This appeal by way of special leave arises out of the following
facts:
Sati Devi-deceased, daughter of Bachhu Das P W.1 was married
with Diwani Ra m son of Gaphloo Das and Ruk mani Devi. At about 2.00 on
13 th June, 1999, Gaphloo Das came to Bachhu Das's house and told him
that Sati Devi had gone to the jungle to collect grass but had not returned
ho me thereafter and he had suspected that she may have gone to his ho me. Bachhu Das replied that Sati Devi had not come to his house. At
about 10-11 a.m. the very next day Gaphloo Das again came to Bachhu
Das's house and accused him of having hidden Sati Devi on which the
latter again denied that she had come to his ho me and on the contrary
expressed his surprise to know that she had been missing from her
matrimonial ho me. Bachhu Das and others thereafter made a search for
Sati Devi but without success. As he suspected that something amiss had
happened to Sati Devi, he reported the matter to the Sub-Divisional
Magistrate, Cha m oli, and also filed an application on 20 th June, 1989 before
the Gram
Sabhapati, Ustoli. W hen 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 made 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 mani Devi as the accused. The matter
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 involvement, the matter 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 who 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 who
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 mortem and opined that the death had been caused by
a blunt weapon injury on the head and not by drowning convicted the
appellants for the offences for which they had been charged. The
matter was, thereafter, taken in appeal before the High Court of
Uttarakhand at Nainital. The High Court in its judgment dated 25 th April,
2007 allowed the appeal qua the offence under Sec.498A of the IPC holding
that no demand for dowry had been made 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 mani 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 husband.
Mr. Vishwajit Singh, the learned counsel for the appellants has
raised three arguments 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 motive for the murder had
statedly been the subject matter of discussion in the Panchayat, but as no
me m ber of the Panchayat had been produced as a witness, some 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 motive 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 some two months after the
alleged murder, no credence could be attached thereto.
Mr. Sunil Ku m ar Singh, the learned counsel for the respondent-
State has, however, supported the judgment of the Courts below.
We have heard the learned counsel for the parties. We find from
the record, and it is so admitted, 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, unwarranted. The fact that Sati Devi was indeed pregnant has been borne out by the
evidence of P W.4 Dr. Vinod Ku mar who had conducted the post mortem
and had found a 32 weeks
old dead foetus in Sati Devi's body. It is true, that no me m ber of the
Panchayat had come 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. We are, therefore, of the opinion that notwithstanding
the fact that there appears to be no evidence to make out a case of
demand of dowry as being one of the motives for the incident, the motive
which has infact come on record and has been duly proved, is the factum of the illicitpregnancy of Sati Devi or the suspicion thereof. We 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-examination however
could not bring out any material to create a doubt about his credibility.He
stated that he had seen the entire occurrence while near the river. We
have seen the site plan which shows 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, which was the place of residence of
the appellants, he was well aware as to the identity of the two male
me m bers but he could not immediately identify Ruk mani Devi. Ruk mani
Devi is, however, not before us, having died in the mean w hile. Moreover, it
is indeed the duty of the prosecution to prove its own case, but a matter
such as the present one, where the accused are the husband and in laws,
all living together of the victim some duty is cast on the defence as a
whole to explain as to the circumstances leading to her disappearance if not her murder.
Mr. Vishwajit Singh has finally sub mitted that Gaphloo Das-
appellant, the father in law of the deceased was in any case entitled to
some 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. We
find that this argument is unsustainable as the pregnancy would have
been a matter 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
matrimonial ho me also creates suspicion with respect to his involvement.
We have perused the evidence of Bachhu Das. Ithas come in his evidence
P W.1 that Gaphloo Das had come 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 come 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 made attempts to
find Sati devi and having failed to do so made a written report to the Gram
Sabhapati, village Ustoli on 20 th June, 1989. As already mentioned 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
District Magistrate, that the
investigation was set in motion ultimately leading to the the unravelling of
the prosecution story. We are, therefore, of the opinion that Gaphloo Das
was equally involved in the murder and that no special consideration can be shown to him by any process of reasoning. We are, therefore, of the
opinion that there is no merit in the appeal.
Gaphloo Das was granted bail by this Court on 8/2/2008. The
same 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.M. PAN C H A L) New Delhi, July 29, 2009.