Jagdish @ Munna vs State of M.P.

S.S. Jha, J.

This appeal is filed by the appellant Jagdish alias Munna against his death sentence for an offence u/s 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 u/s 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.

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 gorund 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 denited 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.

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 depsoition, 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.

From the evidence of P.W.1 Sharda it is apparent that her conduct is not trustworthy. At one stage, she has deposed that the appellant had been given his share in the property, and at another stage she has deposed that appellant was getting grain of his share every year. In the FIR it is mentioned that the appellant is living separately since past two years, whereas in her deposition, she has admitted that appellant is living separately at Morena since past seven to eight years. Appellant was visiting the house once in a year and was collecting his share of grain which was given to him by her mother. There was no dispute between appellant and his mother and deceased Ghanshyam. It is not a case of the prosecution or other witnesses that soon before the incident there was talk about partition of the property or demand of the appellant that entire property be mutated and transferred in his name. On the contrary, P.W.1 Sharda has deposed that deceased Janak Singh''s land was joint with his brother Munni Singh. Thus it is clear that the property acquired by Janak Singh and his brother was also not partitioned.

In the spot map prepared at the instance of P.W.1 Sharda (Ex.P/1), the place where deceased Ghanshyam was sleeping was shown to be outside the house on a platform and deceased Sudama was sleeping inside the house in the courtyard under a Neem tree. In the spot map no electric bulb is shown at the place of the incident. Deceased Ghanshyam was sleeping around ten meter away from where Sharda was watching the incident. Cot of Sudama was around nine meter away from the terrace. There is a slanting roof towards the platform as well as towards the courtyard. In the spot map, it is mentioned that incident was seen by Sharda from the terrace of room no. 2, whereas in her deposition, this witness has deposed that she has seen the incident from the terrace of the room adjacent to the staircase which is room No. 1.

P.W.10 Chhotesingh has deposed in para 7 of his deposition that he has seen the house of Janak Singh from inside. In the courtyard, there is a big Neem tree, which gives shade to entire house. No electric bulb is shown in the courtyard or near the Neem tree in the spot map.

Question which requires determination is whether from such long distance it could be possible to identify the assailant P.W. 1 Sharda has deposed that the appellant was sleeping on a separate cot near deceased Ghanshyam, but in the spot map only one cot is shown. Investigating Officer has admitted that he has not seized mattress, pillow and bed sheet lying on the cot. Investigating Officer has also not taken care to take finger prints over the axe lying near cot of the deceased Janak Singh. Spot map was prepared at the instance of P.W. 1 Sharda but cot of appellant is not shown in the spot map.

The deposition of P.W.1 Sharda is not in confirmity with the medical evidence. P.W.1 Sharda has deposed that appellant has assaulted Sudama by an axe. He assaulted her on the neck and also cut her hands. Thus, she has deposed about two injuries to deceased Sudama. P.W.2 Dr. D.C. Parashar who has performed post mortem of Sudama has found eight injuries on her body. Thus, deposition of P.W.1 Sharda that only two axe blows were given demonstrates that she has not seen the incident Deceased Sudama had suffered eight injuries. Deceased Ghanshyam had suffered only two injuries. She has admitted that after commission of offence, accused left the house but no reasons are assigned by her for not raising the alarm at hight. Thus, her conduct is unnatural.

P.W.8 Shivpal has deposed in para 8 of his deposition that deceased Sudama was having a slipper in one leg and the other slipper was lying on the ground by the side of the cot From this deposition, it is apparent that there is material contradiction in the deposition of P.W.1 Sharda. She has given three different stories about the incident. She has given different story in her statement u/s 161 Cr.P.C. and in the police statement Ex.D/1 she has given different story. Even the transfer of entire property in the name of appellant does not appear to be sound. This witness has given different story about the partition of land. This witness has deposed about the shares. In para 48 of her deposition, she has deposed that she knows how the property of her father will be partitioned. The property will be divided in five shares and 1/5th share each will be given to four daughters and to the appellant or his son. Finding of one slipper in one foot and another on the ground shows that deceased was awake when incident took place.

Thus, as discussed above, it is clear that though this witness is a child witness, but is intelligent enough to understand about her rights. Considering the contradictions in the evidence of P.W. 1 Sharda, her evidence does not inspire confidence. She has deposed about removal of Mangalsutra and silver ornaments, but this fact is not mentioned in her police statement Ex.D/1.

Trial Court is swayed by the fact that the appellant has absconded from the place of the incident and has not come for the cremation of his parents, therefore, the trial Court has held that the appellant is guilty of the offence. But from the evidence on record, it is clear that the Police was searching him at village Kaunthar itself, whereas all the witnesses have deposed that the appellant was residing in Morena town and not in the village Kaunthar Khurd. Address of the appellant was given by Sharda to the Police Officer. Reasons for not searching him at Morena, or whether the appellant was having information about the death of his parents at Morena has not been explained by the prosecution. Appellant being a manual labour was arrested at Dhouplur which is an adjacent town to Morena in the State of Rajasthan, around 25-30 Km away. Thus, on account of inaction of the investigating agency for searching the appellant, it cannot be presumed that the appellant had absconded from the scene. Some witnesses have deposed that he was seen a day earlier in the village. But absence of the cot in the spot map on which the appellant was sleeping and on failure of the prosecution agency to seize mattress and other materials i.e. bed sheet, wrist watch of the deceased Janak Singh itself disclose that the investigation was faulty. As regards the motive, two major sisters of P.W.1 Sharda who were adult and married have not been examined by the prosecution to prove the motive.

In the case of State of Punjab Vs. Sohan Singh and Others, ], it is held that where the names of the accused were not disclosed by the eye witnesses and it was not mentioned in the FIR and the accused could be identified in the night by the help of a lantern which was brought by a witness and there was also evidence of deep enmity between the parties, accused were implicated in the offence and they were entitled to be acquitted.

In the case of Babuli alias Narayan Bahera Vs. The State of Orissa, ], considering the testimony of sole eye witness and there was darkness at the place of the occurrence, it was held that on failure of the prosecution that the witness could see the accused, conviction of the accused is not safe.

In the case of State of Orissa Vs. Mr. Brahmananda Nanda, ], it is held that where the eye witnesses not disclosing the names of the assailants for a day and a half after the incident and explanation for non-disclosure was unbelievable, such non-disclosure is a serious infirmity.

In the case of the Jagir Singh Vs. The State (Delhi), ], it is held in para 7 of the judgment that when conviction is rested entirely on the sole testimony, then the evidence is required to be scrutnised before imposing punishment.

In the case of Suresh Vs. State of U.P., ], sole eye witness was a five years child of the deceased. The Court scrutinising the evidence upheld the order of conviction.

Regarding death penalty, the Supreme Court has held in the case of Bachan Singh Vs. State of Punjab, ], that death penalty can be imposed in rarest of rare case; numerous circumstances are required to be examined before imposing death sentence.

In the case of Deepak Kumar Vs. Ravi Virmani and Another, ] four adults persons of a family were murdered by hard and blunt weapons. Supreme Court held that non-examination of independent witnesses in spite of availability, accused is entitled to be acquitted. Non-examination of independent witnesses was held to be fatal for the prosecution. It was further held that conviction on the sole testimony is not safe unless evidence of the sole witness does not strictly pointedly point out to the guilt of the accused by reason where for the burden of the prosecution to prove beyond all reasonable doubts has not been discharged in a manner as it ought to have discharged - there are lacunas in the evidence and in totality of the circumstances, the prosecution case raises a definite doubt in the matter of involvement of Ravi Virmani.

In the case of Ram Bilash Singh and Another Vs. State of Bihar, , conviction was based on the evidence of solitary child witness. In this case, credibility of child witness was considered and the Supreme Court held that different answers given by the child witness as to identity of two accused persons and implicating third accused not named in the FIR, evidence is not reliable. It is further held that evidence of a child witness if inspire confidence can be relied upon even without corroboration.

In the case of Panchhi and others Vs. State of UP, ], it is held that testimony of a child witness must be evaluated more carefully and with greather circumspection and should find some corroboration; it cannot be rejected outright. Narration of the incident by the child witness was found quite natural though he saw only some part of the occurrence. In the circumstances, it was held that the evidence was so decisive as to clear all doubts regarding identity of the assailants.

Considering the facts of the case, the testimony of the sole eye witness as discussed above, does not inspire confidence. Even her statement that appellant had stayed at the house is not established. Thus it will not be safe In maintain conviction of the appellant only on the basis of evidence of P.W. 1 Sharda. Other witnesses have not supported the case of prosecution. On appreciation of the evidence in its proper perspective as discussed above and considering the material contradictions in the deposition of sole eye witness P.W. 1 Sharda, prosecution has failed to prove its case beyond reasonable doubt.

In the result, conviction and sentence of appellant passed by the trial Court is set aside and he is acquitted of the charge. Appeal of appellant stands allowed. He shall be let off forthwith if not wanted in any other case.