Diwani Ram & Anr. Vs. State Of Uttarakhand on 29 July, 2009Bench: Harjit Singh Bedi, J.M. Panchal
C RI MIN A L AP P E L L A T E JU RIS DICTIO N
C RI MIN A L AP P E A L N O. 1169 O F 2007
DI W A NI R A M & A N R. .. AP P E L L A N T(S) vs.
ST A T E O F UTT A R A K H A N D .. R E 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 Gap hloo Das and Ruk m a ni Devi. At about 2.00 on 13 th June, 1999, Gap hloo Das ca m e 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 m e to his house. At about 10-11 a.m. the very next day Gap hloo Das again ca m e to Bachhu Das’s house and accused him of having hidden Sati Devi on w hich 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 a d e a search for Sati Devi but without success. As he suspected that so m ething a miss had happened to Sati Devi, he reported the m atter to the Sub-Divisional M a gistrate, Cha m oli, and also filed an application on 20 th June, 1989 before the Gra m
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 M a gistrate, Cha m oli in w hich 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 M a gistrate then ordered the necessary investigation w hich was m a d e by the Supervisor Kanoo n g o, w h o was the Investigating Officer, and w h o in due course filed a charge- sheet before the Court arraying Sati Devi’s husband Diwani Ra m and her in-laws Gap hloo Ra m aand Ruk m a ni Devi as the accused. The m atter was, thereafter, remitted 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 involve me nt, the m atter was brought for trial.
The trial Court relying on the evidence of P W.1 Bachhu Das, the father of the deceased, P W- 5 Budi Das w h o had allegedly seen the dead body being thrown into the Nandakani river by the three appellants on the 13 th June, 1989 and Jalmi Das P W.6 grand-father of the deceased w h o -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 weapo n injury on the head and not by dro w ning convicted the appellants for the offences for w hich 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 m e nt dated 25 th April, 2007 allowed the appeal qua the offence under Sec.498A of the IPC holding that no de m a n d for do wry had been m a d e but relying on the evidence affirmed the conviction and sentence with respect to the other offences. It appears that before an SL P could be filed in this Court, Ruk m a ni Devi passed away and the present appeal is thus at the instance of Gap hloo Das, the father- law of the deceased, Diwani Ra m, her husband. in-
Mr. Vish wajit Singh, the learned counsel for the appellants has raised three argu m e nts 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 w hich 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
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 w h o 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 m e 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 w ever, supported the judg m e nt 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 w arranted. The fact that Sati Devi was indeed pregnant has been borne out by the evidence of P W.4 Dr. Vinod Ku m ar w h o 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 m e forward to support the prosecution story, but we have no reason to doubt Bachhu
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 a ke out a case of de m a n d of do wry as being one of the m otives for the incident, the m otive w hich has infact co m e 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 Bud hi Das. Ad mittedly, this witness did say that he has weak eye-sight, but his cross-exa mination ho w ever could not bring out any m aterial to create a doubt about his credibility.He stated that he had seen the entire occurrence w hile near the river. W e have seen the site plan w hich sho w s that the river itself had narrows considerably at the spot w here 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 e diately identify Ruk m a ni Devi. Ruk m a ni Devi is, ho w ever, not before us, having died in the m e a n w hile. M oreover, it is indeed the duty of the prosecution to prove its o w n case, but a m atter such as the present one, w here 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 w h ole to explain as to the circu mstances leading to her disappearance if not her m urder.
Mr. Vish wajit Singh has finally sub mitted that Gap hloo Das- appellant, the father in law of the deceased was in any case entitled to so m e indulgence as the factum of the pregnancy of Sati Devi w o uld have caused concern primarily to her husband and not to the father in law. W e find that this argu m e nt is unsustainable as the pregnancy w o uld have been a m atter of concern not only to her husband but to his parents as well as the entire family w hich was living together. M oreover, Gap hloo Das’s conduct subsequent to Sati Devi’s disappearance from the m atrimonial ho m e also creates suspicion with respect to his involve ment. W e have perused the evidence of Bachhu Das. Ithas co m e in his evidence P W.1 that Gap hloo Das had co m e 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 m e to find out as to w h ether she had returned to him, w hich 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 d e attempts to find Sati devi and having failed to do so m a d e a written report to the Gra m Sabhapati, village Ustoli on 20 th June, 1989. As already m e ntioned 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 a gistrate, that the
investigation was set in m otion ultimately leading to the the unravelling of the prosecution story. W e are, therefore, of the opinion that Gap hloo 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 m e shall stand cancelled forthwith and he shall be taken into custody to serve out the remaining part of the sentence.
The appeal is dismissed.
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(HA RJIT SIN G H B E DI)
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(J.M. PA N C H A L)
Ne w Delhi,
July 29, 2009.