Radhey Shyam vs State
1996 Latest Caselaw 702 Del

JUDGMENT

Arun Kumar, J.

(1) The appellants are parents of a young girl who was aged about 6/7 years at the time of the incident. They have been convicted by the Additional Sessions Judge, Delhi under sections 302/34 Indian Penal Code for the murder of their daughter. The admitted position is that Rekha daughter of appellants died due to fall in the river Yamuna from the old Yamuna bridge at about 10.30 P.M. on 29th May, 1989. The prosecution case is that the appellants had intentionally thrown Rekha .in the river to get rid of her because she was a handicapped child, her right leg having been amputated near the knee, as a result of which the appellants allegedly believed that her marriage would not be possible. On the other hand according to the appellants Rekha fell in the river on account of an accidental slip from the lap of her mother, appellant No.2. In their statement under section 313 Criminal Procedure Code . the stand of the appellants was that they were coming on,a scooter driven by appellant No.1 from some relation's house in Shahadara after having dinner. The sketch site plan (Ex.PW-17/A) shows that the appellants had crossed the bridge and immediately thereafter he had parked his scooter. The appellant No.1 stopped to ease himself. The girl was in the lap of her mother, appellant No.2. She wanted to see the river. The appellant No.2 went to the bridge and while she was showing the river the girl slipped from her hands and fell. into the river.

(2) The short point for determination in the present case is as to whether it is a case of accidental death or intentional throwing of the child into the river and thereby committing murder of the child. The medical evidence in the present case is not of much relevance. It is a case of death of the child on account of fall from the Yamuna bridge into the river Yamuna. The Mlc Ex. Public Witness -12/A and the post mortem report Ex. Public Witness -9/A establish the factum of death of the child. In fact -as per the Mlc the child was dead when it was brought to the hospital. The Mlc further records that the child was wholly wet and cold with no signs of breathing. She was also covered in sand because after taking out the body from the river it was kept on the bank of the river where there is sand all around. It is important to note from the post mortem report that there was no sign of any violence or injury inflicted on the child before her fall into the river. According to Dr. M.P Sarangi, Public Witness -9 who conducted the post mortem, the cause of death was drowning consequent upon fall most probably. The viscera examination gave a negative report which rules out any poisoning or drugging of the child before she fell into the river. The viscera was preserved and sealed to rule out the possibility of oral poisoning.

(3) There are no eye witnesses of the occurrence. The prosecution examined three local persons besides Public Witness -13, Devinder Kumar a passer-by in support of its case.

(4) PW-1 Bhure Khan stated that at about 11.00 P.M. he was feeding fodder to his bullocks near the Yamuna bridge where he used to tether his bullocks and park his cart. At about 11.00 P.M. he heard the shout "Bachi Gir Gai Bhachi Gir Gai" from Yamuna bridge and people collected there. On hearing this he went to the Yamuna bridge but did not find anyone there. He came back to the place where he was feeding his bullocks. He stated that he had no knowledge about the drowning incident. He further stated that in the night a police officer came to him and enquired about the incident and he gave the same reply to him. However, inspite of his refusal to do so, the police officer obtained his thumb impression on some paper. He denied having seen any person along with woman with a scooter over the Yamuna bridge. He also stated that no child was recovered from Yamuna in his presence. Learned App took permission to cross-examine the witness. He denied the suggestion that he heard cries of a child to the effect "Ami Ami". He also denied that he heard the sound of falling something in the river water. He also denied having seen the appellants on the bridge. He denied every other suggestion. The prosecution was unable to get any help from his statement.

(5) PW-2 is Shokat Ali alleged to be a diver who resides in the Yamuna Pushta area. In the examination-in-chief itself he stated that he is not a diver. He stated that at about 12 or 12.30, i.e., midnight of the day of occurrence he had gone to answer a call of nature when he heard people saying that a child had fallen in the river. A police officer also met him while he was coming back and enquired about his name and other particulars. He stated that he did not see the accused persons over the bridge or near the place of occurrence with their scooter when he reached the Yamuna bridge after getting information from Bhure Khan Public Witness -1 According to him the dead body of the girl was not recovered from the river in his presence. The learned App took permission of the court to cross-examine the witness. However, nothing to strenthen the prosecution case could be brought out.

(6) PW-11, Chotey Lal is a boatman working in the Yamuna bridge area. He stated that he normally worked from 8 A.M. to 5 P.M. According to him when he came to his place of work at 8 A.M. in the morning after the incident, he came to know about the incident of drowning. He stated that he was not present on the night when the incident took place. He denied any personal knowledge about the incident. He was also cross-examined by the learned A.P.P, after permission of the court, but the cross examination did not bring out anything which could support the prosecution case.

(7) PW-13, Devinder Kumar, appears to have arrived on the scene soon after the incident. According to him on the date of occurrence at about 11/11.30 P.M. he was coming from Shahadra on his two wheeler scooter via old Yamuna bridge. He saw a lady and a man on the left side of the bridge, i.e. coming from Shahadra side. They were weeping. He enquired from them as to what had happened. These two persons were the present appellants. He offerred to help them and went to the nearest police picket at Yamuna bazar to inform the police about the incident. The police officer flashed the message to the concerned police station at Kotwali, Delhi. He also accompanied the witness to the spot. The police officer was carrying a torch with him. He flashed the torch towards the river. He saw bubbles in the river water at one point. Some boatmen were summoned at the spot and the child was taken out from the river water with the help of the boatmen. The child was wearing a frock and was feebly breathing, according to the witness. The P.C.R. Van took the child to the L.N.J.P. Hospital. Both the parents also accompanied the police in the Pcr van along with the child. The witness followed them to the hospital. In the hospital the child was declared dead. The witness came back to the spot with the police. The two wheeler scooter of the appellants was seized by the police. The scooter was parked near the bridge. The police also recovered a shawl and it was taken possession of vide seizure memo Ex.PW 13/B. The shawl has assumed some importance in the present case. According to Public Witness -13, the shawl was seized by the police from the hand of the appellant No.2 in the hospital while according to some other witnesses the body of the girl was recovered from the river tied in the said shawl. The controversy about the shawl arises in the context that prosecution theory is that the girl was wrapped in the shawl and thrown into the river by her parents. This is to suggest the intention to murder. The defense theory is that since the right leg of the child had been amputated only some time back her mother was carrying the shawl for purposes of covering the amputated leg. At the time of fall of the child in the river the shawl remained in the hands of her mother.

(8) As already noticed none of the local witnesses have supported the prosecution case. The police officers who have deposed in the case cannot throw any light on the actual incident because none of them was present at the time of occurrence. The police arrived only later when the child was recovered from the river. The irony in this case is that the prosecution has failed to even fix the place of occurrence of the crime. No witness has stated or identified the place from where the girl fell or was thrown into the river. The site plan placed on record by the police is based only on the probabilities or estimation. The point where the scooter driven by appellant No. 1 was parked, of course, is established because the scooter remained parked there till it was seized by the police but the point on the Yamuna bridge from where the girl was allegedly thrown into the river nobody has been able to tell.

(9) On an application of the prosecution, the learned Additional Sessions Judge went to inspect the site personally. Only police officials were present at the time of inspection who could not have possibly pointed out the exact location because none of them was an eye witness to the crime. The inspection note prepared by the learned Judge with the assistance of police thus becomes doubtful. Another most important flaw in the prosecution case is that none of the persons who took the body of the girl out from the river has been examined.

(10) The trial court convicted the appellants on the basis of a reasoning which we are unable to accept.

(11) Firstly, it heavily weighed with the trial court that the appellants were found at Yamuna bridge at an odd hour. The time of the incident as per the Fir is about 10.30 P.M. However, the learned trial Judge took it as 11.30 P.M. The trial court observed that no reasonable person would go to Yamuna bridge at that hour and show Yamuna water to his child. On this basis the trial court gave credence to the prosecution theory that the appellants had gone to the Yamuna bridge to throw their handicapped daughter in the river in order to get rid of her because they feared that marriage of such a child will be impossible. In this context the trial court lost sight of the explanation of the appellants as per their statements under section 313 Criminal Procedure Code . that they were returning from the house of a relative in Shahadra after having dinner and after crossing the bridge appellant No. I felt the need to answer call of nature and stopped and parked his scooter nearby. While appellant No.l was answering the call of nature, appellant No.2 took the girl who was in her lap on to the bridge to show her the river. The sketch plan Ex. Public Witness -17/A shows that the scooter was parked by the apellant just near the point where the bridge ends and the road starts. In the summer month of May 10.30 P.M. is not an odd time. In fact if the intention of the appellants was otherwise as suggested by the prosecution, they could have come really at an odd hour when there would be hardly any one to notice them.

(12) While on motive it may also be worthwhile to note that as per the evidence on record the parents immediately when their daughter fell in the river started shouting "Bachi gir gai, bachi gir gai" and also started weeping. If the intention of the appellants was to get rid of the child they would have quietly thrown her into the river and returned home rather than start shouting and in the process collecting people.

(13) The second point which has weighed with the learned trial Judge in convicting the appellants is the inspection note prepared by the learned Judge himself after site inspection. We have perused the inspection note carefully and we are of the firm view that it is not safe to rely on the inspection note for various reasons. Firstly, the inspection note was prepared with the assistance of only some police officers none of whom was an eye witness to the crime. In the inspection note the learned Judge has noticed that there are in fact four lanes on the bridge. The two lanes on the outer sides are used as pedestrian crossings, one by those who go towards Shahdara, the other by those coming from Shahdara. This leaves two main inner lanes which are used by the vehicular traffic one for going to Shahdara and the other for coming from Shahdara. The learned Judge has observed:- "IF one comes from Shahadra to Delhi on a scooter he will use main passage for coming on a scooter and on both the sides of the main passage there are channels with railings of about 3/4 feet and the channel have got floor made of iron sheets and even a ball cannot fall in the Yamuna River if thrown or slipped in the channel. So the plea of the accused that they were showing water of the Yamuna River to their child is not only improbable but it is impossible and if one really wants to show the water of Yamuna River then one has to jump the channel and go on foot path, which is also having railing of 3/4 feet high."

(14) The above reasoning in our view is totally erroneous. It overlooks the fact that the appellants had crossed the bridge while coming from Shahdara on scooter and immediately after crossing the bridge appellant No.l stopped his scooter to answer a call of nature. At that time appellant No.2 walked back on to the bridge to show the river to the child who was in her lap. Obviously the lady would not have gone to that channel of the bridge which is used by the vehicular traffic. She would have walked on the lane meant for the pedestrians. The lane meant for pedestrians is on the extreme outer side and is having only railing to protect passers-by. The reasoning of the learned trial judge proceeds on the basis that the appellants were trying to show the river to their daughter from the inner lane which is meant for vehicular traffic. The learned Judge overlooked the fact that the appellants had already crossed the bridge and, therefore, there was no question of their going back over to the middle lane meant for vehicular traffic. It is only the inner two lanes which are used for vehicular traffic, one for going towards Shahdara and the other for coming from Shahdara. Therefore, the reason given by the trial court that accidental fall is impossible while standing on the lane meant for vehicular traffic is totally incorrect. Actually on the inner lane meant for vehicular traffic, no pedestrian can dare to walk or stand. In view of the heavy traffic on the lane it is very risky to walk on the inner lane. The pedestrians are not even permitted on the inner lane. Looking at it from another angle neither for purposes for throwing the child into the river if it was so as per the prosecution case, nor for the purposes of showing the river to the child, as per the case of the appellants, one would stand on the inner lane meant for vehicular traffic. From that lane watching the river is not as convenient as it is from the outer lane meant for pedestrians. From the outer lane the view is unobstructed. Similarly if the intention was to throw the child into the river that could be achieved only from the outer lane meant for pedestrians.

(15) Now let us deal with the shawl. The presence of a shawl and its recovery by the police has assumed some importance in this case. Public Witness -3, Asi Rajbir Singh and Public Witness - 18, Asi Chaman Singh had something to say about this. When Public Witness -3 Rajbir Singh reached the spot on the basis of a message received at police station Kashmere Gate, he found a Pcr Van already standing there. Police officials of the Control Room were present at the site. Some other persons were also said to be present. He saw some persons coming from Yamuna river after taking out a girl from the river water. He stated that he saw that the girl had been wrapped/tied in a green colour shawl. The child was taken out from the Shawl and water from the stomach was drained out by pressing the body. Thereafter the Police Control Room Van took the child to the hospital. He identified the Shawl as Ex.P-l. This, according to him, was the same shawl in which the girl was found wrapped. He admitted that the shawl was not taken by the Pcr Van along with it. Asi Chaman Singh, Public Witness -18 was incharge of the Pcr Van. According to him at about 11.25 P.M. information was received on wireless set in the Van from the police control room that a child had fallen in the river Yamuna. On receipt of this message he along with staff rushed to the place of occurrence in his vehicle. On reaching the spot he found a lady and a man standing on the side of the bridge which is meant for coming from Shahdara to Delhi. Two boatmen Chhotey Lal and Bhure Khan were present at the site besides a diver. He further stated that on enquiry he came to know about the fall of the child into the river. Diver Shokat Ali brought out the child from the river water. It was a female child about 6/7 years old and was wrapped in a green coloured shawl. The child was brought by the witness to the bank of the river and they tried to drain out- water from the body of the child. The child could not regain consciousness. He removed the child in his vehicle to the Lnjp Hospital. He also staled that he left his constable at the spot. The shawl was left at the spot. He identified the shawl in court while appearing as a witness.

(16) As per the aforesaid statements of Public Witness -3 and Public Witness -38, the child was found wrapped in a shawl when it was taken out from the river water. The three persons named by Public Witness -18 who were involved in taking out the child from the river water, i.e., Bhure Khan, Chhotey Lal and Shokat Ali have turned hostile and have not supported the prosecution case at all. They have denied any personal knowledge. Against the statement of Public Witness -3 and Public Witness - 18 that the child was wrapped in shawl when it was taken out from the river, there is statement of another prosecution wilness, namely, Devinder Kumar, Public Witness -13. We have already noted his statements. According to him when the child was taken out from the river she was wearing only a frock and there were no other clothes on the body of the child. This witness also claims to be an eye witness at the time of taking out of the child from the river like Public Witness -3 and Public Witness -18. Public Witness -13 Devinder Kumar had gone to the hospital also along with the police van which had taken the child to the hospital. According to this witness, the shawl was seized by the police in the hospital and it was taken possession of vide memo Ex.PW-13/B to which this witness is a signatory. The witness further slated that the shawl was seen by him in the hand of appellant No.2 in the hospital and it was seized from her hands by the police. In cross examination he denied the suggestion that the child was tied in the said shawl. He denied the suggestion that his statement that the shawl was in the hands of appellant No.2 was false. He repeated in his cross examination that after the girl was taken out from the river, she was taken by the Pcr Van in the same condition in which she was brought out from the water and in same clothes which she was wearing at that time. Only water was drained out from the body of the girl and nothing was done after she. was taken out from the water.

(17) The seizure memo regarding shawl is Ex. Public Witness -13/B which is signed by Devinder Kumar Public Witness -13, Bhure Khan Public Witness -1 and Chhotey Lal Public Witness -11. As per the seizure memo the shawl was found lying at the place of occurrence and was. seized from there. The learned counsel for the appellants in his effort to attack the testimony of the police witnesses, i.e., Public Witness -3 Asi Rajbir Singh and Public Witness -11, Asi Chaman Lal to the effect that the shawl remained lying at the place of occurrence urged that a reference to the site plan shows that there was a considerable distance between the place where the scooter was parked and the place where the shawl in question was allegedly left behind by the police party which took the child to the hospital. As per the evidence of the police officers only one police constable was left behind to guard the scene of occurrence and at that dark hour of the night it was impossible to guard the two objects, i.e., the scooter and the shawl by one person keeping the distance of the two in mind. Secondly, it was urged that if the girl was wrapped in the shawl the police officers would not have left the shawl behind because the shawl was an important piece of evidence.

(18) We have considered the various arguments advanced regarding the shawl. True that presence of the shawl lends some credence to the prosecution story that the appellants wanted to kill the girl and, therefore, they wrapped her in the shawl and threw her in the river Yamuna. However, we cannot overlook the fact that admittedly the girl in question was about 6/7 years old. The girl was neither drugged nor poisoned before hand which fact is established by the post mortem report. It is not easy to wrap a girl of that age and quietly throw her into the river and thereafter start shouting. If the girl was alive she may not let her to be wrapped in a shawl. She would have resisted or at least shouted. At 10.30 or 11 Pm in the month of May, Yamuna bridge would not be such a secluded place that there would be no passers-by or no vehicular traffic on it. The resistance of the child or the shriek of the child would definitely have been noticed by the passers-by. Wrapping in a piece of cloth is understandable in case of infants. The prosecution evidence about recovery of the shawl being contradictory, we do not attach much importance to it. We only note here that there is substance in the argument of the learned counsel for the appellants that if the girl was found wrapped in the shawl, there was no reason for leaving the shawl behind at the scene of occurrence by the police officers.

(19) Another point raised against the shawl is that in the summer months there was no need to carry a shawl around and, therefore, the very fact that the parents had the shawl with them shows that it was meant for wrapping the child in it before throwing her into the river. Regarding this firstly it is not clear from the record that it was a woolen shawl. Secondly, it is understandable that the parents of a girl with one leg amputated may take the girl around in public after putting a shawl around her legs so that the amputated leg is not noticeable. Parents may like to conceal the handicap of their child to the extent they can.

(20) From the above discussion it follows that recovery of the shawl does not necessarily lead to the conclusion that the girl was wrapped or tied in the shawl before being thrown in the river so as to establish intention to murder.

(21) We are unable to find that the prosecution has established on record circumstances which lead to the only conclusion of guilt of the appellants. Neither the chain of incriminating circumstances is complete nor we find that there is no hypothesis which may suggest the innocence of the appellants. In Sharad vs. State of Maharashtra , the following tests have been laid down for cases of circumstantial evidence;-    "(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established."  

(22) It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be and should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. Stale of Maharashtra,  where the following observations were made :    "(1)CERTAINLY,it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts, so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any 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 he 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."  

(23) Keeping these tests in mind, we are unable to hold the appellants guilty of the crime for which they have been convicted by the learned Additional Sessions Judge. The appeal is accepted and the judgment of the Additional Sessions Judge convicting the appellants for offence under section 302/34 Indian Penal Code is set aside. The appellants are on bail. Their bail bonds are ordered to be cancelled.