as gastric lavage Aluminum phosphide was found. From this it is clear that Rukhsana died due to poisoning and Muskan survived due to medical intervention. The onus was upon the prosecution to prove and establish that this offence was committed by Banne which prosecution has failed. There is no other evidence to link Banne with the commission of offence. Accused Banne is therefore, acquitted. He be released on furnishing personal bond in the sum of State Vs. Banne @ Banne Khan SC No.519/17 :: 24 :: Rs.10,000/- with one surety in the like amount for a period of six months u/s 437A Cr.PC.
42. As discussed above it has come in the testimony of Muskan PW-14 that the tablets which she and her younger sister Rukhsana consumed were given for consumption by her Nani. This fact has also come at very initial stage in the MLC Ex.PW8/B that the patient told the poisonous tablet was provided to her by Nani to which she and Rukhsana ate. Muskan had also explained that when the police questioned her, her Nani was there and due to that reason she did not say anything against her Nani and told that the tablets were provided to her by her father and similarly at the time of recording of her statement u/s 164 Cr.PC her Nani accompanied her and she named her father. Keeping in view this evidence on record. I found sufficient evidence against Noor Jahan to proceed her u/s 319 Cr.PC. Noor Jahan is summoned for the offence u/s 302/307/328 IPC. Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.02.20
BANSAL 17:22:34 +0530
Announced in the open court (VIRENDER KUMAR BANSAL)
today on 20.02.2018 ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Banne @ Banne Khan SC No.519/17 :: 25 ::