JAGDISH @ MUNNA Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is filed by the appellant Jagdish alias Munna against his death sentence for an offence under Section 302 I.P.C. Reference has been made by the trial Court after imposing sentence of death, which is registered as Death Reference No. 1/02. According to the prosecution, appellant has committed the murder of his brother Ghanshyam, mother Sudama and father Janak Singh. According to the prosecution, appellant was having a dispute with his father Janak Singh regarding his share in the property. He had left the house of his father two years prior to the incident and was residing at Morena alongwith his family. He came to village to collect his share of agricultural yield a year earlier and had again come to the village Kaunthar Khurd to collect his share of agricultural produce three to four days prior to the date of incident. Accused appellant reached the house of his father at Kaunthar Khurd on 11.5.2000 in the morning. He had his meals in the morning and evening. He slept outside the ho(sic) of the house whole day. At about 10.00 o'clock in the night, Janak Singh (sic) the agricultural field to sleep near tube well. Appellant slept on a cot (sic) the house. On bearing some noise his younger sister Sharda got out of the sleep and saw in the light of electric bulb that appellant was assaulting Ghanshyam by an axe on the neck. She told the appellant not to do so, then the appellant threatened her that if she will shout, she will also be killed. Sharda woke up her sister Sunita who has also seen the incident from the terrace of the house. They have seen that Ghanshyam was bleeding and appellant has cut his neck. Thereafter, appellant entered the house towards courtyard of the house and assaulted his mother who was sleeping on a cot. He cut her hands and neck which resulted into her death. He threatened Sharda and Sunita that if they will shout or inform anyone, they will also be killed. While going out of the house, appellant had removed car rings from the ears of deceased Sudama. Sharda and Sunita remained on the terrace of the house and slept in the night On getting up in the morning, they found that the mother and brother Ghanshyam are dead. Sharda shouted at the incident and on hearing her shout, villagers and ladies assembled who were intimated about the incident by Sharda. Sharda then proceeded towards the tube well and found that her father was also lying dead. His neck was cut. Axe filled with blood was lying under the cot. On receiving intimation through Sharda, brother of Janak Singh named Rambahadur went to the police station alongwith village Chowkidar Jiwaram at about 7.15 in the morning. Report was lodged at the police station Porsa. Thereafter, police recorded statements during investigation and filed challan. Appellant was arrested on 13.9.2000 from Dhoulpur (Rajasthan). On the meorandum of appellant under Section 27 of the Evidence Act, ear rings of deceased Sudama were recovered and seized. Trial Court convicted the appellant relying upon the sole testimony of P.W.1 Sharda. Another eye witness Sunita was not examined before the Court. Sunita was cited as witness, but the prosecution has decided not to examine her in Court. Since the appeal was filed from jail and no counsel was appointed, therefore, Shri Mukund Bhardwaj, Advocate was appointed by the Legal Service Authority to appear for the appellant.

(2.) COUNSEL for the appellant submitted the evidence of P.W.1 Sharda is not trustworthy. She had given different versions in her evidence and her conduct is unnatural so as to warrant conviction of the appellant. Counsel for the appellant further submitted that the prosecution has failed to prove its case beyond reasonable doubt. FIR is also not proved. P.W.3 Rambahadur who had lodged the FIR has denied that in the FIR he has named the appellant committing the offence. He has deposed that he was informed by the son of a villager Jange that Janak Singh, his wife and Ghanshyam were dead and they have been cut by an axe. On hearing this news, he went to the agricultural field and found Janak Singh was cut and his dead body was lying on a col. He saw that his neck was cut. Then he went to the house of Janak Singh and found that Ghanshyam was also cut from the neck and blood was lying on the ground and inside the house body of Sudama was also cut and lying on the cot. He had not met anyone in the house. He was not informed by Sharda about the incident. Thereafter he went to the Police Station, Porsa to lodge the FIR and he has signed the FIR. He has further deposed that on returning back to village, he met Sharda, but Sharda has not naratted to him anything about the incident. He has deposed that he had no knowledge about the person who murdered Janak Singh, Sudama and Ghanshyam. This witness was declared hostile. In the cross examination by the prosecution, he denoted that he was informed by the son of Jange that appellant had murdered all the three persons. He denied that Pappu son of Jange told him that he received information from Sharda about the murders. When he went to the house of Janak Singh and enquired from Sharda, then Sharda informed him that his brother Munna (appellant) has murdered all the three persons. He has denied that he has mentioned in the FIR that incident was reported by him on the information of Sharda. In para 9 of his deposition, he deposed that the village is dacoity infested area and is suffering from terror of dacoits. P.W. 5 Ramprasad has deposed that he has heard about the murder of three persons and he has seen the dead bodies. He has deposed that there is terror of dacoits in the village. This witness was declared hostile. Similarly, P.W.6 Kalyansingh, P.W.7 Charansingh, P.W.8 Shivpal and P.W.10 Chhotesingh were declared hostile. Counsel for the appellant submitted that the evidence of P.W.1 Sharda is not corroborated by other witnesses and the appellant is falsely implicated in the case. He has taken this Court through the entire evidence of P.W.1 Sharda and submitted that Sharda has changed the story of incident and has given different versions of incident in her deposition. Her evidence consists of material contradictions, therefore, conviction of the appellant on such contradictions is not safe and the appellant is entitled to be acquitted of the charge. In the alternative, counsel for the appellant submitted that in such matter of weak evidence, it is not the rarest of rare cases wherein death sentence should be imposed. He further submitted that in the absence of strong motive to commit the offence, trial Court has committed an error in convicting the appellant. Counsel for the Suite supported the judgment and submitted that this is a case of brutal murder of three members of the family by the son. The barbarous manner in which the offence is committed whereby the appellant has committed the murder of his brother, mother and father over the dispute of the property, punishment of death sentence is proper. He contended that the prosecution has proved the case beyond reasonable doubt and the death sentence should be affirmed by this Court. Counsel for the State further submitted that P.W.1 Sharda is a child witness and was subjected to long gruelling cross -examination which continued for number of days. As such, there is every likelihood of some contradictions in her deposition. However, considering her evidence as a whole, conviction of the appellant is proper and death sentence should be affirmed. Since the conviction is based on the sole testimony of P.W.1 Sharda (child witness) her evidence requires close scrutiny. Motive alleged by the prosecution is that on account of property dispute offence has been committed. P.W.1 Sharda has deposed regarding motive in para 5 of her deposition that appellant Jagdish was not helping his father therefore he was turned out of the house by his father. Appellant asked his father to mutate all the property in his name, but his father declined to do so. In para 14 of her deposition, this witness has deposed that appellant was residing at Morena since past seven to eight years and appellant was getting maintenance from his father. She further deposed that the appellant had been given two bigha of land from the share of her father. In para 40 of her deposition, she has deposed that since past 7 to 8 years appellant was residing separately. She admitted that the appellant has not asked for transfer of entire land in his name before her. She had no knowledge when two bigha land was given by her father to the appellant. She has not seen the said land. She has not seen any fight between her father and appellant She has never seen appellant and Ghanshyam fighting with each other. She has admitted that the appellant never asked for his share before her. Later, she has stated that she was informed by her father about the demand of appellant. Appellant Jagdish has left village and was residing at Morena and was working as labour. She further admitted that whenever Jagdish came to village he used to talk to her mother and her mother used to give him grain. He used to carry grain once in a year for whole year. There was no dispute about his taking grain from the house and no one objected to his taking grain from the house. In para 11 of her deposition, she has admitted that the agricultural lands are at two places in the village. The lands are jointly owned by Munnisingh and Janak Singh, both have half and half share. Munnisingh is a security guard and is residing at Gwalior. In para 17, this witness has deposed that appellant was getting crop of two bigha of land. Thus, this witness has not deposed that the appellant was deprived of any right in the family property. It is not clear from the deposition of this witness about the time when appellant has asked for transfer of entire property in his name. This witness has not deposed that soon before the incident, the appellant has demanded for transfer of entire property in his name and on refusal by his father, the incident took place. Thus the motive brought by the prosecution is very weak.

(3.) AS regards the evidence of eye witness P.W.1 Sharda, she had given three versions of the incident. This witness had deposed that she was sleeping on the terrace of the house. Her sister Sunita was also sleeping near her. Deceased Ghanshyam was sleeping on a cot outside at the door of the house on platform and her mother Sudama was sleeping inside the house in a courtyard. Jagdish was also sleeping by the side of Ghanshyam on another cot and her father had gone to sleep near the tube well. In para 3, she has deposed that in the night appellant has lighted 'biri' and coughed. On hearing this sound, she got up and saw that appellant has given two blows by an axe to Ghanshyam on his neck. Thereafter, he has assaulted his mother Sudama who was sleeping inside the house. She has deposed that she could see the incident from the terrace of the house. On account of fear, she hid herself on the terrace and she did not inform anyone in the night. Her younger sister Sunita also got out of the sleep and has seen the incident They kept slept on the terrace in the night Both the girls fell sleep in the night and got up in the morning. In para 4, she has stated that when she got up in the morning and came down then she saw that body of her mother and brother was cut by axe and they were lying dead. She called Ramprasad her neighbour and other villagers of the village also reached the spot. She accompanied villagers towards the well where she found that her father was also murdered. In para 28 of her deposition, she has deposed that when she got up in the morning and saw that her mother is dead, then she woke up her sister Sunita and came out of the house. She shouted for help, wept and informed all the neighbours. Chhote reached her house first and thereafter all of them had gone towards the agricultural field where her father was murdered. Later in the same para, she has deposed that she accompanied her younger sister only towards the agricultural field and no one else had accompanied them towards the agricultural field and after seeing the dead body of her father, they had returned back to the house. In para 29 she has deposed that when she saw the dead body of her father, other villagers were sleeping in their agricultural fields nearby. She has not informed any villager about the incident while she was going towards the agricultural field and returning from the agricultural field. She has many relations in the village. After seeing the dead body, she has not shouted nor intimated anyone. When she saw the dead body of her father, at that time there was no one. In para 31 she has deposed that the axe which was used for commission of the offence was lying on the cot. Mattress, bed sheet and pillow were on the cot and the cot was covered by mosquito net. She has further stated that the body below the neck was hanging from the cot. She admitted that the wrist watch worn by her father was on the body. In para 40 she has deposed that the axe (weapon of offence) was kept below the cot. In para 43 she has deposed that she has called her neighbour Ramprasad, but she was unable to depose why this fact is not mentioned in her police statement Ex.D1/. In para 45 she could not explain why the fact that she was bidding on the terrace is not mentioned in the document Ex.D/1. In para 7 of her deposition , she had deposed that after commission of the offence, appellant had removed ear rings from the ears of her mother Sudama. He has also removed gold "Mangalsutra " by cutting it and silver "Todiya" (anklet) was also cut by him. But in the cross -examination, she admitted that this fact of removing "Mangalsutra" and silver ornaments from the legs of deceased Sudama is not mentioned in Ex.D/1. According to prosecution, Sharda has seen the incident in the light of electric bulb. P.W.1 Sharda has denied this fact and also denied about the light of electric bulb in the courtyard. In para 23 she has stated that the electric bulb is fitted in the courtyard of the house. But in the spot map electric bulb at the place of occurrence is not mentioned. In para 26 she has deposed that it was a moon lit night and in the absence of electric light, she was able to see the accused. No reasons have been assigned by the prosecution for not examining Sunita another eye witness.