Delhi District Court
State vs 1) Vandna Dhir on 27 February, 2018
IN THE COURT OF SH. SIDHARTH SHARMA, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CNR No. DLND01-000559-2013
Sessions Case No. 401/2013
State Versus 1) Vandna Dhir
D/o Sh. P.C. Dhir,
R/o Flat No. 1178, Sector-A,
Pocket B&C, Vasant Kunj, New Delhi
Presently residing at:-
C/o Mrs. Rama Dhingra, H.No. 71,
Sector-16, Panchkula, Haryana.
2) Dorothi
W/o Sh. Lakhiram Lohra,
R/o H.No. H-67, 2nd Floor, Subhash Market,
Bapu Park, Kotla Mubarakpur, New Delhi.
Permanent address:-
Village Harinkol, Bata Road,
Post and PS Taljhari, District Sahab Ganj,
Jharkhand.
FIR No. : 401/2013
U/s: 323/324/326/342/307/370/120B IPC
& Section 16 Bonded Labour Act
PS: Vasant Kunj (North)
State vs. Vandna Dhir & Anr.
FIR No. 401/2013 1/16
PS : Vasant Kunj (N)
Date of institution of the case : 19.12.2013
Date when the case reserved for judgment : 26.02.2018
Date of announcement of judgment : 27.02.2018
JUDGMENT
1. Brief facts of the case are that the present case was registered when on 30.09.2013 police was informed about the victim being kept captive at the residence of accused no. 1 Vandna Dhir at Vasant Kunj New Delhi. The police together with representatives of a NGO Shakti Vahini, conducted a raid at the premises of accused no. 1 Vandna Dhir and found the victim in extremely pitiable condition with wounds and bruises all over her head and body. There were also report of live maggots and the foul smell. The victim was taken for MLC to Safderjung Hospital, where she was duly examined. Thereafter, the patient was also administered plastic surgery for her head injury. On 30.09.2013, the present FIR was lodged and accused Vandna Dhir was arrested by the police. Later on during investigation the IO came to know that the victim was working as a maid and her services were hired from a placement agency of accused no. 2 Dorothi. During investigation, it came to the knowledge that the victim was brought from her native place in Jharkhand by accused no. 2 Dorothi.
2. After completing the investigation, the IO filed the challan under section 323 / 324 / 326 / 342 / 370 /307 /120B IPC read with section 16 Bonded Labour Act and section 23 / 26 Juvenile Justice Care and Protection of Children Act, 2000. The case was committed to the Court of sessions and Ld. ASJ framed charges under section 307 IPC against State vs. Vandna Dhir & Anr.
FIR No. 401/2013 2/16PS : Vasant Kunj (N) accused no. 1 Vandna Dhir and Section 16 of Bonded Labour Act against accused no. 2 Dorothi. The said order was challenged before the Hon'ble High Court of Delhi by the complainant wherein the Hon'ble High Court of Delhi upheld the order passed by the Ld. ASJ subject to the modification that section 342 IPC was also committed on the basis of statement of the complainant.
3. In order to prove its case, the prosecution examined 24 witnesses. PW 1 HC Naresh Kumar is the duty officer. PW 2 Ms. Jasjeet Kaur is the Ld. MM, who recorded the statement under section 164 Cr. P.C. PW 3 W/Ct. Neeta is a formal witness, who produced accused Vandna Dhir before the Ld. MM and after obtaining the police custody she went with the IO to the house of the accused Vandna Dhir. She also is the witness to the seizure memo. PW 4 is W/Ct. Rakhi, who joined the investigation with the IO and went to the place of accused no. 2 Dorothi who was arrested in her presence. PW 5 Ms. Fullin Murmu is the victim in the present case. PW 6 is retired ACP Ramesh Chander, who is part IO of the case, who filed the challan and got the statement of the victim recorded before the SDM as well as Ld. MM. He also recorded the statement of mother of the victim and statement of Dr. Rakesh, who was the first doctor to examine the victim. PW 7 is lady Ct. Mamta, who joined the investigation along with the IO and reached the flat and got the victim released. She is also formal witness of seizure memo. PW 8 lady Ct. Laxmi in whose presence accused no. 2 Dorothi was arrested. PW 9 Ct. Sovinder, also joined the investigation and went to the house of accused Vandna Dhir. PW 10 Ct. Kavita Yadav, who joined the investigation and State vs. Vandna Dhir & Anr.
FIR No. 401/2013 3/16PS : Vasant Kunj (N) kept the watch on the house of accused Vandna Dhir and is also witness to her arrest. PW 11 Ct. Balbir went to the house of accused Vandna Dhir along with the IO. He is a formal witness, took the rukka and got the FIR registered. He also reached the hospital to record the statement of witnesses. PW 12 is Bhagwati Prasad, who had received the information from DCW regarding the victim being confined in the house of accused no. 1 Vandna Dhir. He went to PS Vasant Kunj and along with police reached the house of the accused and got the victim released. PW 13 W/SI Poonam went to the house of the accused and got the victim released. She also disclosed that victim was having various injury marks on her body and one big injury on her head. PW 14 Ms. Pallavi Ghosh was the Intervention Officer in the NGO Shakti Vahini, who was part of the team that rescued the victim. PW 15 Dr. Rakesh Sood is a private doctor in the vicinity of the house of the accused who examined the victim for the first time when she was taken to him by accused no. 1 Vandna Dhir. The said doctor examined the victim again after about two months on 26.09.2013 who proved the medical records of the victim. PW 16 Smt. Achla Bhandari is a neighbour of the accused no. 1 Vandna Dhir. This witness is a hostile witness and did not support the case of the prosecuting at all. She denied the suggestion that she used to hear the screaming and noise of beating of the maid in the house of accused Vandna Dhir. PW 17 Rishi Kant was also member of NGO Shakti Vahini and was part of the team which conducted the rescue operation. PW 18 Dr. Monalisa Behra was doctor at Safderjung Hospital, who prepared the MLC of the victim. PW 19 Smt. Suruj is mother of the victim. PW 20 Vasudev Gorai is a translator who translated the question and reply of the victim which was State vs. Vandna Dhir & Anr.
FIR No. 401/2013 4/16PS : Vasant Kunj (N) recorded by the police. PW 21 Sh. Alok Sharma, SDM who recorded the statement of the victim. PW 22 Dr. Minal Chaudhary, who conducted x- ray on the body of the victim. PW 23 Dr. V.K. Tiwari, who conducted the plastic surgery on the head of the victim. PW 24 SI Neeraj Kumar is the IO of the case, who reached the spot along with the rescue team and arrested the accused and recorded statement of various witnesses. He seized various documents and got the statement of victim recorded. He also arrested co-accused Dorothi and got the medical examination conducted.
4. After completion of the prosecution evidence statement of accused persons were recorded wherein they both denied the case of the prosecution and stated that they are innocent and had been falsely implicated in the present case.
5. Counsel for the accused submits that the accused had procured the maid through a placement agency by the name of "Dorothy Placement Agency". The maid had been working in the house of the accused since June 2013. It is further submitted by the counsel for the accused that the placement agency had informed the accused that the maid is an adult (major). Also at the time of employing the maid, the maid had some injury marks on her body but as the accused was in a dire need of a domestic help, on account of her ailing 84 years old mother, she hired the maid and started getting her medically treated. However, later on she discovered that the maid was also suffering from some mental problem as she would often hit herself. Also, in September 2013, the maid had hurt herself by State vs. Vandna Dhir & Anr.
FIR No. 401/2013 5/16PS : Vasant Kunj (N) hitting against metal rods supporting the wash basin in the house of the accused and had soon thereafter fallen flat on the ground sustaining injuries on her neck and back. The accused had allegedly then taken the maid to Dr. Rakesh Sood in Masoodpur for treatment and that the said doctor had also opined that the maid was suffering from some mental disorder. It has been stated on behalf of the accused Vandna Dhir that she is innocent. It has also been stated that the accused is a victim of media trial and that she has been dealt with unfairly on account of the media hype created in this case. It has been averred that due to stigmatization and condemnation by the media, she has also been suspended from her job at ALSTOM where she was working at a very senior position.
6. On the other hand, Ld. Addl. PP has argued that the accused Vandna Dhir has blatantly abused and violated the basic human rights of the victim Fullin by treating her in the most brutal, depraved and atrocious manner. Ld. Addl. PP has further submitted that when the said girl was rescued from the house of accused Vandna Dhir, she had injuries all over her body. She had a deep gash on the back side of her head which was infested with insects and was emitting foul smell. The maid Fullin was found in a semi naked condition. Due to her deplorable condition (both mental and physical), she was provided immediate medical help and was admitted in the hospital for her treatment. He has stated that the preliminary investigation has revealed that the accused Vandna used to often beat her maid. She used to keep her confined in her house and used to make her work in a semi naked condition lest she should not run away from there. He has stated that the kind and the extent of brutality State vs. Vandna Dhir & Anr.
FIR No. 401/2013 6/16PS : Vasant Kunj (N) inflicted on a poor and hapless victim and the continuous torture meted out to the victim Fullin by her employer, the accused Vandna was unimaginable, unthinkable.
7. I have heard the arguments on behalf of the accused persons as well as Ld. Addl. PP for the State and have also gone through the record of the case.
8. Now I proceed to deal with the offence under section 307 / 342 IPC against the accused no. 1 Vandna Dhir. Before coming to section 307 IPC, I will proceed to examine whether a case under section 342 IPC is made out against the accused no. 1 Vandna Dhir. Upon perusal of the evidence of PW 5 Ms. Fullin Murmu (victim), it is seen that the mother of accused no. 1 Vandna Dhir who was aged about 85 years of age used to reside in the day time with the victim. It is also admitted position that accused no. 1 Vandna Dhir was a working lady and use to leave for her office in the morning and come back in the evening. It is admitted by the victim that she was sent by the owner of the placement agency i.e. accused no. 2 Dorothi, who had brought her to Delhi. It is admitted by the victim that that she had worked in two other houses at Noida before joining work at the house of accused Vandna Dhir. With respect to wrongful confinement, she stated that accused no. 1 Vandna Dhir used to keep her locked inside the flat. However, the victim admitted during her evidence that she used to take dog for walk thrice a day i.e. in the morning, afternoon and in the evening. The victim admitted that accused no. 1 Vandna Dhir used to leave for work at 8 am in the morning and used State vs. Vandna Dhir & Anr.
FIR No. 401/2013 7/16PS : Vasant Kunj (N) to come back by 6 pm. She had not made the statement of her taking dog for walk to the IO, but she maintained that she had stated the same to the police. She admitted that she used to take the dog at lunch time and around 4-5 pm before accused no. 1 Vandna Dhir used to come back from her office. Once the victim had categorically admitted that she used to take the dog twice a day in the absence of accused no. 1 Vandna Dhir, the case under section 342 IPC of wrongful confinement is not proved. The other neighbour PW 16 Smt. Achla Bhandari is totally hostile to the prosecution case and was cross examined at length by the Ld. Addl. PP for the State, but she denied the suggestion that she heard any screams or beating of victim by accused no. 1 Vandna Dhir. She did not depose anything regarding wrongful confinement of the victim.
9. In these circumstances, I am of the opinion that the prosecution is unable to prove charge under section 342 IPC against the accused Vandna Dhir. Accordingly, accused Vandna Dhir is acquitted of the charge under section 342 IPC.
10. Section 307 IPC has been explained in the following judgments:-
In the case of Hari Singh vs. Sukhbir Singh, (1988) 4 SCC 551: AIR 1988 SC 2127, the Supreme Court held that while examining whether a case of commission of offence under Section 307 IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused State vs. Vandna Dhir & Anr.FIR No. 401/2013 8/16
PS : Vasant Kunj (N) must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner, in which, it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307 IPC. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim, Maikulal with an intention to cause death.
In the case of Ramesh vs. State of U.P., (1991) 3 Crimes 825 (SC) : 1992 CrLJ 609 (SC): AIR 1992 SC 664 : (1992) 1 SCC 318 it has been held that a single injury at the back of the neck postulates an offence under Section 324 IPC, not one under Section 307 IPC. (the nature of weapon cannot be deciphered from the judgment of the Supreme Court, the head note of 'Crimes' says it was a deadly weapon but the judgment reported is silent on the point).
In the case of Jai Narain, 1972 CrLJ 469 (SC): (1971) 3 SCC 762 : AIR 1972 SC 1764 it has been held that it is sufficient if the act was one capable of causing death and there was an intention to cause death.
State vs. Vandna Dhir & Anr.
FIR No. 401/2013 9/16PS : Vasant Kunj (N) Even so in a case the Supreme Court held that where four or five persons attacked a man with deadly weapons like Farsa, etc., it could be presumed that they had intention to cause death but as the sharp edge of the Farsa was not used in causing the injuries, the accused were liable to be punished under sections 326 and 324 depending on the nature of the injury caused by each and not under Section 307 IPC.
In the case of Sarju Prasad vs. State of Bihar, AIR 1965 SC 843 : (1965) 1 Cr LJ 766: (1965) 2 SCJ 126, it has been held that to sustain conviction under Section 307 the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury.
In the case of Pulicherla Nagaraju vs. State of Andhra Pradesh, (2006) 11 SCC 444 : AIR 2006 SC 3010 : 2006 Cr. LJ 3899, it has been held that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-mediation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) State vs. Vandna Dhir & Anr.
FIR No. 401/2013 10/16PS : Vasant Kunj (N) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.
In the case of Shiv Singh vs. State, 1975 Cr LJ 704, it has been held that when the injuries inflicted on the victim caused by a spear where incised wounds which according to medical evidence were simple in nature - the offence comes under Section 324 and not under Section 307 IPC.
In the case of Merambhai Punjabhai Khachar vs. State of Gujarat, 1997 SCC (Cri) 1078 : 1996 Cr LJ 2465 : AIR 1996 SC 3236 it has been held that in a case the pellet injury grazed the head of the victim, it was held that merely because the injury was caused by a pellet, intention of cause death could not be inferred and that the offence fell under Section 324 IPC.
In the case of Sehdeo vs. State, 2004 CrLJ NOC 316 (Raj) :
2004 (1) WLC 240 (Raj) it has been held that the trial Court discharged the accused on the ground that doctor had not opined that injuries were sufficient in ordinary course of nature to cause death. This was found erroneous and accused was convicted of the offence charged.
An offence under section 307 IPC is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under Section 302 IPC except that in this case the act falls short of the death of the deceased which is necessary under Section 302 IPC. In State vs. Vandna Dhir & Anr.FIR No. 401/2013 11/16
PS : Vasant Kunj (N) the case of Madanlal vs. State of H.P., 1990 Cr LJ 310 (313) (HP), it has been held that as stated by MODI on 'Medical Jurisprudence and Toxicology' 21st Ed. 1990, p. 275 : Danger to life should be imminent before the injuries are designated 'dangerous to life' such injuries are extensive, and implicate important structures or organs, so that they may prove fatal in the absence of surgical aid. For instance, a compound fracture of the skull, a wound of a large 'artery' or rupture of some internal organ, such as the spleen, should be considered dangerous to life. But the injuries which prove fatal remotely by intercurrent diseases, such as tetanus, erysipelas, etc. should not be considered as dangerous. The opinion of these celebrated authors clearly reveals that danger to life from an injury should be imminent to constitute it as a dangerous one. Such injuries are of serious nature like haemorrhage, shock or injuries implicating important structure or organs causing imminent danger.
Further in the case of Madanlal vs. State of H.P. (ibid) it has been further held that when the injuries inflicted are not imminently dangerous to life and the injuries are simple in nature conviction under Section 307 IPC is liable to be converted to one under Section 324 IPC.
In the case of Nand Singh vs. State, 2007 Cr LJ 716 (P&H) it has been held that the injuries caused to victim were dangerous to life but doctor deposed that these were not sufficient to cause death in the ordinary course of nature. So section 307 was not attracted and conviction under Section 326 was held proper.
In the case of Dhani vs. State (Delhi Administration), 1990 CrLJ NOC 53 (Del) it has been held that only one stab injury on vital part may not be dangerous to life. When the doctor who opined the injury to be State vs. Vandna Dhir & Anr.FIR No. 401/2013 12/16
PS : Vasant Kunj (N) dangerous when has not been examined, hospital record not produced, but the victim was confined to hospital for 20 days, conviction from 307 IPC should be altered to Section 326 IPC.
Further in the case of Khattan vs. State of Rajasthan, (1989) 1 Crimes 257 it has been held that in a case, the accused inflicted one knife blow on the left abdomen of the victim and then a second blow by knife on his eyes. The point which cropped up in the high Court was whether the injury was so dangerous that it could be sufficient to cause death in the ordinary course of nature. The Court held that injury was not sufficient and, accordingly, convicted the accused under section 326 IPC instead of Section 307 IPC.
11. I now proceed to examine medical evidence as well as statement of the victim to find out if the case is under section 307 IPC or under section 326 IPC or under section 324 IPC. The statement of the victim regarding injuries by knife was made for the first time before the Ld. MM and the Court. There are allegations of her being beaten up by accused no. 1 Vandna Dhir by broom and given burn beatings with tawa.
It is seen that MLC of the victim categorically states that the injuries received are abrasions all over body and the wounds on the head. The doctor opined the injuries to be simple and blunt and categorically stated that there is no evidence to suggest that the injuries are grievous in nature. There is nothing in x-ray to show any injury. It is seen that even the doctor, who conducted plastic surgery did not opine that the injuries were dangerous to the life of the victim. In fact, the medical opinion is totally contrary to the case under section 307 IPC and thus, it is not proved State vs. Vandna Dhir & Anr.
FIR No. 401/2013 13/16PS : Vasant Kunj (N) that the charge of section 307 IPC made against the accused no. 1 Vandna Dhir. It is seen that there is no recovery of the weapon of offence from the house. PW 16, Smt. Achla Bhandari, who is neighbour is totally hostile to the case of the prosecution, however, relying upon the statement of the victim, who has been consistent with respect to the fact that the said injuries were caused by accused Vandna Dhir coupled with the medical opinion showing abrasion marks all over the body of the victim brings the case under section 324 IPC. My view is further corroborated by the statement of PW 15 Dr. Rakesh Sood, who proved that it was accused only who brought the victim to his clinic on 28.07.2013 and 26.09.2013, which clearly proves that accused no. 1 Vandna Dhir had no intention to murder her, otherwise she would not have taken the victim to the doctor on two occasions for her treatment. Considering the simple blunt injuries all over the body of the victim coupled with the medical report and considering the judgment as has been deposed above, I am of the opinion that the prosecution has not been able to prove case under section 307 IPC. However, the facts and circumstances and the evidence coupled with documents categorically prove the offence under section 324 IPC against the accused no. 1 Vandna Dhir. Accordingly, accused no. 1 Vandna Dhir is convicted for the offnece under section 324 IPC.
12. Now I proceed to examine the charge which accused no. 2 Dorothi is facing under section 16 Bonded Labours Act. The Bonded Labour System (Abolition) Act 1976 in the preamble statement of objects and reasons provided that in some parts of our country there is a system under which a debtor or his descendants or dependents have to work for State vs. Vandna Dhir & Anr.
FIR No. 401/2013 14/16PS : Vasant Kunj (N) the creditor without reasonable wages or with no wages in order to extinguish the debt. In such case, the interest rates are exhorbitant and such bondage is created which is not as a result of legitimate contract or agreement.
13. I proceed to examine whether the mother of the victim who had consented to send the victim to work as a maid in Delhi was a debtor under the accused no. 2 Dorothi (creditor) and whether accused no. 2 had taken work from the victim without making any payment. Perusal of the statement of PW 19 Smt. Suruj, mother of the victim, is relevant in this regard. She stated that she was facing hardship as she had five daughters and accused no. 2 Dorothi was searching for girls to be taken as a maid for placement in Delhi. She consented and send her victim daughter to Delhi. She states that no wages were paid to her. However, she admitted that the husband of accused no. 2 paid Rs. 15,000/- and two mobile phones to her.
14. It is clear that the mother of victim admitted that she voluntarily had sent the victim to work as a maid in Delhi. Accused no. 2 Dorothi who was running placement agency had given Rs. 15,000/- as well as two mobile phones to the mother of the victim. It is also seen that PW 19 Smt. Suruj admitted that she was facing hardship and therefore agreed to send her daughter as a maid. It is clear that it was not the bonded labour where the mother of the victim was under some debt due to which the victim was working without being paid any money. The accused no. 2 was running a placement agency and there are no other allegations of any cruelty or State vs. Vandna Dhir & Anr.
FIR No. 401/2013 15/16PS : Vasant Kunj (N) torture or confinement or harassment and forcible bonded labour against the accused no. 2 Dorothi by victim or her mother.
15. In these circumstances, the ingredients of offence under section 16 Bonded Labour Act are not proved. There is no other witness in the entire evidence led by the prosecution to prove the offence under section 16 of Bonded Labour Act.
16. In these circumstances, I am of the opinion that the prosecution is unable to prove the offence under section 16 Bonded Labour Act against the accused Dorothi and accordingly, the accused Dorothi is acquitted of the charge framed against her. She is on bail. Her bail bonds are cancelled and surety is discharged. However, as per provisions of section 437 A Cr. P.C. fresh bail bonds and surety bonds are furnished on behalf of the accused today in the Court which shall remain in force for a period of 6 months from today.
17. Put up for order on sentence qua accused Vandna Dhir who is convicted under section 324 IPC, on 28.02.2018.
Announced in the open Court (SIDHARTH SHARMA)
on 27th February, 2018 ASJ-02/FTC, PHC/NDD
27.02.2018
State vs. Vandna Dhir & Anr.
FIR No. 401/2013 16/16
PS : Vasant Kunj (N)