Delhi District Court
State vs . (1) Smt. Ashu Malhotra on 10 May, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No. 808/2007
Unique Case ID No.: 02404R0317842007
State Vs. (1) Smt. Ashu Malhotra
W/o Sh. Rajesh Malhotra
R/o J-8/128, Rajouri Garden,
New Delhi.
(Convicted)
(2) Rajesh Malhotra
S/o R.S.D. Malhotra
R/o J-8/128, Rajouri Garden,
New Delhi.
(Acquitted)
FIR No.: 163/2007
Police Station: Rajouri Garden
Under Section: 302/201 Indian Penal Code
Date of committal to sessions court: 20.7.2007
Date on which orders were reserved: 1.4.2011
Date of Judgment: 23.4.2011
JUDGMENT
As per the allegations on 28.2.2007 at J-8/128, Rajouri Garden the accused Ashu Malhotra caused numerous injuries on the person of Sunita Bhengra by using a washing stick (Thapi) with the knowledge and intention that those injuries were sufficient to cause death in the ordinary course of nature as a result of which injuries Sunita Bhengra expired on the intervening St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 1 night of 2nd and 3rd March 2007. It is also alleged that for the period 28.2.2007 to intervening of 2nd and 3rd March 2007 the accused Ashu Malhotra did not provide any medical help to Sunita (deceased) and tried to conceal injuries caused by her to screen herself from legal punishment.
In so far as the accused Rajesh Malhotra is concerned, it is alleged that during the period 28.2.2007 to intervening night of 2nd and 3rd March 2007 he along with his co-accused (Ashu Malhotra) in furtherance of their common intention did not provide any medical help to Sunita (deceased) and tried to conceal injuries caused by Ashu Malhotra to screen her from legal punishment. Further, it is alleged that on 3.3.2007 he had given false information to the doctor at Kamli Bai Hospital regarding the manner of receiving injuries by the deceased which he knew or believed to be false.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 3.3.2007 on receipt of DD No.21 ASI Abhinandan along with Ct. Suman reached at DDU Hospital where they came to know that injured had been taken to emergency and collected the MLC of Sunita who was declared brought dead. A number of injuries were present on the body of the deceased and on inquiry it was revealed that the deceased was employed as a maid servant for 24 hours in the house of the accused through the placement agency Ashiyana. ASI Abhinandan also met Phoolmani, Saroj Tirki, Sister Solina St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 2 and Sister Setia at the hospital. Thereafter the present FIR was got registered and the investigations were initiated.
During the investigations Ms. Saroj Tirki from whose placement agency the deceased Sunita was employed at the house of the accused informed the police that on 3.3.2007 at about 3:00 am (night) she received a telephone call from Ashu Malhotra who told her that Sunita was serious after which she along with Amrit Topo reached the house of accused where she found that the condition of Sunita was critical but she was breathing slightly. According to Ms. Saroj Tirki he along with Amrti Topo and the accused Rajesh Malhotra took Sunita to Mata Kamli Bai Hospital where Sunita was declared dead after which they took Sunita to DDU Hospital. She has further informed the police that in the morning she saw the injury marks on the body of Sunita and on being asked the accused Rajesh Malhotra told her that Sunita was ill for the last two days and was unable to move due to which reason she sustained injuries while going to toilet.
The postmortem examination on the dead body of the deceased was got conducted and as many as 43 injuries were noticed on her person, 21 of which were found to be of the duration two to three days, 10 were opined to be three to four days old and the remaining injuries were opined to be a week or of older duration. Cause of death was opined to be 'concussion of brain produced by blunt force to the head' and the postmortem findings were opined to be consistent with beating/ assault before death. Therefore, the accused Ashu Malhotra was arrested in this St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 3 case and she got recovered the bucket on which the deceased had fallen down, the thapi on which blood stains were present and a ladies shirt which the deceased was wearing at the time of incident.
Initially only the accused Ashu Malhotra was charge sheeted for the offence under Section 302/201 IPC but later on during the trial the accused Rajesh Malhotra who is the husband of accused Ashu Malhotra, was also arrayed as an accused for not having provided medical aid to the deceased with a view to avoid detection of crime; for having remained silent with a view to screen the main offender and also for giving wrong information regarding the manner of the deceased receiving injuries.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 302/201 Indian Penal Code against the accused Ashu Malhotra who pleaded not guilty and claimed trial. In so far as the accused Rajesh Malhotra is concerned, he was charged of the offence under Section 201 read with 34 and Section 203 IPC to which he pleaded not guilty and claimed trial.
EVIDENCE In order to prove its case, prosecution has examined as many as twenty six witnesses as under.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 4
Public witnesses/ eye witnesses:
PW2 Amrit Topo, has deposed that he was running a placement agency under the name and style of Rani Mariya Placement Agency. He has deposed that on 3.3.07 at 3.15 a.m., he received a phone call from one Saroj Tirki who runs a placement agency along with Rajni Topo who told him that another maid servant namely Sunita was employed at House No. J-8/128, Rajouri Garden was in a serious condition. PW2 has deposed that he along with Saroj went to the above address where they saw that Sunita was lying on the floor in the gallery outside the bathroom. PW2 asked Saroj to pick up the girl and take her to the hospital and he then touched the forehead and feet of the girl and found that the same were cold. He has deposed that he questioned the house lady namely Smt. Ashu Malhotra but she did not give any information about the condition of girl. PW2 has deposed that they then shifted the girl to Kamli Bai hospital along with Rajesh Malhotra, husband of accused. The doctor in the hospital, asked Rajesh Malhotra the reasons for injuries on the face of Sunita, Rajesh Malhotra explained that injuries were sustained when Sunita fell down in the bathroom on a bucket on account of weakness, because of prolonged illness. According to the witness, after examination of victim, the doctor declared that Sunita has already expired. The witness has deposed he then telephonically informed to Rajni Topo and advised her to reach near the house of Rajesh Malhotra. He further deposed that they returned from the hospital along with the dead body in the vehicle of Rajesh St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 5 Malhotra and parked the vehicle near the house of Rajesh Malhotra on the road outside their house. Rajni Topo also reached the spot and Rajni then asked Rajesh since how long Sunita was unwell and from which doctor, she was being treated, on which Rajesh explained that treatment was being given at home by bringing medicines but he could not furnish any treatment record. PW2 has further deposed that accused and her family members had not given any information regarding the illness of Sunita. PW2 has deposed that sister of the deceased made a prayer to SHO that postmortem of deceased should be carried out by a penal of doctors. Prayer of sister of deceased is Ex.PW2/A and after the postmortem, dead body of the deceased was handed over to the father of the deceased vide receipt Ex.PW2/B. PW2 has deposed that he had seen the Maruti 800 car bearing the registration No. DL2CD-2143 produced by Superdar. According to the witness, the registration number of the vehicle is the same as that of the vehicle by which the body of Sunita was taken to hospital on 03.03.07. PW2 is unable to identify the vehicle as he had seen it during the night but the registration number is the same which vehicle is Mark "M1".
During his cross-examination by Ld. defence counsel, witness has admitted that Rani Maria Placement Agency and Ashiana Placement Agency are two separate agencies managed by different persons. PW2 has admitted that prior to the occurrence, he had not spoken to telephonically or personally or ever met accused Ashu Malhotra or her husband. Witness has St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 6 deposed that the deceased had been shifted to the car by Rajesh Malhotra and Saroj Tirkey. Witness has further deposed that he cannot say if Sunita was living or had already expired when she was shifted in the car but they had shifted her with the expectation that she was alive. Witness has deposed that he remained outside the hospital and when the doctor came out, he told him that Sunita had expired. In cross-examination, the witness has deposed that he did not notice the make the vehicle in which Sunita was taken to Kamli Bai Hospital.
The witness was found resiling from his previous statement given to the police due to which reason he was cross- examined by Ld. Addl. PP for the state during which the witness has stated that he understands the sanctity of oath and he had sworn to speak the truth. The witness has admitted that he had sworn to speak the truth on 28.04.2008 and had spoken the truth on that day also. The witness has admitted that he had deposed on 28.04.2008 before the court that they shifted the girl to Kamli Bai Hospital in a vehicle owned by Rajesh Malhotra bearing registration No. DL2CD2143. He has deposed that, the doctor at Kamlibai Hospital had asked Rajesh Malhotra the reasons for injuries on the face of Sunita and Rajesh Malhotra explained the injuries to have been sustained when Sunita fell down on a bucket in the bathroom.
In his cross-examination by Ld. defence counsel, the witness has admitted that he had not read the registration number of the vehicle when Sunita was being transported to the hospital St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 7 but the witness has stated voluntarily that the number had been recorded by an NGO when the vehicle was parked at the hospital. The witness has stated that he can not say if Saroj Tirki told Rajesh that the injuries were sustained by Sunita when she fell down on the bucket in the bathroom.
The witness, thereafter, was again re-examined by Ld. Addl. PP vide order of the court dated 20.02.2010. The witness has admitted that he can identify the vehicle i.e. Maruti 800 bearing Registration No. DL 2CD-2143 which is Ex.P1, produced by Smt. Lalita Ahuja the superdar.
Ld. defence counsel for accused Rajesh Malhotra has adopted the cross-examination conducted by Ld. defence counsel for accused Ashu Malhotra which was conducted on 05.05.08.
PW3 Phoolmani has deposed that on 03.03.07 she was working as a domestic help in a house bearing no. L-105 Kirti Nagar, New Delhi with one Dheeraj. She further deposed that on that day, Ramesh Singh came to the house of Dheeraj at about 9 a.m. and told him that his younger sister Sunita was ill and had been taken to the hospital. PW3 further deposed that she then went to the DDU hospital with Ramesh and saw her younger sister Sunita was lying in a car and had already expired and there were injuries marks under the eye, lips and neck. Witness has further deposed that on seeing the body of her sister, she formed an opinion that she had been killed by somebody. She had identified the body of her sister Sunita vide statement Ex.PW3/A. Witness is unable to identify the car in which she had seen the dead body of St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 8 Sunita. Witness has admitted that when she saw Sunita in DDU Hospital, she was lying in a car and had already expired but she did not remember the make or colour of the car.
In her cross-examination by Ld. defence counsel, the witness Phoolmani has stated that she used to often speak to Sunita through telephone and had spoken to her about two days prior to her death. Witness has stated that Sunita was slightly unwell but did not complain that she was beaten by her employer. Witness has further deposed that she did not know if Sunita was suffering from any skin ailment which might have caused rashes on her body. Witness has admitted that she had also told her that three days prior to the occurrence she had entered into a quarrel with some other girl at the said park. Witness has also admitted that Sunita had told her that she was beaten by other girls at the park and that she had sustained injuries in the said quarrel.
PW4 Ms. Sandhya Khakha who was running a Sandhya Placement Centre, has deposed that Rajni Topo called her up and requested her to come as one of her girl namely Sunita was serious. She has corroborated the version of PW2 Rajni Toppo regarding taking of Sunita to the hospital and injuries found on the body of the deceased. Vehicle Ex. P1 had identified by the witness in which she had seen the body of Sunita.
In her cross-examination by ld. defence counsel, witness Sandhya Khakha has deposed that she did not know Sunita prior to 3.3.04. She has stated that she left her house at about 5 AM by foot and it took about ten minutes to reach the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 9 house of Rajni. She has stated that she was accompanied by her brother Ramesh and they left house of Rajni at 5:30 a.m. She has further deposed that they travelled half the distance by foot and the remaining by a rickshaw and reached Rajouri Garden by 6:00 a.m. She has further stated that there were other vehicles also parked near the car in which she saw the body of Sunita and the registration number of the other vehicles could not be read. She has further deposed that registration number of present vehicle was seen by her at DDU hospital. She has further deposed that she did not join investigation after the visit to DDU hospital and no inquiries were made from her at DDU hospital by the police and her statement was not recorded by the police. She has denied that she has deposed falsely as several placement agency owner had collected and had desired an action to be taken against the employer. She has further deposed that she touched the face of Sunita when she was in the car at Rajouri Garden but she could not gather at that time that Sunita had expired as the body was still a little warm. She has denied the suggestion that she was deposing falsely at the instance of Rajni Toppo and that she had been tutored about the registration number of the car.
PW5 is Ms. Hilaria Lakra who used to operate an NGO by the name of Chetnalaya to help the domestic workers and the office of NGO is located at 9/10, Bhai Veer Singh Marg, Near Gole Dakkhana, New Delhi. She has deposed that on 03.03.2007 at about 4 a.m. she received a phone call from Rajni Toppo that Sunita Bhengra who was employed as a domestic worker at J-
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 108/128, Rajouri Garden in the house of Rajesh Malhotra had been murdered. She has further deposed that she along with her staff reached DDU hospital at about 7/7-30 a.m. and there she saw the body of Sunita Bhengra lying in a car bearing registration number DL-2143. She has further deposed that the body was lying on the rear seat and she was apparently dead. This witness has further deposed that she had injuries on her face, above the eyebrow, under the eye, on the lips and on the chin and there were scratch/abrasion marks on the upper chest of the body.She has further deposed that rest of the portion was covered by cloth and was not visible. This witness has identified the vehicle bearing registration number DL-2CD-2143 the same to be the vehicle in which she had seen body of Sunita and the vehicle is Ex. P-1.
In her cross-examination by Ld. defence counsel this witness Hilaria Lakra has deposed that she possessed a mobile phone and the phone call was received by her staff namely Philomina. This witness has further stated that she was sleeping at that time and Philomina lived with her. She has further deposed that the call was received at her residence. This witness has further deposed that they were five animators (NGO workers) living in her house at that time. She has admitted that she has been knowing Rajni Toppo for three years prior to occurrence. She has deposed that Rajni Toppo had not made previously any complaint about Sunita or her employer or that she was being ill treated or beaten. She has deposed that she does not remember the time of leaving her residence but states that she was accompanied by two St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 11 more persons. She has further deposed that they went by an auto- rickshaw. She has further deposed that about 5-6 persons from the Placement agency were present at the hospital when she reached there. She has further deposed that the place where car carrying body of Sunita was parked in the parking of DDU hospital and there was sufficient light. According to the witness, she remained at the DDU hospital till the postmortem examination of Sunita in the post lunch session and thereafter went to the police station but did not lodge any complaint at the police station. She does not remember the time of reaching the police station but states it was in the evening. She has further stated that the police had recorded the statement of Philomina. She has denied that she misuses the NGO and blackmail employers by making false complaint against them. She has also denied that the injuries on the person of Sunita were on account of fall or accident or that she has deposed falsely being a leader of the NGO.
PW12 is Saroj Tirki who was running placement agency along with Rajni Topo at Shivaji Enclave. She has deposed that the deceased Sunita was sent for work from their placement agency at the house of Ashu Malhotra at J8/128, Rajouri Garden, Delhi about for four months prior to the date of incident. According to witness, about 4-5 days prior to the date of incident Ashu Malhotra told her on telephone that Sunita was troubling her and not working properly on which she told Ashu Malhotra that she will call her back but Ashu Malhotra told her that she should take her back after 2-3 days as there was an exam St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 12 in her school. She has further deposed that on 3-3-07 in the night at around 3am she received a telephone call from Ashu Malhotra who told her that Sunita was serious. Thereafter, she along with Amrit Topo reached at the house of Ashu Malhotra and there she found that condition of the Sunita was critical but was still breathing slightly. Thereafter, she along with Amrit and Rajesh Malhotra the husband of Ashu Malhotra took Sunita to Kamlibai Hospital in the vehicle of Rajesh Malhotra and doctor informed them that Sunita has already expired. Thereafter, they brought back Sunita below the house of Rajesh Malhotra and she called Rajni Topo and Sandhya Khaka. They took Sunita to DDU Hospital and the police from Police Station Rajouri Garden also reached there. According to the witness, the dead body of the Sunita Bangera remained there and she found injury marks on the body of Sunita. After 2-3 days postmortem examination of Sunita was got conducted. She has identified both the accused Ashu Malhotra and Rajesh Malhotra in the court.
This witness Saroj Tirki has been examined by the Ld. APP on the aspect of conversation which took place between her and accused and she has admitted that Ashu Malhotra told her on telephone that Sunita used to eat after committing theft and had become healthy and on this she (Ashu Malhotra) told her (witness) that if she eats after committing theft then she will take her back otherwise they will level allegations of theft against her. She has also admitted that she asked Ashu to connect Sunita on telephone and Divya also asked Ashu to connect her to Sunita on telephone St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 13 but, Ashu Malhotra did not permit them to talk Sunita on telephone. She has also admitted that she made inquiry from Ashu Malhotra if he had got treated Sunita and if yes then show her the prescription slip of the medicines. She has further admitted that Ashu Malhotra told her that she had not shown Sunita to the doctor and she herself had given the medicines to her. According to the witness on the next day morning when she saw the injury marks on the body of Sunita then she confronted Rajesh Malhotra saying that they were not the symptoms of any ailment and Sunita had been killed. She has also admitted that Rajesh Malhotra replied that she was ill for the last two days and she was not able to move and she sustained injury while going to toilet. She has also admitted that accused had not disclosed her anything about her ailment.
During his cross-examination by Ld. Counsel this witness Saroj Tirki has deposed that she does not remember the exact date when she had sent the deceased for work at the house of Ashu Malhotra. She has admitted that when they send the girls to work at somebody house they normally maintain a link on telephone. She is unable to tell whether the deceased was suffering from any skin problem because she had never examined her. She has denied that the deceased was of a weak built when she was sent to work at the house of Ashu Malhotra and she was normal. According to her, she does not remember the deceased having any chickenpox spots on the exposed portions of her body. She has further stated that the salary of the girl sent by the agency is St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 14 further dispatched to her home and as per the system of their agency sometimes the employers to whom the girls are given themselves come and make the payment and there are times when they sent their persons to get the salary from the employers. During the intervening period after they had given Sunita to Ashu Malhotra she spoke to the deceased on only one occasion but she used to speak to one girl called Divya who was from her native village and has also stated that she had gone to meet the deceased on one occasion after two months and the deceased never made any complaint regarding beating, harassment etc against her employer to her and even Divya did not tell her that the deceased had ever complained to her regarding any kind of harassment by her employers. According to the witness, the sister of the deceased Phoolmani (PW3) was also put under placement by their agency to some place and Phoolmani also did not tell her at any point of time that the deceased had complained to her with regard to any harassment caused to her by her employers. The witness has states that her testimony to the effect that harassment caused to the deceased was on the basis of her own assessment and presumption since the deceased had suddenly died under strange circumstances. She has admitted that she was told by Phoolmani that the deceased used to take the minor daughter of Ashu Malhotra to the crutch and to the park. She has denied that Phoolmani had also told her that the deceased had a fight in the park with other maid where she had sustained injuries. She has further denied that she is deposing falsely before this court today St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 15 and Phoolmani had informed her about the aforesaid incident. Her placement agency is hardly at a distance of 3-4 km from the residence of Ashu Malhotra. Amrit Topo resides near the placement agency and on receipt of the information regarding the incident she telephoned him. She has stated that when Amrit Topo came after about 15 minutes, Rajni was with her and they first started on foot after about one or one and a half kilometer they took a rickshaw. She does not know how much time was consumed in reaching to the house of the accused and states that it was dark in the night and she was not able to see anything. According to the witness, there was no other public person present when they reached the house of accused and when she was brought down. She has denied that large number of public persons had gathered and she is giving a wrong statement to that effect. She admits that she accompanied the deceased in the same car along with Rajesh Malhotra and Amrit Topo but she is unable to tell the name of the doctor who met them at Kamlibai Hospital and states that no treatment was given to the deceased since by that time she had already expired. She has denied that when the deceased was treated in the Kamlibai Hospital she was alive.
PW13 Sanjay Kumar was the photographer by profession and the proprietor of the photo studio under the name and style of Sanjay Photo Studio situated at above address. He has deposed that on 3-3-07 he was called by the IO at J8/128, Rajouri Garden and where at the instance of IO he took the photographs of the spot and he also visited the hospital and he St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 16 took the photographs of the dead body of a female with my digital camera. The photographs are Ex.PW13/A1 to A23. He also took the photographs of the car no.DL2CD-2143. The same are Ex.PW13/A24 to A28. Later after developing the photographs he handed over the same to the investigating officer.
During cross-examination by Ld. Defence counsel this witness has stated that he had even previously come to the court to depose as unfrequently called by the local police to take photographs of the crime spots though he is not an official photographer of the police. He has deposed that on the date of the incident he had received a call from the local police but he cannot tell the name of the person who had called him. He has denied that no such call has been received by him and it is for this reason he cannot give the details of the person who had given him a call and the photographs which he had placed on record have been in fact taken by some other person. He has further deposed that he had not visited the spot or that he was deposing falsely at the instance of investigating officer.
PW14 Rajni Topo was running a placement agency along with Saroj Tirki at A29C, Shivaji Enclave, Raja Garden. Sunita was a maid who was given by their placement agency to Rajesh Malhotra, R/o J8/128, Rajouri Garden about 3-4 months prior to the incident. She has deposed that on 3-3-07 at about 3.15am they received a call from Rajesh Malhotra informing them that position of Sunita was critical. Initially Saroj had received the call. Thereafter, she gave a call back to Rajesh telling him that he St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 17 should immediately rush Sunita to nearby hospital and Rajesh told them that she was very serious and immediately thereafter Saroj and Amrit went to the residence of Rajesh Malhotra where they came to know that Sunita was highly critical. According to the witness, Amrit called her and told her about her condition on which she told him to rush Sunita to the nearby hospital. After some time she received another call from Amrit, who had taken Sunita to Mata Kamlibai Hospital, who informed her that Sunita had expired. Thereafter, Saroj telephoned her and asked her to come to the residence of Rajesh Malhotra and when she reached the residence of Rajesh she found the body of Sunita lying on the back seat of Rajesh Malhotra's Car. She asked Rajesh as to what had happened and he told her that Sunita was unwell for the last two days and was given treatment at home. He told her that she had slipped while going to the toilet. Thereafter, when it was drawn they took Sunita's body to DDU Hospital and when it was proper day light she found that there were marks over the body of Sunita particularly over and under the eye, lips and nails scratch marks on the neck. She asked Rajesh as to how she received these injuries on which he told her that it was on account of the fall in the bathroom. She thereafter informed her religious institution "Chetnalya". She has correctly identified accused Rajesh Malhotra present in the court but is unable to identify Ashu Malhotra since she has never met her. This witness was further cross-examined by Ld. APP for the State and has admitted that after the postmortem examination the dead body of Sunita St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 18 Bangera was handed over vide receipt Ex.PW2/B bearing her signature at point B. This witness has further stated that on 3-5-07 she handed over the register and some documents to the investigating officer showing the placement of Sunita with the accused which documents are collectively Ex.PW13/A. During cross-examination, this witness Rajni Topo has deposed that she does not remember the exact date when she sent Sunita Bangera to work at the house of Rajesh Malhotra. She has admitted that normally when they send a girl to work they maintain a link with her and has further stated that she had spoken to Sunita on telephone on three occasions during the period when she was working with Rajesh Malhotra and the deceased had also spoken to Saroj and Divya three days prior to her death but not to her though she was present. According the witness, Sunita did not tell Saroj or Divya or her (witness) that during this period she was being harassed or ill treated by Rajesh in any manner but has stated that she was told by Smt. Saroj that wife of Rajesh wanted to surrender Sunita after 3-4 days. According to the witness, she personally never spoke to the wife of Rajesh Malhotra. The witness has further deposed that the witness, Sunita was of a thin stature but not sick though when she came to them she was having some skin problems with "danas" on the skin of her hand. According to the witness, during this period of 3-4 months when Sunita was employed with Rajesh she had never personally met her and when she personally spoken to Sunita on telephone she found her normal and not under any kind of pressure or fear. The St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 19 witness has deposed that she has admitted that Phoolmani sister of Sunita was also employed in Delhi through their agency and even Phoolmani did not tell them that Sunita was facing any kind of problem or harassment from their employers. She has admitted that Sunita was regularly in touch with Phoolmani and even 2-3 days prior to her death she had spoken to Phoolmani & there was no indication that she was under any kind of pressure since Phoolmani had even come to them but did not mention anything of this kind. According to the witness, the allegations made by her are on the basis of her personal observation of dead body of Sunita since she had found certain marks on her body which did not appear to be normal. She has admitted that Sunita used to visit the crutch and the park along with child of Rajesh Malhotra. She has admitted that Sunita had told Phoolmani that there was a quarrel between her and the other maids in the park when she was beaten by them though the deceased did not give the name of any of the maids who had beaten her. According to the witness, when she went to the spot she did not find the behaviour of Rajesh Malhotra abnormal or that he was trying to suppress something. She has admitted that Rajesh himself had gone with Saroj and Amrit to get the medical assistance for Sunita. She has also deposed that after coming back from the hospital she was called to the police chowki on the same day and police recorded her statement at the police chowki and when her statement was taken there was nobody else whose statement was recorded till her presence.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 20PW16 Ms. Philomnia has deposed that on 03.03.07, she was residing at 4, Bhagwan Dass road and was a social worker. According to her, on that day i.e. 03.03.07, at about 4:10 am, she received a telephonic information from Rajni Topo that one Sunita Bhengra who was employed as maid servant at premises no. J-8 128, Rajouri Garden through the placement agency i.e. Ashiana Center had expired and on receipt of this information, she reached DDU hospital at about 7:15 AM, where she found that the body of Sunita Bhengra was lying in a car bearing No. 2143 which was parked in the parking. She found the body of Sunita Bhengra in a sitting position on the back seat but when she saw through the back side window, she found that a blanket had been put on her till her chest and there were cut marks on her forehead and there were also injuries under her eye and her lips were bearing cut marks. Further, she found that there were scratch marks on her neck which she could see through the window of the car. According to the witness, on seeing the body in this state, she thought that this was not a case of natural death but she (deceased) appeared to have been killed on which she immediately informed her other office bearers of her NGO and the PCR call was made by an official of her NGO. She has correctly identified the accused Rajesh Malhotra in the court and also states that her statement was recorded by police on 03.03.07. She has also proved that she along with her other associates Rajni Topo and Saroj Tirki had given application to SHO Rajouri Garden for getting the postmortem of the deceased conducted through a panel St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 21 of doctors which application is Ex.PW2/A. In her cross examination, this witness Philomnia has deposed that the name of her NGO is Chaitnalya. Her NGO is registered but she is unable to tell whether it is registered under the Society Registration Act or duly acknowledged and recognized by the Government of NCT of Delhi. She did not hand over IO any document regarding the registration of her NGO or its incorporation along with its aims and object. She could not tell the source of funding of her NGO and therefore, she could not tell whether it is through the government or private. According to the witness, prior to this incident, she had never met both the accused and had seen Rajesh Malhotra for the first time in the hospital and she is unable to identify Ashu Malhotra. She has deposed that prior to her reaching to hospital, she or her NGO had never received any complaint regarding any kind of harassment to Sunita Bhengra. She also states that she never touched the body of Sunita or examined her physically before making PCR call. According to the witness, prior to making the call, she did not make any independent inquiries as to how the deceased had received the injuries and the call was made only on the basis of injuries which they had seen on the body of the deceased. She had no personal knowledge as to how the deceased Sunita received injuries i.e. whether she was attacked and killed or whether she had received injuries by way of fall and felt that the injuries could only be inflicted and could not be result of fall. She had no expertise to ascertain whether the injury could have been St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 22 homocidial inflicted or was a result of a fall and states that she had never met Sunita previously. According to the witness, the accused Rajesh Malhotra had brought the deceased in the hospital in his vehicle. She could not tell if Rajesh Malhotra and his family were providing necessary medical treatment to the deceased. She could not tell if Sunita Bhengra was suffering from Chicken pox.
PW22 Smt Lalita Ahuja has deposed that the Maruti Car No. DL-2CD-2143 was registered in her name and had purchased the same. She had given the aforesaid Maruti Car to her daughter Ashu Malhotra. Her daughter Ashu Malhotra and her husband Rajesh Malhotra were residing at J/8/128, Rajouri Garden, first floor and they both used to drive the same. She was given a notice u/s 133 M.V. Act vide Ex.PW22/A which she received. She had given her reply Ex. PW22/C. The photograph of the car Ex.PW13/A-24. Her statement was recorded.
Medical witnesses/ evidence:
PW7 Dr. Akash Jhanjee was working as Jr. Specialist, Forensic Medicine, Subzi Mandi Mortuary, Delhi on 07.03.07. He has deposed that on that day a board was constituted for conducting postmortem on the dead body of one Ms. Sunita Bhengra D/o Khadia Bhengra (female) aged about 18 years, by Govt. of NCT Delhi, Department of Health and Family Welfare vide order No. F-342/14/2007/H&FW/819 dt. 05.03.07 comprising of Dr. Anil Kumar Aggarwal, Prof. Forensic Medicine, MAMC Delhi as Chairman, himself and Dr. Arvind Sr. St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 23 Resident, Forensic Medicine, UCMS/GTB Hospital, Delhi as members. The said postmortem was conducted in the mortuary of MAMC.
He has further deposed that the postmortem started at 12-30 p.m. on 07.03.07. On external examination - following injuries were present on the body of the deceased:-
1. Partially healed lacerated wound of size 1.8 cm x 0.3 cm x scalp deep, obliquely placed over right parital area of skull surrounded by bluish black contusion above top of right ear pinna. Edges of the wound were found loosely adherent to each other at places.
2. Reddish brown contusion measuring 3cm x 1.5 cm over outer surface of right upper eye lid and measuring 2 cm x 1.1 cm over outer surface of right lower eye lid with associated swelling .
3. Reddish brown contusion 3.3 cm x 1.4 cm over outer surface of left upper eye lid measuring 3.1 cm x 1.2 cm over outer surface of left lower eye lid with associated swelling.
4. Scabbed linear abrasion covered with hard scab of size 2 cm x 0.2 cm obliquely placed over left forehead, lower end of the injury was just above lateral margin of left eye brow.
5. Scabbed abrasion covered with hard scab of size 0.8 cm x 0.5 cm present just lateral to left eye.
6. Lacerated wound of size 2.4 cm x 0.4 cm x subcutaneous deep gaping of the wound present with margins are contused present over lower eye lid of left eye, horizontally placed.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 24
7. Lacerated wound of size 2.3 cm x 0.3 cm x scalp deep with gaping and margins are contused present over right forehead, 0.2 cm above to lateral margin of right eye brow.
8. Healed abrasion with scab separated of size 2 cm x 0.3 cm present over right ala of nose.
9. Healed abrasion with scab separated of size 1cm x 0.2 cm present over tip of nose.
10. Lacerated wound of size 2.3 cm x 0.6 cm x muscle deep present over left upper lip extending upto left ala of nose with gaping and margins are contused.
11. Lacerated wound of size 1 cm x 0.6 cm x muscle deep present over middle of upper lip with associated tear of upper fernulum of size 2 cm x 0.8 cm x 05 cm with gaping and margins are contused.
12. Lacerated wound of size 1 cm x 0.2 cm present over midline just below the lower lip with gaping and margins are contused.
13. Scabbed abrasion covered with soft scabs of size 0.9 cm x 0.2 cm present over chin on mid line.
14. Superficial lacerated wound of size 1.8 cm x 0.9 cm x 0.5 cm present over right ramus of mandible near mid line with gaping and margins are contused.
15. Multiple linear scabbed abrasion covered with hard scabbed present in cris cross manner in an area of 4 cm x 2 cm over right side of the neck.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 25
16. Multiple linear scabbed abrasion covered hard scabbed present in cris cross fashion in area of 6 cm x 2 cm over left side of the neck.
17. Scab separating abrasion of size 0.8 cm x 0.2 cm present over middle of the outer aspect of right arm.
18. Scabs separating abrasion of size 4.5 cm x 1.8 cm present over lower outer aspect of right arm.
19. Two scab separating abrasion of size 1.5 cm x 1 cm and 2.5 cm x 1 cm present over ventral aspect of left upper forearm.
20. Bluish black bruise of size 0.8 cm x 0.4 cm with swelling present over the palmer aspect of distal phalanx of little finger of left hand.
21. Scab abrasion covered with soft scabs of size 1 cm x 0.8 cm present over dorsal aspect surface of proximal joint of phalanx of ring finger of left hand.
22. Lacerated wound of size 0.8 cm x 0.2 cm x 0.5 cm with gaping present over inter phalangeal web space between index and middle finger of left hand.
23. Reddish brown bruise of size 8 cm x 6 cm present over the back of left shoulder.
24. Reddish brown bruise of size 10 cm x 7 cm over the Test Identification Parade and back of right shoulder.
25. Completely healed multiple abrasion with overlying pigmented patches present in an area of 20 cm x 10 cm over left side of back varying in size from 1 cm x 1 cm to 0.5 cm x 0.3 cm in size.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 26
26. Completely healed multiple abrasion with overlying pigmented patches present in an area of 20 cm x 8 cm over right side of back varying in size from 1 cm x 0.9 cm to 0.4 cm x 0.3 cm in size.
27. Bluish black bruise of size 8 cm x 6 cm present over lower middle of back near sacral area.
28. Completely healed linear abrasion with overlying pigmented patches present in an area of 4 cm x 0.2 cm obliquely placed over dorsal aspect of right lower firearm, 10 cm above right wrist joint.
29. Completely healed linear abrasion with overlying pigmented patches present in an area of 2 cm x 0.2 cm obliquely placed over dorsal aspect of right lower forearm, 4 cm below injury no. 28.
30. Completely healed linear abrasion with overlying pigmented patches present in an area of 2.5 cm x 0.1 cm present over dorsal aspect of right wrist joint.
31. Scab abrasion covering with soft scab of size 1 cm x 0.2 cm over sternum, 5 cm below sternal notch.
32. Scab abrasion covering with soft scab of size 1 cm x 0.5 cm over sternum, 5 cm below injury no. 31.
33. Reddish brown bruise of size 0.8 cm x 0.6 cm present over lower outer quadrant of left breast.
34. Scab abrasion covering with soft scab four in number in combine form mirror image of 'C' just outer to injury No. 33 varying in size from 0.8 cm x 0.1 cm to 0.4 cm x 0.1 cm over St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 27 lower outer quadrant of left breast.
35. Completely healed linear abrasion with overlying pigmented two in number of size 1 cm x 0.1 cm to 0.7 cm to 0.1 cm present over upper inner quadrant of left breast.
36. Bluish black bruise of size 4 cm x 1 cm present over right lower chest 9 cm below right nipple and 7 cm to mid line.
37. Scabbed abrasion covering with soft scab of size 0.8 cm x 0.3 cm present just below right rib cage, 3.5 cm below injury no. 36, 6 cm to midline.
38. Scabbed abrasion covering with soft scab of size 0.9 cm x 0.3 cm present just below left rib cage, 11 cm above and lateral to umbillicus.
39. Scabbed abrasion(linear) covering with soft scab of siz 6 cm x 0.2 cm present over middle of lower abdomen, 5 cm below umbillicus.
40. Scabbed abrasion covering with soft scab of size 2.2 cm x1.2 cm present over lateral aspect of left iliac crest.
41. Scabbed abrasion covering with soft scab (linear) of size 1.2 cm x 0.2 cm present over lateral aspect of right upper thigh, 4 cm below to iliac crest.
42. Bluish black bruise with swelling of size 1 cm x 0.8 cm present over left sole near heel.
43. Scabbed abrasion covering with soft abrasion of size 3 cm x 2 cm present over heel of sole of right foot.
The witness has also proved that on internal examination of the chest, both lungs showed petechial St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 28 haemorrhages over the surface and inter lober areas with both lung pale on cut section. In the pelvis genitalias-showed normal intact hymen with no injury/discharge present. However, vaginal and perineal swab prepared and sealed. Anal orifice examined showing no injury. However, anal swab prepared and sealed. In the head scalp showed extravasation of blood over vertex and both occipital area. Brain was odematous.
It was opined by the medical board that the Cause of Death was Concussion of brain produced by blunt force to the head. All injuries were antemortem in nature and produced by blunt force and postmortem findings are consistent with beating/assault before death.
Presence of different durations of injuries point towards repeated physical trauma to deceased before death. Injuries No. 2, 3, 6, 7, 10, 11, 12, 13, 14, 21, 23, 24, 31, 32, 33, 34, 37, 38, 39, 40, 41 and 43 were around two to three days in duration. Injuries No. 1, 4, 5, 15, 16, 20, 22, 27, 3, 42 were around three to four days in duration. Injury No. 8, 9, 17, 18, 19 and 35 were around seven to ten days in duration. Injuries no. 25, 26, 28, 29 and 30 were around two to three weeks in duration. Time since death was around 4-5 days.
This witness was further examined on 20.02.2010 wherein he has deposed that the medical board received 21 inquest papers for the post mortem examination and all of which were initiated by all the members. Clothes of the deceased were also St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 29 sealed at the time of postmortem. The sealed vaginal swab, sealed anal swab sample and sealed perineal swab alongwith the blood sample of deceased in gauze piece and sealed parcel. All these sealed samples alongwith the sample seal of the Forensic Medicine Deptt. MAMC were handed over back to the police alongwith the PM report in original running in total seven pages with six pages comprising of the PM report and the seventh page showing the diagramatic representation of the injuries on the body of the deceased. The Postmortem report is Ex.PW7/A bearing his signatures at point A on all pages.
This witness has further deposed that on 25.04.2007 the medical board re-assembled in the chamber of Chairman Dr. Anil Aggarwal, Professor, MAMC, Deptt. Of Forensic Medicines and received the request application from the Inspector Nafey Singh, DIU West alongwith the two sealed parcels. Both the parcels were opened and examined. Parcel 1 contained wooden thappi received in four intact seals of "JS". The sketch and the description of the wooden thappi examined alongwith its dimensions were mentioned in their report in detail. The parcel 2 contained an empty metallic bucket which was received unsealed. The description and the sketch of the examined bucket mentioned in details in the opinion sheet. After examining both the parcels the medical board opined that injuries no.1 to 43 mentioned in detail on the body of the deceased in the Postmortem Report could be caused by the said weapons examined or similar such weapons. The subsequent opinion given by the board is Ex. PW-7/B and St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 30 bears his signatures at point A. This witness has identified the thappi which is Ex.P2 and bucket which is Ex.P3.
After seeing the FSL report his witness opined that no opinion can be given regarding the element of sexual assault of the deceased as swabs have given negative results for semen and the blood. This witness has further deposed that the Postmortem Report and the subsequent opinion were in the handwriting of Dr. Arvind and he also identified the signature of Dr. Anil Aggarwal and Dr. Arvind who were the members of th medical board. The signature of Dr. Arvind was at point B and that of Dr. Anil Aggarwal at point C on the PM report and the subsequent opinion.
In his cross-examination PW-7 has deposed that he is specialized in Forensic Medicines and till date he must have dealt with the cases and an average of 1-2 cases per day. He further deposed that he does not remember having dealt with similar type of case previously but says that he must have dealt with it. He has further deposed that no cut marks can be caused by thappi and the wound lacerated margins can be produced by a blunt object. He is unable to give any opinion if the injury no.1 can not be caused by a right hander but states that all the injuries are of different duration. He further deposed that these injuries as already opined were possible by the examined weapon of offence. The weapon of offence was not a sharp edged thappi and he could not say anything about chickenpox spots present on the body of the deceased and states that he did not see any chickenpox spots and has claimed that there were no natural skin lesion except on both St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 31 sides feet as mentioned in the Postmortem Report. According to the witness, scab over the injuries were produced during the process of healing of the original injury. He has denied the suggestion that scabs could only be caused during the chickenpox and states that they were part of the natural healing process. He further deposed that he could not comment on the sequence of the distributions of lesions of chickenpox or on the aspect if the skin of any person is susceptible to cuts during normal domestic violence or whether the various injuries on the body of the deceased coincide with the recovery phase of the chickenpox. He has denied the suggestion that the injuries were not covered by scab reflecting different durations and has admitted that contusion over line skin does show any crack. He has explained that the description of injury no.1 shows that it was partially healed lacerated wound surrounded by bluish black contusion which normally takes place within 2-3 days and has denied the suggestion that lacerated wound can only be produced by a sharp edged weapon. He has also admitted that injuries no.2 to 43 in themselves when given singly would not be sufficient to cause death but states that given collectively they would certainly contribute to the death of the person but no definite opinion can be given. He further deposed that no definite opinion can be given since that would depend upon the various factors including the age of the injury, the time when it was given an the intervening healing time and also the stamina of the person concerned. He is unable to comment if injury no.1 would be caused on account of a St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 32 fall and has clarified that the injury no.1 has been caused on account of blunt force impact. The witness has also clarified that the opinion of the Medical Board as submitted to the court was a unanimous opinion and there was no dissent. He denied the suggestion that the opinion of the board is based on the version given by the police to the members of the Board or that the members of the Board did not examine the deceased and did not apply their mind while submitting the report.
PW8 Dr. Udai Kumar Singh deposed that he was deputed by the MS of the hospital to depose before the court. He seen MLC of Sunita Bhengra D/o Kharia Bhengra, age18 yrs female who was brought to hospital on 03.03.07 at around 11.35 am in the Casualty in an unconscious state. The patient was examined by Dr. Ankush Garg who at present was not working in his hospital and his whereabouts were not known and this witness was acquainted with his signatures and handwriting as he had seen him writing and signing during the course of his official duties. He has further deposed that as per MLC the patient was declared brought dead to casualty and thereafter the body was packed and sent to mortuary for postmortem examination and detail examination of the injuries. The MLC is Ex.PW8/A bearing signatures of Dr. Ankush Garg at point A. He has further deposed that he has seen the MLC of Rajesh Malhotra who was brought to hospital on 26.03.07 for him and blood sample and semen sample. The patient was examined by Dr. Rahul Singh who was no longer working in their hospital and his whereabouts were not known but St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 33 he has identified his signatures and hand writing as he had seen him while signing and writing during the course of his official duties. According to him, as per MLC, no fresh external injury seen and blood and semen sample collected, sealed and handed over to HC Farman. The MLC is Ex. PW8/B bearing signatures of Dr. Rahul at point A. Police/ official witnesses:
PW1 HC Surender has deposed that on 03.03.07 he was posted at Mobile Crime Team, West District as Finger Print Expert. He has deposed that on that day on the instructions of IO, he along with SI Anil Kumar and Const. Raj Kumar went to house No. J/8/128, First Floor, Rajouri Garden, Delhi where SHO along with staff were already present and on instructions of the investigating officer and Incharge SI Anil Kumar, he tried to lift the chance print from different places but was not able to lift any chance prints from the spot. He further deposed that photographs of the spot were taken by Ct. Raj Kumar and spot was also inspected by their team. PW1 has not been cross-examined by the counsel for accused despite opportunity in this regard.
PW6 Retired Inspector Devender Singh was working as draftsman and was posted at Crime branch, ISBT, Kashmere Gate. He has deposed that on 30.04.07 he was called by the IO Inspector Nafe Singh at P.S. Rajouri Garden and from there he along with IO Inspector Nafe Singh and Inspector Jaiveer Singh reached at the spot i.e. first floor, JB-128, Rajouri Garden St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 34 where at the pointing out of the IO Inspector Jaiveer Singh he took rough notes and measurements. He has further deposed that on the basis of those rough notes he prepared a scaled site plan with its correct marginal notes on 06.05.07 and handed over the same to IO. The site plan is Ex.PW-6/A bearing his signatures at point A. He had destroyed the rough notes after preparing the scaled site plan.
PW9 Ct. Yashpal has deposed that on 03.03.07 he was posted as duty constable in DDU Hospital and on that day at about 11.30 a.m one girl Sunita Behngra D/o Khera Bhengra aged about 18 yrs was brought to hospital by Phool Mani Bhengra and Sunita was got admitted in the hospital. The Doctor prepared the MLC and had declared her brought dead on which he gave information to Police Station Rajouri Garden.
PW10 SI Anil Kumar deposed that on 03.03.07 he was posted as Incharge Mobile Crime Team and on that day after receiving the information he along with his staff reached at J- 8/128 First Floor, Rajouri Garden where he met IO/Inspt Jaivir along with staff and where he inspected the spot. According to him, Ct. Raj Kumar took the photographer and no chance prints were found. He prepared his report and same is Ex.PW10/A bears his signatures at point A. In his cross-examination SI Anil Kumar has deposed that the DD entry of the departure had been made when he left for the spot but he does not remember the time. He has stated that the photographer was a part of the crime team and was accompanying St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 35 them. According to him, he was the only person who has signed the report which report was not required to be got approved from the senior officers since he was the in-charge of the team and therefore he prepared the report at the spot and handed over the same to the investigating officer. He has denied the suggestion that report was not prepared at the spot.
PW11 ASI Abhinandan deposed that on 03.03.07 he received DD No.12-A through Ct. Brijpal, copy of which is Ex.PW11/A and thereafter he along with Ct. Suman reached at DDU hospital and outside the hospital he found one car no. DL- 2CD-2143 and came to know that the injured has been taken to emergency. Thereafter, he along with Ct. Suman reached inside the emergency and there he collected the MLC of Sunita Bhengra aged 18 yrs and doctor had opined her brought dead. He inspected the dead body and he found injury marks below the left eye, on the eye brow of right, forehead, below chin and there were also injuries marks of dragging on the back, on the left hips and on left foot. He has deposed that the deceased was wearing a brown colour shirt and mahandi colour salwar. In the hospital he met Rajesh Malhotra, Phool Mani, Saroj Tirki, sister Solina and sister Setiya. He has stated that the dead body was got preserved for 72 hours and sent to mortuary as parents of the deceased were the residents of Jharkhand. He then prepared the tehrir which is Ex.PW11/B bearing his signatures at point A and sent the same through Ct. Suman for getting the FIR registered. Thereafter, Insp. Jaivir Singh reached in the hospital and further investigation was St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 36 handed over to him. Inspt. Jaivir Singh prepared the site plan where the car was found parked. He along with Insp. Jaivir and staff reached at J-8/128, Rajouri Garden when the Crime Team also reached at the spot and crime team in-charge inspected the spot and photographer took the photographs. He has further deposed that at the spot they met Ashu Malhotra. She was interrogated and arrested vide memo Ex.PW11/C bears his signatures at point A. Her personal search was conducted by lay Ct. Rajni vide memo ex. PW11/D bears his signatures at point A. Her disclosure statement was recorded which is Ex.PW11/E bears his signatures at point A. Thereafter, accused produced one thappi from below the bed and one shirt which was found torn from the back. The thappi was having blood stains and IO prepared the sketch of the thappi. The total length of the thappi was 18 inches and handle was of 5 inches, bottom was of 13 inch. According to witness, the sketch is Ex.PW11/F bears his signatures at point A. The shirt was of light green and light blue colour having strips which were put up into different pullandas and sealed with the seal of JS and seized vide memo Ex.PW11/G bears his signatures at point A. Accused Ashu Malhotra also produced one bucket which was lying near the kitchen and the same was seized vide memo Ex.PW11/H bearing his signatures a point A. He has deposed that he brought the car from hospital which car was seized by the investigating officer vide memo Ex.PW11/J which bears his signatures at point A and after completing the investigation, accused was brought to the police station and case property was St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 37 deposited in the malkhana. Witness has correctly identified the accused Ashu Malhotra in the court. He has correctly identified the case property i.e Thappi which is Ex.P2, Bucket which is Ex.P3, one lady shirt and salwar which are Ex.P4 & Ex.P5 (collectively), one lady shirt Ex.P-6 and the car which is Ex.P1.
In his cross-examination, this witness ASI Abhinandan has admitted that all PCR calls were recorded and they had received the information through the PCR and while starting from the police station he had recorded his departure and reached DDU Hospital. He has deposed that he does not know whether the deceased was taken to Mata Kamli Bai Hospital and states that he did not visit Mata Kamli Bai Hospital. He does not remember whether the clothes worn by the deceased were having blood stains or not. He has further deposed that HC Dilbagh Singh had also signed the disclosure statement of accused Ashu Malhotra. He denied that he had signed the disclosure statement in the police station. He admits that the thapi which is the weapon of offence and the bucket are available in the market being articles of common domestic use and has denied that there were no blood stains on the thapi when it was recovered. He has further deposed that only the thapi was sealed but not the bucket. He has denied the suggestion that the thapi and the bucket have been planted. According to him, at the time when investigating officer was carrying out the proceedings at the spot of incident which is the first floor, there was no public person. He does not know if the investigating officer had tried to join public persons in the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 38 investigation. Witness has admitted that there are other residences around the spot of incident which was the house of the accused. He denied the suggestions that all the documents have been manufactured and prepared while sitting in the police station and no investigations were carried out at the place of incident. He has stated that it took about 20-25 minutes to reach the spot from the hospital and that they remained at the spot for about 3 ½ hours. He has deposed that his statement was recorded in the Police Station on the same day after he reached the Police Station at about 7.30 p.m. PW15 HC Bijender Singh deposed that on 03.03.07, he was posted as HC at police station Rajouri Garden and on that day, Inspector Jaiveer Singh handed over to him three pulandas of which two were duly sealed with seal of JS and one pulanda were unsealed and he was directed to deposit the same in Malkhana. He deposited the said pulanda in the malkhana vide serial no. 5485/07. According to the witness on 10.03.07, he was handed over five pulandas in a sealed condition by Insp. Nafe Singh duly sealed with seal of MAMC for depositing the same in Malkhana which he deposited in malkhana vide Serial No. 5506/07. The witness has deposed that on 26.04.07, Inspector Nafe Singh handed over to him two sealed pulandas duly sealed with seal of MAMC which he deposited in the malkhana vide serial No. 5557/07. He has further deposed that on 01.05.07, he sent all the nine pulandas to FSL Rohini which were taken by Insp. Nafe Singh vide RC No. 154/07 and after depositing the same at FSL St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 39 Rohini, Insp. Nafe Singh handed over RC to him which he kept on register no. 21. Copy of register no. 19 is Ex. PW15/A showing various points Mark X (collectively running into 6 pages). Copy of register no. 21 is Ex. PW15/B. PW17 Ct. Harish has deposed that on 03.03.07, he was posted at police station Rajouri Garden as constable and on that day, he had reached DDU hospital alongwith ASI Abhinandan. The dead body of Sunita Bhengra was kept in the mortuary of DDU hospital and as per the directions, the said body was sent to the mortuary of LNJP hospital on 06.03.07 for conducting postmortem. According to the witness on 07.03.07, postmortem was conducted on the dead body and during that period, the body remained in his custody and there was no tampering. In his cross-examination, he deposed that all the documentation was done by ASI Abhinandan.
PW18 Ct. Raj Kumar has deposed that on 03.03.07, he was posted as constable photographer in the Mobile Crime Team West District and on that day, he along with SI Anil Kumar and other staff including HC Surender Pal Singh reached at J- 8/128, Rajouri Garden. According to him, on the direction of IO and In-charge Mobile Crime Team, he took six photographs at the spot and that he could develop five photographs where one was washed out. He handed over those five photographs to the IO and same are Ex.PW18/A1 to 18/A5. He has also produced five negatives in the court which are Ex. PW18/A6 (collectively).
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 40PW19 Ct. Shyam Kumar has deposed that on 03.03.07, he was posted at police station Rajouri Garden and on that day, on the instructions of IO, he took two copies of FIR No. 163/07, PS Rajouri Garden and took the same to Ld. MM and DCP West on motorcycle no. DL-1SN-4103 and delivered the same at aforesaid places and came back to police station. He did not make any tampering in the FIR during the aforesaid FIR remained in his possession. According to him, he was posted at police station Rajouri Garden on 10.03.07 and on that day on the instructions of investigating officer, he went to MAMC Hospital and took five sealed parcels with seal of department of Medicine Maulana Azad Medical College, New Delhi and same were handed over to IO who seized the same vide seizure memo Ex.PW19/A. He has deposed that no tampering was done while the aforesaid exhibits remained in his possession and that his statement was recorded.
PW20 HC Praveen Bhai has deposed that on 03.03.07, he was working as duty officer at Police Station Rajouri Gardent from 9 AM to 5 PM and on that day, at about 2:50 PM, Ct. Suman Kumar brought the rukka sent by ASI Abhinandan. He received the same and on the basis of which he recorded FIR Ex. PW20/A. He also made endorsement on the rukka vide Ex.PW20/B. He handed over copy of FIR and original rukka to Ct. Suman Kumar for further handing over the same to the investigating officer.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 41PW21 Ct. Rajni has deposed that on 03.03.07, she was posted at police station Rajouri Garden and on that day, she joined the investigation of the case with investigating officer Insp. Jai Veer Singh. She has deposed that the accused Ashu Malhotra was arrested and personally searched by her vide memo Ex.PW11/D and thereafter she took the accused Ashu Malhotra to the hospital and got her medically examined after which her (witness) statement was recorded.
PW23 Ct. Suman Kumar has deposed that on 03.03.07, he was posted at police station Rajouri Garden and on that day, he along with ASI Abhimanyu were busy in a call vide DD No. 18 A regarding quarrel and when they came back to police station and reached at the gate of police station, Ct. Brij Pal handed over DD No. 21 A to ASI Abhimanyu regarding dead body. According to the witness, on receipt of said DD, he along with ASI Abhimanyu reached at DDU hospital where they found a Maruti Car no. DL-2CD-2143 and the dead body was already sent to casualty of DDU hospital. He along with ASI Abhimanyu sent to emergency where they found a dead body of Sunita Bhengra. The witness has deposed that the IO got the patient declared brought dead in casualty and inspected the dead body and found wounds on the face, forehead, lips, left leg and foot and other parts of the body. The witness has deposed that the dead body was got preserved for 72 hours but no eye witness met them at that time in the hospital. According to the witness, IO prepared rukka on the DD No. 21 A and same was handed over to him. He took the same St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 42 to the police station and got the case registered. He took the copy of FIR and original rukka at J-8/128, Rajouri Garden, first floor where police station and police staff met him. He handed over the copy of FIR and original rukka to Insp. Jai Veer Singh. His statement was recorded by the investigation officer.
PW24 HC Dilbagh Singh has deposed that on 03.03.07, he along with Insp. Jai Veer Singh reached at J-8/128, Rajouri Garden on the receipt of DD No. 21 A and 22 A. He has further deposed that on reaching the spot they came to know that the deceased was taken to DDU hospital. According to the witness, the investigating officer inspected the spot and no blood or any other suspicious articles met them at the spot. He has also deposed that he, HC Chottu Ram, Ct. Surjeet and Ct. Rajender were left at the spot for guarding the spot and Insp. Jai Veer Singh left for DDU hospital. He has deposed that he along with ASI Abhinandan came to the spot at about 2:45 pm. According to him, the investigating officer interrogated the accused Rajesh Malhotra and his wife Ashu Malhotra in his presence and their disclosure statements were recorded by the which are Ex.PW11/E. The witness has also deposed that the accused Ashu Malhotra had produced one iron bucket on which the deceased Sunita had fallen during the beatings which was also taken into possession vide seizure memo Ex.PW11/H. The witness has deposed that the accused Ashu Malhotra had got recovered one wooden thapki having blood stains and one old jumper having green, light green, light blue lining and flowers stated to have been worn by the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 43 deceased at the time of beatings which were sealed with seal of JS and the seal after use was handed over to ASI Abhinandan and the sealed parcels containing jumper and thapki were taken into possession vide seizure memo Ex. PW11/G. The witness has deposed that the accused Ashu Malhotra was arrested in this case vide memo Ex.PW11/C, her personal search was conducted by LCT Rajni vide memo Ex. PW11/D. The witness has correctly identified one wooden thapki Ex. P2, iron bucket Ex. P3, one ladies shirt Ex.P6.
In his cross-examination, this witness HC Dilbagh Singh has deposed that when they reached at the spot, he met 3-4 ladies and 4-5 males but did not knew their details. He did not know if they were persons from the placement agency. According to him, they had started at about 12:15 noon and reached the spot at about 12:30 noon and he did not go to DDU hospital in connection with case. Insp. Jaiveer came back to spot alongwith ASI Abhinandan at about 2:45 pm. The said public persons were sitting in another room when accused Ashu had made her disclosure statement. The witness has deposed that the bucket was an iron bucket but he did not remember whether it was broken or having cut mark. The witness has deposed that the signatures of public persons sitting in another room were not taken on seizure memo. He has also deposed that the accused had produced the thapi from beneath the bed and admits that such thapi is easily available in the market. He did not recollect if the sister of deceased Phoolmani had given any complaint signed by thirty six St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 44 persons to the SHO in the police station and states that he did not see any persons from placement agency signing any representation or complaint made to the SHO. He also does not recollect how many documents were prepared by IO but states that the personal search of accused Ashu was prepared at the spot and it took about 6-7 hours to complete the entire proceedings at the spot.
PW25 Inspector Nafe Singh has deposed that that on 09.03.07, he was working in DIU West District and on that day, further investigation was handed over to him. He received case file from Insp. Jai Veer and perused the same. He collected five sealed parcels sealed with seal of MAMC from Ct. Shyam Kumar which he seized vide memo Ex.PW19/A. He got deposited the same with MHC(M) through Ct. Shyam Kumar who handed over carbon copy of seizure memo after getting deposited with MHC(M), copy of which is Ex.PW19/A. According to him, on 15.03.07, he again started investigations of the case and collected postmortem report of deceased Sunita Bhengra which is Ex.PW7/A. He has deposed that on 26.03.07, he deposited two pulandas containing semen/blood of accused Rajesh Malhotra and two sample seals of CMO DDU hospital in the malkhana of police station Rajouri Garden vide Ex.PW25/A. He has deposed that on 10.04.07, he moved an application for taking opinion of the board of doctors who conducted postmortem on the dead body of deceased Sunita vide Ex.PW25/B. According to him, the medical examination of accused Rajesh was got conducted vide MLC Ex.PW8/B. He collected opinion in relation to articles from St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 45 MAMC New Delhi vide Ex.PW7/B. He also served a notice u/s 133 M.V. Act upon Smt. Lalita Ahuja vide Ex.PW22/A which was received by her on which she had given her reply vide Ex.PW22/B. He also collected documents from Rajni Topo, Ashiana placement agency regarding employment of deceased in the house of accused persons. He has deposed that the documents were comprising one receipt book having name of Rajesh Malhotra on receipt No. 104 and a register of Reynold exercise book having 57 pages bearing signatures of Rajni Topo and address of Rajesh Malhotra at page no. 22, one form A running into 5 pages, one form of Ashiana Placement center having photographs of deceased Sunita running into 3 pages, and the said documents were taken into possession vide seizure memo Ex.PW25/C and the register is Ex. P7, the receipt book is Ex. P8, Form A,B, partnership deed running into three pages are Ex.P9 (collectively) and form having photograph of deceased running into three pages are Ex.P10 (collectively). He also collected PCR call details dated 03.03.07 which is Ex.P11 and call details are Ex.P12 (collectively). He recorded statement of witnesses. He took nine exhibits on 01.09.07 to FSL, Rohini and got deposited the same and later collected the result through HC Babu Lal which is Ex.PW25/D running into three pages, the covering letter of which is Ex.PW25/E, his application for submitting the same to the Court is Ex.PW25/F, the seizure memo prepared at the time of receiving the result is Ex.PW25/G. He deposed that, thereafter he St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 46 prepared the challan and filed in the Court.
In his cross-examination, this witness Inspector Nafe Singh has deposed that he does not have the knowledge as to what had happened in this case between 03.03.2007 to 09.03.2007, the day he was entrusted with the investigation of this case. According to him, he had not recorded any statement during the above noted period and the signatures of Ghanshyam Kumar were taken on seizure memo Ex.PW19/A in the office of DIU. He has deposed that at that time no public person was available in the office except the police officials. He has further deposed that Ex.PW19/A is not the original copy. He has deposed that the present case was got registered initially under Section 304 IPC only against Ashu Malhotra. He does not remember as to how many persons have signed the representation Mark X1 dated 03.03.2007. He had verified the said representation, and made efforts to call 36 persons who had signed the aforesaid representation but some of them appeared and he made inquiries from them. The witness has deposed that some of them were called by giving them notice and he recorded the supplementary statement of sister of the deceased whose initial statement was recorded by the previous investigating officer. He did not remember the date of recording of supplementary statement of Phoolmani. He has denied the suggestion that Phoolmani told him that she had been told her by her sister before her death that she had gone to the park with the child of the employer where she had a quarrel with the other maid servants as a result of which she had St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 47 sustained injuries about 3-4 days prior to the date of the incident which face he deliberately did not record in her statement. He deposed that after 09.03.2007, he did not met Ashu Malhotra, but he only saw her in the court after 09.03.2007 when he had come to get the judicial custody remand extended. He prepared the seizure memo of taking the result of the opinion of the board on 15.03.2007 in the hospital, but did not take the signatures of any doctor on the seizure memo dated 15.03.2007. He has deposed that he called Rajesh Malhotra in the DIU office on 14.05.2007 verbally. According to the witness, he (Rajesh Malhotra) was called prior to this also when his medical examination was got done as some allegations were leveled against him regarding sexual harassment on the deceased by the people of placement agency, but no evidence of such allegations has come on the MLC nor there were any evidence of sexual assault or any other offence has come during the interrogation of accused persons. He does not know if something had been concealed by the accused Rajesh Malhotra during his interrogation. According to him, he did not find any evidence against Rajesh Malhotra therefore he did not cite him as accused in the previous charge sheet.
PW26 Inspector Jai Veer Singh has deposed that on 03.03.2007, he was posted at police staiton Rajouri Garden and on that day he received DD No. 22 A from DDU hospital through Duty Officer regarding death of lady and after the registration of the case further investigations was handed over to him. He along with HC Dilbagh Singh, HU Chotu Ram, Ct. Surjeet, Ct. Rajender St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 48 left the police station after lodging the DD NO. 23 A for the spot i.e. J-8/128, Rajouri Garden. They found there one Ashu Malhotra one of the accused present but no eye witness met them there and he was informed that deceased had already been removed to DDU Hospital. He left HC Dilbagh, HC Chotu Ram, Ct. Rajender at the spot for gardening the spot and he along with Ct. Surjeet reached at DDU Hospital. ASI Abhinandan and Ct. Suman met him in the hospital and the deceased was declared by the doctor dead. He also inspected the dead body and found wounds on the different parts of her body. According to the witness, the dead body was got preserved for 72 hours. He along with ASI Abhinandan reached to the spot. He has deposed that the accused Rajesh Malhotra had also come from the hospital to the spot with them whereas the crime team was already there which inspected the spot and prepared its report EX PW 10/A. He deposed that the photographer took the photographs of the dead body vide Ex.PW18/A-1 to Ex.PW18/A-5. He recorded the statement of crime team officials and photographer. He interrogated the accused Ashu Malhotra and recorded her disclosure statement vide Ex.PW11/E and she was arrested in this case vide memo Ex.PW11/C and personally searched by lady Ct. Rajni vide memo Ex.PW11/D. He has deposed that the accused Ashu Malhotra got recovered one wooden thapi and jumper which was worn by the deceased at the time of incident. The sketch of thapi vide EX PW 11/F and thereafter he sealed the same with the seal of JS and took into possession vide seizure memo St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 49 Ex.PW11/G. He deposed that, Ashu Malhotra had also produced one bucket on which the deceased had fallen at the time of giving her beatings, bucket was also taken into possession vide seizure memo Ex.PW11/H. He thereafter prepared the site plan Ex.PW26/A at the place where the deceased was beaten and recorded the statements of relative of the deceased and the case property was deposited in the malkhana. According to him, the accused Ashu Malhotra was sent to DDU Hospital through L/Ct. Rajni and her medical examination was got conducted and was kept in the lady lock up of police station Kirti Nagar. According to this witness, on 03.03.2007 ASI Abhinandan had brought Maruti Car No. DL2CD-2143 from DDU Hospital at the spot and same was taken into possession vide seizure memo Ex.PW11/J and thereafter he prepared site plan Ex.PW26/B of the place where the aforesaid maruti car was standing and the said vehicle was got deposited in the malkhana. Thereafter, an application Ex.PW2/A of Smt. Phoolmani Bhengra signed by about thirty six persons was handed over to him by the SHO for getting the postmortem of the dead body conducted by a panel of the doctors. He has deposed that on 04.03.2007 the accused Ashu Malhotra was produced before the concerned court and was sent to judicial custody. He made request to CMO DDU hospital on 04.03.2007 for constituting a panel of doctors to which he agreed and formed a panel of doctors and the dead body was shifted to Maulana Azad Medical college for her postmortem. He deposed that on 07.03.2007 the postmortem on the dead body of deceased was St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 50 done vide PM report Ex.PW7/A running into five pages and his request is Ex.PW26/C. He thereafter prepared brief facts Ex.PW26/D; death report is Ex.PW26/E. He deposed that, Insp. Devender Singh visited the spot and lifted rough notes and measurements and prepared the scaled site plan Ex.PW6/A. He recorded the statements of witnesses regarding identification of deceased vide Ex.PW26/F and Ex.PW26/G. He has deposed that during the investigations the Section 201 IPC was added therefore the accused Rajesh Malhotra was arrested in this case subsequently by Insp. Nafe Singh. The witness has correctly identified the wooden thapki Ex.P2; one iron bucket Ex.P3; one ladies shirt Ex.P6 and Maruti car Ex. P1.
During his cross-examination, Insp. Jai Veer Singh has deposed that on 03.03.2007 he reached at the house of Ashu Malhotra at about 12-12:15 noon. According to him, J Block of Rajour Garden is thickly populated area. He did not remember whether he met any doctor in the DDU hospital on 03.03.2007. According to him, about 10-12 persons including people from placement agency and related of the deceased met him in the hospital. He did not notice whether any person from the nearby house of the accused person also accompanied the deceased up to the hospital. He has deposed that Phoolmani handed over her complaint to the SHO Ex.PW25/DA and same was handed over to him. He has deposed that perhaps 36 persons might had signed the said application. He did not remember whether the said complaint was entered into a register kept for the purpose in the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 51 police station or not. He inspected the body in the hospital which was having clothes and he found the injuries on the body. He did not touch the body of the deceased being lady but he had seen the injuries uncovered with the clothes. He does not remember whether the accused Rajesh Malhotra had come inside the examination room in the hospital or remained outside however he was present in the hospital. He could not give the exact location of the presence of the public persons in the hospital. He has deposed that the accused Ashu Malhotra was arrested on 03.03.2007 at about 5:30 PM and her disclosure statement was recorded at the spot. He has deposed that he along with ASI Abhinandan, HC Dilbagh and the accused Ashu Malhotra had signed the disclosure statement. He has deposed that the relatives of accused persons were present at the spot at the time of arrest of Ashu Malhotra and when he visited the spot he did not find blood there. According to the witness, the thapi was having blood stains and there was no specific mark of identification on the thapi it was an ordinary thapi available in the houses use for washing clothes. According to the witness, no public person was available at the spot when thapi and bucket were seized and that no blood was found on the bucket. He did not remember at that time whether the said bucket was broken or having any cut mark at that time. He seized the said thapi and bucket at about 4 PM. He did not remember whether the people from the placement agency or public were present there at that time or not however the relatives of the deceased were present when Ashu Malhotra was arrested.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 52He did not take their signatures on the seizure memo of thapi and bucket. He has deposed that they reached at the spot at about 2:30 PM from the hospital and remained there upto 6:15 PM. He recorded the statement of five to seven persons on that day at the spot but did not record the statement of any independent witness from the nearby houses as they were not available.
Statement of accused/ defence evidence:
After completion of prosecution evidence, the statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they have denied. In her statement the accused Ashu Malhotra has stated that she had got the deceased Sunita from the placement agency and she was satisfied with her work and had no problems with her. According to the accused, Sunita was regularly in touch with her agency people on telephone and they had also visited their house on 2-3 occasions and had met her. She has stated that two to three days before her death Sunita had told her that she had a quarrel with the other maids in the park when she had taken her son out in the evening and she had seen few marks on her face on which she gave her a local treatment at home. The accused has further stated that she is a teacher by profession and is teaching in a government School at Rajouri Garden. She has further stated that on the date of the incident she had an evening shift on account of the examination and had left her house at about 12.00-12.30 Noon and returned at around St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 53 6.30PM and when she left her house Sunita was not having any problems and was helping her in house hold work. According to her, when she came back the deceased Sunita told her that she was having a pain in her stomach on which she told her to take rest and thereafter she got busy in her work. The accused has further stated that at about 9.00-9.30 pm the deceased Sunita refused to have dinner and she noticed that her condition had become slightly bad but since her husband was not at home at that time she therefore waited for him. According to her, when her husband returned and after had his dinner she told him about Sunita's condition and they decided to call the placement agency. She has further stated that she has been falsely implicated in this case and no such incident of beating or causing of physical harassment to Sunita had taken place.
The accused Rajesh Malhotra has similarly stated that Sunita had worked at their house for about three to four months and he was happy with her and never complained about them to the agency people. According to him, Sunita used to take their son to the park and about three to four days prior to the incident, Sunita had a fight with some girl in the Park and sustained injuries. He has further stated that when she fell ill, they informed the agency people about the same and took Sunita to the hospital along with the agency people. According to the accused, when they took Sunita to the hospital, the agency people called other persons also and they all were trying to blackmail him and demanded money or else they would implicate him and his wife in St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 54 this false case. He has alleged that since he could not meet their demand therefore, they implicated this case and the agency peoples have falsely deposed against him and his wife.
The accused have examined two witnesses in their defence. DW1 Ramesh Gulati has deposed that he was residing in this area since his birth i.e. 52 years and he was known to accused Rajesh Malhotra since his birth i.e. approximately 42 years and his wife Ashu Malhotra since their marriage. According to him, they are next to neighbours. He deposed that Ashu Malhotra is a teacher and his son used to take tuition from her when he was in class 7th or 8th for two years. He has deposed that he had not heard of any complaint against both the accused in the area and they enjoyed good reputation. He also had good cordial relations with the accused for the last many years and had no complaint against them. He had also never seen or heard of any problem with the accused or their family. According to the witness, he was aware that both the accused have part time servant but he never heard any compliant from any servant. He has also stated that his son had a close interaction with the family of accused when he used to go for tuition and he never complained to him about Ashu Malhotra qua her behaviour nor had any complaint for Ashu Malhotra giving or threatening to give beatings in case of non performance. The incident in respect of which the present FIR was registered was about three to four years ago and the witness is not aware of what had happened but states that he got information regarding the incident from his father on St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 55 next day when he was in his factory and a lot of press had come. He was present when the police had came at the spot but no enquiry was made from him by the police.
In cross-examination by Ld. APP, he deposed that he was not sure when the deceased had come to work in the house of accused but he had seen her quite often in their house. He could not tell about her physical appearance. He also could not tell if she was well built, average built of a week physique, but according to him he has never seen her injured. He has deposed that the deceased never came to his house but he could not tell if she had any interaction with his wife or any family members. He has stated that he leaves for his work at about 10 AM in the morning doing the business of manufacturing of DVD player from Raghubir Nagar, Delhi. He has states that his factory closes at about 6:30 PM and he normally returns home about 6:45 -7:00 PM. He has deposed that there was not much chance of interacting with the maid servant after his return or before he left the house in the morning and therefore, he would not be in a position to inform whether the deceased used to go out during the day and also about her physical condition but according to the witness in so for as he recollected the deceased was alright before her death and there was no medical problem because he used to see her with the child of accused Ashu Malhotra. He did not recollect if the accused persons had ever told him before the incident that deceased was suffering from some medical problem and has voluntaries that he (witness) is socially involved and was a trustee St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 56 of their family trust which is involved in providing assistance to the persons who are in need. He has also stated that he is the President of the Toy Importer Association of India. According to the witness he is not aware of the facts leading to the death of deceased.
DW2 Dr. Devender Gupta has deposed that he had received summons of the court for appearing as a defence witness. He specializes in general surgery and was a medical legal consultant. He was in medical practice for the last 15 years and had seen the postmortem report and he could say that the injuries reported have been caused not by thapi but by suffering from chicken pox. He had seen the photographs which show that the injuries all over the body of the deceased from face to toe and he said that the said injuries are resulting out of chicken pox and had not been inflicted by any object. He deposed that the injuries were not inflicted by thapi on the basis of medical experience and the literature available. He stated the injuries resulted out of chicken pox on account of four grounds:-
1. Distribution of wounds on the body surface coincides with the distribution of rashes which are common in viral infection chicken pox. The appearance of rashes in case of chicken pox occurs first on the trunk, then face, then limbs and might also occur on scalp region.
2. Variation in duration as reported in post mortem report regarding different wounds coincides with pleomorphic nature of rashes which appear in chicken pox. First is St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 57 macule, then it is papule, then it is pustule.
3. The wounds reported in postmortem report are covered with scabs and scab formation occurs when there is pus formation on the superficial surface of the skin. Scab formation is characteristic feature of chicken pox.
4. On his practical experience of last 15 years dealing with injury cases, he had never come across a patient who had suffered so many wounds superficially by the blow of a blunt object without fracturing any soft bone. Injuries reported on the face region numbering 1 to 13 could not be inflicted by wooden thapi without fracturing the soft bone of face.
Neither any other bone of the body was fractured wherever the injuries are reported on the other part of the body.
In support of these four points, this witness had placed the medical literature on the record which is Ex.DW2/A (original book Essential pediatricts by Sh. O.P. Ghai. Second Edition and photocopy from pages 130 and 131, seen and returned) and Ex.DW2/B (original book Davidson's Principles and practice of medicines, page 730, seen and returned).
In his cross-examination by the Ld. Addl. PP for the State this witness has deposed that he is a private practitioner at Agra duly registered with the medical Council of U.P. He deposed that he had brought his registration certificate as a doctor. He has stated that he is a general surgeon and not a skin specialist nor is an Autopsy Surgeon. According to the witness, he had not seen the deceased and had only deposed on the basis of the photographs St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 58 placed on the record and the medical record including the postmortem report of the deceased and also the report of the medical board. He has admitted that even in cases of abrasions or other physical injuries caused on account of any accident or for any other reason, the stages macule, papule and pustule would occur and same is his reply for injuries received in cases of burn. He deposed that the pustule stage would occur in case if there is an infection in the wound. The macule stage would come within a period of 3-4 days and the papule stage would complete thereafter within 10-12 days and the pustule stage would occur only after 14- 15 days i.e. in the 2nd and 3rd week. In the chicken pox the rash would not be more than 1 to 1.5 c.m. unless there is a coelesce/ collection of rashes which on rupture may produce a wound of bigger size. He deposed that he also said that in the present case, the depth of the rashes had not been noted because they were superficial. He deposed that the injuries were superficial because of the size of the injuries as noted in the report.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the written synopsis/ memorandum of arguments file by both the parties and the testimonies of the witnesses examined by them. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 59
Sr. Name of the Details of deposition: No. witness 1. Amrit Topo The witness has deposed on the following aspects:
(PW2) 1. That he was running a placement agency under the name and style of Rani Mariya Placement Agency.
2. That on 3.3.07 at 3.15 a.m., he received a phone call from one Saroj Tirki who runs a placement agency along with Rajni Toppo who told him that a maid servant namely Sunita who was employed at House No. J-8/128, Rajouri Garden was in a serious condition.
3. That he along with Saroj went to the above address where they saw that Sunita was lying on the floor in the gallery outside the bathroom.
4. That he asked Saroj to pick up the girl and took her to the hospital he then touched the forehead and feet of the girl and found that the same were cold.
5. That he asked Smt. Ashu Malhotra but she did not give any information about the condition of girl after which they shifted the girl to Kamli Bai hospital along with Rajesh Malhotra, husband of accused.
6. That at the hospital, doctor asked Rajesh Malhotra the reasons of injuries on the face of Sunita, Rajesh Malhotra explained that injuries were sustained when Sunita fell down in the bathroom on a bucket on account of weakness, because of prolonged illness.
7. That after examination of victim, he doctor declared that Sunita had already expired.
8. That he then telephonically informed Rajni Topo and advised her to reach near the house of Rajesh Malhotra.
9. That they returned from the hospital along with the dead body in the vehicle of Rajesh Malhotra and Rajni Topo also reached the spot and made inquiries from Rajesh Malhotra since how long Sunita was unwell and from which doctor she was being treated, on which Rajesh explained that treatment was being given at home by bringing medicines but he could not furnish any treatment record.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 6010. That accused and her family members had not given any information regarding the illness of Sunita. PW2 has deposed that sister of the deceased made a prayer to SHO that postmortem of deceased should be carried out by a penal of doctors. Prayer of sister of deceased is Ex.PW2/A and after the postmortem, dead body of the deceased was handed over to the father of the deceased vide receipt Ex.PW2/B.
2. Phoolmani She is the sister of the deceased who has proved:
(PW3) 1. That on 03.03.07 she was working as a domestic help in a house bearing no. L-105 Kirti Nagar, New Delhi with one Dheeraj.
2. That on that day, one Ramesh Singh came to the house of Dheeraj at about 9 a.m. and told her that her younger sister Sunita was ill and had been taken to the hospital.
3. That she thereafter came to the DDU hospital with Ramesh and saw that her younger sister Sunita was lying in a car who had already expired and there were injuries marks under the eye, lips and neck.
4. That on seeing the body of her sister, she formed an opinion that she had been killed by somebody. She has proved having identified the body of her sister Sunita vide statement Ex.PW3/A.
3. Ms. Sandhya She has deposed that she was running a placement Khakha (PW4) agency under the name and style of Sandhya Placement Centre. She has deposed on the following lines:
1. That on 3.3.2007 at about 4:00 am Rajini Topo who runs a placement agency called her up and requested her to come as one of her girls namely Sunita was serious.
2. That at about 5:00 am she reached the house of Rajini Topo who told her that Amrit Topo had telephonically informed her that Sunita had expired.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 61
3. That thereafter she along with Rajini Topo went to Rajouri Garden where she they found a car parked bearing registration no. DL-2CD-2143 in which Sunita was lying and she noticed that there were injuries on her face, above the eyebrow, below the eye and on the upper lip.
She has identified the car which is Ex. P1.
4. Ms. Hilaria This witness is running an NGO by the name of Lakra (PW5) Chetnalaya to help the domestic workers. She has deposed on the following aspects:
1. That 03.03.2007 at about 4 a.m. she received a phone call from Rajni Toppo that Sunita Bhengra who was employed as a domestic worker at J-
8/128, Rajouri Garden in the house of Rajesh Malhotra had been murdered on which she along with her staff reached DDU hospital at about 7 - 7:30 a.m.
2. That she saw the body of Sunita Bhengra which was lying in a car bearing registration number DL-2143 and she was apparently dead.
3. That she had seen injuries on her face, above the eyebrows, under the eye, on the lips and on the chin and there were scratch/abrasion marks on the upper chest of the body.
4. That rest of the portion was covered by cloth and was not visible.
She has identified the vehicle bearing registration number DL-2CD-2143 which is Ex.P-1.
5. Ms. Saroj This witness was running placement agency along Tirki (PW12) with Rajni Topo at Shivaji Enclave. She has deposed on the following lines:
1. That deceased Sunita was sent for work from their placement agency at the house of Ashu Malhotra at J8/128, Rajouri Garden, Delhi about for four months prior to the date of the incident.
2. That about 4-5 days prior to the date of incident Ashu Malhotra told her on telephone that Sunita is troubling her and not working properly on which she told that she would call her back but Ashu Malhotra told her that she should take her after 2- 3 days as there was an exam in her school.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 62
3. That on 3.3.07 in the night at around 3am she received a telephone call from Ashu Malhotra who told her that Sunita is serious after which she along with Amrit Topo reached at the house of Ashu Malhotra where she found that the condition of Sunita was critical.
4. That Sunita was still breathing slightly and thereafter, she along with Amrit and Rajesh Malhotra the husband of Ashu Malhotra took Sunita to Kamli Bai Hospital in the vehicle of Rajesh Malhotra and doctor told them that Sunita has already expired.
5. That they brought Sunita back below the house of Rajesh Malhotra and thereafter, she called Rajni Topo and Sandhya Khaka after which they took Sunita to DDU Hospital.
6. That the police officers from the Police Station Rajouri Garden also reached there and thereafter, dead body of the Sunita Bhengra remained there.
7. That she found injury marks on the body of Sunita and after two to three days postmortem examination of Sunita was got conducted.
She has correctly identified both the accused in the court.
6. Sanjay Kumar This witness is a photographer by profession and the (PW13) proprietor of the photo studio under the name and style of Sanjay Photo Studio. He has proved that:
1. That on 3.3.07 he was called by the Investigating Officer at J8/128, Rajouri Garden where at the instance of investigating officer he took the photographs of the spot.
2. That he also visited the hospital and took the photographs of the dead body of a female with his digital camera which photographs are Ex.PW13/A1 to A23 and the photographs of the car no.DL2CD-2143 are Ex.PW13/A24 to A28.
3. That later after developing the photographs he handed over the same to the Investigating Officer.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 63
7. Rajni Topo This witness is running a placement agency along (PW14) with Saroj Tirki at A29C, Shivaji Enclave, Raja Garden. She has deposed on the following aspects:
1. That Sunita was a maid who was given by their placement agency to Rajesh Malhotra, R/o J8/128, Rajouri Garden about 3-4 months prior to the incident.
2. That on 3.3.07 at about 3.15 am they received a call from Rajesh Malhotra informing them that the condition of Sunita was critical.
3. That initially Saroj had received the call and thereafter, she called back to Rajesh telling him that he should immediately rush Sunita to nearby hospital and Rajesh told them that she was very serious and immediately thereafter Saroj and Amrit went to the residence of Rajesh Malhotra where they came to know that the condition of Sunita was highly critical.
4. That Amrit called her and told her about the condition of Sunita on which she told him to rush Sunita to the nearby hospital and after some time she received another call from Amrit, who had taken Sunita to Mata Kamlibai Hospital, who informed her that Sunita had expired.
5. That Saroj thereafter telephoned her and asked her to come to the residence of Rajesh Malhotra and when she reached the residence of Rajesh she found the body of Sunita lying on the back seat of Rajesh Malhotra's Car.
6. That she asked Rajesh as to what had happened on which he told her that Sunita was unwell for the last two days and was given treatment at home.
Rajesh further told her that Sunita had slipped while going to the toilet.
7. That when it was dawn they took Sunita's body to DDU Hospital and it was in the proper day light she found that there were marks over the body of Sunita particularly over and under the eye, lips and nails scratch marks on the neck.
8. That she asked Rajesh as to how Sunita received these injuries on which he told her that it was on account of a fall in the bathroom.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 649. That she thereafter informed her religious institution "Chetnalya" about the same.
She has correctly identified accused Rajesh Malhotra present in the court but could not identify Ashu Malhotra since she never met her.
This witness was cross-examined by Ld. APP for the State wherein she has admitted that after the postmortem examination the dead body of Sunita Bhengra was handed over vide receipt ExPW2/B. According to her, on 3.5.07 she handed over the register and some documents to the investigating officer showing the placement of Sunita with the accused which are collectively Ex.PW13/A.
8. Ms. Philomnia This witness is a Social Worker and has deposed on (PW16) the following lines:
1. That on 03.03.07 at about 4:10 am, she received a telephonic information from Rajni Topo that one Sunita Bhengra who was employed as maid servant at premises no. J-8 128, Rajouri Garden through the placement agency i.e. Ashiana Center had expired on which information, she reached DDU hospital at about 7:15 AM, where she found that the body of Sunita Bhengra was lying in a car bearing No. 2143 which was parked in the parking.
2. That she found the body of Sunita Bhengra in a sitting position on the back seat but when she saw through the back side window, she found that a blanket had been put on her till her chest and there was cut marks on her forehead and there were also injuries under her eye and her lips were bearing cut marks.
3. That she also found scratch marks on the neck of Sunita which she could see through the window of the car and on seeing the body in that state, she thought that this was not a case of natural death but she appeared to have been killed.
4. That she immediately informed the office bearers of her NGO and the PCR call was made by an official of her NGO.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 65
5. That she along with her other associates Rajni Topo and Saroj Tirki had given application to SHO Rajouri Garden for getting the postmortem of the deceased conducted through a panel of doctors which application is Ex.PW2/A. She has correctly identified the accused Rajesh Malhotra in the court.
9. Smt Lalita She is the mother of the accused Ashu Malhotra who Ahuja (PW22) has deposed that :
1. The Maruti Car No. DL-2CD-2143 was registered in her name and she had purchased the same.
2. She had given the aforesaid Maruti Car to her daughter Ashu Malhotra who is residing at J/8/128, Rajouri Garden, first floor along with her husband Rajesh Malhotra and they both used to drive the same.
She has proved that she was given a notice u/s 133 M.V. Act vide Ex.PW22/A which she received on which she gave her reply which is Ex.PW22/C and the photograph of the car is Ex.PW13/A-24.
MEDICAL EVIDENCE/ WITNESSES
10. Dr. Akash This witness has proved that on 07.03.07 a board was Jahnjee (PW7) constituted for conducting the postmortem on the dead body of one Ms. Sunita Bhengra D/o Khadia Bhengra aged about 18 years, female by Govt. of NCT Delhi, Department of Health and Family Welfare vide order No. F-342/14/2007/H&FW/819 dt. 05.03.07 comprising of Dr. Anil Kumar Aggarwal, Prof. Forensic Medicine, MAMC Delhi as Chairman, himself and Dr. Arvind Sr. Resident, Forensic Medicine, UCMS/GTB Hospital, Delhi as members.
He has proved the postmortem report of the deceased which is Ex.PW7/A showing that there were as many as 43 injuries on the dead body of the deceased. According to the witness, it was opined by the medical board that the cause of death was Concussion of brain produced by blunt force to the head. All injuries were antemortem in nature and produced by blunt force. Postmortem findings are consistent with beating/assault before death.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 66Presence of different durations of injuries point towards repeated physical trauma to deceased before death. Injuries No. 2, 3, 6, 7, 10, 11, 12, 13, 14, 21, 23, 24, 31, 32, 33, 34, 37, 38, 39, 40, 41 and 43 are around two to three days in duration.
Injuries No. 1, 4, 5, 15, 16, 20, 22, 27, 3, 42 are around three to four days in duration. Injury No. 8, 9, 17, 18, 19 and 35 are around seven to ten days in duration. Injuries no. 25, 26, 28, 29 and 30 are around two to three weeks in duration. Time since death was around 4-5 days, He has also proved that the Medical Board had examined the wooden thapi and the metallic bucket and it was opined that injuries no.1 to 43 mentioned in detail on the body of the deceased in the Postmortem report could be caused by the said weapons examined or similar such weapons, which opinion given by the board is Ex.PW7/B.
11. Dr. Udai This witness has proved the MLC of Sunita Bhengra Kumar Singh (deceased) which is Ex.PW7/A and the MLC of the (PW8) accused Rajesh Malhotra which is Ex.PW7/B. POLICE/ OFFICIAL WITNESSES:
12. HC Surender He is a formal witness being the Finger Print Expert (PW1) who has deposed that on 03.03.07 on the instructions of IO, he along with SI Anil Kumar and Const. Raj Kumar went to the house No. J/8/128, First Floor, Rajouri Garden, Delhi where he tried to lift the chance print from different place but he was not able to lift any chance print from the spot. He has further deposed that photographs of the spot were taken by Ct. Raj Kumar and spot was also inspected by their team.
13. Retired He is a formal witness being the draftsman who has Inspector proving having prepared the scaled site plan which is Devender Ex.PW6/A. Singh (PW6)
14. Ct. Yashpal He is a formal witness being posted at DDU Hospital (PW9) on 3.3.2007 and had given the information to the Police Station Rajouri Garden regarding the admission of deceased Sunita who was declared dead.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 6715. SI Sunil He is a formal witness being the Incharge of Mobile Kumar Crime Team who has proved his report which is (PW10) Ex.PW10/A.
16. ASI This witness had first received the information vide Abhinandan DD No.21A and reached the spot. He has proved the (PW11) following documents:
Ex.PW11/A DD No. 21A
Ex.PW11/B Tehrir
Ex.PW11/C Arrest memo of accused Ashu
Malhotra
Ex.PW11/D Personal Search memo of accused
Ashu Malhotra
Ex.PW11/E Disclosure statement of accused
Ashu Malhotra
Ex.PW11/F Sketch of the Thapi
Ex.PW11/G Seizure memo of Thapi
Ex.PW11/H Seizure of the bucket
Ex.PW11/J Seizure of the car
17. HC Bijender He is a formal witness being the MHC(M) who has Singh (PW15) proved the various entries made by him in the Register No.19 and Register No.21 which are Ex.PW15/A and Ex.PW15/B.
18. Ct. Harish He is also a formal witness who has proved that the (PW17) dead body of deceased Sunita was kept in the mortuary of DDU hospital under his care.
19. Ct. Raj Kumar This witness is also a formal witness being the (PW18) Photographer who has proved having taken six photographs at the spot one of which was washed out. The said photographs are Ex.PW18/A-1 to Ex.PW18/A-5 and the negatives are Ex.PW18/A6 (collectively).
20. Ct. Shyam This witness has proved having delivered the copies Kumar of the FIR to the Ld. MM and DCP on 3.3.2007. He (PW19) has also proved that on 10.3.2007 he went to Maulana Azad Medical College and took five pullandas from there which he handed over to the investigating officer who seized the same vide memo Ex.PW19/A. St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 68
21. HC Praveen He is a formal witness being the Duty Officer who Bhai (PW20) has proved the FIR which is Ex.PW20/A and his endorsement on the rukka which is Ex.PW20/B.
22. Ct. Rajni She has proved having conducted the personal search (PW21) of the accused Ashu Malhotra vide memo Ex.PW11/D.
23. Ct. Suman This witness was on duty with ASI Abhinandan on Kumar Jha 3.3.2007. He has corroborated the testimony of ASI Abhinandan and has proved having taken the rukka to the Police Station and got the case registered.
24. HC Dilbagh He has joined the investigations with Inspector Jai Singh (PW24) Veer Singh and has proved having gone to the spot where ASI Abhinandan was already present. He has proved the various proceedings conducted by ASI Abhinandan.
25. Inspector Nafe He is the investigating officer and except from the Singh (PW25) documents proved by the initial investigating officers, he has proved the following documents:
Ex.PW25/A Deposit of two pullandas containing semen/ blood of accused Rajesh Malhotra and sample seals.
Ex.PW25/B Application for taking opinion of the board of doctors.
Ex.PW25/C Seizure memo of documents
received from Ashiana Placement
Center
Ex.PW25/D FSL Result
Ex.PW25/E Covering letter
Ex.PW25/F Application for submitting the FSL
report to the court.
Ex.PW25/G Seizure memo prepared at the time
of receiving the result.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 69
26. Inspector Jai He is the initial investigating officer and has proved
Veer Singh the following documents:
(PW26) Ex.PW26/A Site plan of the place where the
deceased was beaten.
Ex.PW26/B Site plan where the maruti car was
standing
Ex.PW26/C Request for postmortem
Ex.PW26/D Brief Facts
Ex.PW26/E Death Report
Ex.PW26/F & Statement of witnesses regarding
Ex.PW26/G identification of the deceased.
Coming now to the microscopic examination of the evidence against the accused.
Identity of the accused:
In so far as the identity of the accused Ashu Malhotra and Rajesh Malhotra is concerned, there is no dispute. They have been duly identified in the court by the witnesses i.e. Amrit Topo (PW2), Ms. Sandhya Khakka (PW4), Saroj Tirki (PW12) and Rajini Topo (PW14) from the placement agency from where the deceased maid Sunita had been placed under their placement at their premises bearing House No. J-8/128, Rajouri Garden who was maid servant had been brought by the accused Ashu Malhotra and Rajesh Malhotra.
Allegations against the accused Ashu Malhotra and Rajesh Malhotra:
The case of the prosecution is that the deceased Sunita Bhengra was working as a full time (24 hours) domestic worker at St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 70 the residence of accused Ashu Malhotra where she had been employed with the accused through Ashiyana Placement Centre. On the intervening night of 2-3.3.2007 Sunita had been brought to the DDU Hospital and was declared dead. The postmortem examination revealed as many as forty three injuries on her person. Twenty two injuries were around two to three days in duration; Ten injuries were found to be of three to four days duration; Six injuries were found to be of seven to ten days in duration and Five injuries were found two to three weeks old (i.e. fourteen to twenty one days). The cause of death was opined to be concussion of brain produced by blunt force on the head and the postmortem findings were opined to be consistent with beating/ assault before the death.
The case of the prosecution is that it is the accused Ashu Malhotra who had been subjecting the deceased, her domestic worker, to regular physical abuse resulting into injuries to the deceased and has also caused beating to the deceased on the intervening night of 2nd and 3rd March 2007 and inflicted injury upon the vital organ (head) of the deceased leading to her death.
It is evident from the record that the deceased was first taken to the a private hospital and on the advise of the doctor she was shifted to DDU Hospital where she was declared brought dead. It was also alleged that during this period of beating, the accused had not provided any medical aid to the deceased nor informed the placement agency with regard to her physical condition. It is further alleged that the said injuries had been St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 71 caused by the accused Ashu Malhotra with the knowledge and intention that the cumulative effect of the injuries caused by her, was sufficient in ordinary course of nature to cause death and thereafter the accused Ashu Malhotra furnished incorrect information regarding the facts leaving to the death of the deceased. The accused Ashu Malhotra gas therefore, been charged for the offence punishable under Section 302 and 201 Indian Penal Code.
In so far as the accused Rajesh Malhotra is concerned, the allegations are that he is the husband of the accused Ashu Malhotra and is residing in the same house and is presumed to have knowledge of the injuries and the manner in which these injuries were sustained two to three days earlier. It is alleged that the accused Rajesh Malhotra also mislead the doctor with regard to the manner in which the deceased had received injuries, which was done only to avoid detection of crime and screening the main offender i.e. his wife from penal consequences and therefore, in this background of giving false information with regard to the manner of receiving injuries, the accused Rajesh Malhotra has been charged of the offence punishable under Section 201 read with Section 34 and Section 203 Indian Penal Code.
Employment of the deceased with the accused:
The aspect of the employment of the deceased Sunita at the residence of the accused as a maid servant is also not disputed. It is evident from the testimony of Saroj Tirki (PW12) St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 72 that the deceased Sunita had been sent to the residence of the accused at J8/128, Rajouri Garden, Delhi for about four months prior to the date of incident. In this regard the relevant documents proving the employment of the deceased with the accused were duly seized by the investigating officer vide Ex.PW5/C. The aspect of employment of the deceased Sunita Bhengra is even otherwise not disputed by the accused.
Ocular evidence/ eye witness:
There is no direct eye witness to the incident to give a first hand information leading to the death of the deceased and the entire evidence on record is circumstantial.
Sequence of events/ conduct of the accused:
There is no direct evidence against the accused in the present case and the prosecution has relied upon the conduct of the accused prior and subsequent to the incident; recovery of the wooden Thapi from the spot along with bucket and blood stained clothes of the deceased. In this regard, the testimonies of Amrit Topo (PW2), Phoolmani (PW3), Sandhya Khaka (PW4), Hilariya Lakra (PW5), Saroj Tirki (PW12), Rajini Topo (PW14) and Philomina (PW16) are very relevant. All theses witnesses in their testimonies have proved that the deceased Sunita had been employed at the residence of the accused Ashu Malhotra and Rajesh Malhotra through Ashiyana Placement center at House No. J-8/128, Rajouri Garden, Delhi prior to three to four months of the incident. They have also deposed that on the date of incident i.e. St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 73 3.3.2007 at about 3:00 am, they received a telephonic call from accused Rajesh Malhotra that the condition of Sunita was very critical. Initially the call had been received by Saroj Tirki (PW12) who later on communicated this fact to Rajini Topo (PW14) who asked Rajesh Malhotra to immediately rush Sunita to a nearby hospital but Rajesh Malhotra told her that her condition was critical. Thereafter, Saroj Tirki (PW12) and Amrit Topo (PW2) reached the house of accused where they came to know that Sunita (deceased) was in critical state on which they all rushed Sunita to Mata Kamli Bai hospital but the deceased had expired. In the meantime, Rajni Topo (PW14) and other persons from the placement agency reached the house of accused where they found the dead body of deceased Sunita on the back seat of the car of accused Rajesh Malhotra and when they asked the accused Rajesh as to what had happened, he informed them that Sunita (deceased) was unwell for the last two days and was being given treatment at home and had slipped while going to the toilet. Thereafter they waited sometime and when it was dawn, they took the dead body of deceased Sunita to DDU Hospital and in the proper day light they found that there were injury marks over the body of Sunita particularly over and under the eye, lips and nails scratch marks on the neck. Rajni Topo (PW14) thereafter informed their religious institution 'Chetnalya' and on receiving this information social workers from the said institution come to DDU Hospital.
Ms. Philomina (PW16) has deposed that when she saw the dead body of the deceased it was in the sitting position on the back seat St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 74 of the car and a blanket had been put on her and there were cut marks on her forehead and injuries were present under her eye and lips, scratches on her neck which she could see through the window of the car on which information was given to police.
It is evident from the testimonies of all these witnesses that no information regarding the ailment of Sunita had been given to the placement agency nor any medical record of the deceased has been produced by the accused to show that she had been shown to any doctor at any point of time or was being treated from any medical practitioner. In fact Rajini Topo (PW14) had specifically asked Rajesh Malhotra the duration since Sunita was unwell and was being treated and also with regard to the treatment being provided to her on which the accused Rajesh Malhotra told that the deceased Sunita was unwell for the last two days and was being provided treatment at home but he could not furnish any treatment record. It is also evident that it was for the first time in the morning/ intervening night of 2-3.3.2007 that the information was given to the placement agency regarding the condition of the deceased. In this regard I may observe that the accused have examined one Ramesh Gulati their neighbour as DW1 who in his cross-examination, has testified that he was not in a position to give any details about the physical condition of the maid servant but in so far as he recollects, the deceased was alright before her death and there was no medical problem because he used to see her with the child of accused Ashu Malhotra. He has also stated that he is socially involved and is a St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 75 member of a Family Trust which is involved in providing assistance to the persons who are in need. According to him, he had never seen the deceased in an injured condition. Therefore, had the deceased been suffering from any ailment the least that would have been done by any reasonable person is to get her treated from a Medical Practitioner since both the accused has no background of any knowledge of medicine and in the alternative they would have at-least informed their neighbour Ramesh Gulati (DW1) who is otherwise involved in philanthropist activities and providing assistance, which is not the case. Rather, Ramesh Gulati has deposed that the deceased did not appear to be suffering from any ailment or injury. Also no reasonable person would permit an ailing domestic help to handle an infant. The testimony of Ramesh Gulati (DW1) shows that the deceased used to take the child out and is also the defence of the accused themselves that she had a quarrel with other maids when she went out. Who were those maids? When was this incident? Why this incident was not reported to the placement agency? Why she was not provided any treatment from a doctor in case if she received injuries? They are all questions to which there are no answers and are hence, liable to be taken adversely against the accused.
Disclosure statement of the accused Ashu Malhotra and recovery of thapi, bucket and lady's shirt (jumper):
Section 27 of the Indian Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, provides that when any fact is deposed to as discovered St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 76 in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
Recently, in the case of Bachchi Singh & Others Vs. The State (NCT of Delhi) bearing Criminal Appeal No. 261/1997 decided on 30.7.2010 by the Revision Bench headed by Hon'ble Mr. Justice Badar Durez Ahmed of Delhi High Court wherein the Hon'ble Judges while making reference to the earlier decisions and various judicial pronouncements, briefly culled out the law relating to the statement made by the accused while in police custody and the extent to which it can be relied upon.
In State of U.P. Vs. Deoman Upadhyaya reported in 1960 Cri.L.J. 1504, Supreme Court inter alia, observed as under:-
"When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 77 police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."
Applying the settled principles of law to the facts of the present case, it is evident that the disclosure statement of the accused Ashu Malhotra which is Ex.PW11/E has been duly proved by ASI Abhinandan (PW11). Pursuant to this disclosure statement the accused Ashu Malhotra had got recovered the bucket, thapi and jumper/ lady's shirt (belonging to the deceased) which aspect has been duly proved by ASI Abhinandan. It is evident that the above recoveries had been made immediately on the same day after the accused Ashu Malhotra disclosed about her involvement in the present case. In fact it has been proved by ASI Abhihandan (PW11) whose testimony finds due corroboration from the testimonies of HC Dibagh Singh (PW24) and Inspector Nafe Singh (PW25) that it was the accused Ashu Malhotra who St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 78 pursuant to her disclosure statement Ex.PW11/E had produced the iron bucket on which the deceased had fallen down during the bearing which bucket was seized vide memo Ex.PW11/H. She also got recovered the wooden Thapi having blood stains and one old jumper/ shirt having green and light green and light blue lining and flowers which according to the accused Ashu Malhotra was worn by the deceased at the time of beatings, which Thapi and jumper/ shirt were seized vide memo Ex.PW11/G. The said witnesses have duly identified the Thapi which is Ex.P-2; the bucket which is Ex.P-3 and the ladies shirt which is Ex.P-6 which were got recovered by the accused Ashu Malhotra. The clothes which the deceased Sunita was wearing at the time when she was taken to the hospital, have also been produced in the court which are Ex.P-4 and Ex.P-5. I may observe that the clothes which the deceased was wearing when the incident took place were different and in fact as per allegations were changed by the accused Ashu Malhotra before the deceased was taken to the hospital. The FSL report Ex.PW25/D shows that the wooden Thapi bear the blood stains of the same group belonging to the deceased Sunita Bhengra i.e. A Group. I may also observe that the clothes (jumper/ lady's shirt and salwar) worn by the deceased at the time when she was taken to the hospital which were handed over to the investigating officer by the doctor and duly seized, also shows the presence of blood Group 'A' belonging to the deceased. The explanation given by the accused is that on account of prolonged illness the deceased Sunita had fallen on the bucket and received St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 79 injuries on her head and face but no explanation is forthcoming as to how the blood stains came on the Thapi which blood was also present on the clothes (lady's shirt and salwar) worn by the deceased. I may further observe that some of the injuries present on the forehead portion of the deceased had been caused on account of blunt force impact and as per the opinion of the Medical Board could have been caused by the weapon examined by the weapon examined by them or similar kind of weapon i.e. Thapi Ex.P-2 which fact has been duly proved by Dr. Akash Jhanjhi (PW7) and to which aspect there is no rebuttal. Hence, the disclosure statement of the accused Ashu Malhotra leading to the discovery of the Thapi, Bucket and the lady's shirt (jumper) is relevant and admissible in evidence.
Presumption under Section 106 Indian Evidence Act:
The fact that the deceased Sunita Bhengra a young girl of 17 to 18 years (a migrant labour) was under the full time domestic employment of the accused stands established. Hence, being a full time worker she was under the total control and supervision of her employer, the present accused and more under the control and supervision of the accused Ashu Malhotra being a lady of the house controlling the daily domestic chores. The provisions of Section 106 Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that intention is upon him. In the present case, the accused are the best persons who could have offered an St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 80 explanation with regard to the various injuries present on the body of the deceased without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.
Applying the aforesaid principles of law to the fact of the present case, it was the accused who were having the control and custody of the deceased who was a full time domestic servant at their residence and they are required to satisfactorily explained the circumstances leading to the death of the deceased. As many as forty three injuries of different durations were found on the body of the deceased which were never got treated from any medical practitioner. The explanation forthcoming from the accused is that the deceased was unwell and was suffering from Chickenpox and that a couple of days before her death she had a quarrel with other maid servants when she had taken their child out, does not appear to be convincing. Firstly Chickenpox is an air communicable disease and no employer worth the name would leave a minor/ infant under the care of a domestic help suffering St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 81 from such a disease. Secondly in an eventuality of the deceased having suffered Chickenpox, I may observe that Chickenpox would normally last for about three to four weeks in which the patient is required to be kept in isolation. That being the case the accused who were having small children at home would have certainly inform the placement agency about the condition of the deceased and demanded a substitute which is not the case. Thirdly the accused also, in such an eventuality of the deceased having suffered Chickenpox, would have shown her to some Doctor to provide her medical treatment as they themselves have no history of knowledge of medicine which is again not the case. Fourthly at the time when the deceased was taken to the hospital, the accused Rajesh Malhotra never disclosed this fact of the deceased having suffered from Chickenpox to the doctor at the first instance. Had it been so, he would have immediately told the doctor about it and it is writ large that this story appears to be an after thought. Fifthly the witness examined by the accused in their defence i.e. Ramesh Gulati (DW1) in his testimony before the court has specifically deposed that he had never seen the deceased suffering from any disease and she appeared to be hale and hearty. He has also stated that she does not appear to be injured at any point of time. DW1 Ramesh Gulati is involved in philanthropy and charitable activities and is providing assistance to people from his Trust. Therefore, in case if the deceased would have been suffering from some ailment their neighbour Ramesh Gulati would have known about it which again is not the case.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 82
Lastly the nature of injuries which are of different durations and have been found scattered on specific portions of the body of the deceased and not all over, are not compatible to the explanation being given by the accused. As many as forty three injuries were present on the body of the deceased of different duration and some of which are scabs which are caused in the normal healing process of an injury, some are bruises of different sizes and some are lacerated wounds which obviously cannot be caused on account of Chickenpox.
This conduct of both the accused prior to the incident i.e. of not informing the placement agency regarding the ailment of the deceased Sunita and their failure to secure a proper treatment for the deceased in case of her ailment, is certainly liable to be read against the accused. I further hold that the accused were the best persons who would have had exclusive knowledge of the events leading to the injuries observed on the body of the deceased who was under their supervision and control, which could have been proved by them without difficulty or inconvenience; have failed to satisfactorily explain same for which an adverse inference is drawn against them.
Medical Evidence:
The entire case of the prosecution is based upon the medical evidence. Dr. Udai Kumar Singh (PW8) has proved the MLC of the deceased Sunita Ex.PW8/A proving that when the deceased was brought to the hospital, she was dead. Thereafter the Medical Board was constituted who conducted the postmortem St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 83 examination and gave a detailed report Ex.PW7/A and its opinion which is Ex.PW7/B which reports have been duly proved by Dr. Akash Jhanji. I have gone through the reports which reveal that there were as many as forty three injuries present on the body of the deceased of various durations and as per the opinion of the Medical Board the cause of death was concussion of brain produced by blunt force to the head. All injuries were opined to be ante-mortem in nature and produced by blunt force to the head and the postmortem findings are consistent with beating/ assault before death. However, the opinion of the Medical Board shows that different injuries of different durations point towards repeated physical trauma to the deceased before death. I may observe that the postmortem of the deceased took place after four days of her death i.e. 7.3.2007. In this regard for the sake of convenience, on the basis of duration of the injuries as per the opinion of the Medical Board, the injuries are being put in a tabulated form:-
Sr. Duration Sr. No. Description and nature of injuries as mentioned No. of the of in the postmortem report injuries injuries as per PM report
1. Two to (2) Reddish brown Contusion measuring 3cm x 1.5 three cm over outer surface of right upper eye lid and days measuring 2 cm x 1.1 cm over outer surface of right lower eye lid with associated swelling.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 84
(3) Reddish brown Contusion 3.3 cm x 1.4 cm over outer surface of left upper eye lid measuring 3.1 cm x 1.2 cm over outer surface of left lower eye lid with associated swelling.
(6) Lacerated wound of size 2.4 cm x 0.4 cm x subcutaneous deep gaping of the wound present with margins are contused present over lower eye lid of left eye, horizontally placed.
(7) Lacerated wound of size 2.3 cm x 0.3 cm x scalp deep with gaping and margins are contused present over right forehead, 0.2 cm above to lateral margin of right eye brow.
(10) Lacerated wound of size 2.3 cm x 0.6 cm x muscle deep present over left upper lip extending upto left ala of nose with gaping and margins are contused.
(11) Lacerated wound of size 1 cm x 0.6 cm x muscle deep present over middle of upper lip with associated tear of upper fernulum of size 2 cm x 0.8 cm x 05 cm with gaping and margins are contused.
(12) Lacerated wound of size 1 cm x 0.2 cm present over midline just below the lower lip with gaping and margins are contused.
(13) Scabbed Abrasion covered with soft scabs of size 0.9 cm x 0.2 cm present over chin on mid line.
(14) Superficial Lacerated wound of size 1.8 cm x 0.9 cm x 0.5 cm present over right ramus of mandible near mid line with gaping and margins are contused.
(21) Scab Abrasion covered with soft scabs of size 1 cm x 0.8 cm present over dorsal aspect surface of proximal joint of phalanx of ring finger of left hand.
(23) Reddish brown Bruise of size 8 cm x 6 cm
present over the back of left shoulder.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 85
(24) Reddish brown Bruise of size 10 cm x 7 cm over
the tip and back of right shoulder.
(31) Scab Abrasion covering with soft scab of size 1
cm x 0.2 cm over sternum, 5 cm below sternal
notch.
(32) Scab Abrasion covering with soft scab of size 1
cm x 0.5 cm over sternum, 5 cm below injury no.
31.
(33) Reddish brown Bruise of size 0.8 cm x 0.6 cm
present over lower outer quadrant of left breast. (34) Scab Abrasion covering with soft scab four in number in combine form mirror image of 'C' just outer to injury No. 33 varying in size from 0.8 cm x 0.1 cm to 0.4 cm x 0.1 cm over lower outer quadrant of left breast.
(37) Scabbed Abrasion covering with soft scab of size 0.8 cm x 0.3 cm present just below right rib cage, 3.5 cm below injury no. 36, 6 cm to midline.
(38) Scabbed Abrasion covering with soft scab of size 0.9 cm x 0.3 cm present just below left rib cage, 11 cm above and lateral to umbillicus.
(39) Scabbed Abrasion (linear) covering with soft scab of size 6 cm x 0.2 cm present over middle of lower abdomen, 5 cm below umbillicus.
(40) Scabbed Abrasion covering with soft scab of size 2.2 cm x1.2 cm present over lateral aspect of left iliac crest.
(41) Scabbed Abrasion covering with soft scab (linear) of size 1.2 cm x 0.2 cm present over lateral aspect of right upper thigh, 4 cm below to iliac crest.
(43) Scabbed Abrasion covering with soft abrasion of size 3 cm x 2 cm present over heel of sole of right foot.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 862. Three to (1) Partially healed Lacerated wound of size 1.8 cm Four x 0.3 cm x scalp deep, obliquely placed over right days parital area of skull surrounded by bluish black contusion above top of right ear pinna. Edges of the wound were found loosely adherent to each other at places.
(4) Scabbed Linear Abrasion covered with hard scab of size 2 cm x 0.2 cm obliquely placed over left forehead, lower end of the injury was just above lateral margin of left eye brow.
(5) Scabbed Abrasion covered with hard scab of size 0.8 cm x 0.5 cm present just lateral to left eye.
(15) Multiple Linear Scabbed Abrasion covered with hard scabbed present in cris cross manner in an area of 4 cm x 2 cm over right side of the neck.
(16) Multiple linear scabbed Abrasion covered hard scabbed present in cris cross fashion in area of 6 cm x 2 cm over left side of the neck.
(20) Bluish black Bruise of size 0.8 cm x 0.4 cm with swelling present over the palmer aspect of distal phalanx of little finger of left hand.
(22) Lacerated wound of size 0.8 cm x 0.2 cm x 0.5 cm with gaping present over inter phalangeal web space between index and middle finger of left hand.
(27) Bluish black Bruise of size 8 cm x 6 cm present over lower middle of back near sacral area.
(36) Bluish black Bruise of size 4 cm x 1 cm present over right lower chest 9 cm below right nipple and 7 cm to mid line.
(42) Bluish black Bruise with swelling of size 1 cm x 0.8 cm present over left sole near heel.
3. Seven to (8) Healed Abrasion with scab separated of size 2 Ten days cm x 0.3 cm present over right ala of nose.
(9) Healed Abrasion with scab separated of size 1cm x 0.2 cm present over tip of nose.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 87(17) Scab separating Abrasion of size 0.8 cm x 0.2 cm present over middle of the outer aspect of right arm.
(18) Scabs separating Abrasion of size 4.5 cm x 1.8 cm present over lower outer aspect of right arm.
(19) Two scab separating Abrasion of size 1.5 cm x 1 cm and 2.5 cm x 1 cm present over ventral aspect of left upper forearm.
(35) Completely healed Linear Abrasion with overlying pigmented two in number of size 1 cm x 0.1 cm to 0.7 cm to 0.1 cm present over upper inner quadrant of left breast.
4. Two to (25) Completely healed multiple Abrasion with Three overlying pigmented patches present in an area of weeks 20 cm x 10 cm over left side of back varying in size from 1 cm x 1 cm to 0.5 cm x 0.3 cm in size.
(26) Completely healed multiple Abrasion with overlying pigmented patches present in an area of 20 cm x 8 cm over right side of back varying in size from 1 cm x 0.9 cm to 0.4 cm x 0.3 cm in size.
(28) Completely healed Linear Abrasion with overlying pigmented patches present in an area of 4 cm x 0.2 cm obliquely placed over dorsal aspect of right lower firearm, 10 cm above right wrist joint.
(29) Completely healed Linear Abrasion with overlying pigmented patches present in an area of 2 cm x 0.2 cm obliquely placed over dorsal aspect of right lower forearm, 4 cm below injury no. 28.
(30) Completely healed linear abrasion with overlying pigmented patches present in an area of 2.5 cm x 0.1 cm present over dorsal aspect of right wrist joint.
I may observe that four types of injuries were found on the body of the deceased in the Postmortem report i.e. (1) Lacerated wounds; (2) Abrasions; (3) Bruises and (4) Scabs. In St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 88 so far as the scab injuries are concerned, it has been vehemently argued by the Ld. counsel appearing on behalf of the accused that these have been caused on account of Chickenpox and in this regard he has examined Dr. Devender Gupta (DW2). I have gone through his testimony and also the material placed before me by Dr. Devender Gupta. I may mention that Chickenpox is a highly contagious ailment caused by primary infection with Varicella Zoster Virus (VZV). It usually starts with vesicular skin rash mainly on the body and head rather than at the periphery and becomes itchy, raw pockmarks, which mostly heal without scarring. A person with chickenpox is infectious from one to five days before the rash appears and the contagious period continues for four to five days after the appearance of the rash, or until all lesions have crusted over. Chickenpox is often heralded by symptoms including myalgia, nausea, fever, headache, sore throat, pain in both ears, complaints of pressure in head or swollen face, and malaise in adolescents and adults wherein in children, the first symptom is usually the development of a papular rash, followed by development of malaise, fever (a body temperature of 38°C (100°F), but may be as high as 42°C (108°F) in rare cases), and anorexia. The rash caused by varicella zoster virus may, however, last for up to one month, although the infectious stage does not take longer than a week or two. Staying in a cold surrounding can help in easing the itching as heat and sweat makes it worse.
A Chickenpox rash can be distinguished from the scab caused on account of the physical injury on account of its size and St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 89 distribution all over the body. For any rash or abrasion due to Chickenpox or due to physical injury, three stages would occur i.e. Macule, Papule and Pustule. A Macule is a change in surface color, without elevation or depression and, therefore, nonpalpable, well or ill-defined, variously sized, but generally considered less than either 5 or 10mm in diameter at the widest point. A patch is a large macule equal to or greater than either 5 or 10mm, depending on one's definition of a macule. Patches may have some subtle surface change, such as a fine scale or wrinkling, but although the consistency of the surface is changed, the lesion itself is not palpable. A Papule is a circumscribed, solid elevation of skin with no visible fluid, varying in size from a pinhead to either less than 5 or 10mm in diameter at the widest point. A Pustule is a small elevation of the skin containing cloudy or purulent material usually consisting of necrotic inflammatory cells which can be either white or red.
Now coming to the nature of injuries found on the body of the deceased. A Lacerated Wound is an irregular tear like wound caused by blunt object/ impact on the soft tissues in which the skin is separated by the sharp object such as knife, razor or edge of a piece of paper. Laceration from blunt impacts may show bridging as connective tissues or blood vessels are flattened against the underlying hard surface. In Pathology it specifically refers to a sharp injury which damages the dermis of the skin. Laceration may appear linear, regular or stellate (irregular) and certainly cannot be caused by any viral infection on the skin St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 90 including Chickenpox. Abrasion (grazes) is a superficial wound in which the topmost layer of the skin i.e. epidermis is scrapped off. Abrasions are not caused by Chickenpox but can only be caused by sliding or fall on a rough surface. Abrasions present over the body of the deceased suggest that even prior to the date of the incident she had been subjected to trauma. A bruise or contusion is a traumatic injury of the soft tissue or bone (part of the body) without breaking the skin as by a blow. The injury to the underling tissue in which the skin is not broken but is often characterized by rupture of blood vessels and discolouration.
The Ld. Defence Counsel has tried his best to convince this court that the scab injuries present all over the body of the deceased were the pustular stage of Chickenpox and the bruises and the lacerated injuries received were old injuries caused to the deceased when she had a quarrel with some of the maid servants when she had taken the child of the accused out in the park a couple of days before the incident. I am, however, not convinced by argument put forward by the Ld. Defence Counsel. The nature of injuries which are as many as forty three and spread all over the body of the deceased speak for themselves. It is evident from the photographs of the deceased placed on record that the lacerated wounds on the face and the upper thoracic region have been caused due to impact of the bucket which impact was so great that the impression of the circumference of the bucket is visible on the face and the upper region of the bucket. How can both the injuries i.e. blunt force impact on the head (i.e. fatal injury) and the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 91 injuries showing impression of the circumference of the bucket be caused simultaneously. The only manner in which it could have happened is when the deceased fell on her face and hit the bucket when she was given a blunt force impact i.e. Thapi blow on her head resulting into concussion of brain. This fact also stands established from the bruises present on the neck and back of the deceased which could only have been caused by a Thapi/ washing stick and as per the opinion of the Medical Board the said injury is compatible with the said weapon of offence i.e. Thapi. All other injuries within the duration of two to three days are all lacerated injuries and are not only present on the face and front portion of the body but also on the lower abdomen, breast, fingers, left hand/ fingers, heal and sole of the right foot which superficial lacerated wounds and abrasions could not have been caused either on account of Chickenpox or the quarrel which took place four to five days before the incident. In fact the Postmortem examination which was conducted after four days of the death of the deceased, shows that the injuries opined to be of two to three days duration could only have been caused on the day of the incident. Further, bruises were found on the back of the deceased which are as big as 6 cm x 8 cm and 10 cm x 7 cm which could only have been caused on account of beatings caused by a blunt object and it has been duly opined by the doctor and also evident from the size of the injuries that they could have been caused by the wooden stick/ thapi got recovered by the accused Ashu Malhotra. I may mention that the injuries which have been opined to be three to four days St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 92 old also show similar kind of bruises measuring about 8 cm x 6 cm; 4cm x 1 cm and 9 cm x 7 cm present on the back and chest region of the deceased. Again, I may observe that these bruises could only have been caused on account of blunt impact injuries on the soft tissues and is compatible to the weapon of offence got recovered by the accused i.e. wooden stick/ thapi. Further, the various healed abrasions present which are seven to ten days and two to three weeks old are of varying sizes and concentrated on specific areas i.e. on the nose, exposed portion of the arms and back and could have been caused due to damage to the epidermis tissues on account of rubbing with a hard surface. This in my view could not be caused by Chickenpox keeping in view the fact the size of the scabs and the area where they are present. Hence, I hereby hold that the medical evidence placed on record supports the conclusion of the Medical Board that the cause of death was concussion of brain produced by blunt force to the head; all injuries were ante-mortem in nature and produced by blunt force to the head and the postmortem findings are consistent with beating/ assault before death and there is no ground to disbelieve and discard the above findings of the Medical Board.
Furnishing incorrect information for purposes of screening the offender and destruction of evidence:
Destruction of evidence is a crime against State. The provisions of Section 201 Indian Penal Code provides for punishment for causing disappearance or giving false information St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 93 in order to screen the offender from legal punishment and the provisions of Section 203 Indian Penal Code provides punishment for giving false information in respect of the offence committed. In the present case the allegations against both the accused are of furnishing incorrect information with regard to the events leading to the death of the deceased. In so far as accused Ashu Malhotra is concerned, the allegations against her are of destruction of evidence i.e. with regard to changing of the shirt/ jumper of the deceased prior to sending her to the hospital and of not providing her proper medical treatment from Medical Practitioner prior to her death at the time when she received injuries, only with a view to screen herself from legal punishment. So far as the accused Rajesh Malhotra is concerned, he is the husband of accused Ashu Malhotra and the allegations against him are of furnishing incorrect information to the officials of the placement agency with regard to the events leading to the death of the deceased by claiming that she had received injuries on account of fall.
It is writ large from the reports of the Medical Board which are Ex.PW7/A and Ex.PW7/B that as many as forty three injuries of different durations were found on the body of the deceased. I may observe that the deceased Sunita Bhengra aged about 17 - 18 years was a full time domestic worker employed at the residence of the accused and was totally under the care, control ad supervision of the accused Ashu Malhotra and as already discussed herein above, it is the accused Ashu Malhotra and Rajesh Malhotra who could have furnished an explanation St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 94 leading to the injuries observed on the body of the deceased which explanation is not forthcoming. I may also observe that the accused have a legal right to remain silent and cannot be compelled to make a statement against themselves. This being the circumstances, I hold that failure of furnishing complete information to the investigating officer will not per-se constitute an offence. Further, it is evident that the accused Ashu Malhotra being a lady of the house who was having control of household chores, is the best person who could have given an explanation with regard to the various injuries and the knowledge of Rajesh Malhotra would have been naturally acquired from his wife Ashu Malhotra and obviously he made a statement to the doctor on account of the same. Further, it stands established from the record that that deceased had received certain injuries on account of fall on bucket. Whether this fall was accidental i.e. of her own and was on account of the fact that she was hit or pushed by the accused is a different issue but under no circumstances, can it be said that the accused Rajesh Malhotra had furnished incorrect information to the doctors to this extent. Also, there is nothing on record to show that Ashu Malhotra had caused destruction of evidence rather the record reveals that it was the accused Ashu Malhotra who pursuant to her disclosure got recovered the thapi, bucket and the lady's shirt which she handed over to the investigating officer. No doubt the information given by the accused was twisted to some extent but the aspect that both the accused had furnished wrong information in order to screen St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 95 themselves from legal punishment does not stand substantiated and established and hence, the benefit of doubt is being given to both the accused and I hereby hold that the prosecution has failed to prove and substantiate the allegations against both the accused under Section 201 and Section 203 Indian Penal Code.
Forensic Evidence:
The FSL report Ex.PW25/D has been duly proved by Inspector Nafe Singh (PW25) and there is a presumption of the correctness of the same. Perusal of the FSL report shows that blood has been detected belonging to the same group as that of the deceased on the clothes of the deceased when she was taken to the hospital, i.e. lady's shirt, salwar, Thapi, purple colour T- shirt/lady's shirt got recovered by the accused which the deceased was wearing at the time of the incident. The aspect of sexual assault has been ruled out as the MLC of the deceased shows that the hymen was intact and as per the FSL report semen could not be detected on the clothes worn by the deceased.
Motive/ intention:
The motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 96 submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
In the present case, no motive or intention has been attributed to the accused by the prosecution though it has been vehemently argued by the Ld. Public Prosecutor that the nature of injuries present on the body, shows the intention of the accused. I have considered his submissions and also the opinion given by the Medical Board and I may observe that the intention of the accused does not stand reflected. No injury singly has been opined to be sufficient to cause death in ordinary course of nature and the death of the deceased was a cumulative effect of the various injuries. The only motive borne out from the record is that the accused Ashu Malhotra was annoyed with the deceased as she was having St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 97 food after stealing the same from kitchen. This is my view cannot be a motive for causing death of the deceased and at the most the intention or motive was to teach her a lesson in order to stop the deceased from committing such activities.
Whether under Section 302 IPC or Section 304 IPC:
Ld. counsel appearing on behalf of the accused has vehemently argued that the case of the prosecution is based upon circumstantial evidence and the only circumstance against the accused are that the deceased was working as Maid Servant in their house and was taken to Hospital by the accused person for the purpose of treatment where she ultimately died. It is argued that there are cervices loop holes, contradictions in the evidence of the prosecution which is not worthy of reliance. The Ld. Defence Counsel has vehemently argued that for the sake of argument even if the entire material of the prosecution is taken as correct, the case of the accused would at-least covered under Section 304 IPC and not under Section 302 IPC. He has placed his reliance on the following authorities:
1. Bunnilal Chaudhary Vs. State of Bihar reported in 2006 (3) JCC 1300.
2. Kavinder & Ors. Vs. State (NCT of Delhi) reported in 2005 (1) JCC 53.
3. Vikramjit Singh @ Vicky Vs. State of Punjab reported in 2007 (1) Crimes 181 (SC).St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 98
4. Budhan Singh & Ors. Vs. State of Bihar reported in 2006 (2) JCC 911.
5. Vokhyamamin Alexander Vs. State of NCT of Delhi reported in 2004 (2) JCC 1130.
6. State Though CBI Vs. Gurpal Singh reported in 2006 (1) JCC 318.
7. Shri Gopal and Anr. Vs. Subhash & Ors. reported in 2004 Cri.L.J. 3349.
8. State of U.P. Vs. Virendra Prasad reported in 2004 (1) JCC 370.
9. State of Andhra Pradesh Vs. Naragudem Papireddy & Ors. reported in AIR 2004 SC 2787.
10. Abdul Wahid Vs. State of Rajasthan reported in AIR 2004 SC 3211.
11. Sashi Jena Vs. Khadal Swain reported in AIR 2004 SC 1492.
12. Kopulla Venkat Rao Vs. State of Andhra Pradesh reported in AIR 2004 SC 1874.
13. State of Karnataka Vs. Madesha & Ors. reported in 2007 (3) JCC 2351.
Ld. counsel appearing on behalf of the accused has also argued that the accused have been falsely implicated by the officials of the placement agency and the NGO who had got involved in the present case only to extort money from the accused despite the fact that they had no concern with the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 99 employment of the deceased with the accused. It is argued that the only attempt is to commit extortion upon the accused by leveling false allegations against them and therefore, the statements of these witnesses from the placement agency and the NGO are required to be read with due care and caution.
I have considered the submissions made before me. In this regard, I may observe that poverty is a major issue in our country where lacs of women and young girls from Jharkhand, Chattisgarh, West Bengal, Orissa, Assam etc. have migrated to cities and are working as domestic workers and are being subjected to exploitative work conditions and abuse in the form of confinement, withholding of pay and also physical abuse of various kinds. Thousands of complaints of exploitation and abuse are being received every year and most of them involve unpaid wages, food deprivation and long working hours with modest, verbal, physical and sexual abuse. Many cases are never officially reported, due to the domestic workers confinement in private homes, lack of information about their rights and ability of the employer to deport/ relieve them before they can actually seek help.
Abuse of domestic workers is an issue of grave concern world over. As per the Human Right Watch, many migrant and domestic workers still face abuse and exploitation in Middle Eastern and Asian countries on account of the failure of the Government to respond suitably by taking reform initiatives i.e. compulsory standard employment contracts and also by St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 100 creating effective mechanism for inspection of workplace of migrant domestic workers and to formulate policies and adopt measures needed to protect them. In many instances there are also counter cases of employers threatening, humiliating, beating, raping and sometimes causing death of domestic workers (as has happened in the present case).
In the present case, Sunita Bhengra the deceased was subjected to physical torture and abuse of the worse kind. Forty three injuries observed on her body during the postmortem, speak volumes of the repeated physical torture and trauma the teenager must have suffered before her death which was caused on account of blunt force impact and on the head resulting into concussion of brain. The apprehensions expressed by the Ld. Defence counsel may not be all that unfounded but yet in a country like ours where the Government is yet to take steps for formulation of policies and schemes by providing compulsory standard employment contracts; by creating effective mechanism for inspection of workplace; by providing training of domestic workers and creating awareness the NGOs play a very important and vital role in checking this abuse and for taking the violators to task. This court is required to acknowledge the role of NGOs securing and protecting the rights of the domestic workers. Of course the aspect of extortion cannot be over looked but at the same time there also exists simultaneous risk of these witnesses (from NGOs) being won over by the employers who in most of the cases are influential persons. The argument that the statement of the St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 101 witnesses from the placement agency and the NGOs should not be taken into consideration is unacceptable and there is no reason to disbelieve the witnesses from the placement agency and the NGOs once there is sufficient corroboration coming from other sources.
I have also considered the relevant case law placed before me. In this regard, I may observe that as per the opinion of the Medical Board the death was a cumulative effect of the various injuries and there was no singular injury which is opined to be sufficient in ordinary course of nature to cause death. The knowledge which can be attributed to the accused is writ large. The accused Ashu Malhotra is an educated woman who is a teacher in a school and the deceased Sunita Bhengra a young girl of 17 - 18 years (migrant worker) who was working as a full time maid servant at her house. The deceased has as many as forty three injuries on her body and as per the opinion of the Medical Board the cause of death was Concussion of brain produced by blunt force to the head. All injuries were antemortem in nature and produced by blunt force. Postmortem findings are consistent with beating/assault before death. Presence of different durations of injuries point towards repeated physical trauma to deceased before death so much so some of these injuries were on the vital organs i.e. face, forehead, temporal region etc. For the accused to be held guilty under Section 302 Indian Penal Code the circumstances must be consistent enough with the guilt of the accused to that extent. In the present case, the conduct of the accused Ashu Malhotra to the extent that she St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 102 immediately informed the placement agency regarding condition of Sunita Bhengra (deceased) so much so the accused Rajesh Malhotra took her to Mata Kamli Bai Hospital, shows the absence of intention.
It is evident from the record that the death in the present case was caused on account of concussion of brain due to blunt force impact on the head. The nature of injuries shows blunt force impact which was caused by a Thapi and it is evident that only one Thapi blow had been given and therefore, certainly it cannot be said that there was any intention to cause death or to cause such bodily injury as is likely to cause death. The accused had no intention to cause death but had the knowledge that the injury was likely to cause death. I may observe that only one blow had been given on the head (vital organ) and therefore, the intention to cause death cannot be imputed to the accused but it would be reasonable to infer that she had knowledge that any injury on the vital part of the body of the deceased would cause death and therefore, she can be held guilty of the offence under Section 304 (Part-II) Indian Penal Code. (Ref.: M.T. Nambiar Vs. State of Kerala reported in AIR 1997 SC 687). Therefore, the case of the accused Ashu Malhotra squarely falls within the third part of Section 299 Indian Penal Code and punishable under the second part of Section 304 Indian Penal Code as culpable homicide not amounting to murder.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 103FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 104
Applying the settled principles of law to the facts of the present case, it is evident that the identity of both the accused stands established. It also stand established that the deceased Sunita Bhengra was employed as full time domestic worker at the residence of the accused Ashu Malhotra and Rajesh Malhotra through Ashiyana Placement Center. It stands established that on the intervening night of 2nd and 3rd March 2007 the accused telephoned to the officials of the placement agency and informed them about the critical condition of Sunita after which she was taken first Mata Kamli Bai Hospital and thereafter to DDU Hospital where she was declared dead. It also stands established that pursuant to her arrest the accused Ashu Malhotra got recovered the wooden thapi, the bucket and the jumper which the deceased was wearing at the time of incident. The Medical Board was duly constituted who conducted the postmortem examination on the dead body of the deceased Sunita and there were as many as Forty Three injuries present on the body of the deceased. It stands established that the cause of death was concussion of brain produced by blunt force to the head. It also stands proved that this blunt force impact was caused by a Thapi. Further, it stands established that only one thapi blow had been given. The presence of different injuries of different durations present on the body of the deceased speak volumes of repeated physical torture and trauma that the deceased must have faced in the weeks preceeding her death.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 105The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
However, it is evident from the record that the accused had no intention to cause death but had the knowledge that the injury was likely to cause death. I may observe that only one blow had been given on the head (vital organ) and therefore, the intention to cause death cannot be imputed to the accused but it would be reasonable to infer that she had knowledge that any injury on the vital part of the body of the deceased would cause death and therefore, she is held guilty of the offence under Section 304 (Part-II) Indian Penal Code. (Ref.: M.T. Nambiar Vs. State of Kerala reported in AIR 1997 SC 687). Therefore, the case of the accused Ashu Malhotra squarely falls within the third part of Section 299 Indian Penal Code and punishable under the second part of Section 304 Indian Penal Code as culpable St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 106 homicide not amounting to murder.
In view of my aforesaid discussion, I hereby hold the accused Ashu Malhotra guilty of the offence under Section 304 (Part-2) Indian Penal Code (not under Section 302 Indian Penal Code) for which she is accordingly convicted. The accused Ashu Malhotra is, however, acquitted of the charge under Section 201 Indian Penal Code. In so far as the accused Rajesh Malhotra is concerned, he is hereby acquitted of the charges under Section 201 read with Section 34 Indian Penal Code and Section 203 Indian Penal Code.
Case be listed for arguments on the point of sentence on 28.4.2011 qua the convict Ashu Malhotra who is directed to be taken into custody.
Announced in the open court (Dr. KAMINI LAU)
Dated: 23.4.2011 ASJ-II(NW)/ ROHINI
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 107
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Sessions Case No. 808/2007 Unique Case ID No.: 02404R0317842007 State Vs. (1) Smt. Ashu Malhotra W/o Sh. Rajesh Malhotra R/o J-8/128, Rajouri Garden, New Delhi.
(Convicted) (2) Rajesh Malhotra S/o R.S.D. Malhotra R/o J-8/128, Rajouri Garden, New Delhi.
(Acquitted)
FIR No.: 163/2007
Police Station: Rajouri Garden
Under Section: 302/201 Indian Penal Code
Date of Judgment: 23.4.2011
Arguments heard on: 28.4.2011/4.5.2011
Date of Conviction: 10.5.2011
APPEARANCE:
Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for
the State.
Convict Ashu Malhotra in judicial custody.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 108
ORDER ON SENTENCE:
Vide my detailed judgment dated 23.4.2011 this court has held the accused Ashu Malhotra guilty of the offence under Section 304 (Part-2) Indian Penal Code (not under Section 302 Indian Penal Code) for which she has been accordingly convicted. However, she has been acquitted of the charge under Section 201 Indian Penal Code. Further, the accused Rajesh Malhotra has also been acquitted of the charges under Section 201 read with Section 34 Indian Penal Code and Section 203 Indian Penal Code.
The deceased Sunita Bhengra (aged 17 - 18 years) a migrant worker was under the employment of the accused Ashu Malhotra at her residence bearing no. J-8/128, Rajouri Garden, New Delhi as a full time domestic worker through the Ashyiana Placement Agency about three to four months prior to the incident (i.e. 3.3.2007). During the intervening night of 2/3.3.2007 at about 3:00 - 3:15 am the office bearers of the placement agency received a telephonic call from the accused Rajesh Malhotra who informed them that the condition of Sunita was critical. Thereafter the office bearers of the placement agency reached the house of the accused where they found that Sunita was still breathing after which they along with the accused Rajesh Malhotra took Sunita to Mata Kamli Bai Hospital where she was declared brought dead. Thereafter the postmortem on the dead body of the deceased was got conducted by the Medical Board after about four days and as per the report of the Medical Board there were 43 injures on the body of the deceased. The cause of St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 109 death was opined to be concussion of brain produced by blunt force to the head and the presence of different injuries of different durations pointed towards repeated physical trauma to the deceased before death.
As per the allegations, on 28.2.2007 it was the accused Ashu Malhotra caused numerous injuries on the person of Sunita Bhengra by using a washing stick (Thapi) with the knowledge and intention that those injuries were sufficient to cause death in the ordinary course of nature as a result of which injuries Sunita Bhengra expired on the intervening night of 2nd and 3rd March 2007. It was also alleged that for the period 28.2.2007 to intervening of 2nd and 3rd March 2007 the accused Ashu Malhotra did not provide any medical help to Sunita (deceased) and tried to conceal the injuries caused by her to screen herself from legal punishment.
In so far as the accused Rajesh Malhotra is concerned, it was alleged that during the period 28.2.2007 to intervening night of 2nd and 3rd March 2007 he along with his co-accused (Ashu Malhotra) in furtherance of their common intention did not provide any medical help to Sunita (deceased) and tried to conceal injuries caused by Ashu Malhotra to screen her from legal punishment and on on 3.3.2007 he had given false information to the doctor at Kamli Bai Hospital regarding the manner of receiving injuries by the deceased which he knew or believed to be false.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 110On the basis of the testimonies of the various witnesses examined by the prosecution and the medical evidence on record this court has held the accused Ashu Malhotra guilty of the offence under Section 304 (Part-2) Indian Penal Code (not under Section 302 Indian Penal Code) for which she has been accordingly convicted. She has, however, been acquitted of the charge under Section 201 Indian Penal Code. Further, the accused Rajesh Malhotra has also been acquitted of the charges under Section 201 read with Section 34 Indian Penal Code and Section 203 Indian Penal Code.
I have heard the arguments on the point of sentence. The convict Ashu Malhotra is aged about 42 years having a family comprising of husband, two daughters and one son (who are studying). She is a TGT teacher by profession and is highly qualified having an M. Phil. degree. The Ld. counsel appearing o behalf of the convict has vehemently argued that the convict has no criminal record and is a first time offender. He has submitted that the husband of the convict is an Accountant by profession but he is not regularly employed and hence, the entire family depends upon the convict. He has further submitted that the convict has already remained in Judicial custody for about one year and five months. He requests that a lenient view be taken against the convict.
The Ld. Addl. PP for the State on the other hand has prayed for a strict punishment against the convict keeping in view the nature of crime and the allegations involved.
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 111I have considered the rival contentions. I may observe that poverty is a major issue in our country where lacs of women and young girls from Jharkhand, Chattisgarh, West Bengal, Orissa, Assam etc. have migrated to cities and are working as domestic workers and are being subjected to exploitative work conditions and abuse in the form of confinement, withholding of pay and also physical abuse of various kinds. Thousands of complaints of exploitation and abuse are being received every year and most of them involve unpaid wages, food deprivation and long working hours with modest, verbal, physical and sexual abuse. Many cases are never officially reported, due to the domestic workers confinement in private homes, lack of information about their rights and ability of the employer to deport/ relieve them before they can actually seek help. Law Enforcement Agencies in many countries have taken a very strict view and have begun to prosecute and punish the abusive employers. In the year 2008, in Singapore, several employers have been convicted of beating domestic workers, receiving sentences ranging from three weeks to sixteen years imprisonment.
Abuse of domestic workers is an issue of grave concern world over. As per the Human Right Watch, many migrant and domestic workers still face abuse and exploitation in Middle Eastern and Asian countries on account of the failure of the Government to respond suitably by taking reform initiatives i.e. compulsory standard employment contracts and also by St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 112 creating effective mechanism for inspection of workplace of migrant domestic workers and to formulate policies and adopt measures needed to protect them. In many instances there are also counter cases of employers threatening, humiliating, beating, raping and sometimes causing death of domestic workers (as has happened in the present case). Abusive and exploitative employers need to be severely dealt with and punished through the Justice System.
This is a case where Sunita Bhengra, a young domestic worker from Jharkhand aged about 17 - 18 years, has been subjected to a worse kind of physical abuse. Forty three injuries observed on her body during the postmortem, speak volumes of the repeated physical trauma and sufferings the teenager must have faced before her death which was caused on account of blunt force impact and on the head resulting into concussion of brain. The aggravating factor in the present case is the brutality with which the offence has been committed coupled with the deprivation of the deceased from proper medical treatment which is also an issue of serious Rights violation. The mitigating factors are that the convict Ashu Malhotra, a teacher by profession, is a first time offender and had no intention to cause the death of Sunita Bhengra. She has three minor school going children and any strict view so taken would adversely affect the entire family. After having considered the submissions made before me and the balance sheet of the aggravating and mitigating circumstances, I hereby award the following sentence to the convict Ashu St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 113 Malhotra:
The convict Ashu Malhotra is sentenced to Rigorous Imprisonment for a period of Six Years and fine to the tune of Rs.1,00,000/- (Rs. One lac) for the offence under Section 304 (Part-2) Indian Penal Code. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of six months. The entire fine amount of Rs. One lac if recovered shall be paid to the family of the deceased Sunita Bhengra as compensation under Section 357 Code of Criminal Procedure.
Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by her during the trial, as per rules.
The convict is informed that she has a right to prefer an appeal against this judgment. She has been apprised that in case she cannot afford to engage an advocate, she can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost and another be attached with her jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 10.5.2011 ASJ (NW)-II: Rohini
St. Vs. Ashu Malhotra, FIR No. 163/07, PS Rajouri Garden Page No. 114