IN THE  SUPRE M E  COU RT  OF   INDIA           CRIMINAL  APPELLATE  JURISDICTION   

     CRIMINAL  APPEAL  NO. 1169   OF  2007

DIWANI  RA M  &  ANR. ..  APPELLANT(S)

vs.

STATE  OF  UTTARA K H A N D ..  RESP 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  PW.1  was  married  

with Diwani Ram  son  of Gaphloo  Das  and  Rukmani Devi.  At about 2.00 on   

13th 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  

home  thereafter and  he  had  suspected  that she  may  have  gone  to his

home.  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 home  and  on  the contrary  

expressed  his surprise to know  that she   had  been  missing  from  her  

matrimonial home.  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, Chamoli, and  also filed an application on 20th June, 1989 before  

the Gram   

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Sabhapati, Ustoli. When  the Revenue  police still did not proceed  with the  

investigation despite the  two  applications aforesaid Bachhu  Das  filed yet

another  application on  28th June, 1989  before  the  District Magistrate,  

Chamoli in which  he alleged that the dead  body  of Sati Devi, his daughter,  

had  been  recovered  on  24th 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 Ram  and  her  

in-laws  Gaphloo  Ram  aand   Rukmani  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 PW.1  Bachhu  Das, the  

father of the deceased, PW- 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  PW.6   grand-father of the deceased  who   

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had  given an  application with regard to her having disappeared  and  duly  

corroborated  by  the  evidence  of  PW.4,  Dr. Vinod  Kumar  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, Rukmani Devi  

passed  away  and  the present appeal is thus at the instance  of Gaphloo   

Das, the father-in-law of the deceased, Diwani Ram,  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

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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  submitted that  

Budhi Das  PW.5  who  had  seen  the accused  throwing  the body  into the  

Nandakini River on  13th 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 Kumar  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  PW.1  deposed  that suspicion had  been  raised in  

Sati Devi's in- laws  family that the child had  not been  conceived  from   

Diwani Ram,  her husband, and  the pregnancy  was, therefore, unwarranted.

The  fact that Sati Devi was  indeed  pregnant has  been  borne  out by  the  

evidence  of PW.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   

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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 illicit pregnancy  of Sati Devi or the suspicion thereof.  We  have also  

gone  through  the evidence  of PW.5  Budhi Das.  Admittedly, 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 Rukmani Devi.    Rukmani  

Devi is, however, not before us, having died in the meanwhile. 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.

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Mr. Vishwajit Singh  has  finally submitted  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 home  also creates suspicion with respect to his involvement.  

We  have perused  the evidence of Bachhu  Das. It has come  in his  evidence  

PW.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  20th 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  

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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.          (HARJIT SINGH  BEDI)

      .....................................J.                                          (J.M. PANC H AL)

New  Delhi, July 29, 2009.