SMT. RAJESHWARI DEVI ETC.

STATE OF U.P.

APRIL 19, 1996

[M.M. PUNCHHI AND SUJATA V. MANOHAR, .JJ.)

Indian Penal Code, 186(}-Section 302-Death by gun shot injwy in husband's house--Circianstantial evidence-Husband convicted u/s. 302 /PC-Father-in-law convicted u/s 201 /PC-Acquittal of motherin-law.

Indian Evidence Act, 1872-Section 113 8--lndian Penal Code, 186(}-Sections 3048, 498A--{fnnatura/ Death of deceased in her husband's hous&----Evidence relating to demand of dow1y and harassment of deceased on that count-Presumption u/Ss 498A, 3048 !PC and I 138 Evidence Act which are subsequently enacted not available-Conviction u/S 302/34 /PC of fatlzer-in-law and 1nother-in-law not sustainable.

The prosecution case was that the deceased was married to accused S on or about 3.2.1982, she died of a gun shot in, jury in the house of her husband on 22.11.1982; that a message was sent by the accused to the parents of the deceased who reside in a different village to inform them that deceased had committed suicide; that on reaching their house parents of the deceased were told that the deceased had died instantaneously and her body had been cremated and that the accused could not give any proper explanation as to why the cremation could not wait till the arrival of family of the deceased.

The husband and bis parents were convicted for offence u/S 302/34, 147 & 201 IPC and sentenced to life imprisonment. They were also sentenced to 2 years and 4 years R.I. u/Ss 147 & 201 lPC respectively. The two domestic servants were convicted u/S 201 !PC and sentenced to four years'

R.I. The village chowkidar was convicted u/s 202 !PC and sentenced to 6 months R.I. In appeal, the High Court convicted the husband u/s 302 !PC G and maintained his sentence of life imprisonment. The husband's parent'i were convicted u/s 302/34 !PC, and the sentence of life imprisonment was maintained. The sentence u/s 201 was also maintained though their conviction u/s 147 wa; set aside. The conviction of two domestic servants had been maintained. R did not prefer any appeal and served his sentence. The H 579

A High Court upheld the findings regarding motive for the murd<r of the deceased while holding that it was found that the deceased was being harassed by her husband and in-laws for not bringing sufficient dl wry and P.W. 2, the brother of the deceased who was at the house of the deceased upto 22.11.1982, the day of the occurrence, had been told by the deceased

B that she was being treated very badly as she had not brought s afficient dowry and when PW 2 talked to the husband of the deceased, he did not give a satisfactory reply and said that the day of extermination ol his line had approached, so saying he picked up the gun and went out to,.ards his field and thereafter P.W. 2 went back to his house; that P.W. 5 st' ted that while he was in his field, he heard a gun shot and rushed to the 10use of C the deceased where he saw the deceased lying injured, her t usband, • father-in-law, mother-in-law, sister-in-law and the servants standing there, the deceased died shortly thereafter. of gun shot injury an<I he was informed by the servants that on the instigation of his parents, the 'msband had fired on his wife and injured her; that P.W. 5 saw the two ; ervants D burning the dead body of the deceased, no pyre was made and 1he dead body was burnt by sticks when father-in-law and her husband \\ere also present. The High Court, on the basis of this circumstantial evide'1ce inter alia convicted the husband, u/s 302 !PC, negativing the theory ol suicide.

It also Convicted the father-in-law and mother-in-law inter alia mtder sec. 302 read with Sec. 34 l.P.C. Hence these appeals.

E Allowing the appeals partly this Court

HELD : 1.1. The deceased died of a gun shot injury in the house of her husband. The husband had been seen by P.W. 2, the brother of the F deceased with a gun in his hand going to the field and making a s :atement that his line was about to be extinguished. Relying on this and the evidence of P.W. S, he was rightly convicted u/S 302 !PC by the High Court. [584-D-E]

1.2. The death of the deceased occurred in 1982 prior to the two amendments of the Indian Penal Code introducing Section 498A and 304B in the Indian Penal Code and amending the Evidence Act by introducing Section 113B. Therefore, the presumptions under these Sections are not available to the prosecution although there was clear evidence relating to the demand for down by her in-laws and harassment of the deceased on that count. In the absence of these presumptions there was no material to H convict them under Section 302 IPC with the help of Section 34 IPC. The

RAJESHWARIDEV!v. STATE 581

evidence of P.W. 2 was to the effect that the accused had taken the gun in A his hand and gone to the field after P.W. 2 had talked to him about the treatment being given to his sister. The evidence of P.W. 5 undoubtedly showed the presence of his parents at the site of the occurrence. He had deposed that the two servants told him that father of accused S had instigated the accused to kill his wife. This, however, is hearsay evidence.

There was no satisfactory evidence to establish that his father was in any manner responsible for instigating him to shoot his wife. Undoubtedly, both parents had demanded dowry from family of deceased and were parties to harrassing her. But in the absence of presumptions which are available after the amendments of the Penal Code and the Evidence Act, there was no other direct or circumstantial evidence which would justify C the conviction of inlaws of the deceased u/S 302/34 IPC. Their conviction on this count was, therefore, set aside. Father of the accused S, however, was present at the time of the cremation of the dead body of the deceased alongwith the accused and the two servants .• The High Court had rightly come to the conclusion that Section 201 !PC was attracted. Deceased 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 D

it was ensured that none from her parents' family would reach their house until after the dead body was cremated; that the cremation did not take place at the usual cremation ground but in the field close to house of the accused; deliberate attempt was made to prevent anyone from her parents' E side to reach their house for cremation and no report of her unnatural death was made at the Police Station. As father of_ the accused S was present at the time of cremation and the servants who burnt the body were under his control and could be said to have acted on his instructions, his conviction under Section 201 of the Penal Code is upheld. The two servants being his employees, he was in a position to exercise authority over them.

Being financially dependent on their employer, it was likely that the servants might have acted at the bidding of both of the accused. This was, therefore, a fit case for reducing the sentence of the two servants to the sentence already undergone. Conviction of mother-in-law of the deceased

is set aside. [584-F-G; 585-AG; 586-A]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 38 of 1987 Etc.

From the Judgment and Order dated 10.3.86 of the Allahabad High H

A Court in Cr!. R. No 378 of 1985.

Dinesh Kr. Garg for Appellant in Cr!. A No. 38/87.

R.C. Kaushik for Appellant in Cr!. A. No. 534/87.

B Anish Ahmed Khan for AS. Pundir for the Respondents.

The Judgment of the Court was delivered by

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 D 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 conunitted sucide. 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 fmd 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 G 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 Bandha were tried under Section 201. One Mahipal Singh was also tried under Section 201. Rameshwar, the village Chowkidar was tried under Section 202. The Sessions court acquitted Suman, alias, Guddi, the H sister-in-law of the deceased. It convicted the husband Santosh Singh and

RAJESHWARI DEVI v. STATE [MRS. SUJATA V. MANOI-IAR. J.] 583

his parents Onkar Singh and Rajeshwari and sentenced them to life im- A prisonment under Section 302 read with Section 149 of the Jndia 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 Sec- B tion 201. Rameshwar, the village Chowkidar Was convicted and sentenced lo 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 201 is also maintainrJ though their conviction under Section 147 is set aside. The conviction of Lallu Ram and Bandha has been maintained while Mabipal 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 that Sudha was being haras~ by her husband and in-laws for not bringing sufficient dowry. As the marriage of Suman, the sister-in-laws 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 inlaws, 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-Jaw. He was at the G 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 stale 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 H

SUPREME COURT REPORTS [1996] SLPP. 1 S.C.R.

A 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 al about 12.30 noon, he heard a gun shot. He rushed lo

the house of Onkar Singh where he saw Sudha lying injured, and Sanlosh Singh, Onkar Singh, Rajeshwari, Suman and the servants standing there, Sudha died shortly thereafter of gun shot injury. He was informed by Lallu and Bandha that on the instigation of Onkar Singh, Santosh had fired on his wife and injured her. P.W. 5 told the Chowkidar to 1eport the matter to the Police Station. The matter, however, was not reported to the Police Station. He had 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 burning the dead body of 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 E 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 finding of the High Court.

F The cases of Onkar Singh and Rajeshwari, however, stand on a somewhat different footing. The death of Sudha occurred in 1992 prior to the two amendments of the Indian Penal Code introducing Section 498A and 304B in the Indian Penal Code and amending the Evidence Act by introducing Section 113B. Therefore, the presumptions under these Section are not available to the prosecution although there is clear evidence G 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 H field after P.W. 2 Yaduvir Singh had talked to him about the treatment

RAJESHWARIDEVlv. STATE[MRS.SUJATA V.MANOHAR, J.] 585

being given to his sister Sudha. There is no evidence no indicate any A 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, ; et 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. D Sudha was cremated on the land adjoining the house of her in-law 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 Sant0sh's house; (3) Deliberate attempt was made to prevent E 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 brunt 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 Onbr Singh

was in a position to exercise authority over them. Being financially dependant on Onkar Singh and Santosh Singh, it is likely that the servants may G 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 H

A 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' rigorou' imprisonment is upheld. The sentence of Lallu Ram and Bandha is B reduced to the sentence already undergone.

R.A.

Appeals partly allowed.