Diwani Ram & Anr vs State Of Uttarakhand

IN TH E S U P R E M E C O U R T O F INDIA 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

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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

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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 -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 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

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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.

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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

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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.

.... . . . . . . . . . . . . . . .J . . . . . . . ..... . . . . . . .

(HA RJIT SIN G H B E DI)

.... . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .J (J.M. PA N C H A L) Ne w Delhi, July 29, 2009.