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Allahabad High Court · body

2003 DIGILAW 936 (ALL)

JOGI v. STATE OF U P

2003-04-24

K.N.OJHA, M.C.JAIN

body2003
M. C. JAIN., J. There are two appellants, namely, Jogi and Raj Deo who have assailed the order of their conviction under Section 302 I. P. C. read with Section 34 I. P. C. and sentence of life imprisonment passed on 15-10- 1981 against them by Sri C. L. Anand, the then III Additional Sessions Judge, Gorakhpur in S. T. No. 100 of 1981. 2. The two appellants are represented on record by Sri Siddharth Shukla, Advocate who filed this appeal. However, he did not turn up to advance arguments even on the revision of list. We have heard Sri G. S. Bisaria, learned A. G. A. from the side of the State in opposition of the appeal and have gone through the record which has been summoned before us. We propose to decide the appeal on merits. 3. The incident took place on 8-3-1980 at about 4. 30 p. m. in a filed outside in-habitation area in Village Kharkhariya, Police Station Compierganj, District Gorakhpur. The report was lodged the same night at 9. 30 p. m. by Hari Lal father of the deceased girl Reshma. The distance of the police station from the place of the occurrence was 12 miles. The deceased Reshma aged about 20 years daughter of the complainant used to go to the fields/crop area of the village to scrap grass. The two appellants residents of the same village Kharkhariya used to tease her with libidinous and lustful designs. Nearly a fortnight before the incident, Reshma had abused them, repelling their lustful overtures. The complainant himself had also reprimanded them when these two appellants were found loafing around his house. On the fateful day also, the girl had gone to the fields towards south of the village for scrapping grass and collecting forewood. Kanhaiya P. W. 3 son of the complainant informed him on returning from school that the two appellants had felled Reshma and were dragging her to Arhar field with a knot around her neck prepared with her Saree. When the boy reached nearer and raised alarm, Jayanti Tewari P. W. 2 and Vashishtha Tewari, who were on the way as also one Chetan rushed up and saw the two appellants killing her. The accused-appellants then ran away. On receiving the information, the complainant hurried to the field i. e. crime spot and found his daughter lying dead in Arhar field. The accused-appellants then ran away. On receiving the information, the complainant hurried to the field i. e. crime spot and found his daughter lying dead in Arhar field. Consequent upon the lodging of the FIR, a case was registered and investigation followed which was conducted by S. I. Ram Chandra Dubey P. W. 5 and concluded by S. I. Veer Bahadur Dubey P. W. 4. The post mortem over the dead body was conducted by Dr. Bhuneshwar Shahi P. W. 6 on 10-3-1980 at 2 p. m. The outcome of the same may be related here. The deceased was aged about 20 years and about two days had passed since she died. 4. The following ante-mortem injuries were found on her person: (1) Tip of the nose chopped off 1-3/4" x 1". Clotted blood in nose and its wall present. (2) Incised wound on lower right eyelid 1/2" x 1/4" x muscle deep on lower part. (3) Incised wound upper eyelid left 1/2" x 1/4" x muscle deep. (4) Abrasion 2-1/2" x 1" on the right cheek, 1" front of right ear. (5) Contused Reddish swelling 4" x 2" size over right cheek. (6) Abrasion 1/2" x 1/2" over the left lower jaw. (7) Abrasion 1/2" x 1/3" on upper part right side of the neck. (8) Abrasion 1/4" x 1/4" on right side neck, 1" below injury No. (7 ). (9) Multiple abrasion in area 5" x 1" on the left side and middle of neck just above the left collar bone and the sternal notch. (10) 7" x 1/4" size abrasion encircling back and sides of the neck on lower part back of the neck. (11) Contusion with abrasion 2-1/2" x 1-1/2" front of the chest across the upper part of the breast bone. (12) Multiple abrasion in 3" x 2" area on the left breast. (13) Multiple abrasion in 2-1/2" x 1" area on the right breast. (14) Penetrating wound size 1-1/2" x 1/2" x abdominal cavity deep, lying across the upper abdomen epigastrium. (15) Incised wound 3" x 1/4" x muscle deep front abdomen, 1" below injury No. (14 ). (16) Penetrating wound 1-1/2" x 1/4" x abdomen cavity deep, 2" below injury No. (15 ). (17) Penetrating wound 3/4" x 1/4" x cavity deep 1- 1/2" below injury No. (16 ). (15) Incised wound 3" x 1/4" x muscle deep front abdomen, 1" below injury No. (14 ). (16) Penetrating wound 1-1/2" x 1/4" x abdomen cavity deep, 2" below injury No. (15 ). (17) Penetrating wound 3/4" x 1/4" x cavity deep 1- 1/2" below injury No. (16 ). (18) Penetrating wound 1" x 1/2" x cavity deep,just on the umbilicus, 1" below injury No. (17 ). (19) Incised wound 1/2" x 1/4" x muscle deep, 1" below injury No. (18 ). (20) Multiple incised wound (eleven in No.) just around the vagina size many injuries between 3/4" x 1/2" vaginal muscle wall deep. (21) Multiple incised wound (eleven in No.) on inner side of the left thigh size vagina between 3/4" x 1/2". (22) Multiple incised wound (seven in No.) on inner side of the right upper thigh. (23) Three small incised wound (3/4" x 1/2" size variation x muscle deep) on inner side right leg. 5. On internal examination membranes and brain were found congested. Trachea was fractured. Peritoneum was punctured at several places. 6. In the opinion of the Doctor, the death had occurred due to asphyxia and haemorrhage. 7. At the trial, the prosecution examined six witnesses. Hari Lal P. W. 1 was the father of the deceased and informant, but not an eye-witness. The eye-witnesses were Jayanti Tewari P. W. 2 and Kanhaiya P. W. 3. 8. While scrutinizing the evidence on record, it deserves mention at the initial brunt of the matter that FIR of the incident was prompt. The incident took place on 8-3-1980 at about 4. 30 p. m. and the report had been lodged the same night at 9. 30 p. m. by Hari Lal P. W. 1 the father of the deceased. The distance was about 12 miles. The time of the incident finds corroboration from the testimony of Dr. Bhuneshwar Shahi P. W. 6 also who stated that the death could have taken place on 8-3-1980 at about 4. 30 p. m. The Investigating Officer Ram Chandra Dubey P. W. 5 had found physical evidence of blood-stained earth at the place which was the crime spot as per the testimonial assertions of the eye- witnesses. Thus the time and place of the incident are fully established. 9. There was strong motive on the part of the accused appellants to commit this crime. Thus the time and place of the incident are fully established. 9. There was strong motive on the part of the accused appellants to commit this crime. Their solicitation soaked in lewdness had been spurned earlier by the young girl who had even chided and abused them for their advances. It is there in the evidence of Kanhaiya P. W. 3 (brother of the deceased) that his father was comparatively a poor person whereas the accused appellants were better placed. Hari Lal P. W. 1 (father of the deceased) deposed that his daughter had complained to him ten or twelve days before the incident about the lascivious overtures of accused-appellants and he himself had reprimanded them on finding them loafing around his house. It is obvious that they took the insult deep inside and the young girl had to pay the price of her ideal standard of morality by losing her life as she had declined to fall prey to their lustful advances. Though Hari Lal P. W. 1 himself is not an eye-witness, but his testimony is very relevant in unfolding the previous background and motive of the accused appellants for committing this crime. He had reached the spot on the information given by his son Kanhaiya P. W. 3. He was returning from school and it was on his information that Hari Lal had rushed to the place of occurrence to find this daughter lying dead Jayanti Tewari P. W. 2 is a witness of fact. Giving plausible explanation for his presence at the spot, he stated that in the morning of the day of occurrence he had gone to the house of his maternal uncle and was returning by bicycle to his village. At 4. 30 p. m. Kanhaiya P. W. 3 was raising alarm that his sister was being assaulted by the accused appellants. He along with Vasishatha Tewari and Chetan rushed to the scene of occurrence and saw the happening. It is also in his evidence that the accused appellants then ran away. Nothing could be elicited from his cross- examination to discredit his testimony. There was no reason either for his deposing falsely against the accused appellants. 10. Kanhaiya Lal P. W. 3 was a lad of about 12 years and could not be expected to closely follow the accused appellants when they were actually killing his sister in the Arhar field. Nothing could be elicited from his cross- examination to discredit his testimony. There was no reason either for his deposing falsely against the accused appellants. 10. Kanhaiya Lal P. W. 3 was a lad of about 12 years and could not be expected to closely follow the accused appellants when they were actually killing his sister in the Arhar field. He informed of it to Jayanti Tewari P. W. 2 who was passing by that way and he (Jayanti Tewari) actually witnessed the real incident while he (Kanhaiya P. W. 3) rushed to inform his father. Nothing more could be expected from a boy aged about 12 years. 11. It also appears that the accused-appellants tried everything to make a dent in the prosecution case and they even paid money to Kanhaiya Lal P. W. 3 as admitted by him in his cross- examination by State Counsel. His statement was recorded in the Court on 31-8-1980. Earlier thereto, he had come to the Court on three dates, but his evidence was not recorded. It is apparent that accused-appellants were attempting to nullify the serious legal repercussions of this heinous crime committed by them and to come out of the difficult situation, they even bribed Kanhaiya Lal P. W. 3, a poor person qua their affluence. It is likely that poverty of his father was a conducive factor which provided a foot board to the accused appellants to bride him (Kanhaiya P. W. 3 ). 12. But despite every misadventure of the accused-appellants, the reality could not be subdued and justice would triumph because testimony of eye-witness Jayanti Tewari P. W. 2 is of sterling character leaving not even slightest doubt that it were the accused-appellants who committed this heinous crime. The facts emerging from the testimony of Hari Lal P. W. 1 as also from that of Kanhaiya Lal P. W. 3 (child witness) brother of the deceased (though declared hostile by the prosecution) clinchingly bring home the guilt to the accused appellants. Even on being declared hostile, the statement of Kanhaiya P. W. 3 goes a long way in supporting the prosecution case. It cannot at all be questioned that he was on the way to his house from his school at about 4. 30 p. m. when his sister was murdered in the Arhar field. Even on being declared hostile, the statement of Kanhaiya P. W. 3 goes a long way in supporting the prosecution case. It cannot at all be questioned that he was on the way to his house from his school at about 4. 30 p. m. when his sister was murdered in the Arhar field. It was on his information that Jayanti Tewari P. W. 2, passing that way, had immediately rushed to the spot to witness the actual incident. Indeed, the statement of Kanhaiya P. W. 3 is supportive of the prosecution case in a great deal. 13. It is also a factor to be taken note of that after the incident, the accused appellants absconded and proceedings under Sections 82 and 83 Cr. P. C. had to be drawn against them. The Investigating Officer Ram Chandra Dubey P. W. 5 deposed that articles of the accused appellants were attached. Though the accused appellants admitted the factum of attachment of their property but denied that they had absconded. There could hardly be any necessity of attaching their property if they had not absconded. 14. Really speaking, while perpetrating this heinous crime the accused-appellants demonstrated to be worse than wolves in human shape. While doing the victim to the death, as many as 23 injuries were inflicted on her person including incised wounds and penetrating wounds on different parts. Even the incised wounds were inflicted around the vagina, left side thigh and inner side of right upper thigh. The tip of the nose was chopped off. Incised wounds were inflicted on right and left eye-lids, cheeks and other parts. Larynx and trachea were fractured. The death was the result of combination of asphyxia and haemorrhage resulting from number of inflicted injuries. The deceased was a well bult young girl of about 20 years. Naturally, she must have offered strong resistance. Despite that, numerous injuries were inflicted on her which could be possible only if there had been more than one assailant. 15. All the facts, circumstances and the injuries caused to the victim indicate as if the accused appellants were not satisfied by simply putting her to eternal sleep. Rather they committed this murder in most cruel and diabolical manner demostrating sadistic proclivity. 16. The appeal has no merit at all and we hereby dismiss it. The appellants Jogi and Rajdeo are on bail. Rather they committed this murder in most cruel and diabolical manner demostrating sadistic proclivity. 16. The appeal has no merit at all and we hereby dismiss it. The appellants Jogi and Rajdeo are on bail. The C. J. M. Gorakhpur is directed to cause them to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against them by the lower Court. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months from the date of receipt. Appeal dismissed. .