BANSHILAL Vs. STATE

JUDGEMENT

(1.) THE accused appellant Banshilal son of Biharilal, has been convicted by the Additional Sessions Judge, Bhilsa (Camp Rajgarh), for the murders of Banwari, aged 22 years, and, his mother, Mst. Bhanwari Bai under Section 302, and, sentenced to death. The learned Additional. Sessions Judge has sent the case to this Court under Section 374 of the Code of Criminal Procedure for confirmation of the death sentence and it is registered as Criminal Case No. 2 of 1957. The accused has also filed ah appeal (Criminal Appeal No. 43 of 1957) against his conviction and sentence. Both the cases are being disposed of by a single judgment.

(2.) THE story sought to be proved by the prosecution is that Ishwar Maharaj and accused Banshilal are uncle and nephew and that they both lived in their ancestral house in village Barkheda. They also possessed ancestral land measuring about seven and half Bighas, This land was partitioned between the uncle and the nephew about 25 years back. Ishwar Maharaj had no issue and the expectation of Banshilal was that on his death, this property will devolve upon him as his legal heir. But Ishwar Maharaj was not favourably inclined towards Banshilal and wanted to leave his property to Banwari, the son of his sister's daughter. In these circumstances, Ishwar Maharaj's sister's daughter Mst. Bhanwari Bai, and, her son Banwari lived with Ishwar Maharaj, This is said to have caused bitter relations and the accused is said to have borne a grudge towards Mst. Bhanwari Bai and her son Banwari and, he wanted to finish them off so that there may not be any obstacle in the way of inheriting Ishwar Maharaj's property. It is alleged that on 18 -6 -56 at about 4 A. M., when Mst. Bhanwari Bai and her son Banwarilal were sleeping in the courtyard of Ishwar Maharaj's house, the accused, who was living in the adjoining house, went there with a sword and first killed Banwarilal. Thereafter he inflicted many injuries with the sword on Mst. Bhanwari Bai also. Ishwar Maharaj (P. W. 7) and Ishwar Ahir (P. W. 9), Shivji (P. W. 10) were sleeping outside the house. When they heard the shrieks of Mst. Bhanwari Bai, Ishwar Maharaj thought that perhaps she has had bad dreams and was muttering in her sleep. Soon after this, Mst. Bhanwari Bai came out of the house to the place where Ishwar Maharaj P.W.7 was sleeping and told Ishwar Maharaj, Shivji and -Ishwar Ahir that Banwarilal had been killed by Banshilal and that she too had been injured by him. She conducted these persons (P. Ws. 7, 9 and 10) to the court -yard where they found Banwari dead: After some time Mst. Bhanwari Bai also succumbed to her injuries. On seeing these witnesses, the accused is said to have run away: It is said that the accused went to the Police Station Biaora and informed the Officer -in -Charge of Station that some unknown person had killed Mst. Bhanwari Bai and Banwari, but the Sub -Inspector did not take down the report, all the same he detained Banshilal. At that time, Banshilal did not have either a sword with him nor was he wearing any blood -stained clothes. Subsequent to this, a report Ex. P. 1 was lodged by Jagannath (who was sent by Ishwar Maharaj) about this incident and because the accused was already at the Police -station, he was arrested. It is significant that in this report, Ex. P. 1, it was not said that Ishwar Maharaj saw the accused killing Banwari: What Jagannath reported was "that Bhanwari's maternal uncle Ishwar Maharaj was saying that Banshi had brought this calamity on them."

(3.) ISHWAR Maharaj P. W. 7 in his deposition has said that he was sleeping outside, whereas Banwari and his mother Mst. Bhanwari Bai were sleeping inside the house. At about 4 in the morning, Mst. Bhanwari Bai shouted. He heard the noise but he thought that she was muttering in her sleep. After this, Mst. Bhanwari Bai came out of the house to the place where he was sleeping, and, told him that Banshilal had killed Banwari and has also injured her. Ishwar Ahir and Shivji were sleeping near him. They also got up and in the meanwhile his neighour Kallu also came there. They all trooped into the house and there they saw that the accused Banshilal was standing by the side of Banwari with his sword embedded in the neck of Banwari. He says that he asked Ishwari Ahir and Kallu to go outside and catch hold of Banshi, who on seeing them had run away. He has suggested that these murders were committed because of his desire to pass on his property to the deceased Banwari: The motive which this witness has suggested appears to be as much a concoction as his other statements: In the first place, the entire ancestral property according to him consisted of seven and half Bighas of land of which he had given three and half Bighas to Banshi on partition which took place about 20 years ago. Now to think that Banshi could kill Banwari and his mother for the acquisition of this piece of land of three and half Bighas is more than one can believe. There is another reason for disbelieving this witness regarding the motive. This witness has admitted that relations of Banwari and his mother Bhanwari Bai (deceased) with the accused were good, and that they used to visit each other, though he says that his relations with his nephew (accused) were not happy and that he was not on speaking terms with the accused for the last 20 years. He also admits that neither Banwari nor Mst. Bhanwari Bai ever complained to him about any hostility that may have been displayed by the accused Banshi. In these circumstances, the evidence about the suggested motive does not at all impress one.