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PETITIONER: SMT. RAJESHWARI DEVI

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT:       19/04/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 SCC  (5) 121        JT 1996 (6)    58  1996 SCALE  (3)613

ACT:

HEADNOTE:

JUDGMENT:            (With Criminal Appeal No. 534 of 1987) Onkar Singh & Ors. V. The State of U.P.                       J U D G M E N T Mrs. Sujata V.Manohar, J.      The appellant  Rajeshwari, in  Criminal Appeal No.38 of 1987  is  the  mother-in-law  of  the  deceased.  The  first appellant Onkar  Singh, in Criminal Appeal No.534 of 1987 is the father-in-law  of the  deceased. The second appellant in that appeal,  Santosh Singh  is the  husband of the deceased while appellants 3 and 4 in that appeal Lallu Ram and Bandha are the  servants of  Onkar Singh.  The deceased  Sudha  was married to Santosh Singh on or about 3.2.1982. She died of a gun shot injury in the house of her husband on 22.11.1982 at around 12.30  noon. The village Chowkidar Rameshwar was sent by the  accused to  the parents  of Sudha  who reside  in  a different village.  He reached  the house of Sudha’s parents around 4.30  p.m. and informed them that Sudha had committed suicide. He  said that she was still alive and she was being taken to  Hardoi Hospital. Accordingly, the entire family of Sudha went  to Hardoi  instead of  to  the  village  of  the accused. They  reached there at about 8.00 p.m. They did not find Sudha  there. Hence the brother of the deceased went to village Samtharia  where the accused reside on the following morning. On reaching their house he was told that his sister had died  instantaneously the  previous day and her body had been cremated  the previous evening at 4.00 p.m. The accused could not  give any  proper explanation  why  the  cremation could not wait till the arrival of the family of Sudha.      Seven persons  were tried  before the  Sessions  court; Santosh Singh Onkar Singh, Rajeshwari and Suman alias Guddi, the sister-in-law of the deceased were charged under Section 302 read  with Section  149, Section  147 and Section 201 of the Penal  Code. The  two domestic  servants Lallu  Ram  and

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Bandha were  tried under  Section 201. One Manipal Singh was also  tried   under  Section  201.  Rameshwar,  the  village Chowkidar was  tried under  Section 202.  The Sessions court acquitted Suman,  alias, Guddi,  the  sister-in-law  of  the deceased. It  convicted the  husband Santosh  Singh and  his parents Onkar  Singh and  Rajeshwari and  sentenced them  to life imprisonment under Section 302 read with Section 149 of the Indian  Penal Code.  They were also sentenced to 2 years and 4 years rigorous imprisonment under Sections 147 and 201 respectively. The two domestic servants Lallu Ram and Bandha were  convicted   and  sentenced  to  four  years’  rigorous imprisonment. Mahipal  Singh was  similarly sentenced  under Section 201.  Rameshwar, the village Chowkidar was convicted and sentenced to 6 months rigorous imprisonment.      In appeal  before the  High Court  the High  Court  has convicted Santosh Singh under Section 302 and maintained his sentence of  life imprisonment.  Onkar Singh  and Rajeshwari have been  convicted under Section 302 read with Section 34, and the  sentence of  life imprisonment  is maintained.  The sentence under  Section 147 is set  aside. The conviction of Lallu Ram and Bandha has been maintained while Mahipal Singh has been  acquitted. Rameshwar did not prefer any appeal and has served his sentence.      The High  Court has  upheld the  findings given  by the Sessions court  regarding motive for the murder of Sudha. It has been  found the  Sudha was being harassed by her husband and in-laws  for  not  bringing  sufficient  dowry.  As  the marriage of  Suman, the  sister-in-law of  the deceased  had been fixed,  there was  a renewed  demand for ornaments from the family  of Sudha.  She was  harassed on  account of  her failure to get the ornaments. About a month prior to Sudha’s death, when  she was  at her parent’s house, her husband had come to  fetch her. Sudha was refusing to go back. Sudha had told her  parents that  she may not be sent there because on account of her failure to bring ornaments as demanded by her in-laws, they  would kill her. However, she was persuaded to go.      Thereafter, on  or about  18.11.1982 the brother of the deceased, Yaduvir  Singh who  is P.W.2  had gone  to Sudha’s place in  connection with  the preparations for the marriage of Sudha’s  sister-in-law.  He  was  at  the  house  of  the deceased upto  22.11.1982, the  day of  the  occurrence.  On 22.11.1982 he  had been  told by  Sudha that she was treated very badly  as she  had not brought sufficient dowry and she was given  state food  to eat.  p.w.2 thereupon,  thought it proper to  talk to Sudha’s husband Santosh Singh. But he did not give  a satisfactory  reply and  said that  bad days had come  and   the  day   of  extermination  of  his  line  had approached. So  saying he  picked up  the gun  and went  out towards his  field. Thereafter,  p.w.2 started  back for his own house  around 10.00 a.m. and he reached his house around noon. P.W.5  Rukmangal Singh has stated in his evidence that while he  was in his field, at about 12.30 noon, the heard a gun shot. He rushed to the house of Onkar Singh where he saw Sudha  lying   injured,  and  Santosh  Singh,  Onkar  Singh, Rajeshwari, Suman  and the  servants standing  there.  Sudha died shortly  thereafter of gun shot injury. He was informed by Lallu and Bandhsa that on the instigation of Onkar Singh, Santosh had  fired on  his wife  and injured her. P.W.5 told the Chowkidar  to report  the matter  to the Police Station. The matter, however, was not reported to the Police Station. He has  further stated  that after  sometime, he found smoke coming from  the northern  side of  the  ground  near  Onkar Singh’s house.  He went  there and  saw  the  two  servants, throwing sticks  on the  fire and  burring the  dead body of

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Sudha Onkar Singh and Santosh were also present. No pyre was made and the dead body was burnt by sticks.      The High Court, on the basis of circumstantial evidence and, in  particular, the  fact that  Santosh Singh  had been seen by  Yaduvir Singh  with a  gun in his hand going to the field and  making a  statement that his line was about to be extinguished,  coupled   with  the  evidence  of  P.W.5  has convicted Santosh  Singh under  Section 302  of  the  Indian Penal Code.  The High Court has rightly negatived the theory of suicide  for the  reasons which  it has  set out  in  its judgment. We  do not  see  any  reason  to  set  aside  this findings of the High Court.      The cases of Onkar Singh and Rajeshwari, however, stand on a somewhat different footing. The death of Sudha occurred prior to  the  two  amendments  of  the  Indian  Penal  Code introducing Sections  498A and 304B in the Indian Penal Code and amending  the Evidence  Act by introducing Section 116B. Therefore, the  presumptions under  these Sections  are  not available  to   the  prosecution  although  there  is  clear evidence relating to the demand for dowry by Onkar Singh and Rajeshwari and  harassment of  Sudha on  that count.  In the absence of  these presumptions  we find  that  there  is  no material to  convict them under Section 302 with the help of Section 34.  The evidence  of P.W.2  Yaduvir Singh is to the effect that  Santosh Singh had taken the gun in his hand and gone to  the field  after P.W.2  Yaduvir Singh had talked to him about  the treatment  being given  to his  sister Sudha. There is  no evidence  to indicate any instigation by either Onkar Singh  or Rajeshwari  of Santosh  Singh to kill Sudha. The evidence  of P.W.5.  Rukmangal Singh,  undoubtedly shows the presence  of Rajeshwari  and Onkar  Singh at the site of the occurrence.  He has  deposed that  the two servants told him that  Onkar Singh  had instigated  Santosh Singh to kill Sudha. This,  however, is  hearsay  evidence.  There  is  no satisfactory evidence  to establish  that Onkar Singh was in any manner  responsible for  instigating  Santosh  Singh  to shoot his  wife Sudha.  Undoubtedly, both  Onkar  Singh  and Rajeshwari had  demanded dowry  from Sudha’s family and were parties to harassing her. But in the absence of presumptions which are  available after  the amendments of the Penal Code and  the   Evidence  Act,   there  is  no  other  direct  or circumstantial evidence  which would  justify the conviction of Onkar  Singh and  Rajeshwari under  Section 302 read with 34. Their conviction on this count is, therefore, set aside. Onkar Singh,  however,  was  present  at  the  time  of  the cremation of  the dead body of Sudha alongwith Santosh Singh and the two servants. The High Court has rightly come to the conclusion that Section 201 is attracted. Sudha was cremated on the  land adjoining  the house  of  her  in-laws  without waiting for anyone from her parents, side to come and attend the funeral.  In fact  (1) It was ensured that none from her parents’ family  would reach Onkar Singh’s house until after the dead  body was  cremated; (2) The cremation did not take place at  the usual  cremation ground but in the field close to Santosh’s  house; (3)  Deliberate  attempt  was  made  to prevent anyone  from Sudha’s parents side to reach Santosh’s house for cremation and (4) No report of her unnatural death was made  at the  police Station. As Onkar Singh was present at the time of cremation and the servants who burnt the body were under  his control and can be said to have acted on his instructions, his  conviction under Section 201 of the Penal Code must be upheld.      The two  servants Lallu  Ram and  Bandha have also been convicted under  Section 201.  The two  servants  being  the employees of  Onkar Singh,  Onkar Singh was in a position of

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exercise authority  overthem. Being financially dependant on Onkar Singh  and  Santosh  Singh,  it  is  likely  that  the servants may have acted at the bidding of both of them. This is, therefore, a fit case for reducing the sentence of Lallu Ram and Bandha to the sentence already undergone.      The  appeals   are  accordingly   partly  allowed.  The conviction and  sentence of  Santosh Singh  is  upheld.  The conviction of  Rajeshwari is  set aside and she is acquitted of all  charges. The conviction of Onkar Singh under Section 302  read  with  Section  34  is  set  aside.  However,  his conviction under  Section 201  and the  sentence imposed, of four years’ rigorous imprisonment is upheld. The sentence of Lallu Ram  and Bandha  is reduced  to the  sentence  already undergone.