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2013 DIGILAW 612 (UTT)

Jagdish Ram v. State of Uttarakhand

2013-09-27

BARIN GHOSH, U.C.DHYANI

body2013
JUDGMENT U.C. Dhyani, J. PW1 Smt. Neela Devi wrote a complaint (Ext. Ka-1) to the Inspector, Police Station, Kotwali Champawat, District Champawat on 24.02.2008 against accused-appellant Jagdish Ram for the offence punishable under Section 302 of IPC. The incident took place on 23.02.2008, at around 04:00 P.M. and the criminal law was set into motion at the instance of PW1 on 24.02.2008, at 10:00 A.M. PW1 came to know of the incident in the night. The distance between the place of incident and the police station concerned was 25 kilometers and, hence, there appears to be no delay in lodging the FIR. Accused-appellant was none, but the husband of PW1. 2) PW1 wrote in her report that she was married to one Joga Ram some eight years ago. Joga Ram used to assault and harass PW1 and, therefore, PW1 alongwith her daughter was living at her parental home. PW1 was married to the accused-appellant some three months before the date of incident. PW1’s daughter (begotten out of her first wedlock) also came in her new matrimonial home. On 23.02.2008, at around 04:00 P.M., accused-appellant took the victim on the pretext of going to tailor’s shop (for stitching new clothes for her). The victim was dumb. When PW1’s husband (appellant) returned in the night, PW1 enquired from him regarding whereabouts of the daughter (victim). Initially, accused-appellant did not disclose anything. On being persuaded by PW1, accused-appellant replied that he has killed his daughter and thrown her in river Lohawati. PW1 was perplexed. She cried and narrated the incident to the villagers. PW1’s husband fled away in the night. Thereafter PW1, with the assistance of scribe Amar Nath, wrote a complaint (Ext. Ka-1). 3) After the investigation, a charge-sheet (Ext. Ka-10) was submitted against the accused-appellant under Section 302 of IPC. The case was committed to the Court of Sessions. When the trial commenced and prosecution opened it’s case, charge for the offence punishable under Section 302 of IPC was framed against the accused-appellant, to which he pleaded not guilty and claimed trial. 4) PW1 Smt. Neela Devi, PW2 Hukum Singh, PW3 Aan Singh, PW4 Kishan Ram, PW5 Lal Singh, PW6 Dr. P.D. Pangaria, PW7 Head Constable Harish Ram, PW8 Jagdish Ram, PW9 Fakir Ram, PW10 Km. Laxmi, PW11 Vijendra Singh and PW12 S.H.O. R.S. Tolia were examined on behalf of the prosecution. 4) PW1 Smt. Neela Devi, PW2 Hukum Singh, PW3 Aan Singh, PW4 Kishan Ram, PW5 Lal Singh, PW6 Dr. P.D. Pangaria, PW7 Head Constable Harish Ram, PW8 Jagdish Ram, PW9 Fakir Ram, PW10 Km. Laxmi, PW11 Vijendra Singh and PW12 S.H.O. R.S. Tolia were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr. P.C., in reply to which he said that the case against him was false. No evidence was given in defence. Accused said that he was unaware as to who threw PW1’s daughter into the river. After considering the evidence on record, learned Sessions Judge, Champawat, vide judgment and order dated 20.07.2010, convicted accused-appellant under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life alongwith a fine of Rs. 10,000/-. Aggrieved against the impugned judgment and order, present appeal was filed by the convict from jail. 5) Prosecution led the evidence through PW1, who said, among other things, in her examination-in-chief, that she was married to one Joga Ram, who used to assault and harass her, as a result of which, her parents got her married to the present appellant. After three months of her marriage, accused-appellant took her daughter to a tailor’s shop. When accused-appellant returned, the daughter was missing. On this, PW1 enquired from the accused-appellant regarding whereabouts of her daughter, to which he pleaded his ignorance. PW1 started weeping. Her neighbour PW10 Laxmi came there. PW1 and Laxmi again asked the accused-appellant to disclose the whereabouts of the daughter, but accused-appellant was reluctant to say anything. Accused-appellant made an attempt to flee away from there. PW1 and Laxmi tried to apprehend him, but accused-appellant succeeded in making good his escape saying that he has thrown the daughter into the river. PW1 alongwith her neighbours made futile attempt to trace the victim. Dead body of the victim was later on found floating in the river. Before that PW1 lodged a complaint (Ext. Ka-1). PW1 proved the same. PW1 also identified the wearing apparels of her daughter, which clothes the victim wore at the time she was taken by the accused-appellant. PW1 was subjected to a brief cross-examination, much to the discomfiture of the defence. The evidence tendered by PW1 inspired confidence. There was nothing on record to suggest that the ocular evidence of PW1 should not be believed. PW1 was subjected to a brief cross-examination, much to the discomfiture of the defence. The evidence tendered by PW1 inspired confidence. There was nothing on record to suggest that the ocular evidence of PW1 should not be believed. The evidence tendered by PW1 was acceptable. 6) PW2 saw the dead body of the victim floating in river Lohawati. PW2 was also a witness to the inquest report (Ext. Ka-2). PW3, on receiving information from PW2 that the dead body of the victim was found floating in a river, gave information to police station, Kotwali Champawat. PW3 was also a signatory to inquest report. The victim was aged 7-8 years, when she died an unnatural death. 7) According to PW4, accused-appellant Jagdish Ram went somewhere alongwith the victim, but returned without her. When PW4 enquired from the accused-appellant regarding his daughter, he pleaded ignorance. Later on it was found that the dead body of the victim was floating in a river. PW4 was also a signatory to inquest report. PW5 too was a signatory to the inquest report. 8) PW7 was a formal witness, who proved some prosecution papers. PW8 was former Gram Pradhan of the village. He said that PW1 was married to Joga Ram and thereafter to the appellant. The dead body was cremated in his presence. PW9 said that on 24.02.2008, he came to know that accused-appellant killed PW1’s daughter. PW9 was also a witness to cremation of dead body. It was PW10, in whose presence, the accused-appellant made an extra judicial confession that he killed the daughter of PW1. Appellant made good his escape when PW1 and PW10 tried to apprehend him. PW10 was the neighbour of PW1. PW11 was the witness having last seen the victim in the company of accused-appellant. PW12 was the Investigating Officer of the case. 9) PW6 conducted postmortem on the dead body of the victim and proved postmortem report (Ext. Ka-3). According to PW6, the cause of death of victim was ante mortem drowning leading to asphyxia. Thus, the oral evidence of prosecution witnesses was corroborated by medical evidence projected through PW6. PW6 was specific in his statement to say that he conducted postmortem on the dead body of the victim on 25.02.2008, at 11:00 A.M. and that the duration of victim’s death was between 36-48 hours before postmortem. Victim died otherwise than under normal circumstances. Thus, the oral evidence of prosecution witnesses was corroborated by medical evidence projected through PW6. PW6 was specific in his statement to say that he conducted postmortem on the dead body of the victim on 25.02.2008, at 11:00 A.M. and that the duration of victim’s death was between 36-48 hours before postmortem. Victim died otherwise than under normal circumstances. 10) The victim died an unnatural death. She was thrown into the river by the accused-appellant. Victim died of drowning leading to asphyxia. Lodger of the FIR was none else than the mother of the victim and the accused-appellant was none other than her stepfather. Accused-appellant failed to discharge his obligation, which was required from him under Section 106 of the Indian Evidence Act. When the victim was taken by the appellant alongwith him on the pretext of taking her to tailor’s shop, it was the duty (obligation) of the accused-appellant to bring her back alongwith him or else, to give plausible reason for not bringing her back. Instead of bringing the daughter back, she was thrown into the river, as her dead body was found floating in such river. One does not know whether the accused-appellant took the victim to the tailor’s shop or not, but one thing is certain that he took the victim alongwith him on the pretext of going to tailor’s shop. Since it was a new marriage, therefore, PW1 rightly thought that the stepfather would be taking the daughter for stitching new clothes for her. If question no. 1 was asked under Section 313 of Cr. P.C. to the effect that the accused-appellant killed the victim and threw her dead body in to the river, the same was on the representation made by the appellant to PW1. Learned Amicus Curiae appearing on behalf of the accused-appellant tried to make a mountain out of molehill that the accused was asked the first question under Section 313 of Cr. P.C. that the victim was first killed and then her dead body thrown into the river. In fact, as said earlier, that was a representation made by the accused-appellant to PW1 and that is how this question, as part of prosecution story, was asked to the accused-appellant in his statement under Section 313 of Cr. P.C. The same thing, which the accused-appellant told to PW1, was mentioned in the FIR. In fact, as said earlier, that was a representation made by the accused-appellant to PW1 and that is how this question, as part of prosecution story, was asked to the accused-appellant in his statement under Section 313 of Cr. P.C. The same thing, which the accused-appellant told to PW1, was mentioned in the FIR. Since the ‘lead’ was not supplied by the accused-appellant, therefore, PW1 wrote the same fact in the FIR, which was projected to her by the accused-appellant. The same was not the prosecution allegation, but a representation made to PW1 by the accused-appellant. In a natural course, when the accused-appellant took his step-daughter alongwith him, it was his bounden duty to bring her back. Accused-appellant did not do the same. He did not supply the information as to what happened to the daughter thereafter. The obligation was on the accused-appellant to furnish details, which burden he failed to discharge. 11) Learned trial court, therefore, committed no mistake in holding that the prosecution was able to prove it’s case against the accused-appellant beyond a shadow of reasonable doubt. Learned trial court appreciated the prosecution evidence correctly. It has rightly come to the conclusion that the prosecution story was proved against the accused-appellant to the hilt. No interference is, thus, called for in the impugned judgment and order. 12) Criminal jail appeal preferred by the accused-appellant is, accordingly, dismissed. The conviction and sentence awarded to the accused-appellant is hereby affirmed. Accused-appellant Jagdish Ram is in jail. He will serve the remaining part of the sentence as was awarded to him by the trial court and thus affirmed by this Court. 13) Let a copy of this judgment be sent to the Superintendent of jail concerned where the accused-appellant is currently serving out his sentence. 14) A copy of this judgment alongwith the lower court records be also sent to the Court below for ensuring compliance.