JASWANT SINGH Vs. STATE

JUDGEMENT

(1.) WE have two connected matters before us arising out of the judgment of the Sessions Judge, Jhunjhunu, dated the 24th March, 1965, by which he has convicted the accused Jaswant Singh of the offence of murder under sec. 302 I. P. C. and sentenced him to death. Appeal No. 152 of 1965 is by the accused Jaswant Singh against his conviction and sentence. WE have also before us the usual murder reference for confirmation of the sentence of death. WE propose to dispose of both these matters by a single judgment.

(2.) THE prosecution story is briefly this. It is alleged that on the night between the 7th and 8th of June, 1964, the accused Jaswant Singh killed his wife Mst. Siriya, his two minor sons Matadin and Balwant aged 12 and 10 years respectively and his infant daughter Mst. Phoosli aged about six months with an axe. THE murders are alleged to have been committed in the house of the accused at village Khandwa sometime in the night between the 7th and 8th June. According to the prosecution, the first person to know about this crime was the mother of the accused Mst, Harbai P. W. 1 when, as usual, she was going to the temple of Mataji for the morning worship and was passing by the house of her son Jaswant Singh which according to one version was found chained from outside and according to the other wide open. It may be mentioned here that the accused had a brother named Prabhati P. W. 2, and it is common ground that both these brothers having separated some ten years ago were living in different houses in this very village. Jaswant Singh lived in what is called the Haveli and Prabhati in the Nohra, and the distance between these two is said to be about a mile. Mst. Harbai, it is also common ground, slept in the house of Prabhati on the fateful night. As soon as Mst. Harbai came to know of this brutal crime, she hastened to inform her son Prabhati about it. Prabhati is then alleged to have contacted P. W. 3 Sampatram, Sarpanch of Gram Panchayat Khandwa. He and certain other villagers immediately came to the house of Jaswant Singh and having seen what had happened, Sampat Ram filed the first information report Ex. P-l at the police station Buhana which is at a distance of four miles from village Khandwa. In this first report, all that was stated was that two boys, one girl and a woman were lying murdered in the house of Jaswant Singh son of Mangla Ram Ahir and that this information had been brought to the Panchayat by one Mangla son of Bhana. THE Sub-Inspector of Police Buhana immediately proceeded to the scene of offence and found that the dead bodies of the murdered persons were lying on two. cots, two on each one, in the pol of Jaswant Singh's house. He further found that the ornaments worn by Mst. Siriya wife of the accused were in tact and on having searched his house did not find anything incriminating such as a broken box or the like. As, according to the prosecution, the accused was not found in his house or anywhere near the village, the investigating officer had deputed one Dansingh P. W. 6 for searching and apprehending him. Dansingh's version is that the accused had come to the house of his brother Prabhati on the morning of the 10th June, 1964, when he arrested him. A search memo of his clothes was prepared which is Ex. P-l7 and it shows that the accused had a shirt, a Dhoti and a Baniyan on his body. THE prosecution case is that all these were stained with blood. We might state here at once that these articles were sent to the Chemical Analyser and the Serologist in due course and it was the accused's Baniyan Art. 4 which alone was found to have borne a few stains of human blood. THE post-mortem examination of the dead bodies was performed by Dr. Dwarka Nath P. W. 8 on the 8th June, 1964. On the 10th June an axe was recovered at the instance of the accused from a manure heap in his own 'bara' (Ex. P. 18 ). Nothing, however, turns on this recovery as on chemical examination it was not found to have any stains of blood on it. THE accused was under police custody from the 10th to the 18th June, 1964. On the 19th June he was produced before the Sub-Divisional Magistrate, Khetri, for recording his confession Ex. P. 20. We shall have occasion to refer to this confession hereafter, and it will be sufficient to state at this stage that this confession was almost wholly exculpatory. Even so, the accused contended at the trial that it had been extorted from him by the police under undue pressure. THE accused was in due course challaned and committed to the court of the Sessions Judge, Jhunjhunu, who, after the usual trial, has convicted him under sec. 302 I. P. C. and sentenced him to death as already stated.

(3.) IT is strongly contended before us on behalf of the State that although the statement made by the accused being largely exculpatory would not amount to a confession as such, it contained certain admissions, the chief of which was that the accused was in his own house on the fateful night and that that being so, it lent an almost irresistible force to the case of the prosecution that it was the accused and no one else who had killed his wife and children, and. , therefore, we should uphold his conviction under sec. 302 I. P. C. and the sentence of death awarded to him by the Sessions Judge. On the other hand, it was equally vehemently argued by the learned counsel for the accused that inasmuch as the guilt of the accused was sought to be fastened on to him wholly on the basis of the confession made by him, it would not be open to this Court to accept a part of it which may be incriminatory and reject the other part which was exculpatory and that the proper course for the court to adopt in a case like the present was either to accept the statement as a whole or reject it as a whole.