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Usha Rani vs State on 22 March, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1057/2017 CRL.M.(BAIL)2048/2017

Reserved on: March 12, 2018
Date of decision: March 22, 2018

USHA RANI ….. Appellant
Through: Mr. Joginder Tuli with Ms. Joshini
Tuli, Mr. Ashu Kumar Sharma and
Ms. Divya Jangid, Advocates.
Ms. Aishwarya Rao, Advocate.

versus

STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State with
Insp. Tribhuvan Negi PS N.D.R.S.
and Insp. Bala Shankaran, PS
Kashmere Gate.

+ CRL.A. 1058/2017 CRL.M.(BAIL)2049/2017
USHA RANI ….. Appellant
Through: Mr. Joginder Tuli with Ms. Joshini
Tuli, Mr. Ashu Kumar Sharma and
Ms. Divya Jangid, Advocates.
Ms. Aishwarya Rao, Advocate.

versus

STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State with
Insp. Tribhuvan Negi PS N.D.R.S.
and Insp. Bala Shankaran, PS
Kashmere Gate.

Crl.A. 1057/2017 1058/2017 Page 1 of 13
CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT

%
Dr. S. Muralidhar, J.:

1. These two appeals have been filed by the same Appellant, Usha Rani.
Criminal Appeal No. 1057 of 2017 is directed against the impugned
judgment dated 30th March 2013 passed by the learned Additional Sessions
Judge (ASJ), West District, Tis Hazari Courts, Delhi in Sessions Case
No.25/10/08 arising out of FIR No.147/2004 registered at Police Station
(‘PS’) New Delhi Railway Station (‘NDRS’) convicting the Appellant (who
was Accused No. 2: A-2) for the offence punishable under Section 302/34
Indian Penal Code (‘IPC’) and 201/34 IPC for committing the murder of two
children, both brothers, Chillu and Ashu, and also dumping their dead
bodies. The appeal is also against the order on sentence dated 28th May 2013
whereby for the offence punishable under Section 302/34 IPC, she was
sentenced to undergo imprisonment for life with the further direction that the
convict should not be released from the prison for the rest of her life and
with a fine of Rs. 20,000; and for the offence under Section 201/34 IPC,
with rigorous imprisonment for five years with fine of Rs.5,000 and in
default, to undergo RI for three months.

2. Criminal Appeal No. 1058 of 2017 is directed against the impugned
judgment dated 30th March 2013 passed by the same learned ASJ in
Sessions Case No.33/10/2008 arising out of FIR No.234/2004 registered at
PS Kashmere Gate convicting the Appellant for the offences punishable
under Section 364/34, 302/34 and 201/34 IPC for committing the murder of

Crl.A. 1057/2017 1058/2017 Page 2 of 13
Waziro Bai (mother of Chillu and Ashu) and thereafter dumping the dead
body in order to conceal the murder. The appeal is also directed against the
order on sentence dated 28th May 2013 whereby the Appellant was
sentenced to undergo imprisonment for life with the further direction that the
convict should not be released from the prison for the rest of her life along
with fine of Rs. 20,000 for the offence under Section 302/34 IPC; RI for ten
years along with fine of Rs. 8,000 and, in default, to undergo RI for five
months for the offence under Section 364/34 IPC; and to undergo RI for five
years with fine of Rs. 5,000 and, in default, to undergo RI for three months
for the offence under Section 201/34 IPC.

Background

3. The background to the present case is that at the instance of PW-22, the
daughter of the deceased Waziro, FIR No.550/2004 was registered at PS
Pahar Ganj in which both the present Appellant and the co-accused
Kanhaiya Lal Seth (A-1) were named as accused. This was a case under
Section 376 IPC. In the trial arising out of the said FIR, both the present
Appellant and A-1 (Kanhaiya Lal Seth) were convicted by the Court and
sentenced on 23rd October 2007 and 24th October 2007 respectively. As
noted by the learned trial Court in its impugned judgment in the present
case, the appeal filed against the said order of conviction and sentence was
withdrawn and therefore, the conviction of the Appellant and A-1 in the said
case attained finality.

4. It appears that while he was lodged in Central Jail, Tihar as a result of the
above conviction, A-1 filed an application in January 2007 under the RTI

Crl.A. 1057/2017 1058/2017 Page 3 of 13
Act 2005 enquiring about a dead body found in the area of Kashmere Gate
and on the forearm of which ‘Waziro’ was tattooed. Inspector Randhir Singh
(PW-44) related the said application under the RTI Act with FIR
No.234/2004 registered at PS Kashmere Gate regarding Waziro and her two
sons (brothers of PW-22) having gone missing. PW-44 then traced PW-22
and got identified the dead bodies through photographs and connected the
two accused, i.e. the present Appellant and A-1, to the present cases with the
help of crime dossier and finger prints. Thus, a breakthrough was achieved
in the present cases which, up until then, were being treated as blind
murders.

FIR 147 of 2004

5. On 19th April 2004, at around 10.30 am, Inspector Netra Pal (PW-43) an
Additional SHO, PS NDRS along with Sub Inspector (SI) Brijesh Malik
(PW-45) were doing routine check at the NDRS. When they reached the
mini passenger hall they found that the public had gathered near the central
bridge escalator. Head Constable (HC) Jitender (PW-30) was present in the
passenger hall and informed them about a carton lying near the stairs of the
escalator on which some letters/figures were written. Foul smell was
emanating from the said carton. PW-43 partially opened the carton and
found a dead body. The senior officers were informed and the finger print
expert as well as crime team were called.

6. SI Hira Lal (PW-28), Crime Team In-charge, and SI N.K. Sharma
(PW-21), Finger Print Bureau (‘FPB’), opened the carton. They found that it
contained one mat, some clothes, one dirty pillow, tailoring clothes and grey

Crl.A. 1057/2017 1058/2017 Page 4 of 13
colour polythene bag in which two dead bodies of male children aged seven
to eight and nine to ten years were found. Both of them had red coloured
marks around their necks and their tongue and eyes were out. PW-21 noticed
chance prints on the tape on the carton. The crime team photographer took
photographs of the dead bodies and the spot. The rukka was sent through Ct.
Ravinder Malik (PW-36) for registration of the FIR. Site plan was prepared,
and the carton and the articles recovered therefrom were seized.

7. The post-mortem of both dead bodies confirmed that the cause was due to
asphyxia consequent to manual strangulation. Despite the best efforts being
made, both children could not be identified. They were cremated on
27th April 2004 as unclaimed.

8. Sanjay (PW-25), who used to work at the escalator, and Shiv Ram Meena
(PW-31), who was a coolie, stated that on 18th April 2004, one male and one
female had left the carton at the spot and they could identify those persons if
they were shown to them. On 1st June 2005, since no progress was made in
the investigation, the case was closed as untraced. This was as far as FIR
No.147/2004 registered at PS NDRS.

FIR 234 of 2004

9. Now coming to FIR No.234/2004 registered at PS Kashmere Gate, the
background is that on 13th May 2004, a telephonic call was received at PS
Kashmere Gate from Puran Chand Rathore (PW-2) working in Telegraph
Officer near GPO, Kashmere Gate at 8.35 am that an iron box (unclaimed)
was lying at the gate of the Telegraph Office. On receipt of the said call, SI
Ved Prakash (PW-35) along with Ct. Dungar Singh (now HC) (PW-15) as

Crl.A. 1057/2017 1058/2017 Page 5 of 13
well as Inspector Sushil Kumar Tyagi (PW-46), Additional Station House
Office, PS Kashmere Gate and other officers also reached at the spot.

10. The iron box was lying on the right side of the main gate of Telegraph
Office and was found locked. A foul smell was emanating from it. The box
was opened by removing the hinge of the box. Dead body of a female was
recovered. Dead body was taken out form the box. The female was about 45
years old and wearing orange colour printed kameez and orange colour plain
salwar. A green colour chunni was lying near her head. On the left arm, the
name Waziro was tattooed. On her right arm, a picture of a peacock was
tattooed. She was wearing two ear rings of yellow metal, kaddas of yellow
metal in her both arms and two chutki each on a toe of either foot. Body was
in a decomposed state. Injury marks were visible on her face and ligature
was found around her neck. The ligature had embedded in the skin around
the neck. Blood/liquid was oozing out of her mouth and the blood was lying
inside the box also. The rukka was prepared by PW-46 and sent through
PW-15 for registration of the case at 10.15 am on 13 th May 2004. FIR was
registered under Section 302/201 IPC. The post-mortem confirmed that the
death is due to asphyxia consequent to ligature constriction of neck. This
was conducted on 19th May 2004. The time since death was determined as
one week. After the post-mortem examination, the dead body was cremated
as unclaimed.

11. The FSL gave a positive result for the blood tests as far as the blood
samples were concerned, and the rest of the exhibits were found
inconclusive for group test although some of them contained human blood.

Crl.A. 1057/2017 1058/2017 Page 6 of 13

In the toxicology report the viscera was found negative for common poisons.

12. Despite the photographs of the deceased being published in the
newspapers, she could not be identified. Therefore, the case was closed as
untraced on 15th May 2006.

13. As already noticed, as a result of the RTI application filed by A-1, the
investigation of the case was reopened. A-1 claimed that he had been falsely
implicated in the rape case. He wanted a copy of the photograph of the dead
body and the FIR concerning the 45 years old woman for submitting his
defence in the trial of the rape case. That is what led Inspector Randhir
Singh (PW-44) to meet PW-22, who was settled in District Karnal, Haryana
after marriage.

Investigation

14. On 1st February 2007, she came to PS Kashmere Gate with her relatives.
She first indentified dead body as that of Waziro. The parental aunt (Bua) of
PW-22 namely, Kanta (PW-14) also correctly identified the dead body as
being that of Waziro. When PW-22 was examined, she narrated that after
the holi festival of 2004, she along with Waziro and her two younger
brothers had gone to visit Bangla Sahib Gurudwara at New Delhi. A-1 and
his wife, the present Appellant (A-2), met them at the Gurudwara. A-1
promised to provide government job to Waziro and they gave their address
and noted their address. After a few days, both A-1 and the Appellant came
to the house of PW-22. A letter was written by A-1 and the thumb
impression of Waziro was taken thereon. After a few days, Appellant and

Crl.A. 1057/2017 1058/2017 Page 7 of 13
A-1 came to their house and took all of them, i.e. PW-22 and her two
younger brothers and Waziro, with them in a car driven by A-1 on the
promise of providing a government job to Waziro. It is stated by PW-22 that
A-1 took all of them to his flat at Motia Khan, Paharganj, Delhi. The
Appellant offered tea to all of them.

15. According to PW-22, after taking the tea, she became unconscious.
When she gained consciousness, she found herself having been sexually
assaulted and her salwar was blood stained. Waziro was unconscious and
her two younger brothers were found missing from the flat. According to
PW-22, Waziro remained in a drowsy state for a few days and she was kept
in a separate room. According to PW-22, after a few days, she found her
mother, Waziro also missing from the flat. PW-22 was confined, threatened
and subjected to repeated sexual assault by A-1 and his known persons. She
claims to have been taken out by A-1 and the Appellant on two-wheeler
scooter and she was offered for prostitution by them.

16. A few months thereafter, A-1 was arrested in a cheating case by the
police and PW-22 managed to escape from the clutches of the Appellant and
A-1. When she first went to their rented house where she and her family
were staying at Mauz Pur, she found the house was locked and that her
mother and brothers had not returned. Thereafter, she went to her paternal
aunt (PW-14) and narrated the entire incident to her. PW-14 then took her to
the PS Pahar Ganj and a rape case in FIR No. 550 of 2004 was registered.

17. On 14th May 2008 the investigation of FIR No. 234 of 2004 registered at
PS Kashmere Gate was handed over to Inspector Randhir Singh (PW-44).

Crl.A. 1057/2017 1058/2017 Page 8 of 13

He found that there was sufficient evidence to arrest both the accused. On
22nd May 2008, PW-44 moved an application in the concerned court for
issuance of production warrants against both the accused who were lodged
at that time in Central Jail. Both of them then appeared in the Court on 26 th
May 2008 and were interrogated and arrested with the permission of the
Court. Two days’ police custody remand was also taken.

18. During the investigation in FIR No.147/2004, both the Appellant and
A-1 purportedly confessed on 8th June 2008 that after murdering the two
children, their dead bodies were stuffed into a carton and dumped at the
NDRS.

19. From the letters recovered from the flat of A-1, the police were able to
compare the handwriting with the handwriting in the RTI application. A-1
admitted in some of the letters that the Appellant herein was his wife. The
police discovered that A-1 had a large number of criminal cases pending.
Neither he nor the Appellant agreed to participate in the TIP.

The trial

20. On 25th February 2009, the ASJ passed an order stating that Sessions
Case No. 25/10 (arising out of FIR No. 147 of 2004 registered at PS NDRS)
and Sessions Case No. 33/10 (arising out of FIR No. 234 of 2004 registered
at PS Kashmere Gate) are overlapping and material witnesses are common
and therefore, a joint trial was ordered. FIR No. 234 of 2004 registered at PS
Kashmere Gate was treated as the main case.

21. On 26th October 2010, the SHO of the PS NDRS appeared before the

Crl.A. 1057/2017 1058/2017 Page 9 of 13
trial Court and stated that the case property could not be traced. On
15th February 2011, after a detailed enquiry, Inspector Suran Bhan, SHO, PS
NDRS informed the trial Court that the carton box is not traceable. Even the
iron box was stated to be untraced. In each of the trials, 46 witnesses were
examined by the prosecution. There were some common witnesses in both
the cases.

22. In their statements under Section 313 Cr PC, A-1 states that the
Appellant is not his wife at all and that she used to work as a maid in his
house. On the part of the Appellant, she states that she has been falsely
implicated in this case and she was not married to A-1. She began to work in
the house of A-1 since 2002. Neither of the accused preferred to lead any
evidence.

23. The trial Court in the impugned judgments held that the deaths were
homicidal. As far as the evidence of ‘last seen’, the narration of PW-22 was
held to be reliable, consistent, truthful and therefore, trustworthy. The
description of the car in which PW-22, the deceased and her two younger
brothers were taken matched the registration certificate of the vehicle in the
name of A-1. The trial Court traced the motive as sexual exploitation of
PW-22 by the accused persons who were worried about her mother and
brothers spilling the beans and therefore, decided to eliminate them. PW-31
(coolie) was able to correctly identify the accused as the persons who kept
the carton outside the mini passenger hall. The finger prints recovered from
the carton matched that of A-1. Non-production of the case property was
said to be not fatal to the case of the prosecution. It was held that the chain

Crl.A. 1057/2017 1058/2017 Page 10 of 13
of circumstances in each of the cases had been completely proved.

24. This Court has heard the submissions of Mr. Joginder Tuli, learned
counsel for the Appellant and Mr. Amit Chadha, learned APP for the State.

25. At the outset, it requires to be noticed that the fate of the appeal by A-1,
if any is not known. The present two appeals are only by A-2, Usha Rani
and therefore, the Court is concerned only with the question of her
culpability for the offences in question.

Role of Appellant in the crimes

26. As far as the death of Waziro is concerned, the dead body was found in
an iron box nearly a month after the discovery of the dead bodies of
children. While they were placed in a carton, her dead body was placed
inside an iron trunk. While their dead bodies were placed outside the mini
passenger hall near the escalator of NDRS, the dead body of Waziro was
found in an iron trunk near the GPO in a different location.

27. There is evidence to connect the Appellant to the murder of the two
children inasmuch as PW-31 had clearly seen her presence with the carton
outside the mini passenger hall along with A-1. However, there is no
evidence at all to connect the Appellant with the murder of Waziro whose
dead body was found nearly a month later in an iron trunk outside the GPO.
There was no chance print of the iron box and there was no witness to
explain how the iron box with the dead body could ultimately be located at
the GPO.

28. There is very little discussion in the impugned judgment of the trial

Crl.A. 1057/2017 1058/2017 Page 11 of 13
Court on how exactly the Appellant could be held to the guilty of the
offence of murdering Waziro. As far as the two young children Chillu and
Ashu are concerned, her presence with A-1 was spoken to by the coolie
(PW-31) and the person near the escalator at the NDRS. Both these appeared
to be natural witnesses.

29. However, as far as the recovery of the dead body of Waziro near the
GPO was concerned, there was nothing whatsoever to show the present
Appellant was at any time found near the dead body.

Conclusion

30. As a result, the Appellant is acquitted of the offence under Sections
364/34, 302/34 and 201/34 IPC insofar as FIR No. 234/2004 registered at PS
Kashmere Gate is concerned. On the other hand, her guilt for the offences
under Sections 302 and 201 IPC read with Section 34 IPC for murdering the
two children Chillu and Ashu and dumping their dead bodies is hereby
upheld.

31. The consequence is that the impugned judgment of the trial Court in
Sessions Case No.33/10/08 arising out of FIR No. 234/2004 registered at PS
Kashmere Gate and the consequent order on sentence is hereby set aside.
Criminal Appeal No. 1058 of 2018 therefore stands allowed. The Appellant
will fulfil the requirement of Section 437A Cr PC to the satisfaction of the
trial Court at the earliest.

32. As far as FIR No. 147 of 2004 registered at PS NDRS from which
Sessions Case No. 25/10/08 arises, the conviction of the Appellant for the

Crl.A. 1057/2017 1058/2017 Page 12 of 13
aforementioned offence is hereby affirmed. However, as far as the order on
sentence is concerned, the Court is of the view that while the trial Court was
justified in sentencing the prisoner for life, it is beyond its jurisdiction to
further direct that she should not be released for the rest of her life. Such an
order is no longer permissible in view of the judgment of the Constitution
Bench of the Supreme Court in Union of India v. V. Sriharan (2016) 7
SCC 1.

33. Accordingly the impugned order on sentence passed by the trial Court in
Sessions Case No. 25/10/08is modified by directing that for the offence
under Section 302 read with Section 34 IPC the Appellant shall stand
sentenced to imprisonment for life with the fine amount and the default
sentence being unaltered. Her sentence as regards the offence under Section
201 IPC read with Section 34 IPC is left unaltered.

34. Criminal Appeal No. 1057 of 2017 is disposed of and Criminal Appeal
No. 1058 of 2017 is allowed in the above terms. The pending applications
are disposed of.

S. MURALIDHAR, J.

I.S. MEHTA, J.

MARCH 22, 2018/rm

Crl.A. 1057/2017 1058/2017 Page 13 of 13

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