IN THE SU P R E M E C O U R T OF INDIA CRIMINAL APP E L L A T E JURISDICTIO N CRIMINAL AP P E A L N O. 1169 OF 2007 DI W A NI RA M & AN R. .. APP E L L A N T( S) vs.
STAT E OF UTT A R A K H A N D .. RE S P O N D E N T( S) O R D E R This appeal by way of special leave arises out of the following facts:
Sati Devi-deceased, daughter of Bachhu Das P W.1 was m arried with Diwani Ra m son of Gaphloo Das and Ruk m a ni Devi. At about 2.00 on 13th June, 1999, Gaphloo Das ca me to Bachhu Das's house and told him that Sati Devi had gone to the jungle to collect grass but had not returned ho m e thereafter and he had suspected that she m ay have gone to his ho m e. Bachhu Das replied that Sati Devi had not co me to his house. At about 10-11 a.m. the very next day Gaphloo Das again ca me to Bachhu Das's house and accused him of having hidden Sati Devi on which the latter again denied that she had co m e to his ho m e and on the contrary expressed his surprise to kno w that she had been missing from her m atrimonial ho m e. Bachhu Das and others thereafter m ade a search for Sati Devi but without success. As he suspected that so mething a miss had happened to Sati Devi, he reported the m atter to the Sub-Divisional Magistrate,Cha m oli, and also filed an application on 20 th June, 1989 before the Gra m -2-
Sabhapati, Ustoli.W h e n the Revenue police stilldid not proceed with the investigation despite the two applications aforesaid Bachhu Das filed yet another application on 28 th June, 1989 before the District Magistrate, Cha m oli in which he alleged that the dead body of Sati Devi, his daughter, had been recovered on 24 th June, 1989 from the Nandakani river but in spite of this information having been conveyed to the local Patwari no action had been taken by him. The District Magistrate then ordered the necessary investigation which was m ade by the Supervisor Kanoongo, who was the Investigating Officer, and who in due course filed a charge- sheet before the Court arraying Sati Devi's husband Diwani Ra m and her in-laws Gaphloo Ra m aand Ruk m a ni Devi as the accused. The m atter was, thereafter, re mitted to the Sessions Court in respect of offences punishable under Section 302/34 IPC and Section 498-A and 201 of the IPC, and as the accused appellants denied their involvement, the m atter was brought for trial.
The trialCo urt relying on the evidence of P W.1 Bachhu Das, the father of the deceased, P W- 5 Budi Das who had allegedly seen the dead body being thrown into the Nandakani river by the three appellants on the 13th June, 1989 and Jalmi Das P W.6 grand-father of the deceased who -3-
had given an application with regard to her having disappeared and duly corroborated by the evidence of P W.4, Dr. Vinod Ku m ar who had conducted the post m orte m and opined that the death had been caused by a blunt weapon injury on the head and not by dro wning convicted the appellants for the offences for which they had been charged. The m atter was, thereafter, taken in appeal before the High Court of Uttarakhand at Nainital. The High Court in its judg ment dated 25 th April, 2007 allowed the appeal qua the offence under Sec.498A of the IPC holding that no de m an d for do wry had been m ade but relying on the evidence affirmed the conviction and sentence with respect to the other offences. It appears that before an SLP could be filed in this Court, Ruk m a ni Devi passed away and the present appeal is thus at the instance of Gaphloo Das, the father-in-law of the deceased, Diwani Ra m, her husban d.
Mr. Vish wajit Singh, the learned counsel for the appellants has raised three argu m ents during the course of hearing. He has first pointed out that as per the prosecution story the factum of the improper pregnancy of Sati Devi which was said to be the m otive for the m urder had statedly been the subject m atter of discussion in the Panchayat, but as no m e m b er of the Panchayat had been produced as a witness, so m e doubt had been caused on the -4-
story. It has further been pointed out that as the appellants had been acquitted for the offence under Sec.498A of IPC a doubt had been caused as to this part of the m otive as well. It has finally been sub mitted that Budhi Das P W.5 who had seen the accused throwing the body into the Nandakini River on 13 th June, 1989 was a person with weak eye-sight and, therefore, unable to see properly in the dark and as his statement under Sec.161 of the Cr.P.C. had been recorded so me two m o nths after the alleged m urder, no credence could be attached thereto.
Mr. Sunil Ku m ar Singh, the learned counsel for the respondent- State has, ho wever, supported the judg ment of the Courts below.
W e have heard the learned counsel for the parties. W e find from the record, and itis so ad mitted, that Sati Devi was pregnant at the time of her death. Bachhu Das P W.1 deposed that suspicion had been raised in Sati Devi's in- laws family that the child had not been conceived from Diwani Ra m, her husband, and the pregnancy was, therefore, un warranted.
The fact that Sati Devi was indeed pregnant has been borne out by the evidence of P W.4 Dr. Vinod Ku m ar who had conducted the post m orte m and had found a 32 weeks old dead foetus in Sati Devi's body. It is true, that no m e m b er of the Panchayat had co me forward to support the prosecution story, but we have no reason to doubt Bachhu -5-
Das's statement about the suspicion that the appellants bore with respect to the conception. W e are, therefore, of the opinion that notwithstanding the fact that there appears to be no evidence to m ake out a case of de ma nd of do wry as being one of the m otives for the incident, the m otive which has infact co me on record and has been duly proved, is the factum of the illicitpregnancy of Sati Devi or the suspicion thereof. W e have also gone through the evidence of P W.5 Budhi Das. Ad mittedly, this witness did say that he has weak eye-sight, but his cross-exa mination ho wever could not bring out any m aterialto create a doubt about his credibility.He stated that he had seen the entire occurrence while near the river. W e have seen the site plan which sho ws that the river itself had narrows considerably at the spot where the body had been thrown and witnessed by Budhi Das. Budhi Das further deposed that as he belonged to village Narangi right opposite village Ustoli,w hich was the place of residence of the appellants, he was well aware as to the identity of the two m ale m e m b ers but he could not im m ediately identify Ruk m a ni Devi. Ruk m a ni Devi is,ho wever, not before us, having died in the m ean w hile. Moreover, it is indeed the duty of the prosecution to prove its own case, but a m atter such as the present one, where the accused are the husband and in laws, all living together of the victim so m e duty is cast on the defence as a whole to explain as to the circu mstances leading to her disappearance if not her m urder.
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Mr. Vish wajit Singh has finally sub mitted that Gaphloo Das- appellant, the father in law of the deceased was in any case entitled to so me indulgence as the factum of the pregnancy of Sati Devi would have caused concern primarily to her husband and not to the father in law. W e find that this argu me nt is unsustainable as the pregnancy would have been a m atter of concern not only to her husband but to his parents as well as the entire family which was living together. Moreover, Gaphloo Das's conduct subsequent to Sati Devi's disappearance from the m atrimonial ho m e also creates suspicion with respect to his involvement. W e have perused the evidence of Bachhu Das. Ithas co me in his evidence P W.1 that Gaphloo Das had co me to him at about 2.00 p. m. on 13 June, 1989 and had told him that Sati Devi had gone to collect grass in the jungle but as she had not returned he had co me to find out as to whether she had returned to him, which story was repeated again by Gaphloo Das on 14 th June, 1989 at about 10-11 a.m. It is after suspicions had been raised by this unusual conduct that Bachhu Das and his family m a de attempts to find Sati devi and having failed to do so m a de a written report to the Gra m Sabhapati, village Ustoli on 20 th June, 1989. As already m entioned above, this application initially,did not have any result and it was after a great deal of effort on the part of Bachhu Dass including an approach to the DistrictM agistrate, that the -7-
investigation was set in m otion ultimately leading to the the unravelling of the prosecution story. W e are, therefore, of the opinion that Gaphloo Das was equally involved in the m urder and that no special consideration can be sho w n to him by any process of reasoning. W e are, therefore, of the opinion that there is no m erit in the appeal.
Gaphloo Das was granted bail by this Court on 8/2/2008. The sa me shall stand cancelled forthwith and he shall be taken into custody to serve out the remaining part of the sentence.
The appeal is dismissed.
... .... .J. (HARJIT SING H BE DI) Ne w Delhi, July 29, 2009.
... .J.
(J.M. PA N C H A L)