JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against the judgment and order dated 15.10.1981 passed by III Additional Sessions Judge, Gorakhpur, in S.T. No. 100 of 1981, State of U.P. v. Jogi and Anr., whereby both the appellants Jogi and Rajdeo have been convicted under Section 302 read with 34 I.P.C. and sentenced to undergo life imprisonment.
2. Earlier both the appellants were represented by Sri Siddharth Shukla, Advocate, who filed the appeal. However, he did not turn up to advance arguments, when the appeal came up for hearing. Therefore, arguments of Sri G.S. Bisaria, learned AGA for the State were heard and judgment was delivered by this Bench on 24.3.2003. The appeal was dismissed.
3. The appellants preferred Criminal Appeal No. 673 of 2003, Jogi and Anr. v. State of U.P., before the Hon'ble Supreme Court. Hon'ble the Apex Court observed that it was a serious matter that the advocate for the appellants did not appear before the High Court even after the matter was adjourned and a fresh date was given. Therefore, the High Court decided the matter after going through the record with the help of the prosecution. The practice of the advocates not to appear in Court in a serious matter like this was deprecated and Sri Siddharth Shukla, Advocate, was directed to personally pay costs of RS. 2000/- to the Legal Aid Society of the High Court of Allahabad. With these directions, the appeal was remanded for being decided afresh on merits.
4. After the receipt of record, arguments of Sri Viresh Mishra, learned Senior Counsel for the appellants and Sri K.P. Shukla, learned AGA have been heard.
5. The incident took place on 8.3.1980 at about 4.30 P.M. in a field outside abadi of village Kharkhariya, police station Complerganj, district Gorakhpur. The report was lodged in the same night at 9.30 P.M. by Hari Lal, father of the deceased girl Reshma. The distance of police station from the place of occurrence was 12 miles. The deceased Reshma aged about 20 years - daughter of the complaints Hari Lal used to go to the fields/crop area to scrap grass. The two appellants residents of the same village Kharkhariya used to tease her with lustful designs. Nearly a fortnight before the incident, Reshma had abused them, repelling their lustful overtures. The complainant -Hari Lal himself had also reprimanded them when these two appellants were found loafing around his house.
6. On the fateful day also, the girl had gone to the fields towards south of the village for scrapping grass and collecting firewood. Kahnaiya Lal, PW 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 Tiwari PW 2, Vashishtha Tiwari and Chetan, who were on the way, rushed up and saw the two appellants killing her. The accused-appellants then ran away. On receiving this information, the complainant went to the spot and found his daughter lying dead in Arhar field. Thereafter, FIR was lodged. The case was registered at the police station. Investigation was conducted by S.I. Ram Chandra Dubey, PW 5 and was concluded by S.I. Veer Bahadur Dubey, PW 4.
7. The post-mortem over the dead body was conducted by Dr. Bhuneshwar Shahi, PW 6, on 10.3.1980 at 2.00 P.M. The deceased was aged about 20 years and in the opinion of the doctor she had died two days before. 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. 15.
16. Penetrating wound 1 1/2" x 1/4" x abdomen cavity deep, 2" below injury no. 15.
17. Penetrating would 3/4" x 1/4" x cavity deep 1 1/2" below injury No. 16.
18. Penetrating would 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 wounds (eleven in number) just around the vagina-size many injuries between 3/4" x 1/2" x vaginal muscle wall deep.
21. Multiple incised wound (eleven in number) on inner side of the left thigh size vagina between 3/4" x 1/2".
22. Multiple incised wound (seven in number) in inner side of the right upper thigh.
23. Three small incised wound (3/4" x 1/2" size variation x muscle deep) in inner side right leg.
8. On internal examination, membranes and brain were found congested. Trachea was fractured and Peritoneum was punctured at several places.
9. In the opinion of the doctor, the death had occurred due to asphyxia and haemorrhage.
10. Prosecution examined six witnesses namely, PW 1 Harilal, PW 2 Jayanti Tiwari, PW 3 Kanhaiya Lal (son of Hari Lal- PW 1), PW 4 Investigating Officer Veer Bahadur Dubey, PW 5 Investigating Officer Ram Chandra Dubey and PW 6 Dr. Bhuneswar Shahi.
11. Both the accused denied their participation in the crime and it was alleged that due to malice they were falsely involved in the crime.
12. The defence was of denial, but the accused did not examine any witness.
13. The gist of the material evidence may be set forth to deal with the arguments advanced by the learned counsel for the appellants.
14. PW 1 Hari Lal stated that Reshma was his daughter. She was aged about 20 years, Jogi and Rajdev are residents of his village and about 10-12 days before, they had teased her. She made complaint to him, on which he scolded both these accused. Still they used to roam around his house for Reshma. It has been stated by him that she had gone to scrap grass on the fateful day. It was at about 4.30 P.M. when his son PW 3 Kanhaiya Lal aged about 10-12 years came running to him and informed him about the occurrence. The boy was on his way back to home from his school and had seen the occurrence. He rushed to the spot on being informed about the incident by his son and found Jayanti Tewari etc. at the spot. He got the report written by PW 2 Jayanti Tiwari, went to the police station and lodged it there. Thus PW 1 is not an eyewitness of the occurrence, but he is the informant and a witness of motive.
15. There are two eyewitnesses of the occurrence. They are PW 2 Jayanti Tiwari and PW 3 Kanhaiya Lal. PW 2 Jayanti Tiwari has stated that he had gone to the house of his maternal uncle in the morning of 8.3.1980 on bicycle, which was at the distance of about 5 1/2 - 6 Kosh. He was coming back with Vashishtha Tiwari and Chetan Mallah met them on the way. Since his bicycle had gone out of order and the village was near, he was coming on foot. He heard the alarm raised by PW 3 Kanhaiya Lal. He ran to the spot of Arhar field. He was the appellants running away but when he reached the spot he found in the Arhar field that blood was lying on the earth and Reshma was lying dead.
16. PW 3 Kanhaiya Lal, younger brother of deceased Reshma, stated that his elder sister Reshma used to go to field to scrap grass and collect wood. The appellants used to tease her. Reshma had used insulting language against them. Still they used to roam around his house for Reshma. When Reshma complained to her father, her father PW 1 Hari Lal had also scolded these persons. Reshma had gone to scrap grass on the fateful day. At about 4.30 P.M., he was coming back from his school. He was studying in Class III. He went to the Arhar field and found that his sister was lying dead. He did not support the prosecution story that he had seen the appellants killing Reshma. Therefore, he was declared hostile by the prosecution. When he was cross-examined by the prosecution, he stated that when he reached the Arhar field, Jayanti Tiwari - PW 2, Vashishtha Tiwari and Chetan had also reached there. When he went home and told the story to his father, he (his father) also reached the spot. In cross-examination he also stated that he had gone three times to the Sessions Court to make statement, but his statement could not be recorded. He stated that his father was a poor person and appellants were men of influence. He also accepted that he had taken money from the accused persons, but only Rs. 12/-.
17. Coming to the merits of the case, the question of motive may be dealt with first. We are of the opinion that there was strong motive on the part of the accused appellants to commit this crime. Their lewd advances had earlier been repelled by the young lady who had even abused them. She had complained against them to her father also. He had also scolded them as stated by him while deposing as PW 1. Still they continued to loiter around the house of the young lady. The evidence as to the motive contained in the statement of PW 1 Hari Lal (father of the lady) has a ring of truth. There is nothing in his statement wherefrom it may be inferred that there was any malice or enmity between him and the accused appellants, except the occurrence of about 10-12 days before when they had tried to tease the lady with sexual design in respect of which she had used insulting language against them and had also complained to her father (PW 1 Hari Lal) who too had scolded them.
18. The motive is supported even by the testimony of PW 3 Kanhaiya Lal (brother of the deceased), though he was declared hostile by the prosecution.
19. It has been argued by the learned counsel for the appellants that having regard to the injuries sustained by her, she might have been killed by those having suspicion about her chastity and such persons could either be from her Sasural or from the family of her own parents. The argument, in our opinion, is wholly illogical. The statement of PW 1 Hari Lal is that Reshma was married about three years before and had been sent to her Sasural after three years to live there for about 8 days where after she had returned. In rural life, it is not uncommon that 'Gauna' ceremony of a girl is performed after long interval which may be even of years. If her in-laws suspected her chastity, they would have murdered her in her Sasural. Had her parents some suspicion about her character, instead of causing as many as 23 injuries on different parts of her body including vagina, they would have done her to death by poisoning. Learned counsel for the appellants has tried to create an imaginary issue of chastity of the young lady. What appears to be the truth is that when the young lady did not fall prey to their lustful advances and abused them with further complaint to her father, who too scolded them, they (accused appellants) took the insult deep inside and the young lady had to pay the price of ideal standard of morality by losing her life at the hands of merciless accused appellants. To derive sadistic pleasure, they inflicted as many as 23 injuries on her, chopping her nose and even causing injuries on inner size of thighs and just around the vagina.
20. To come to the point, there was strong motive on the part of the accused appellants to commit this crime.
21. It has next been submitted by the learned counsel for the defence that PW 3 Kanhaiya Lal has not supported the prosecution story as he stated that when he reached the spot, he found Reshma lying dead and he did not see the appellants dragging him or running away after committing her murder in Arhar field. We are of the opinion that the statement of PW 3 Kanhaiya Lal cannot be interpretated so as to give a clean chit to the accused. The entire evidence of this witness is to be seen in the light of the scenario of this crime. FIR was promptly lodged by the father of the young lady on the basis of the information supplied by this witness. The details were mentioned in the FIR on the basis of the information given by this witness. If Kanhaiyal Lal PW 3 had not been coming from the school at about 4.30 P.M. and had not reached the spot, the dead body could not have been recovered so easily because it was tying inside the Arhar corp. Kanhaiya Lal PW 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 Arhar field. He informed of it to Jayanti Tewari PW 2, who passing by that way and himself rushed to inform his father. Nothing more could be expected from a boy aged about 12 years. It also appears that the accused -appellants paid money to PW 3 Kanhaiya Lal as admitted by him in his cross-examination by State Counsel. His statement was recorded in Court on 31.8.1980. Earlier thereto, he had come to court on three dates, but his evidence was not recorded. They took advantage of the poverty of the father of the boy and bribed him to say that he did not see the murder. If in these circumstances he preferred to take Rs. 12/- from the appellants and to make statement in their favour that he did not see the occurrence, it does not mean that the rest statement made by him against the appellants is of no credence. Thus even though PW 3 Kanhaiya Lal did not support the prosecution story on the point of being eyewitness of murder, but he has supported the prosecution story on other points of fact and corroborated the testimony of PW 2 Jayanti Tiwari, supporting the proof of the charge against the appellants.
22. The dead body was lying in Arhar field outside of abadi of village Kharkhariya. Blood was also around here body. When the Investigating Officer reached the spot, he also found that blood was there.
23. Learned counsel for the appellants has further argued that the testimony of PW 2 Jayanti Tiwari is not reliable because when PW 3 Kanhaiya Lal has been declared hostile by the prosecution and he stated that he did not see the appellants dragging and committing murder of Reshma and did not raise alarm, the statement of PW 2 Jayanti Tiwari that he with others ran to the spot on the alarm raised by PW 3 Kanhaiya Lal is not trustworthy. It may be stated at the risk of repetition that FIR was promptly lodged in the same night by name against the appellants. The FIR was scribed by PW 2 Jayanti Tiwari in which there is specific mention that on the alarm raised by PW 3 Kanhaiya Lal he along with others ran to the spot and saw the appellants Jogi and Rajdeo running away. By the time the witnesses reached, Reshma had died. Bleeding was present on her body inside the Arhar crop and many injuries were there on the body of the victim. Thus name of PW 2 Jayanti Tiwari as witness not only finds place in the FIR but he is its scribe also.
24. To say that there was no occasion for PW 2 Jayanti Tiwari to be present near the place of occurrence at that time has no force at all. PW 2 Jayanti Tiwari has emphatically deposed that in the morning of 8.3.1980 at about 7.00 A.M. he had gone to the residence of his maternal uncle. He remained there upto 2.15 P.M. and started therefrom on his bicycle. There was puncture in his bicycle so he was coming on foot and Vashishtha Tiwari met him on the way. Later on, when he reached near the place of occurrence, Chetan of village Kharkhariya also met him as he had gone to take grass. They were coming on the road, which was at the distance of 1 1/2 Bigha from the Arhar field of occurrence. There is only one field in between the road and the place of occurrence. Thus the alarm raised by PW 3 Kanhaiya Lal could be easily heard by the witnesses and there was every occasion for him to run to the place of occurrence from the nearly road.
25. Learned counsel for the defence has also argued that the witness PW 2 Jayanti Tiwari had stated that he had gone to the residence of his maternal uncle from western path and there was no occasion for him to come from eastern path. If there are two paths, it is at the option of the person who has to travel as to what path he opts. Therefore, the statement of PW 2 Jyanti Tiwari cannot be dis-believed on this ground. He was not cross-examined on this point, otherwise he would have got occasion to explain as to why he opted the eastern path to come back to his residence. Option of path depends upon several factors. A person may choose a direct route, though it may not be a road, if it is daytime but he may choose the road if it is evening time, as in dark hour it is more convenient and safe. The mind of a person who traveled the path can be clear when he is given occasion to explain it. Therefore, when PW 2 Jyanti has not been cross-examined by the accused, his statement cannot be dis-believed merely on the ground that while coming back he opted the second path of eastern side, which was through road.
26. The learned counsel for the appellants has also argued that there is Rapti river between the village Ghani where Jyanti Tiwari lived and the village Kharkhariya where the occurrence took place and that it was neither convenient nor possible for the witness to be present near the place of occurrence at that time. Though in the corss-examination PW 2 Jyati Tiwari admitted that it was a big river but the accused omitted to cross-examine further whether there was a bridge or any other arrangement of crossing over the river. If river flows between two villages and there is no regular bridge over the river, the persons living in the villages make their own arrangements by making wooden bridge in order to avoid day today in-convenience in crossing the river and going for work to their fields. PW 2 Jyanti Tiwari was not cross-examined on this point as to what was the means through which he was to cross Rapti rive when he was going on bicycle. It was daytime and the month was March, 1980. Therefore, merely because there is a river between the village of the witness PW Jyanti Tiwari and the place of occurrence, it does not mean that he could not opt the path of road because he had to cross Rapti rive.
27. It is further submitted that PW 2 Jyanti Tiwari is a professional witness and he made statements in many criminal cases. We should point out that had he not been present on the spot, he would not have been the scribe of the prompt FIR. A perusal of the statement of the witness shows that the details of a large number of cases had been given by the defence, suggesting that he was witness in these cases but he denied that he was witness in any of such cases except in two cases. One case finds place at Question No. 18. In reply, he stated that Rahmat Ali was accused under Section 25 Arms Act. Police had involved him falsely in the case and so he was witness for Rahmat Ali under Section 25 Arms Act. The second case in which he admitted to be witness finds place in the Answer to Question No. 20. It was the case State v. Algu Yadav. He deposed that he was complainant in that case. If a person is a complainant in a case, it does no mean that he is a habitual witness and makes statement in the court after taking money. Likewise in the case under Section 25 of the Arms Act, he was witness for the defence incurring the displeasure of the police. Thus, on the basis of these tow cases he cannot be held to be a professional witness. The other cases in which it is said that he was witness have been denied and the onus shifted on the accused to show that he was a witness in those cases. No such paper has been produced by the defence. Therefore, the statement of Jyanti Tiwari PW 2 cannot be dis-believed on the ground that he was a professional witness of the police.
28. The learned counsel for the appellants has also argued that in statement under Section 161 Cr.P.C. PW 2 Jyanti Tiwari stated that accused were causing injuries with knives while in statement before the Sessions Court it was stated that one accused had wrapped the neck of deceased Resha with Sari and another accused was causing injuries with knife. It may be pointed out that in FIR it is written on the basis of the information given to Hari Lal PW 1 by PW 3 Kanhaiya Lal that the appellants were dragging Reshma by wrapping Sari around her neck, the witnesses ran to the spot and the accused ran away. Mention of knife does not find place in the FIR. Likewise in the statement of PW 2 Jyanti Tiwari, it is clearly stated that Kanahiya Lal had stated that accused were causing injuries with knife to her sister after wrapping her neck with sari. When he (PW 2 Jayanti Tewari) reached, he found that one of the accused was wrapping the girl and the other was causing injuries with knife and he saw the running away. By the tie, he reached the spot, Reshma was not alive. Reshma was being dragged and injuries were being caused in the Arhar field by the tie the boy ran back from the road side. The witnesses rushed to the spot and the accused ran away. In such circumstances, even if there is a contradiction whether one accused was causing injuries or both were causing injuries with knife, this contradiction does not exclude the presence of both the appellants in the commission of the occurrence. The presence of both the accused is fully established. The abrasion injuries around the neck of Reshma and penetrating and incised wounds were found on her body. At what particular tie both were dragging and at what particular tie only one was causing injuries cannot be expected to be meticulously described by the witnesses. The contradiction on this point does not mean that PW 2 Jyanti Tiwari was not present there and had not witnesses the occurrence.
29. It is further submitted that colour of sari of the deceased could not be described by the witness PW 2 Jyanti Tiwari. The while body and the clothes were blood stained. The happening was un-natural and alarming. In such circumstances, if PW 2 Jyanti Tiwari did not attach much importance to the colour of the sari, which the victim was wearing and he has shown ignorance in this regard, it also does not creat any infirmity in his evidence. His inability to explain details of insignificant matters does not discredit his testimony.
30. Learned counsel for the appellants has further submitted that the appellant Jogi was aged about 14-15 years at the tie of the incident and the other appellant Raj Deo was aged about 16-17 years. Thus, they ought to have been tried as juveniles. We have examined this aspect of the matter. The offence in question was committed on 8.3.1980. Section 27 of Code of Criminal Procedure reads as under:
"27. Jurisdication in the case of juveniles. - Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders."
31. It would be noted that an offence punishable with death or Imprisonment for life is excluded from the operation of Section 27 aforesaid. The offence, in question is one under Section 302 read with Section 34 I.P.C. and is punishable with death or Imprisonment for life. We find that when the case was committed to the Court of Sessions on 25.2.1981 or when the charge was framed on 18.7.1981, no such plea was taken that the accused were juvenile. We further find that the accused appellant Jogi was enlarged on bail on 9.4.1980 and the accused appellant Raj Deo was enlarged on bail on 14.4.1980 by Sessions Judge, Gorakhpur. In their bail applications too, no such plea of juvenile was taken. Such plea cannot be allowed to be raised at this belated stage after 25 years of the commission of the crime. Obviously, it is not possible at present to ascertain even from medical evidence as to what was the age of the appellants about 25 years back. The deceased herself was aged about 20 years as found at the time of her post-mortem. It sounds to be wholly illogical otherwise also that the accused appellants would have been nearly five years younger to her. It has been established by trustworthy evidence that they made lewd advances towards her and ultimately committed this crime when she spurned them and her father also scolded them. We are of the definite view that this argument of accused being juvenile has been advanced to defeat justice. We reject this argument.
32. It has also been argued by the learned counsel for the appellants that the charge framed by III Addl. Sessions Judge, Gorakhpur against The appellants under Section 302 read with 34 IPC contains no description of the injuries caused by knife. A perusal of change shows that the appellants were charged for committing murder of Reshma on 8.3.80 at 4.30 p.m. in Arhar field of village Kharkhariya by felling her and having tied her neck with sari and dragging her. Though there is no mention of the knife injuries but the trial is not vitiated by omission of the mention of the weapon used in the crime. Section 464(1) of the Criminal Procedure Code provides that:
No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground or any error, commission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision a failure of justice has in fact been occasioned thereby.
33. In the instant case, the appellants were well knowing that they were facing trial for committing murder of Reshma. In evidence, it came to be stated that knife was used in the murder. Cross-examination was also made by the accused on this point. Thus, there has been no failure of justice as the appellants had full knowledge as to what was the charge and evidence against them. Therefore, we reject the argument of any defect in the framing of the charge.
34. In view of the above discussion this court arrives at the conclusion that the appellants in furtherance of their common intention, committed the murder of Reshma in most cruel and diabolical manner demonstrating sadistic proclivity. The appeal has no merit at all and deserves to be dismissed.
35. The appeal is dismissed.
36. The appellants Jogi and Raj Dev are on bail. The Chief Judicial Magistrate, Gorakhpur is directed to cause them to be arrested and lodged in jail to serve out the sentence of life imprisonment passed against each of them by the lower court.
37. Let a copy of this judgement alongwith the 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.