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2002 DIGILAW 1943 (ALL)

BHOJRAJ v. STATE OF U P

2002-12-18

K.S.RAKHRA, M.C.JAIN

body2002
M. C. JAIN, J. The appellant in this appeal is one Bhojraj, son of Sheo Bux Singh resident of village Chobara, Police Station Shajaanpur, District Alwar, (Rajasthan ). He has been convicted under Sections 302 and 307 IPC. The sentence passed under Section 302 IPC is life imprisonment and ten years rigorous imprisonment under Section 307 IPC. Both the sentences have been directed to run concurrently. The judgment was rendered by Sri B. L. Sachdeva, the then Ist Additional Sessions Judge, Ghaziabad in Sessions Trial No. 144 of 1985. 2. The deceased was a child named Rekha aged about three years, the own daughter of the accused appellant. He also allegedly attempted the murder of his wife Maya Devi. The incident took place on 2-9- 1984 at about 4. 30 a. m. at Ganga River Bridge Brijghat, P. S. Garh Mukteshwar, District Ghaziabad. The broad spectrum of the prosecution case may be set forth for the appreciation of the discussion that would succeed thereafter. Maya Devi was married to the accused appellant Bhojraj, a constable in C. R. P. F. , who was posted at Durgapur (West Bengal) at the time of the incident. After two years of the marriage, a daughter was born to Maya Devi who was named as Rekha. In 1984, the accused appellant took leave from 19-7-1984 to 16-9-1984. At that time, his wife Maya Devi was putting up with her parents in village Ujina, Tehsil Nuh, District Gurgaon (Haryana ). The accused appellant went to his father-in-laws house and told him that he would take her with him to Durgapur where he was posted. The allegation from the side of the prosecution is that the accused appellant suspected the fidelity of his wife Maya Devi. 3. On 1-9-1984 the accused appellant along with his wife Maya Devi and daughter Rekha left his village Chobara in District Alwar (Rajasthan) and went to Riwari where he reached at about 10 a. m. At Rewari bus stand Sukhdev-cousin of Maya Devi and Karan Singh PW-4 met them by co-incidence and the accused appellant told them that he was taking Devi with him to Durgapur and this message could be conveyed to her father. From Riwari, the accused appellant with his wife and daughter came to Delhi by bus and went away for some time on the pretext of depositing his luggage in the cloak room. From Riwari, the accused appellant with his wife and daughter came to Delhi by bus and went away for some time on the pretext of depositing his luggage in the cloak room. On return, he informed his wife that one of his companions was to come from Kanpur the next day and they would go to Durgapur together. In the meantime, he suggested, they could go for a bath in River Ganges. At about 8 p. m. , the same day all the three reached Garh from Delhi and stayed in a Dharmshala. Entries in the Dharmshala register were made by the accused appellant while Maya Devi was standing at some distance. On the following morning i. e. 2-9-1984 at about 3 a. m. the accused appellant awoke his wife, saying that they would go to River Ganges for taking bath as they had to reach Delhi in time. The door of Dharamshala was got opened and the accused appellant with his wife and daughter came to the ghat of River Ganges. They took bath and changed their clothes, whereafter they started strolling on the bridge. On the bridge, the accused appellant told his wife Maya Devi that Rekha was not born from him and he asked her to throw the child in the River Ganges flowing down. Maya Devi refused to throw her daughter in the river whereupon the accused appellant snatched Rekha from the lap of Maya Devi and threw her in the river. Maya Devi, taken aghast asked him as to why he had done that. He commanded her to jump into the river or he himself would jump in it. Maya Devi started weeping and wailing but the accused appellant slapped her picked her up and threw her too in river Ganges. Fortunately, she knew swimming. She was swept in the current of the river for about 4-5 km. reaching a Tapu (mound of mud) where the water was shallow. There she raised an alarm and on hearing her cries, three persons came to her rescue. They took her out of the river. These persons disclosed their names as Dalpat PW-5, Giriraj PW-8 and Mavasi. They took her to their own village Balbapur. She was in a state of tremendous shock and was extremely nervous. She gave to them the address of her father. They took her out of the river. These persons disclosed their names as Dalpat PW-5, Giriraj PW-8 and Mavasi. They took her to their own village Balbapur. She was in a state of tremendous shock and was extremely nervous. She gave to them the address of her father. Dalpat and Mawasi went to her fathers village and brought her father Gopi Singh PW-2 and Ramesh Kumar her cousin PW-7. 4. In the meantime, Karan Singh PW-4 Pradhan of village Balbapur went to Police Station and lodged the report of the rescue of a young lady from the river by three persons, named above. The dead-body of the female child Rekha could not be traced out. Maya Devi narrated the entire incident to her father and went to the Police Station. A report was then lodged. She was sent to Primary Health Centre Garh Mukteshwar where her injuries were examined on 4-9-1984 at 12. 45 a. m. by Dr. Harish Chandra Saxena PW-9. The following injuries were found on her person: (1) Abrasion 1 cm x 0. 3 cm over dorsum of terminal phalanx of left ring finger. (2) Abrasion 1 cm x 0. 2 cm over dorsum of left hand 3 cm from left elbow joint. (3) Abrasion 2. 5 cm x 0. 5 cm over left buttock. 5. The injuries were simple in nature and caused by friction. The duration was estimated to be about two days. 6. On the report of the Pradhan of village Balbapur, the police had swung in action to ascertain the facts and the job was entrusted to S. I. D. P. Singh, PW-13 and after the disclosure made by Maya Devi to the Police, the case was converted into one under Section 307/302/201 IPC. 7. Gopi Singh PW-2 (father of Maya Devi) was employed as peon in Tehsil Nooh of District Gurgaon (Haryana) and a report was sent by Tehsildar through P. S. Nooh to the Commanding Officer, 70 HQ Cr. P. F. Group Centre Durgapur. The accused came to be arrested in Durgapur and was brought to the concerned District. 8. The investigation which was started by S. I. D. P. Singh P. W. 13 was concluded by O. P. Bhati, PW-15. On conclusion of the investigation the charge-sheet was laid and trial held. 9. The prosecution examined in all 15 witnesses. The accused came to be arrested in Durgapur and was brought to the concerned District. 8. The investigation which was started by S. I. D. P. Singh P. W. 13 was concluded by O. P. Bhati, PW-15. On conclusion of the investigation the charge-sheet was laid and trial held. 9. The prosecution examined in all 15 witnesses. The material witnesses are Maya Devi PW-1 herself, her father Gopi Singh PW-2, Karan Singh village Pradhan PW-4, Dalpat PW-5 and Giriraj PW-8 (who had rescued the lady with one Mawasi) and Shyam Lal PW-3 Manager of the Dharamshala where the accused appellant had stayed at Garh in between the night of 1/2-9-1984. 10. The accused appellant pleaded false implication. However, in his statement under Section 313 Cr. P. C. he admitted that he was on leave from his Battalion from 19-7-1984 to 16-9-1984. He also admitted to have married with Maya Devi. He denied having thrown the child and Maya Devi in River Ganges from the bridge of Brijghat. According to him, after taking leave he had gone to his house and Maya Devi was residing there. On 25-8-1984 he received a letter from his elder brother posted in Madhya Pradesh Police at Bhopal and he went to visit him on 26-8-1984. During the period he stayed at his house, Maya Devi insisted that he should either take her along with him or arrange for her separate living. Altercation took place between them on this score and leaving his wife there, he went to Bhopal where he fell ill in the night of 27-8-1984. He was under treatment in hospital from 28-8-1984 to 8-9-1984. He then took rest for 2-4 days and went to join his service. On reaching there, he came to know that Maya Devi along with daughter Rekha had disappeared from his house on the pretext of easing herself and did not return back. His father searched her in vain and being unable to find out the whereabouts, he sent an application to Superintendent of Police, Alwar. He was placed under suspension and was handed over to the police. According to him, he was not keeping good terms with his father-in-law and in connivance with his wife, he slapped this false case on him. This was, in short, the defence of the accused appellant. 11. He was placed under suspension and was handed over to the police. According to him, he was not keeping good terms with his father-in-law and in connivance with his wife, he slapped this false case on him. This was, in short, the defence of the accused appellant. 11. As the case of the prosecution has been believed on the strength of evidence produced at trial, conviction of the accused appellant has been recorded with sentences as stated in the opening part of the judgment. Naturally, the appellant is aggrieved and has come up in appeal. 12. We have heard Sri Vinod Prasad, learned Counsel for the appellant in support of appeal at considerable length and learned A. G. A. from the side of State in opposition thereof. The submission of the learned Counsel for the appellant is that the case largely hinges on the testimony of Maya Devi PW-1 which is imaginary and fanciful, incapable of proving the alleged guilt of the accused appellant. He has also pointed a finger to the so- called weaknesses in the prosecution case. We intend to deal with his arguments one by one in the discussion that follows. 13. The first submission is that the prosecution did not produce any evidence regarding the luggage having been kept by the accused appellant in Railway cloak room at Delhi, though the evidence of Maya Devi PW-1 is that after reaching Delhi via Riwari from the village, her husband had kept the luggage in the railway cloak room. This argument does not seem to be based on correct appraisal of testimony in this behalf. What she stated is that after reaching Delhi by bus, she had stayed with her daughter at the bus stand as required by her husband, who had gone away with the luggage to deposit on Delhi Railway Station cloak room. He returned after about an hour. Therefore, she could not know where her husband had actually kept the luggage. The accused appellant had well planned the commission of this crime and every step was being cautiously taken by him so that Maya Devi could know nothing about it. He returned after about an hour. Therefore, she could not know where her husband had actually kept the luggage. The accused appellant had well planned the commission of this crime and every step was being cautiously taken by him so that Maya Devi could know nothing about it. She, an illiterate lady to the extent of being unlettered completely, was made to stay at the bus stand by him on the pretext of going to deposit the luggage at the railway station and he alone could know as to where he had actually kept it. He having returned after about one hour without luggage, the simpleton lady believed him as he said. Judged in this right perspective, it could not be possible for the prosecution to produce the evidence regarding the luggage having been kept in the cloak room of any of the railway stations of Delhi. 14. The next argument of the learned Counsel for the appellant is that the entry in Dharamshala register (Ex. Ka-6) upon which the prosecution relies is neither in the name of the accused appellant nor of Maya Devi PW-1. He also criticized the testimony of the Dharamshala employee, namely, Shyam Lal PW-3 on the ground that the accused appellant was not subjected to be identified by him at identification parade earlier to the delivery of testimony in the Court and, therefore, his statement after seeing the appellant in the Court that it was he who had come to the Dharamshala along with Maya Devi PW-1 and a female child aged about 3 years on 1-9-1984 at about 7. 30 or 8 p. m. could carry no weight. True, no identification proceedings took place, but the point of the matter is that his testimony based on the entry in the Dharamshala register coupled by the statement of Maya Devi PW-1 is important. The appellant, in order to avoid to be connected with the entry, registered there under a false name as Mahendra. There is the statement of Maya Devi PW-1 that when her husband made arrangement for stay in the night in Dharamshala, by making entry in the register, she had kept standing at a little distance. It seems to be natural that she being accompanied by a male who was her own husband, it was he who made entry in the register. She was not suspecting anything or foul play. It seems to be natural that she being accompanied by a male who was her own husband, it was he who made entry in the register. She was not suspecting anything or foul play. Therefore she could not insist to be by the side of her husband to overhear the name he was getting registered under, for stay in the Dharamshala in the night. We, accordingly, do not locate any merit in this argument too. 15. Assailing the testimony of Maya Devi PW-1, learned Counsel for the appellant pointed out that direct bus goes from Chaubara to Delhi. He reasoned that this being so, there could hardly be any necessity for the journey to be performed to Delhi via Riwari where the bus was also to be changed. He also suggested that she made this false statement so as to introduce the theory of their having met Sukhdev and Karan Singh PW-6 at Riwari bus stand through whom the message was allegedly sent by the accused to her parents that all was well and he was taking her to the place of his posting. It is not possible to accept the line of approach suggested by the learned counsel for the accused appellant. Maya Devi PW- 1, a completely illiterate lady could hardly raise any objection as to why her husband was taking her and daughter via Riwari and not on the direct bus to Delhi. There is no cogent reason to disbelieve the testimony of Karan Singh PW-6 that he and Sukhdev met the accused appellant, Maya Devi and their daughter at Riwari bus stand and that he had then disclosed that he was taking her and daughter to the place of his posting. 16. Learned Counsel for the appellant then argued that the accused could have drowned his daughter as well as his wife in River Ganges while bathing itself at the ghat instead of adopting a circuitous mode of first coming to the bridge after bathing, strolling there for some time and then throwing the daughter and Maya Devi in River Ganges flowing down one by one. The argument is not convincing at all. Plausible answer to this argument is contained in the testimony of Maya Devi PW-1 that there were certain other persons also who were taking bath in River Ganges near Shiva Mandir which was in between the place of their bathing and the bridge. The argument is not convincing at all. Plausible answer to this argument is contained in the testimony of Maya Devi PW-1 that there were certain other persons also who were taking bath in River Ganges near Shiva Mandir which was in between the place of their bathing and the bridge. Therefore, the accused-appellant who had meticulously planned the crime, would not have taken the risk of drowning Maya Devi and daughter while bathing. There was every possibility of the failure of his scheme. Instead, he was likely to land himself in trouble. Therefore, he preferred to accomplish the job after coming to the deserted bridge at that unbusy hour to execute his evil design. 17. Yet another argument from the side of the appellant is that she did not disclose the details of the incident to the persons who had rescued her, namely, Dalpat, Mawasi and Giriraj who, after rescuing her, took her to village Balbapur. Instead, she waited for the arrival of her father and then she told the story to him in the presence of these persons, out of whom, Dalpat and Giriraj had been examined as PW-5 PW-8 respectively. We wish to say that the way in which this crime was committed has to be taken note of that the accused appellant threw his own daughter Rekha into the river and thereafter his wife Maya Devi PW-1 who managed to swim for some distance and was rescued by some villagers from a mound of mud where water was swallow. Indeed, she must have been in deep shock and mental tension. There is nothing unusual that she disclosed the details of the incident on the arrival of her father being then assured of her safety. Before that her apprehension of being found out and harmed by her husband was quite natural. Her own husband had thrown away their daughter in the river and even herself to take her life. The dead-body of the child could not even be recovered. Only the providence saved her from death as she knew swimming and could do so far some distance whereafter she was rescued by villagers. Judged in this rightful approach, she cannot be blamed for having been incapable quite for sometime in taking intelligent decision to immediately report the matter to the police or the persons around. 18. Only the providence saved her from death as she knew swimming and could do so far some distance whereafter she was rescued by villagers. Judged in this rightful approach, she cannot be blamed for having been incapable quite for sometime in taking intelligent decision to immediately report the matter to the police or the persons around. 18. The learned Counsel for the accused appellant has then urged that her statement is that it was after 5 minutes of throwing the daughter in the river that her husband threw her also in the river. During this intervening period she kept weeping and wailing and raising shouts. According to the learned Counsel, it was unnatural that the accused appellant should have waited for five minutes to throw her down in the river after the daughter was thrown down. The argument is too technical and artificial. Time is not essence of life of an illiterate lady of poor background as Maya Devi PW-1 is. She cannot be imputed the knowledge of mathematical or even approximate duration of five minutes. The entire incident is the part of the same chain. The accused first threw the child Rekha into the river and when Maya Devi PW-1 was aghast and shocked of the criminal act of her husband, he threw her down too in the river before she could collect her wits. Really speaking, he did not leave any time to her to react. The incident took place before sunrise. That was not a busy hour. The crime of first throwing daughter into the river and then Maya Devi PW-1 was committed by the accused appellant in no time when there was no other witness on or near the deserted bridge at that hour. Nobody could hear the alarm of cries of Maya Devi during the whole incident. 19. It is pertinent to say that the motive for commission of this crime by the accused appellant was that he suspected the character and fidelity of Maya Devi that the child Rekha was not born from him. It is to be pointed out that while strolling on the bridge he had told his wife that Rekha had not been fathered by him. She asked her to throw the child in Ganges and on her refusal took her from her lap and threw the child into the river. It is to be pointed out that while strolling on the bridge he had told his wife that Rekha had not been fathered by him. She asked her to throw the child in Ganges and on her refusal took her from her lap and threw the child into the river. The factum that he suspected the fidelity of his wife, is clear from the suggestion made to Maya Devi in her cross-examination. It was suggested to her that she had illicit relations before and after her marriage with a boy of the village of her parents. Of course, she denied it, but this suggestion made to her in her cross-examination is eloquent of the fact that he suspected her fidelity. It is a fact that he was posted in West Bengal and used to visit his village at intervals. He gave free flight to his imagination and germinated in his mind the seeds of suspicion as regards the fidelity of his wife. 20. Another suggestion offered to Maya Devi PW-1 in her cross- examination is that she had insisted to go with him to the place of his posting and their relations were strained on this account. This, in fact, unfolds the truth that she was all eager to join her husband at the place of his posting so as to be in his company as his wife which was the real purpose of the marriage between the two. At the same time, it indicates that the suspicion of the accused appellant about the fidelity of his wife was completely unfounded and was the product of his imagination and whims. When the accused appellant made a show of taking her with him to the place of his posting, she readily and happily agreed. She felt herself to be fully secured at the hands of her husband who was the nearest person to her being her better half. She as an obedient wife, accompanied him without knowing what was the brewing in his mind and how was his mind working. Based on whims, he had actually accumulated deep-seated hatred against her and daughter Rekha whom he thought he had not fathered. She as an obedient wife, accompanied him without knowing what was the brewing in his mind and how was his mind working. Based on whims, he had actually accumulated deep-seated hatred against her and daughter Rekha whom he thought he had not fathered. It was only at the time of committing this crime that he unfolded his mind to her asking her to throw the daughter in the River Ganges that she was not born of him and on her refusal to obey his command, he picked up the child and threw her into the river Ganges. Immediately thereafter, he threw his wife as well into the river. 21. A few words should also be stated for defence version. So far as the plea of alibi raised by the appellant is concerned, suffice it to say that despite the case having kept hanging at defence stage at his behest for more than twenty months, he could not prove his plea of alibi that he was under treatment in Bhopal Hospital on the day of the incident. Neither any witness nor any document could be produced in support of his this plea of alibi which was obviously built on straw. Even his elder brother posted in Madhya Pradesh Police in Bhopal was not produced in defence that the appellant had gone to visit him on 26-8-1984. As regards the other limb of the defence case that in the absence of her husband, she escaped from the house of her in- laws, we find it to be without any basis. Had it been so, a report would have ordinarily been lodged at the Police Station regarding her disappearance by someone from the family of her in- laws. The defence case was that her father-in-law searched her at likely places and even went to her parents and not locating any whereabouts he sent an application to S. P. Alwar (Rajashthan ). The father of the appellant did not enter the witness box to support this cock and bull story. We are, therefore, in agreement that the defence has rightly been rejected by the learned trial Judge. 22. The father of the appellant did not enter the witness box to support this cock and bull story. We are, therefore, in agreement that the defence has rightly been rejected by the learned trial Judge. 22. We have dealt with above all the aspects of the case and on a global consideration of the evidence and concomitant circumstances, we endorse the impugned judgment rendered by the Court below finding the accused appellant guilty of both the offences, i. e. under Section 302 IPC and 307 IPC with pre- planning and meditation he committed murder of his own daughter in a merciless manner and thus extinguished a budding flower aged only about three years. He also attempted to murder his own wife Maya Devi PW-1 by throwing her in the river Ganges, who for her good luck escaped from meeting her end as she knew swimming and was timely rescued by certain persons. 23. In the result, we dismiss this appeal and affirm the sentences passed by the Court below against the appellant. He shall be arrested and sent to Jail to serve out his sentences, i. e. life imprisonment under Section 302 IPC and rigorous imprisonment for 10 years under Section 307 IPC which shall run concurrently. 24. The record of the lower Court be returned forthwith. The Chief Judicial Magistrate, Ghaziabad shall report compliance within two months. 25. The office is also directed to send a copy of this judgment to the employer of the accused appellant, viz. Commandant/topmost officer (by whatever rank called) of the C. R. P. F. , West Bengal for taking note of it for needful action. Appeal dismissed. .