Delhi High Court
Noor Jahan vs State (Govt. Of Nct Of Delhi) on 13 December, 2019
7
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1218/2019 & CRL.M.(BAIL) 1872/2019
NOOR JAHAN ..... Appellant
Through Mr. Suhail Khan, Mr. Anwar A.
Khan, Mr. Gufran Ahmed and
Mr. Sunil Sagar, Advocates.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP for State
with Insp. Rajender Singh and SI
Jasmer Singh, PS Jahangir Puri.
% Date of Decision: 13th December, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
MANMOHAN, J (Oral):
1. Present criminal appeal has been filed challenging the judgment and
order dated 07th December, 2018 and 11th December, 2018 passed by
learned ASJ (North District), Pilot Court, Rohini in FIR No.228/2017
under Section 302/307/328 IPC registered with PS Jahangir Puri.
2. After completion of investigation, charge-sheet was filed against
Banne Khan (father of the deceased-Ruksana as well as the victim-
Muskan) for offences punishable under Sections 302/307/328 IPC on the
basis that he had given them tablets containing Aluminium Phosphide.
3. After a full trial, the father Banne Khan was acquitted and on the basis
of the evidence which came on record, the appellant-maternal grandmother
was summoned under Section 319 Cr.P.C. She was charged for offences
punishable under Sections 302/307/328 IPC, to which she pleaded not
guilty and claimed trial.
4. The Trial Court by way of the impugned judgment has held the
appellant guilty under Sections 302/307/328 IPC. The relevant portion of
the impugned judgment is reproduced hereinbelow:-
"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 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
also. 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,
aluminium 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 aluminium 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 intervention only. I therefore, hold the accused guilty
and convict her for the offence punishable under Sec. 302/307/323
IPC."
5. Learned counsel for the appellant states that the appellant has been
falsely implicated in the present case. He points out that the appellant's
daughter Rukhsar (PW-2) was married to Banne Khan who used to beat
Rukhsar (PW-2) and that is why, she along with her three daughters started
living in Delhi near the house of the appellant.
6. Learned counsel for the appellant states that Banne Khan was
pressurising Rukhsar (PW-2) to return back to the native village along with
her children, but she refused unless all the disputes amongst them were
settled.
7. He further states that Rukhsar (PW-2) used to ask her daughter
Muskan (PW-8), aged about eight years, to do household work, which was
not liked by her. He states that Muskan complained about this fact to her
father-Banne Khan, who gave her Aluminium Phosphide tablets stating "if
she consumes the tablet and also gives one to her sister-Ruksana, they will
become unconscious and thereafter their mother would never ask them to
work". He contends that Muskan (PW-8) not only consumed the aforesaid
tablet but also gave one to her sister-Ruksana, resulting in the latter's
death.
8. Learned counsel for the appellant states that in accordance with the
advice given by her father-Banne Khan, Muskan (PW-8) told the doctor
at the hospital that it was the appellant-maternal grandmother who had
given her the tablets to consume.
9. Learned counsel for the appellant-maternal grandmother emphasises
that subsequently Muskan (PW-8) had told the police in her statement
(Ex.PW-14/A) that the tablets had been given to her by her father. A
statement was also recorded by the learned Metropolitan Magistrate under
Section 164 Cr.P.C. (Ex.PW-14/B).
10. Having perused the paper book, this Court finds that the Trial Court
by way of impugned judgment has held the appellant-maternal
grandmother guilty of murder on the sole testimony of a child witness i.e.
Muskan (PW-8).
11. It is settled law that evidence of a child witness must find adequate
corroboration before it is relied upon as the rule of corroboration is one of
practical wisdom than of law. The Supreme Court in State of Madhya
Pradesh Vs. Ramesh & Anr., 2011 (3) SCALE 619 has held as under:-
"In view of the above, the law on the issue can be summarized to
the effect that the deposition of a child witness may require
corroboration, but in case his deposition inspires the confidence
of the court and there is no embellishment or improvement
therein, the court may rely upon his evidence. The evidence of a
child witness must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring. Only in
case there is evidence on record to show that a child has been
tutored, the Court can reject his statement partly or fully.
However, an inference as to whether child has been tutored or
not, can be drawn from the contents of his deposition.
12. In the present case, there are discrepancies in material particulars in
the statement of the child witness i.e. Muskan (PW-8) given at different
points of time. Though initially Muskan (PW-8) had told the doctor that
the tablets in question were given to her by the appellant-maternal
grandmother, yet in the statement to the police as well as in her statement
under Section 164 Cr.P.C., she had stated that the tablets in question had
been given to her by her father-Banne Khan. There are also material
discrepancies in the deposition of Muskan in the trial of the father-Banne
Khan and the appellant-maternal grandmother. A chart showing statements
made by Muskan at different points of time are reproduced hereinbelow:-
Statement of Statement of Deposition of Deposition of
Muskan (PW-8) Muskan (PW-8) Muskan (PW- Muskan (PW-8)
in Rukka without Oath 14) without without Oath in
under Section Oath in Banne the present case
164 Cr.P.C. Khan's Case
On 23.5.17, My father gave Whenever, I and My mother left
accused Banne iron type bottle my sisters used the room with
Khan visited have black to say that we my youngest
Delhi and gave colour tablet (of want to go to our sister. Thereafter
tablets of Bhang) and ask father, they used my nani reach in
Aluminium her to take tablet to say, "Jada Mat our room--we
Phosphide to his and also gave to Bol, Abhi Kaat are suffering
daughter Muskan her sister. You Ke, Bori Mein from headache.
and told her to will become Daal Ke Naale
take the same unconscious. Mei Faink My nani gave
and also give one After one hour Aaungi." one dibbi to me
to her sister. you become and told to me to
conscious and I One day during consume one
On 24.5.2017 will bring police summer season, tablet and also
Muskan took one and will my Nani gave me told me to give
tablet and gave implicate your one silver colour half tablet to my
half tablet to her grandmother tube having some sister Ruksana.
sister Ruksana. (Nani) and then tablets and asked
take all of you to me, "Do Goli gave half tablet
After consuming U.P. Tum Kha Lena, to my sister and I
the tablet, she Do Apni Behan consumed one
would become Next day Papa Ko Dena." tablet.
unconscious and in the morning,
mother would rang up and My mother had I felt giddiness
never ask them to started fighting already gone out and left the house
work. on phone. with my for searching my
youngest sister mother. Again
Saina.
Also told her if Mother gave me It was a big tablet reached to my
anybody ask as phone and Papa and Nani also house where my
to who gave told me that you told that if you sister Ruksana
tablets then tell take two (2) feel that it will was lying
Nani gave tablets and give not go down to unconscious and
tablets. one tablet to throat, you can I started
your sister. break it into two. vomiting.
Father left in the
evening. I took one tablet Tablet was big, I Kala Jhaag meri
and gave half to broke in into two. behn ke muh se
When mother sister. My sister aane laga.
went out, I and became gave half tablet
my sister took unconscious. to my sister and Mother reached
one tablet each. took one tablet. the house. I
Black colored informed that
After taking the
Become froth started nani had given
tablet, I searched
unconscious. coming from her one dibbi
for my mother, as
mouth. I started containing
froth of black
Were taken to vomiting. colour started tablets-advised
hospital by my My mother coming out of the half tablet for
mother Rukhsar came and took mouth of my consumption.
where Ruksana both of us to sister.
died but Muskan hospital. My mother did
survived. My mother came not believe and
In the hospital, I and asked what told box must
took name of happened and I have been given
Nani and told told that we had by my father and
that Papa gave eaten tablets not by Nani.
these tablets. given by Nani.
My mother
Then Nani also My mother took
threatened me on
came there and I me and my sister
phone--if I come
spoke the truth to Hospital.
to court and
that Papa gave depose against
the tablets. Sister dies in
nani--will kill
Hospital.
me.
Nani met us at My mother in
the house. the village
I told the Police threatened me if I
that we ate the reached in the
tablets given by court, she would
my Nani but kill me.
Nani stared at me
I conveyed these
tablets were facts to my
found lying at the father, who
door of the house called the police-
which we ate. my mother ran
away from the
Nani threatened village.
me to either
name my father XXXXX
or I was made to tell
a lie against him
she would kill at the instance of
me as she had my nani and
killed my sister. mother.
My Nani One person used
threatened me to come at our
to be killed, if I house in Delhi or
did not name my that when that
father. person stay in the
night hours at our
XXXXX house my
mother used to
Father not given send us outside
to me the tablets. the house.
Father do not
take liquor My father never
and never take liquor in my
misbehaved with presence.
mother.
My mother bhaag
Father used to bhaag ke uncle
beat my mother ke pass Delhi aa
jati thi.
whenever she Mere papa itna
used to commit a bhi mummy ko
wrong act. nahi maarte they.
I was made to tell
a lie by my nani
before the
Magistrate that
my papa gave
dabbi of zehar to
me.
My father never
visited in Delhi.
13. Further, the testimony of Muskan (PW-8) is not corroborated by her
mother Rukhsar (PW-2) inasmuch as Muskan (PW-8) in her testimony
had stated that she had gone looking for her mother after she and her sister
had consumed the tablets. However, her mother Rukhsar (PW-2) in her
testimonies in both the present case and in Banne Khan's case (as PW-15)
stated that she had gone to the public toilet and returned in ten minutes and
when she came back she had found both Muskan (PW-8) and the deceased-
Ruksana in an unconscious condition. The relevant portion of the
testimony of Rukhsar (PW-2) in the present case is reproduced
hereinbelow:-
A. Testimony of Rukhsar (PW-2) in the present case
".....I had gone to the public toilet alongwith my youngest
daughter. It was morning time. I returned home after about 10
minutes. I found that my daughter Muskan and Rukhsar were
lying unconscious....."
14. Keeping in view the diametrically opposite accusations in the
statement before the Court and the statement recorded before the
Magistrate under Section 164 Cr.P.C., the deposition of Muskan (PW-8)
does not inspire confidence. In fact, tutoring of Muskan (PW-8) cannot be
ruled out. Consequently, this Court is of the view that the appellant-
maternal grandmother is entitled to benefit of doubt.
15. Accordingly, the present appeal is allowed and the impugned
judgment of conviction and order on sentence are set aside. The appellant-
convict is directed to be released forthwith, if not required in any other
case. In view of the aforesaid, the pending bail application is disposed of
as infructuous. A copy of judgment be sent to Jail Superintendent.
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
DECEMBER 13, 2019
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