Delhi District Court
State vs Rakhi Mandal on 31 May, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA
ADDITIONAL SESSIONS JUDGE-01
PATIALA HOUSE COURT NEW DELHI
In re:
SC No. 01/12
State Vs Rakhi Mandal
FIR No. 519/2007
Police Station Sangam Vihar
Under Sections 302/381/411 IPC
Date of Institution of the case : 17.08.2007
Date of reserving judgment/order : 19.05.2012
Date of judgment/order : 24.05.2012
JUDGMENT
1. The accused Rakhi Mandal has been charged under Sections 302/381/411 IPC with the offence of having committed theft and of murdering Smt Archana Grover in whose house she was working as maid servant.
2. The case of the prosecution as contained in the charge sheet, is that on 16/05/2007 at about 1.25 PM information was received through PCR at the police station that one woman was locked inside her house at J-8, 3rd floor, Saket, Delhi and somebody was pelting stones from outside. The said information was recorded vide DD No. 11 and Head Constable Vijay Pal along with Deepak Tiwari went to the scene of incident. In the meanwhile State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 1 of 31 -2- SI Aishvir Singh Incharge, Police Post Saket and other police officers also reached, where they found one lady Archana Grover wife of Pankaj Rakesh lying unconscious in the bathroom and her son Keshav Adhayaya, daughter Jahnvi. Neighbnour Sandeep and others present. It was learnt on enquiry that maid servant accused Rakhi Mandal was missing from the house. Archana Grover was taken to Max Hospital where she was declared dead. An FIR No. 519/07 was registered and the investigations were taken over by Insp/SHO Pankaj Singh who inspected the scene of the crime and recorded the statements of Keshav Adhyaya, Somnath Grover father of the deceased and Aurbindo Grover brother of the deceased under Section 161 CrPC. Keshav Adhyaya stated that he had seen his mother last with the maid servant at around 10.30 am and after about five minute Rakhi Mandal had left from house along with her bags. The police thereafter under took the search for the accused Rakhi Mandal who was finally traced in her house in West Bengal where Budeshwar Mandal was also found present who had got Rakhi Mandal employed in the house of the deceased. Accused Rakhi Mandal was apprehended at the instance of Budheshwar and was arrested. She made disclosure statement that she had given sleeping pills in tea to the deceased and thereafter strangulated her and had left the house after locking the room from outside. She was brought back to State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 2 of 31 -3- Delhi. The strip of pills and the keys were got recovered by her from the bushes near the house of the deceased with which she had locked the room. She also got recovered the glass in which she had given the tea laced with pills to the deceased in the morning on 16/5/07. The articles were seized and the samples were sent to FSL for examination.
3. On completing the investigation, charge sheet under Sections 302/381/411 IPC was filed against accused before the Court of ld. M.M on 17/8/07 who committed the case to the Court of Sessions vide his order dated 06/09/2007.
4. The charge under Sections 302/381 IPC was framed against the accused on 6/12/2007 to which she pleaded not guilty.
5. The prosecution examined the star witness PW 20 Keshav who had last seen the deceased with the accused Rakhi Mandal and had found the accused missing soon after the commission of the crime.
6. Shri Somnath father of the deceased and Sh. Aurbindo brother of the deceased were examined as PW 14 and PW21 who had deposed about the strained relationship between the deceased and their husband and also about the employment of the accused as permanent maid servant in the house of the deceased.
7. PW6 Smt. Suman and PW 13 Sandeep Bansal are the public witnesses who had been called by the Somnath and State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 3 of 31 -4- Keshav for his help when he had found the room of his mother locked at around 12.30 pm and who had broken open the room to gain access.
8. The other material witness was Budheshwar who had been examined as PW26. He had deposed that he got Rakhi Mandal employed in the house of the deceased and had also deposed about the manner in which he helped the police in arresting the accused. He was also witness to the recovery of purse, mobile phone and other stolen articles belonging to the deceased from the possession of accused Rakhi Mandal.
9. PW1 constable Charan Singh had recorded DD No. 11 which is Ex PW1/A.
10. PW 2 constable Deepak Tiwari along with PW 23 head constable Shiv Kumar and PW 24 head constable Shiv Kumar had gone to the scene of crime on receiving DD No. 11 and had found the lady lying unconscious in the bathroom and had taken her to Max hospital on the direction of Incharge PP Saket Vijay Pal. The body of the deceased was handed over to the relatives on 17/5/2007 after the postmortem was done vide receipt Ex PW2/A.
11. PW3 ASI Deepak had lifted 13 chance prints from the scene of crime which he had developed and handed over to Finger Print Bureau and his report was given to the investigating officer which is Ex PW3/A. State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 4 of 31 -5-
12. PW16 Dr Vineet Luthra has proved the MLC prepared by Dr Sujoy Chakraborty on 16/5/07 when deceased was first brought to the hospital and is Ex PW16/A.
13. PW 4 Dr. B.L. Chaudhary had conducted the postmortem on the deceased and opined that the death was due to asphyxia as a result of strangulation which was sufficient to cause death in ordinary course of nature.
14. PW7 Constable Padam Singh had taken the exhibits on different dates to FSL Rohini, Delhi for examination.
15. PW8 Head constable Devender Singh had obtained duplicate phone bill of phone no. 252374 from telephone exchange Calcutta, West Bengal and handed over the same to the investigating officer who seized the same vide memo Ex PW8/A and the telephone bill is Ex PW8/B.
16. PW9 head constable Banwari Lal Kawant MHC(M) who had made the relevant entries in register no. 19 which is Ex PW9/A and Ex PW9/B.
17. PW 15 W/head constable Vipin recorded FIR which is Ex PW15/A, DD No.15/A and 16A are collectively Ex PW15/B.
18. PW 17 Sub Insp. Mahesh Kumar had prepared the scaled site plan which is Ex PW17/A.
19. PW 18 Constable Mohan Singh had taken photographs of scene of crime which are Ex PW17/1 to 10.
20. PW 19 R. K. Singh nodal officer Bharti Airtel had proved the State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 5 of 31 -6- call details of mobile phone no. 9818566966 as Ex PW19/A. The computer generated details of the location of the mobile phone on 16-17/5/07 is Ex PW19/B and the computer generated record of the mobile for 17/5/07 is Ex PW19/C. The cell ID of the location are mentioned in three documents and is Ex PW 19/D and Ex PW 19/E. The call details of 18/5/07 are Ex PW19/F and the reply of the mail from Insp Vijay Singh incharge forwarded to Pankaj Singh is Ex PW19/G.
21. PW22 W/S.I. Partibha Sharma had got the medical examination conducted of the accused and had received sealed parcel containing her blood gauze from the doctor which she had handed over to Inspector who had seized the same vide memo Ex PW22/A.
22. PW 25 Insp Vinod Pal is the incharge crime team who had inspected the scene of the crime and prepared his report Ex PW25/A.
23. PW 28 Constable Anil Kumar had accompanied Dog Rozer to the scene of the crime but no smell could be found.
24. PW 29 Insp Aishveer Singh is the investigating officer.
25. PW 30 Head constable Shyam Singh MHC(M) has proved the relevant entries in register no.19 which are Ex PW30/A.
26. PW 31 Sub Insp. H S Chaudhary from the court of ld ACJM, West Bengal proved the documents on record ie transit remand of the accused which are Ex PW31/A and the application State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 6 of 31 -7- moved by investigating officer for the transit remand is Ex PW31/B.
27. PW32 Retired SI Ram Ayodhya Singh from Kolkatta had joined Delhi Police in the arrest of accused and in recovery of stolen articles from her possession.
28. PW 33 Insp Pankaj had conducted the entire investigation in this case.
29. PW 34 Dr Raghvender Kumar, AIIMS hospital had proved MLC of the accused as Ex PW34/A.
30. Statement of the accused was recorded under Section 313 CrPC in which she had taken a defence that on the said date of incident at about 6 am, Pankaj Rakesh husband of the deceased had come to their house and told her to leave immediately and she had left the house at about 8.30 am along with her belongings. On reaching her native place her brother Subroto Mandal picked up her from the railway station on his motor cycle and they slipped on their way because of which she and her brother sustained injuries which were noticed in the MLC by the doctor. It is further claimed by her that no recovery of any items was made from her and that the articles and mobile phone have been planted on her by the police. She had taken up a defence that she was innocent and has been implicated falsely in this case.
31. Ld. Additional PP on behalf of the State has argued that there was cogent evidence on record to prove that it was Rakhi State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 7 of 31 -8- Mandal who was with the deceased and that she after committing the offence had absconded. More over recovery of articles of the deceased has also been effected from her possession in West Bengal. Also, the mobile call details show that she after committing the murder she had escaped and gone to her native village. It was thus, submitted that there is sufficient evidence against the accused who is liable to be convicted.
32. Ld. Counsel on behalf of the accused has argued that it is the case which is based on circumstantial evidence as there is no direct witness to the commission of the offence. It is argued that admittedly deceased was not having cordial relation with her husband. The husband who had made the accused to leave the house in the morning of the incident, had himself committed the murder. It is asserted that the husband had strong motive to commit murder as he was not having cordial relation with the deceased. The motive shown by the prosecution cannot hold ground, since it is difficult to accept that merely one slap by the deceased would have been sufficient instigation for the accused to murder the deceased. Infact, it is on record that for 25 days since prior to the date of the incident deceased along with children had gone to live the parental home and deceased was alone in the house. She had ample opportunity to commit theft if she had so desired.
33. It is further argued that the cause of death is strangulation State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 8 of 31 -9- but no strangulation material has been recovered. It is claimed by the police that sleeping pills were administered to the deceased in the tea. But as per the FSL report no poison was detected in the recovered remnant of tea.
34. Also, there is no injury marks on the body of the deceased to show that any resistance had been put up by her when she was strangulated. It was submitted that accused is a small statured girl while the deceased was of strong built woman and it is difficult to accept that the accused would have been able to strangulate the deceased without any resistance. It is submitted that as per the police, the mobile phone of the deceased had been taken away by the accused and she had even responded on the said mobile phone. It is difficult to believe that any person who has guilty mind would use the mobile of the deceased when she herself was having her own mobile. Infact, the police had carried the mobile phone of the deceased with them when they had gone to West Bengal and had used the mobile phone and have falsely created evidence against the accused. It is also difficult to accept that accused would have taken a photograph of her mother with the mobile of the deceased instead of using her own mobile for the said purpose. Ld counsel on behalf of accused submitted that stolen items of the deceased had infact been planted on the accused in order to implicate her falsely.
35. Further argument was extended that it was the husband of State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 9 of 31
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the deceased who was the real perpetrator of crime but intentionally he has not been made a witness or an accused in this case. In so far as the nail marks found on the accused are concerned, it has been explained by the accused that she had suffered those injuries on account of sleeping from the motorcycle on which she was travelling along with her brother from railway station to her house in West Bengal.
36. Ld counsel on behalf of the accused has thus, concluded that there is no evidence what so ever against the accused who has been made a victim by the police at the behest of the husband of the deceased. It is thus claimed that the accused is entitled to be acquitted.
37. I have heard the arguments and perused the record. My observations are as under:
38. It is now well settled that in a criminal trial the guilt of the accused must be proved beyond reasonable doubt in order to convict him. The concept of "beyond reasonable doubt" was explained by the Supreme Court in the case of "State of UP v. Krishna Gopal, (1998) 4 SCC 302" :
"25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 10 of 31
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an exercise particular to each case. ...............
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over - emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
39. This is a case of murder where there is no direct witness and the case of the prosecution rests on the circumstantial evidence. The legal position regarding the circumstantial evidence has been well settled by a long line of decisions by the Supreme Court of India. It would, however, still be relevant to reproduce them for the proper appreciation of the evidence of the prosecution as the entire case of the prosecution when rests on circumstantial evidence.
40. In "Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116", the Supreme Court has laid down the five tests to be satisfied in a case based on circumstantial evidence :
"(1) The circumstances from which the conclusion of guilt is to be drawn should State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 11 of 31
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be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, other hypothesis except that the accused is guilty.
(3) The circumstances should be of a 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."
41. The first most important aspect in the case of the circumstantial evidence required to be considered is the motive. It has been argued on behalf of the prosecution that the motive for the commission of this offence by the accused is sufficiently explained from the testimony of PW 20 Keshav Adhaya son of the deceased. He has deposed that on 15/5/07 Pankaj Rakesh( father of the witness) had come to their house after 8.30 pm and they had sent him away. After Pankaj Keshav left a person came to State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 12 of 31
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their door on the pretext of selling bananas. The accused opened the door and had a conversation with him and she left the main door open. It was around dinner time at 9.00 pm when accused went upstair to her servant quarter for about 15-20 minutes on which his mother ( deceased) became angry and furious as she had left the main entry door open and the deceased apprehended that Mr. Pankaj Rakesh may enter into their house. The deceased screamed and called the accused from servant quarter who came down stairs and was slapped by the deceased in anger. Thereafter they all slept in the house and accused also slept in the computer room which was described as the office room. It is submitted on behalf of the prosecution that the accused was enraged because of the slap and she murdered the deceased. There is no material cross examination done of the witness on this aspect.
42. The ld. Counsel on behalf of the accused on the other hand has argued that the father PW14 Som Nath Grover and the brother PW21 Arbindo Grover both admitted that there was marital discord between the deceased and her husband. It is argued that infact Pankaj Rakesh was staying in the house of the deceased and he has asked Rakhi Mandal to leave the house in the morning. The alleged offence of murder has taken place at around 10.30 am. It was argued that it was husband of the deceased who was instrumental in the commission of the offence and who had a motive because of marital discord between him and deceased and State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 13 of 31
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the accused has only been made a scape goat in the entire incident. It is difficult to believe that any person would commit the murder merely because of one slap.
43. PW 20 Keshav Adhaya the son of the deceased had explicitly explained in his testimony that their father Pankaj Rakesh had resided with them as part of the family only upto 09.05.2007. There was a big fight that had taken place between the deceased and his father on account of extra marital relationship of the father which had been going on since last about four years. They all did not allow their father to come back in their house; infact the mother had made a complaint at police station Malviya Nagar as well as police station Saket on 09.05.2007 and again on 14/5/2007. It is also deposed by him that between 11-14/5/2007 he along with his sister and mother (deceased) had gone to reside with their maternal grandfather at Panchsheel Enclave and the accused was residing in their house and at time, she came to Panchsheel Enclave to their grandfather's place. During this period 11 to 14/5/07 their father had visited their house and taken away his laptop and some other articles for which a complaint had made again on 14/5/07.
44. His testimony also find supports from that of PW 24 Head Constable Vijay Pal who had reached the scene of crime along with Head constable Shiv Kumar and constable Deepak and had deposed that on an enquiry from Keshav Adhyaya who was found State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 14 of 31
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present in the house, they were told by PW 20 that their mother had felt some cervical pain and she had taken some water after which she felt some relief and she entered in the bathroom to take a bath. Accused had told them that she was going to give bath to the mother and they should not enter the room. After about 10-15 minutes keshav Adhyaya saw the accused leave the house along with two bags full of luggage after locking the room of their mother with the keys. Similar is the deposition of PW23 Head Constable Shiv Kumar who has also deposed of similar lines.
45. Though it may be said that their testimonies are based on what they were told by PW 20 Keshav Adhyaya but these were the statements made immediately after the commission of the offence and have been consistent to what has been stated by PW 20 Keshav Adhyaya in his statement to the police and also in the court.
46. PW 14 Som Nath Grover the maternal grand father, had also deposed that Pankaj Rakesh, his son-in-law had come on 9/5/07 and threatened his wife that she should allow him to use the premises or else she would face dire consequences.
47. From the testimony of these witnesses, it is shown that Pankaj Rakesh had not been residing with the deceased in her house and therefore, defence tried to be set up by the accused that Pankaj Rakesh was residing in their house is not believable. The incident of slapping which has been shown as motive by of State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 15 of 31
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the prosecution may not be convincing reason for taking an extreme steps of killing a person but the incident which took place on night previous to the date of incident shows that there was ill will established between the accused and the deceased which may have enraged the accused. It is no doubt true that the motive sought to be established is not too convincing but it is also pertinent to note here that motive is definitely an important link in the chain of circumstance in a case based on circumstantial evidence but it has to be appreciated in the light of other links of circumstantial evidence.
48. The most important witness examined by the prosecution is PW 20 Keshav Adhyaya, son of the deceased who was present in the house at the time of incident. It is deposed by him that on 16/5/07 when he got up in the morning he saw his mother taking tea and he wanted to have tea but his mother insisted upon him to take milk. He was present in the house since he was studying in class 6th and summer vacations had commenced. At around 10 a.m. his mother asked him to get ready as they had to go somewhere . But at that time he noticed his mother was dizzy as while sitting on the bed she fell and her forehead hit against the chair. She got worried about herself and then they thought she had some neck shoulder problem. He and his sister Jahnavi had their breakfast and were watching television, when he heard a scream from his mother calling him by his pet name Adi. He found State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 16 of 31
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the door of the room of his mother locked with a key and he looked through the glass panel between the room of his mother and adjoining room but could not see his mother in the room and presumed that she was in the bathroom. The accused had served his mother with a glass in a tray at around 10 am and he was not sure of the contents though he saw his mother drink it slowly as in case of tea. He called for his mother but she did not reply. They waited till 12 noon but when she did not respond he called the neighbour and glass panel was broken and he climbed and entered the room and found that their mother was lying on the floor of the bathroom and her skin has turned blue. In the meanwhile, neighbour Sandeep also came and they found the accused Rakhi Mandal as well as her bag in which she kept her belongings missing. They called the ambulance but it refused to take the deceased and then PCR was called and deceased was taken out after breaking open the lock of the door and removed to Max hospital where she was declared brought dead.
49. The testimony of PW 20 Keshav is supported by PW 13 Sandeep Bansal, the neighbour who had broken open the door of the bathroom with the help of police and had removed Archana Grover, the deceased to Max hospital, Saket.
50. PW6 Smt Suman Sharma is also the other neighbour who had deposed that accused Rakhi Mandal had been employed by deceased Archana Grover in her house as a full time maid State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 17 of 31
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servant. On 16/5/07 at about 1.20 pm Keshav and his sister Janhvi called her and they found Archana Grover lying in the bathroom and the maid servant Rakhi Mandal, the accused was found missing. Keshav further told her that the maid servant was present in the house till about 9.30 am.
51. The most significant facts which emerged from the testimony of PW 20 is that in the morning of the incident ie 16/5/07, the accused Rakhi Mandal was present in the house alongwith the deceased and her children. His testimony further shows that at about 10 am some drink had been served to the deceased who apparently was looking dizzy. It is also brought forth that accused and the deceased were in the bathroom and her mother had screamed his name. When he had gone to check he was not able to see his mother as door was found locked. Thereafter, at around 12 noon he again checked for his mother and found the door locked. On entering the room by breaking the glass pannel, he saw his mother lying unconscious in the bathroom and accused missing. This implies that accused was present in the house till about 10.30 am which time the murder had taken place. There was no other person present in the house at that time except two children aged 07 years and 10 years and the maid servant/accused.
Though a weak attempt was made by the ld. Counsel for the accused to introduce the presence of Pankaj Rakesh, State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 18 of 31 - 19 -
husband of the deceased, but has not succeeded in doing so.
52. The ld. Counsel on behalf of the accused has argued that the accused was woman of petite stature while the deceased was a big woman and it is not possible that she would have been able to strangulate the deceased without their being any resistance or commotion by the deceased. It is significant to note that PW 20 Keshav Adhyaya has deposed that his mother had screamed his name but he had not taken it seriously. It is also significant to refer to the postmortem report of the deceased Ex PW4/A wherein there are crescentric shaped abrasion found present on the left of the neck besides other abrasion present on the right side of the neck below the right mandibular angle. It is also significant to note that the ligature mark noticed in the front of the neck was a "
vague interrupted ligature mark". The very fact that the ligature mark was not firm and continuous shows that a person who strangulated the deceased may not have been a very strong person. It is also not out of place to refer here that in the said postmortem report it is indicated that there was diffused petechical haemorrhage in sub scalp region. This also supports the testimony of PW20 that his mother was dizzy and had fallen from the bed and hit her head against the chair. This shows that deceased was not well and therefore, would not have been able to put a stiff resistance when she was strangulated by the accused.
53. Another significant point to be noticed is scratch injuries State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 19 of 31
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present on the face of the accused as have been detailed in her MLC Ex PW34/A dated 22.5.07. It has been opined that the injuries were about one week old and may have been possible by nails. This again shows that deceased had tried to save herself by scratching the face of the accused but was unsuccessful. The explanation had been sought to be given on behalf of the accused that she had sustained the injuries on falling from the motorcycle on which she had accompanied her brother from the railway station to her home in West Bengal. But the nature of injuries suffered in road accident obviously are of different nature. Also accused has not examined her brother to explain or corroborate her testimony in regard to the explanation given by her for the injuries on her person. More over, the very fact that injuries appeared to have been caused by nails belies the explanation given by her.
54. It is also significant to refer to the testimony of PW29 Inspector Aishveer Singh, the Investigating Officer, who has deposed that from the scene of crime from where the dead body was recovered, a yellow coloured ear ring was found lying in the bathroom, which was packed in a paper, sealed and seized by PW33 Inspector Pankaj Singh vide memo Ex.PW23/B. This again shows that the ear ring of the deceased would have fallen at the time of scuffle / resistance or else there was no reason for one ear ring to have come out.
State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 20 of 31
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55. It was argued on behalf of the accused that as per the prosecution the deceased had been strangulated to death with the ligature but the same has not been recovered nor the nature of ligature i.e. whether it was a wire or rope, has been proved by the prosecution. It is true that the ligature used for strangulation could not be recovered, but this in itself does not take away the truth that the death had been caused due to strangulation with a ligature. The fact which was relevant was the factum of death and not per se, the recovery of ligature. The police may not have been able to establish or recover the ligature, but that by itself cannot be a fact either to challenge the factum of death or the death been un- natural on account of strangulation.
56. It may be also be relevant to refer here the testimony of PW 26Budeshwar Mandal who had got the accused employed in the house of the deceased.It is deposed by him that he was residing in the area of Savitri Nagar and was working as hawker and thereafter taken up a job in placement agency engaged the business of supplying maid servants in the houses.In the month of March-2007 he had gone to his native village MaliGiri North 24 Pargana,West Bengal and after2-3 days had gone to village Dukhi NakaraTaula of accused Rakhi Mandal who told him that she had worked in Chattarpur but could not get enough money and was looking for a job.She accompanied him to Delhi. On coming to Delhi he met his niece Sapna who was working as maid servant in State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 21 of 31
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B Block, Panchsheel Park. He also met mother of deceased who told him that she needed a maid servant for the house. He got the accused kept in the house of Archana Grover as a maid servant on a monthly salary of Rs. 2500/-. On 18/5/07 when he was in his village he received a telephonic message on his mobile phone that accused Rakhi Mandal had run away from the house of deceased along with some money. He tried to get in touch in case on her mobile but got no response. He then tried to call on the mobile phone of the deceased which was attended by accused Rakhi Mandal and after saying hello, she disconnected the mobile. Then, on the same day he went to the village of accused Rakhi Mandal but she was not present there. He requested his maternal uncle to keep vigilance at her home. On 19/5/07 while he was present with the local police officers as well as officers from Delhi Police he received call from his maternal uncle Samun Mandal that Rakhi Mandal had reached their house. They all immediately went to apprehend the accused and she was arrested vide memo Ex PW26/A. She got recovered the strolly bag, ladies hand bag, mobile phone, some clothes, cards and other articles which were kept in the hand bag which she had stolen from the house of the deceased which were seized by the police vide memo Ex PW26/C. The ladies bag contained cash of Rs. 1000/- , some coins, ATM cards, bunch of keys and gold jewellery.
57. The testimony of Budeshwar Mandal is fully corroborated State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 22 of 31
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by testimony of PW 29 Insp Aishveer Singh, PW32 SI Ram Ayodhya Singh from Kolkotta and PW33 Insp. Pankaj Singh who have also deposed that after Rakhi Mandal was arrested from home she made disclosure statement which was recorded by Insp Pankaj Singh as Ex PWE26/B pursuant to which she got recovered the stolen articles i.e. mobile phone, hand bag, purse, jewellery and clothes from her jhuggi. It is also deposed by PW29 Insp Aishveer Singh, that on switching on the mobile of the deceased which was recovered from the possession of the accused Rakhi Mandal, a picture of the mother of the accused was found on the screen. The mobile phone had other photographs of the deceased Archana Grover and her children.
58. It was argued on behalf of the accused that the mobile phone and the other articles of the deceased had infact been planted on the accused and she had not committed theft of the same. Infact the police had carried the mobile phone of the deceased with them and had planted it on the accused to implicate her falsely.
59. In this regard, it is pertinent to refer to the testimony of PW29 Aishveer Singh, who has deposed that on receipt of information he along with his police team had left for Kolkota on 18.05.2007 and had reached Kolkota on 19.05.2007. It is also deposed by him that a team had already been sent before they left. In this regard, it is pertinent to refer to the telephone calls of State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 23 of 31
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the mobile phone number of deceased Archana Grover, bearing no. 9818566966, the call details of which along with the identification of location had been collected by SI Aishveer Singh and have been exhibited as Ex.PW19/A to Ex.PW19/G through the Nodal Officer, PW-19. According to the location chart, the mobile phone was operational in the area of West UP on 16th and 17th and thereafter in Kolkota. The incident had taken place on 16.05.2007 at around 10.30 a.m. and the police had been made active only after the registration of FIR in the afternoon. The call details along with the location itself falsify the claim of the accused that the mobile had been carried by the police team and subsequently planted on her. It is not possible that the police who had become active only in the later part of 16.05.2007 could have reached Western UP on 16.05.2007 and used the mobile phone. This circumstance itself shows that this argument addressed on behalf of the accused is not only far fetched, but is also practically impossible. It is difficult to accept that police team would have carried the mobile phone of the deceased in anticipation that accused would be arrested from her native village and the phone would be required to be planted on her. The defence that the bag, clothes and jewellery of the deceased have been planted on her is also not believable.
59. In fact pursuant to the disclosure statement of the accused Rakhi Mandal recovery of the bag, cloths, a purse along with its State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 24 of 31
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contents and some jewellery articles has been made from the houses of the accused at her instance. The recovery of stolen items further lends support to the case of the prosecution and also establishes the link of the accused with the commission of the offence beyond reasonable doubt.
60. Further more, PW 29 Insp Aishveer Singh had further deposed that accused had disclosed in her disclosure statement Ex PW 26/B that she had had thrown the strip of the sleeping pills, from which she had administered some to deceased in her tea, in the bushes near the house. She had also disclosed that the keys with which the room had been locked by her had also been thrown by her in the bushes. She led Insp. Aishveer Singh along with Insp Pankaj Singh and Woman Head Ct Vipin to the bushes near house of the deceased and got recovered the strip of sleeping pills which were seized vide memo Ex PW29/C and also got recovered two keys of make Panther and Godrej from another bushes which was also sealed and seized vide memo Ex PW29/D.
61. As per PW 20 Keshav Adhyaya the room in which his mother was present was locked with key, which fact is also corroborated by the recovery of the key of the room at the behest of the accused Rakhi Mandal.
62. It was argued on behalf of the accused that as per the prosecution, the deceased was made to have tea by the accused, which was laced with sleeping pills because of which she became State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 25 of 31
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dizzy and was not able to put any resistance. However, no traces of sleeping pills or any other chemical found in the remnants of tea which had been seized by the Investigating Officer at the behest of the accused from the house of the deceased. It was, thus, argued that this falsifies the claim of the prosecution that the deceased had been drugged by the accused and this also discounts the recovery of strip of sleeping pills allegedly recovered from the bushes at the instance of the accused.
63. It is true that in the FSL report no chemical was found in the remnants of tea which had been seized by the police at the behest of the accused. Also, in the FSL report nothing had been detected in the viscera of the deceased. At best this can lead to the conclusion that accused had not added any sleeping medicine in the tea of the deceased which she had consumed in the morning before her death. But it has already come in evidence that she was not feeling too well since morning and had even fallen from the bed on account of head and shoulder problem with which she was suffering, as deposed by PW20. The non-finding of any traces of sleeping pills in the tea remnants or in the viscera of the deceased, cannot be the sole factor for absolving the accused from commission of the offence in view of the other overwhelming evidence against the accused.
64. In view of the above discussion, prosecution has been able to establish beyond reasonable doubt that it was only accused State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 26 of 31
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who was present in the house with the deceased and it is she who has committed the murder of deceased Archana Grover by strangulated her. The accused had tried to assert that in fact she had been asked to leave the house by the husband of the deceased, who was present in the house at that time and had thus, tried to claim that she was absent from the house at the time of commission of the offence, while it was the husband of the deceased who was the main suspect. But, this defence as already discussed, could not be proved by the accused. The use of mobile phone by the accused while she was travelling from Delhi to UP on 16/17.05.2007 further strengthens her role in the commission of the offence. The recovery of the articles of the deceased from the accused also establishes that it was the accused, who was the perpetrator of the crime of the murder and theft. The accused is, therefore, convicted under Sections 302/381 IPC.
65. To come up for order on sentence on 30.05.2012. Announced in the open court on 25th day of May,2012 ( Neena Bansal Krishna ) ASJ-01/PHC/New Delhi State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 27 of 31
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IN THE COURT OF MS. NEENA BANSAL KRISHNA ADDITIONAL SESSIONS JUDGE-01 PATIALA HOUSE COURT NEW DELHI In re:
State Vs Rakhi Mandal FIR No. 519/2007 Police Station Sangam Vihar Under Sections 302/381/411 IPC Date of Institution of the case : 17.08.2007 Date of reserving judgment/order : 19.05.2012 Date of judgment : 24.05.2012 Date of Order on Sentence : 31.05.2012 ORDER ON SENTENCE : -
1. The accused Rakhi Mandal has been convicted u/s 302/381 IPC.
2. Arguments addressed on behalf of the State by Ld. Addl. PP.
3. The convict Rakhi Mandal has submitted that she is 25 years old and has a five years old son, who is presently residing with her mother in Kolkota. She is in judicial custody since 2007 and is not a previous convict. She submits that leniency may be exercised in sentencing her.
4. I have heard the arguments.
5. Sentencing is an important stage in the process of administration of criminal justice - as important as the adjudication State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 28 of 31
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of guilt and it should not be consigned to a subsidiary position as if it were a matter of not much consequence. Sentencing should, therefore, receive serious attention of the Court (Santa Singh v. State of Punjab, 1976 (4) SCC 190).
6. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element.
7. Sentencing choices are guided not only by the subjective "facts of the case" but a whole variety of factors, such as social investigation of the offender, his family background, his social environment, behaviour, tendencies, etc. These are apart from the more "traditional" factors such as the history of previous offences or convictions, subjective facts pertaining to the offender, such as age, gender, gravity of the offence, circumstances leading to the offence, etc.
8. In India there is no codification of the guidelines for sentencing. The Courts, therefore, have to fall back on judicially revolved standards and ad-hoc notions of penology and theories while exercising discretion in relation to offences. The Courts have to strike a balance between the need to impose an "adequate" sentence even while keeping in mind that the choice has to ultimately sub serve a larger public purpose, and not be one State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 29 of 31
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merely given for the ritualistic satisfaction of notions like public justice.
9. A French philosopher Simone Weil in her "Draft for a Statement of Human Obligations) said that :
"Whenever a human being, through the commission of a crime, has become exiled from good, he needs to be reintegrated with it through suffering. The suffering should be inflicted with the aim of bringing the soul to recognize freely some day that its infliction was just."
10. In the case of "State GNCT of Delhi v. Mukesh, ILR (2011) VI Delhi 340", after referring to aforementioned principles it was concluded that there is a great discretion vested in the Judge especially when pluralistic factors enter his calculations. Even so, the Judge must exercise this discretionary power, drawing his inspiration from the humanitarian spirit of the law, and living down the traditional precedents which have winked at the personality of the crime-doer and been swept away by the features of the crime. What is dated has to be discarded. What is current has to be incorporated. Therefore, innovation in all conscience, is in the field of judicial discretion.
11. By these principles the onerous task of sentencing has to be guided and the discretion in imposing the sentence has to be judicious. The accused in the present case has been State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 30 of 31
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convicted u/s 302/381 IPC, where there is not much discretion. Considering the facts and circumstances and the gravity of the offences proves against the accused, it is not a case of imposition of death penalty as it does not qualify as rarest of rare cases.
12. Having regard to the age and the circumstances of the convict is sentenced to imprisonment for life and a fine of Rs. 15,000/-, in default to further undergo simple imprisonment for nine months, u/s 302 IPC. She is also sentenced to rigorous imprisonment for three years and a fine of Rs.5,000/-, in default to further undergo simple imprisonment for five months, u/s 381 IPC.
13. Copy of the judgment and order on sentence given to the convict.
File be consigned to the Record Room.
Announced in the open court on 31st day of May, 2012 ( Neena Bansal Krishna ) ASJ-01/PHC/New Delhi State Vs Rakhi Mandal; S.C. No. 01/12 FIR No. 519/07; PS Malviya Nagar U/s 302/381 IPC page no. 31 of 31