SMT. RAJESHWARI DEVI ETC.versusSTATE OF U.P.

                  SMT. RAJESHWARI DEVI ETC.                                  A
                              v.
                         STATE OF U.P.

                            APRIL 19, 1996

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

     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 mother- in-law.

        Indian Evidence Act, 1872-Section 113 8--lndian Penal Code,
                                                                             c
 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.                           D
      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
                                                                             E
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.
                                                                             F
      The husband and bis parents were convicted for offence u/S 302/34,
147 & 201 IPC and sentenced to life imprisonment. They were also sen-
tenced 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 con-
viction 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
    580                  SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

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
    that she was being treated very badly as she had not brought s afficient
B   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 in-
    formed 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
G 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 B
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 in- laws 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
                                                                             D
for anyone from her parents' side to come and attend the funeral. In fact
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
                                                                             F
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-A·G; 586-A]                                    G

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

     From the Judgment and Order dated 10.3.86 of the Allahabad High H
    582                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

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
c   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
E   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
F
    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 imprison-
ment 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          c
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.             D

       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
                                                                          E
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 F
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
    584                  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
B   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
c   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.
D
          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
                                                                             B
responsible for instigating Santosh Singh to shoot his wife Sudha. Undoub-
tedly, 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       c
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 Sant0 sh'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
                                                                             F
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 depen-
dant 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
    586                  SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

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.