Delhi District Court
State vs . : Noor Jahan on 7 December, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:113/18
FIR No. : 228/17
U/s : 302/307/328 IPC
P.S. : Jahangir Puri
State Vs. : Noor Jahan
W/o Sh. Aabid
R/o 199, H-2, Block, Jhuggi,
Jahangir Puri, Delhi.
Offence complained of : 302/307/328 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 07.03.2018
Date of Judgment : 07.12.2018
JUDGMENT
1. On 24.05.17 information was received from BJRM hospital that two girls namely Muskan and Ruksana are admitted in the hospital after consuming some poisonous substance and that Ruksana had died. DD no.16A was recorded on this information. Muskan survived, who told that she along with her two sisters and mother was living in Delhi. Her father along with her other brothers and sisters was living in UP. Her father visited her. She told her father that she and Ruksana had to clean the house. On this her father State Vs. Noor Jahan SC No.113/18 :: 1 ::
Banney Khan gave her one iron bottle having black colour tablets and asked her to take that tablet and also give the same to her sister. Her father also told her that after taking the tablet she would become unconscious and thereafter her mother would never ask them to work. Banney Khan also told her that if any body ask as to who gave the tablets then she shall tell that Nani gave the tablets. In the morning when her mother went out, she and her sister Ruksana took one tablet each. They became unconscious. They regained consciousness in BJRM hospital. Post mortem was conducted. It was found that it is a case of poisoning. Banney Khan was arrested. After completion of investigation charge sheet against Banney Khan was filed. Ld. MM after complying with the provisions of Sec.208 Cr.PC committed the case to the Sessions Court as the offence punishable under Sec.302/307/328 IPC is exclusively triable by the Sessions Court. Accused Banney Khan was charged for the offences punishable under Sec.302/307/328 IPC to which he pleaded not guilty and claimed trial.
2. Banney Khan was acquitted after the trial and on the basis of the evidence which came on the record, Noor Jahan was summoned under Sec.319 Cr.PC. She was charged for the offences punishable under Sec.328/302/307 IPC to which she pleaded not guilty and claimed trial. Thereafter the case State Vs. Noor Jahan SC No.113/18 :: 2 ::
was fixed for prosecution evidence.
3. Smt. Ruby was examined as PW-1. She deposed that accused present in the court is her Nani namely Noor Jahan. On 23.05.17 Ruksar, Sania and Muskan came to her house with their father at noon hours. She served food to Banney Khan. Banney Khan told 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 him. Her mother requested him to arrange a Punchayant to solve the disputes between them. Banney Khan left her house and assured them that he would come on Sunday. Shabnam her sister is residing in UP with her father Banney Khan, informed her telephonically that Ruksar and Muskan are admitted in the hospital in Delhi. After half an hour Shabnam again made a call to her informing that Ruksar had expired and Muskan is admitted in the hospital. Banney Khan used to give beatings to her mother, therefore her mother was not residing with him. The testimony of the witness has gone unchallenged and uncontroverted.
4. Rukhsar @ Sahni was examined as PW-2. She deposed that she had six daughters and two sons. One of her daughter namely Rukhsar had expired. Her husband Banne Khan was residing with her two sons and three daughters in District - Ghinnor, U.P. She alongwith her three State Vs. Noor Jahan SC No.113/18 :: 3 ::
daughters namely Muskan, Rukhsar (deceased) and Sania was residing in Delhi. Her husband used to beat her, therefore, she decided to reside separately near the house of her mother at Delhi. Her mother is residing separately in the same locality. About one year ago, in the summer days, she had gone to the public toilet along with her youngest daughter Sania. It was morning time. She returned home after about 10 minutes. She found that her daughter Muskan and Rukhsar were lying unconscious in the jhuggi. She took her both daughters to Babu Jagjiwan Ram Hospital in TSR. Her younger daughter Rukhsar died in the Hospital. Her daughter Muskan survived. Muskan initially named her Nani/accused who gave tablets to her and Ruksar. Muskan was tutored by Banney Khan to name her Nani. When Muskan was fully conscious, she informed that she named her Nani/accused as she was tutored by Banney Khan. Banney Khan came to Delhi on Tuesday. On Wednesday Banney khan made a call on her mobile phone and asked her to give the phone to Muskan. Banney Khan told Muskan to eat the tablets and name her Nani as a person who gave them tablets for eating. Banney Khan talked to her on phone and told her that he would come with his relatives to Delhi and would divorce her. She informed Banney Khan that Ruksar had expired. She requested him to reach Delhi but State Vs. Noor Jahan SC No.113/18 :: 4 ::
Banney Khan did not visit Delhi and told that he is going to find groom for their daughters. Now Banney khan is threatening her on telephone. He told her that she should reside with him, otherwise her mother would not be released from jail.
5. She was cross-examined by Ld. APP as she resiled from her earlier statement wherein she admitted that she had given container to the Police which was lying on the shaft (taand) of her jhuggi. She also admitted that the Police seized that container vide seizure memo Ex. PW15/A. Muskan never told her that the tablet eaten by her and Rukhsar (since deceased) were given by accused. She denied the suggestion that her daughter Muskan and Ruksar were given tablets by Nani as told by Muskan in her statement before the court. She identified the container as Ex. PW14/Article1.
6. The testimony of the witness has gone unchallenged and uncontroverted.
7. Mohd. Saddam was examined as PW-3. He deposed that Noor Jahan is mother of his mother in law. Ruksar @ Sahni is his mother in law, who earlier used to reside in UP with all her children and her husband Banney Khan. Banney Khan used to beat Ruksar and that is why Ruksar along with Muskan, Sania and Rukhsar was residing in Delhi. Accused State Vs. Noor Jahan SC No.113/18 :: 5 ::
arranged rented accommodation for Ruksar and her children. Banney used to visit Delhi and accused used to give money and ration to Banne Khan. On 22.05.17 when he returned home after his work, his wife told him that Banney Khan had come to Delhi. On 23.05.17 at about 8/8.30 AM he received phone call from Sabana/ his sister in law, who told him that Muskan and Ruksar are admitted in the hospital and asked him to find out in which hospital they are admitted. He went for his work. His wife visited the house of his mother in law and made a call to him and informed that Ruksar had died and Muskan had survived. He reached BJRM hospital. He inquired from Muskan as to who had given drug to her and she told that papa ne diya hai.
8. He was cross-examined by Ld. APP as he resiled from his earlier statement wherein he stated that Muskan never told him that the tablet eaten by her and Rukhsar (since deceased) was given by Nani. It is wrong to suggest that Muskan and Ruksar were given tablets by Nani as told by Muskan in her statement before the court.
9. The testimony of the witness has gone unchallenged and uncontroverted.
10. Inspector Manohar Lal was examined as PW-4. He prepared the scaled site plan of the place of incident at the instance of IO and proved the same as Ex.PW-2/A. Nothing State Vs. Noor Jahan SC No.113/18 :: 6 ::
material came on record to discredit the witness during cross examination by the defence counsel.
11. SI Sajjan Kumar was examined as PW-5. He deposed that on 24.05.2017 on receipt of call from control room he along with HC Sandeep and other staff reached at Jhuggi No.461 First floor Muni Ki Jhuggi near DDA Market H-2 Block. Inspector Ajay and other police staff of PS: Jahangir Puri met him there. He inspected the scene of crime and found one metallic tablet container. The photographer HC Sandeep took the photographs of scene of crime from different angles. They remained on the spot from 8:55 to 10:25 pm. He prepared the crime scene report Ex.PW13/A and handed over to the IO.
12. During cross-examination by the Ld. Amicus for the accused he denied the suggestion that he did not visit the scene of crime or that the scene of crime was arranged by the local police.
13. HC Sandeep Kumar was examined as PW-6. He was the photographer of mobile crime team which visited the scene of crime. He took 17 photographs of scene of crime from different angles. He proved the photographs as Ex.PW4/A1 to Ex.PW4/A17. He proved the CD of the photographs as Ex.PW4/B. The certificate u/s 65B Evidence Act is proved as Ex.PW4/C. State Vs. Noor Jahan SC No.113/18 :: 7 ::
14. During cross examination by Ld. Amicus for the accused he stated that he did not inform the Incharge mobile crime team as to how many photographs he had clicked. His statement was recorded on 20.05.2017. He denied the suggestion that he did not click the photographs. He admitted that there were number of jhuggies near the scene of crime. Many public persons were present outside the jhuggi.
15. HC Dinesh Kumar was examined as PW-7. He deposed that on 24.05.2017 SI Naveen handed over to him the rukka at 8:35 pm sent by Inspector Ajay Kumar. He got fed the contents of rukka in the computer and registered the FIR. He proved the computer generated copy of FIR as Ex.PW12/A. He proved his endorsement made on the rukka regarding registration of FIR as Ex.PW12/B. The certificate u/s 65B Evidence Act is proved as Ex.PW12/C. He handed over the copy of FIR and original rukka to SI Naveen to hand over to SI Ajay Kumar for investigation. He sent the copies of FIR to Sr. Police officials and area MM through ASI Satish who left on the Govt. Motorcycle to deliver the copies. Nothing material came on record to discredit the witness during cross-examination by the Ld. Amicus for the accused person.
16. Baby Muskan was examined as PW-8 after satisfying that she is able to understand the questions and answer State Vs. Noor Jahan SC No.113/18 :: 8 ::
rationally. The oath was not administered as she was only 10 years of age. She deposed that on that day in the morning hours, she told to her mother that she along with her sister Ruksar are having headache. Her mother left the room with her youngest sister. Thereafter her Nani reached in their room to whom she told that they are suffering from head ache. Her Nani gave one dibbi to her and told her to consume one tablet and also give half tablet to her sister Ruksar. They both ate watermelon, thereafter she gave half tablet to her sister Ruksar to consumer the same. She consumed a tablet. She felt giddiness and left the house for searching her mother. She again reached her house where her sister Ruksar was lying unconscious. She started vomiting. Kala jhaag meri behn ke muh se aane laga. Thereafter her mother also reached at their house to whom she informed that Nani had given one dibbi containing tablets for consuming. Nani told her to give half tablet to Ruksar for consuming the same and advised her to take half tablet for consumption. She told her mother that Ruksar had consumed one tablet and she had consumed half tablet. Her mother was not believing her and told her that she is telling a lie. This tablet box must have been given by her father and not her Nani. Her mother took her and Ruksar to the hospital where they were medically examined. Her sister Ruksar State Vs. Noor Jahan SC No.113/18 :: 9 ::
expired in the hospital and she survived. Police came and inquired from her as to who had given the tablets to her. She told the police that her Nani had given box containing tablets for consumption. When police left the said place, her mother threatened her that she should name her father instead of her Nani. Her Nani threatened her that she should name her father otherwise jaise teri behn ko marwaya hai vese tujhe maar dungi. Due to fear, she named her father as the person who give tablets to her and her sister Ruksar. She identified accused correctly. Her mother is threatening her on telephone that If she came to the court and deposed against Nani, she will kill her.
17. One day her mother went to her village where she was called by the children of village. Her mother threatened her that if she reached in the court, she would kill her. She conveyed these facts to her father, who called the local police and her mother ran away from the village.
18. During cross-examination by Ld. Amicus Curiae she deposed that her father was sent to jail for the reason that she was made to tell a lie against him at the instance of her Nani and mother. Her father was in jail in some other case and no one was looking after them therefore, she along with her family members came to Delhi and took a rented accommodation near the house of her Nani. During her stay State Vs. Noor Jahan SC No.113/18 :: 10 ::
in Delhi with her mother and sister Ruksar, her Nani/accused used to serve food to them. She denied the suggestion that her mother used to quarrel with her father. She admitted that her mother and her Nani used to go for work in Delhi during her stay in Delhi. She denied the suggestion that her father visited their house in Delhi one day prior to the death of her sister Ruksar.
Q. Whom do you love more father, mother and Nani? Ans. I love all. But when my Nani had given jehar to us, therefore, I don't love her.
Q. Whether your father told you that your Nani had given zehar to you?
Ans. No, this fact was known to me that meri Nani ne apne haatho se mujhe zehar ki dibbi di hai.
19. She did not give any statement of her own but she was made to tell a lie by her Nani and that is why before the Magistrate she said that her papa gave dabbi of zehar to her. Her mother and Nani told her that the said dibbi contained zehar. First of all she told her sisters that her Nani had given dibbi of zehar. Police made inquiries from her two times and on first occasion she told that dibbi of zehar given by her Nani. While she was staying in Delhi her father never visited in Delhi. First of all she named her Nani and when her Nani aankhe dikhane lagi to maine keh diya ki zehar ki dabbi State Vs. Noor Jahan SC No.113/18 :: 11 ::
darvaje ke pas mili thi. She denied the suggestion that she was made to complete household work for the said reason she named her Nani.
20. ASI Satish Kumar was examined as PW-9. He deposed that on 24.05.2017 duty officer handed over to him three envelopes which he delivered to the area MM, DCP and the ACP. He left the police station at about 9:30 pm on Govt. Motorcycle No. DL 1SS 3363. The testimony of the witness has gone unchallenged and uncontroverted.
21. ASI Sikander was examined as PW-10 he deposed that on 24.05.2017 he was posted at PS: Jahangir Puri. He was working as MHC(M). He proved the entries in register No.19 as Ex.PW10/A to Ex.PW10/C. He proved the entries in register No.21 as Ex.PW10/D. He also proved the acknowledgement received from FSL as Ex.PW10/E. He also deposed that during the period exhibits remained in his possession no one tampered the same in any manner. Nothing material came on record to discredit the witness during cross-examination by Ld. Amicus.
22. HC Rakesh Kumar was examined as PW-11. 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 of deceased Rukhsana and injured Muskan. Doctor handed over one sealed parcel to the IO along with seal of State Vs. Noor Jahan SC No.113/18 :: 12 ::
the hospital which was sezied by the IO vide memo Ex.PW11/A.
23. IO prepared an application for preserving the dead body of Rukhasana in the mortuary of the hospital. He took the dead body to the mortuary of the hospital and got preserved the same. On 26.05.2017 Inspector Ajay Kumar came to the mortuary and prepared inquest papers. The dead body was identified by the relatives of the deceased. The post mortem was conducted on the body. After post mortem the dead body was handed over to the relatives. After post mortem the doctor handed over viscera, blood in gauze piece and clothes of Rukhsana to the IO who seized the same vide seizure memo Ex.PW11/C.
24. During cross-examination by the Ld. Amicus he stated that he remained in the hospital for about 1 or 1 ½ hour IO handed over him certain documents to be deposited in the mortuary. He denied the suggestion that he did not join the investigation as deposed by him.
25. HC Ashok Kumar was examined as PW-12. He deposed that on 06.07.2017 he was posted at PS: Jahangir Puri. On that day on the direction of IO/SHO he collected three sealed parcels from MHC(M) along with two sample seals vide RC No.123/21/17 for depositing the same at FSL. He deposited the exhibits and sample seal in FSL and State Vs. Noor Jahan SC No.113/18 :: 13 ::
obtained acknowledgement. Till the exhibits remained in his possession no one tampered with the same in any manner. He proved the acknowledgement as Ex.PW10/E.
26. During cross-examination by the Ld. Amicus he denied the suggestion that he had tampered with the parcel at the instance of IO to strengthen the case.
27. ASI Rohtash Kumar was examined as PW13. He deposed that on 24.05.2017 he was working as duty officer in PS: Jahangir puri. On that day at about 11:20 am duty Ct. Anil from BJRM Hospital informed on telephone that Rukhsana d/o Banne Singh aged-5 years H-block Jhuggi No.461 Jahangir Puri, "jo unknown poison khane par MLC No.134918/17 and Muskan D/o Banne Singh aged 10 years R/o Same address unknown poison khane par MLC No.134917/17 par unki mata Rukhsar mobile No.9084603747 dakhil BJRM Hospital Karya hai, jo doctor Sahab ne Rukhsana ko dorane illaj mrit ghosit kar diya. IO bheja jaye. He passed on this information to SI Naveen. He recorded DD No.16A. He proved the true copy of the DD as Ex.PW3/A. Nothing material came on record to discredit the witness during cross examination by the Ld. Amicus for the accused.
28. Ms.Rabia Ali was examined as PW-14. She deposed that she is residing on the ground floor of BM-34, H2 Market, State Vs. Noor Jahan SC No.113/18 :: 14 ::
Jhugi no.193, Jahangirpuri, Delhi. They had let out the first floor of their jhugi to Ruksar who was residing with her three daughters. About one and half year ago in summer days she came to know that two daughters of Ruksar were admitted in the hospital and one of the daughter Ruksana had expired in the hospital. She does not know as to how Ruksana expired. She had never seen the husband of Ruksar visiting the tenanted premises.
29. During cross-examination by Ld.Amicus she deposed that she does not know if husband of Ruksar namely Banney visited the first floor of the house of her wife on 23.05.17. She had not seen Banney Khan in the house of Ruksar on 23.05.17. She came to know from police that husband of Ruksar has been arrested by the police.
30. SI Naveen Kumar was examined as PW-15. He deposed that on 24.05.17 on receipt of DD no.16A Ex.PW- 3/A regarding admission of Ruksana and Muskan in the hospital with unknown poisoning and ruksana declared dead, he along with HC Rakesh reached at BJRM hospital. He collected the MLCs of both the victims i.e. Muskan and Ruksana. The hospital/doctor handed over a sealed pullanda along with sample seal to him which he seized vide seizure memo Ex.PW-5/A. He prepared an application for preserving the dead body of Ruksana in BJRM mortuary through HC State Vs. Noor Jahan SC No.113/18 :: 15 ::
Rakesh. The victim Muskan was under stress and perplexed. She was unable to give statement. Inspector Ajay Kumar and other staff also reached at the hospital. NGO Durgesh Kumari also reached at the hospital for counseling the victim. The statement of Muskan Ex.PW-14/A was written by him on the dictation of Inspector Ajay Kumar. He made endorsement on the dictation of Inspector Ajay Kumar. Inspector Ajay Kumar handed over to him the rukka for registration of FIR at 8.15 PM. He went to PS and presented the same to DO HC Dinesh Kumar, who got registered the FIR. After registration of FIR he went to jhugi no.461 near DDA market, H2 Block, Jahangir Puri, Delhi i.e. scene of crime where he handed over the copy of FIR and original rukka to IO.
31. Smt.Ruksar produced one aluminum container in a shape of tube which was lying at the tand (shaft) of the jhugi. The said container was found containing 7 tablets of black colour. The said container with 7 tablets was put in plastic container, sealed with the seal of AK and seized vide seizure memo Ex.PW-15/A. Crime team reached at the spot and inspected the scene of crime. Photographer took the photographs of the scene of crime from different angles.
32. He identified the container as Ex.PW-14/Article 1.
33. During cross-examination by Ld. Amicus he deposed that he reached hospital at about 11.30 AM. He met the State Vs. Noor Jahan SC No.113/18 :: 16 ::
family members of victim and deceased. Victim Muskan was conscious. Vol. She was under fear and perplexed. He recorded the statement of Muskan from 07.30 PM to about 8 PM. Initially he made inquiries from Noorjahan and Ruksar.
34. At about 8.20 PM he reached at PS and presented the rukka to duty officer. At about 9.30 PM he reached the scene of crime after registration of FIR. Some public persons were standing outside the jhuggi but he does not know their names and addresses. In his presence at the spot IO did not record the statement of neighborer of complainant. Crime team reached the spot at about 10 PM.
35. Inspector Ajay Kumar was examined as PW-16. He deposed that on 24.05.2017 on receipt of information regarding admission of Rukshana and Muskan in the BJRM Hospital after taking some unknown poison and that Rukhsana was declared dead, he along with staff reached BJRM Hospital. SI Naveen and three other staff met him there. SI Naveen briefed him about the case and handed over the MLC's of both the victims. Muskan was under stress and perplexed and was unable to give statement. Durgesh Kumari from NGO also reached the hospital for counseling the victim. He made inquiries from Muskan in the presence of Durgesh Kumari. Muskan narrated the incident and on his dictation SI Naveen recorded the statement of Muskan which State Vs. Noor Jahan SC No.113/18 :: 17 ::
is Ex.PW14/A. On his dictation SI Naveen made the endorsement on the statement of Muskan. Endorsement is Ex.PW21/A. After preparing the rukka he handed over the same to SI Naveen for registration of FIR. SI Naveen went to PS and got the case registered. He along with the staff reached at Jhuggi No.461 near DDA Market H2 Block Jahangir Puri. SI Naveen reached there and handed over the copy of FIR and original rukka to him. Smt. Rukhsar who is mother of deceased Rukhsana and victim Muskan produced one aluminum container in the shape of a tube lying on the shelf of the jhuggi. There were 7 tablets of black colour in the container. The container along with the tablets was sealed with the seal of AK and seized vide memo Ex.PW15/A. He prepared the site plan Ex.PW21/B. Crime team inspected the scene of crime and photographer took the photographs. The Incharge Crime Team handed over to him the crime scene report Ex.PW13/A. He recorded the statement of Rukhsar.
36. On 26.05.2017 he along with police staff went to the mortuary of BJRM Hospital. He prepared inquest papers including form 25.35 and the application Ex.PW21/C1 to Ex.PW21/C3. The dead body was identified by Mohd. Sartaj and Rukhsar vide statements Ex.PW21/D1 to D2. The post mortem on the dead body was conducted. After post mortem the dead body was handed over to the relatives vide State Vs. Noor Jahan SC No.113/18 :: 18 ::
Ex.PW5/B. After post mortem he received the exhibits which he seized vide seizure memo Ex.PW5/C. The post mortem report is Ex.PW1/A. He also deposed about arrest of Banne Khan.
37. On 31.05.2017 he moved application Ex.PW10/A for recording statement of Muskan u/s 164 Cr.PC. Statement of Muskan was recorded u/s 164 Cr.PC which is Ex.PW10/B. He moved application Ex.PW10/E for receiving the copy of statement recorded u/s 164 Cr.PC and received the same.
38. On 06.07.2017 the exhibits were sent to FSL through HC Ashok.
39. On 12.07.2017 Inspector Manohar Lal accompanied him to the scene of crime took measurements and prepared rough notes. On 13.07.2017 Inspector Manohar Lal prepared the scaled site plan Ex.PW2/A.
40. He prepared charge sheet against Banne Khan and filed the same. He also filed the FSL result Ex.PW11/A. He also identified Noor Jahan present in the court. He identified the container containing the tablets as Ex.PW14/Article-1.
41. During cross-examination by the Ld. Amicus for the accused he stated that he reached the BJRM Hospital in the noon hours. Hospital staff was already present there. Rukhsar, Noor Jahan and SI Naveen and persons from NGO and other police staff were also present in the hospital. Other State Vs. Noor Jahan SC No.113/18 :: 19 ::
patients and their family members, Muskan and her family members were present in the said ward of the hospital. Muskan was councelled by the person from the NGO. Muskan was not under any fear or perplexed when her statement was recorded. When the statement of Muskan was recorded her mother Rukhsar and police staff were present. He asked Muskan kya tumhe daraya aur dhamkaya to nahi hai, on which Muskan replied that she is not under fear or threat. They left the hospital after 5:00 pm for house of victim. He made inquiries from the neighbours. He recorded statement of owner of jhuggi where the victim and her family resides. He admitted that he had collected sufficient evidence against Banne Khan and thereafter arrested and charge sheeted him.
42. Dr. R.S. Mishra was examined as PW-17. He deposed that on 24.05.2017 he was working as CMO in BJRM Hospital. On that day Rukhsana daughter of Banne 5 years girl was brought by Rukhsar mother with alleged history of injestion of black tablet today morning with complaint of vomiting and pain abdomen. Tablet given by grand mother/Nani as told by the elder sister Muskan. On examination patient was in gasping condition, cardio pulmonary re-sustication done but patient could not be revived and declared dead on 24.05.2017 at 10:00 am. Body State Vs. Noor Jahan SC No.113/18 :: 20 ::
was handed over to the IO with diagnoses of suspected unknown poisoning. He proved the MLC as Ex.PW8/A.
43. On the same date and time Muskan daughter of Banne 8 years girl was brought by Rukhsar/mother with alleged history of injestion of black table today morning with complaint of vomiting and pain abdomen. Tablet given by grand mother / Nani as told by patient. On examination patient was conscious and oriented. Gastric lavage sample was taken, sealed with the sample seal and handed over to IO. Patient admitted in ward No.2 under Dr. Tarun with unknown poisoning. He proved the MLC as Ex.PW8/B.
44. During cross-examination by the Ld. Amicus for accused he denied the suggestion that alleged history in the MLC was written at the instance of IO or that Victim did not give any alleged history.
45. Dr. Mukesh Kumar was examined as PW-18. On 24.05.2017 he was working as SR in BJRM Hospital. He proved the post report conducted by Dr. N.K. Gunjan with whom he has worked and is conversant with his handwriting and signature. The post mortem was conducted by Dr. N.K. Gunjan on 26.05.2017 on the body of Rukhsana d/o Sh. Banne Khan aged-5 years female. As per the post mortem report no fresh external injuries, ante mortem injuries were present over the body. Opinion regarding cause of death in State Vs. Noor Jahan SC No.113/18 :: 21 ::
this case was kept reserved awaiting FSL report of viscera, time since death was within 12 hours at the time of preservation of the body in the cold chamber. After post mortem the following specimen were preserved, clothes, viscera in unsaturated solution of common salt and blood in sodium fluoride for chemical analysis. The parcels were sealed with the seal of NKG FMT BJRM Hospital. The parcels along with sample seals were handed over to the police. The post mortem report is Ex.PW1/A. He has perused the FSL result Ex.PW11/A. According to the result aluminum phosphide was detected in the blood as well as in the viscera of the deceased. In view of this report the cause of death in this case is due to poisoning of aluminum phosphide.
46. During cross-examination by the Ld. Amicus for the accused he stated that he was not present at the time of post mortem on 26.05.2017. He was also not posted at BJRM hospital at the relevant time.
47. Thereafter prosecution evidence was closed. The statement of accused was recorded under section 313 CRPC, wherein she denied the entire evidence. She wished to lead evidence in defence. Thereafter the case was fixed for defence evidence.
48. Smt. Gulshan Khatun was examined as DW-1. She deposed that she knows the accused for last about 12 years State Vs. Noor Jahan SC No.113/18 :: 22 ::
being her neighbourer. The son-in-law of accused namely Banne Khan used to gave beating to his wife i.e. daughter of accused. Whenever the daughter of accused was thrown out of her matrimonial home she was looked after by the accused. Banne Khan used to visit the house of his wife i.e. daughter of the accused. The day when Rukhshar expired, her father visited her house in Delhi. The accused used to attend his duty from 9.00 am to 6.00 pm.
49. During cross-examination by the Ld. APP for the State she deposed that in the year 2017, the accused was working in Azadpur. In the year 2017 she was working in Pratap Nagar as a labourer. She used to leave her house at 9.00 am and return at 6.00 pm. The name of the daughter of accused is Sahni. Sahni has 6 daughters and 2 sons. In the year 2017, Sahni alongwith her two daughters started residing in Delhi. In the year 2017, Sahni was working in a factory in Swaroop Nagar. She does not know the name of landlord/landlady where Sahni was residing. She does not know what was the house number where Sahni was residing in tenancy. She does not know what was the date and year when Rukhshar died but it was about 9 or 10 month ago. She had not seen Banne Khan beating Sahni. She had seen Banne Khan. She had seen the eldest daughter of Banne Khan. She does not know the name of the eldest daughter of State Vs. Noor Jahan SC No.113/18 :: 23 ::
Banne Khan.
50. At this stage, the witness is shown photographs pasted on the bail bond u/s 437-A Cr.PC dated 20.02.2018 and witness failed to identify the photographs pasted on it (The bail bond was having photograph of Saddam). Witness stated that she does not know who is she and whose photographs are pasted on the bond.
51. Smt. Momina was examined as DW-2. She deposed that accused Noor Jahan is her mother in law. Her mother in law is working as laborer. She used to leave for work at around 8 AM and return around 6.30 PM. Sahni, the mother of deceased was living separately from her husband Banney Khan for one and half years prior to the incident.
52. Her mother in law Noor Jahan used to help Sahni, mother of deceased and victim financially.
53. During cross-examination she deposed that at the time of incident she was present at her home at H-2/199, Jahangir Puri. At the time of incident, she was blessed with a son by operation and was having some pain.
54. Accused Noor Jahan was working in Adarsh Nagar but she does not know the address where she was worked. Noor Jahan used to earn Rs.250 to Rs.300/- per day. She used to spend that money for house hold expenses.
55. Thereafter, defence evidence was closed and the State Vs. Noor Jahan SC No.113/18 :: 24 ::
case was fixed for final arguments. I have heard the Ld. APP for the State, Ld. Amicus Curiae for the accused and perused the record.
56. Ld. APP submitted that in this case there is only one star witness i.e. Baby Muskan examined as PW-8. She has fully supported the prosecution case that the accused Noor Jahan gave one metallic tube Ex.PW-14/Article 1 to her.
While giving that tube to her she also directed her to take one tablet from the tube and give one tablet to Ruksana. Muskan consumed one tablet and gave one tablet to Ruksana. After taking the tablet Ruksana became unconscious. Black colour froth started coming out of the mouth of Ruksana and Muskan started vomiting. They were taken to the hospital by their mother. They were examined vide MLC Ex. PW-8/A and PW-8/B. Ruksana could not survive and died. Muskan survived and the gastric lavage sample was taken. The gastric lavage was seized vide memo Ex. PW-5/A. The viscera, the blood samples and the clothes of the deceased were seized vide memo Ex. PW-5/C. The container having the tablets was seized vide memo Ex. PW-15/A. The exhibits were sent to the FSL for analysis. The FSL result is proved on record as Ex. PW-11/A. According to the report the viscera i.e. stomach and piece of small intestine of Ruksana, gastric lavage of Muskan and the State Vs. Noor Jahan SC No.113/18 :: 25 ::
tablets found in the metallic tube were found to contain aluminum phosphide. Phosphide was found in the blood sample and pieces of liver spleen and kidney of Ruksana. Dr. Mukesh Kumar, who conducted the post mortem and proved the post mortem report as Ex. PW-1/A, after perusal of FSL result Ex.PW-11/A stated that cause of death in this case is due to the poisoning of aluminum phosphide.
57. Ld.APP submitted that the metallic tube Ex.PW-
14/Article 1 was delivered to Muskan PW-8 by the accused. The tablets were found containing aluminum phosphide, the poison, resulting into death of Ruksana and Muskan could be saved only due to medical intervention. Muskan has specifically stated that metallic tube Ex.PW-14/Article 1 was given to her by the accused. She has told this fact to the doctor also, who prepared the MLC that the tablets were given to her by her grand mother (nani). Ld. APP submitted that during cross examination the witness has clarified that she was threatened and forced to tell a lie and that is why she stated to the police and also before the Magistrate that the tablets were given to her by her father. She was threatened that if he did not tell that tablets were given to her by her father, she would be killed as her sister Ruksana has been. Ld. APP submitted that her initial statement to the doctor that is the first statement clearly shows that it was the State Vs. Noor Jahan SC No.113/18 :: 26 ::
accused herein, who had given poison to them and it was only due to the threat and pressure exerted by the accused Noor Jahan and her mother Ruksar that she (Muskan) named her father Banney Khan. Ld. APP submitted that onus which was on the prosecution has fully been discharge. There is no reason to disbelieve the child as to why would she depose falsely against her own grand mother (nani). It is prayed that accused be held guilty and convicted.
58. Ld. Defence counsel submitted that it is a known fact that child witnesses can be influenced very easily and they are also prone to imagine the things which had not actually happened. Ld. counsel submitted that in the present case there is no evidence against the accused. She has been falsely implicated without there being any substance. In fact Ruksar, the daughter of the accused was married with Banney Khan. Banney Khan used to beat Ruksar and that is why she along with her three daughters started living in Delhi in a rented accommodation near the present accused. It was the accused only, who was maintaining her. Banney Khan was pressurizing Ruksar to return to the village along with her children but she was not willing unless all the disputes are settled. Ruksar used to ask Muskan to do the work which was not likes by her. Muskan complained this fact to her father, who gave the tablets to Muskan telling that if she State Vs. Noor Jahan SC No.113/18 :: 27 ::
consume the tablets and also gives one tablet to Ruksana. They will become unconscious and thereafter their mother would never ask them to work. Keeping in view all these facts Muskan consumed the tablet and also gave one tablet to Ruksana, resulting into death of Ruksana. Her father also told Muskan that if any body inquires, she shall name her nani i.e. the present accused and that is why she had named her nani as the person, who gave her the tablet but later on she told the true facts before the police in her statement Ex.PW-14/A and also the statement under Sec.164 Cr.PC ExPW-14/B, (PW-10/B) that the tablets were given to her by her father. Ld.Counsel submitted that as the tutoring in this case can not be ruled out, therefore, benefit be given to the accused and she be acquitted.
59. After hearing the arguments and going through the record, I found that The Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be competent one. The evidence of child witness can not be rejected merely on the ground of age but as a rule of prudence, such evidence has to be considered with close scrutiny and only if the witness is found reliable the conviction can be based on the testimony of a child witness also. The law does not require that there must be some corroboration to the testimony of a child before it be relied State Vs. Noor Jahan SC No.113/18 :: 28 ::
upon. In the present case, there is only one witness, PW-8 Muskan of the incident. She specifically stated that it was accused who gave her the tablets in a metallic tube which is Ex.PW-14/Article 1. During cross examination, she specifically stated that she was forced to tell lie by her mother and grand mother i.e. the accused herein and that is why her father was sent to jail. The tablets were not given to her by her father. Ruksar when appeared in the witness box stated that Banney Khan, her husband, made a call on telephone on Wednesday and talked with Muskan. At that time Banney Khan told Muskan to eat tablets and name her Nani as a person, who gave tablets to her for eating but this does not found corroboration from the testimony of Muskan. She did not state that her father talked to her on telephone on 23.05.17. On the other hand, PW-1 Smt. Ruby stated that on 23.05.17 i.e. on Wednesday Ruksar, Sania and Muskan came to her house along with Banney Khan. She also served food to Banney Khan. If that is the position, then there was no need for Banney Khan to talk with Muskan on telephone. This fact itself shows that Ruksar, PW-2 is telling a lie in this regard.
60. On the other hand, PW-8 specifically stated that she was threatened to be killed by the accused if she did not named her father and that is why she named her father. The State Vs. Noor Jahan SC No.113/18 :: 29 ::
record also shows that when at the first instance doctor inquired from her as to who gave tablet to her, she named the accused only and none else. No doubt there is possibility of a child witness being liable to be influenced easily, shaken and moulded but after careful scrutiny of the evidence of PW- 8, I found that she was able to understand the question and answer rationally. Her testimony inspires confidence and having sufficient intelligence to understand the questions and answer the same. There is nothing on record to disbelieve or discredit her testimony. The record also shows that in the gastric lavage of PW-8, in the intestine and stomach of Ruksana and in the tablets found in the metallic tube, aluminum phosphide was found which is also the cause of death of Ruksana as deposed by the Dr. Mukesh examined as PW-18.
61. Keeping in view the testimony of PW-8 and the other connecting evidence, in my opinion PW-8 is reliable, trustworthy and inspire confidence. Her testimony is not the result of any influence or tutoring. The onus which was on the prosecution has fully been discharged that it was Noor Jahan, who delivered the tablets of aluminum phosphide to Muskan with the direction that she shall consume these tablets and her headache will be gone, resulting into death of Ruksana, Muskan could be saved due to medically State Vs. Noor Jahan SC No.113/18 :: 30 ::
intervention only. I, therefore, hold the accused guilty and convict her for the offence punishable under Sec.302/307/323 IPC.
62. Let convict be heard on point of quantum of sentence on 11.12.2018.
VIRENDER Digitally VIRENDER signed by KUMAR KUMAR BANSAL Date: 2018.12.07 Announced in the open court BANSAL 14:33:08 +0530 today on 07.12.2018 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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