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PETITIONER: MUKUND @ KUNDU MISHRA & ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       02/05/1997

BENCH: M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Mukund @  Kundu  Mishra  and  Deva  @  Dev  Kumar,  the appellants before us, were put up for trial before the IIIrd Additional Sessions Judge, Bilaspur, to answer charges under Sections 449,394/397  and 302/34 IPC. The charges were based on the  allegations that in the night intervening January 17 and 18,1994  they trespassed  into the  residential house of Anuj Prasad  Dubey, committed  murders of his wife and their two children  and looted  their  ornaments,  other  valuable articles and  cash. On  conclusion of  the trial the learned Judged found  them guilty  of all  the   above  charges  and accordingly convicted them. For the conviction under Section 302/34 IPC both of them were sentenced to death and, for the other  convictions,   to   different   terms   of   rigorous imprisonment. Against  their convictions  and sentences they preferred individual  appeals which  were heard  by the High Court alongwith  the reference  made by  the  learned  Judge under Section  366 Cr.P.C.  In disposing of them by a common judgment  the   High  Court   dismissed  their  appeals  and confirmed  the  death  sentences.  Hence  these  appeals  by special leave. 2.   The case  of the  prosecution, briefly  stated,  is  as under: (a)  Anuj Prasad  Dubey along  with his  wife Sarita  Dubey, daughter Jyoti  (aged about  6 years)  and son Deepak ( aged about 4  years) used  to reside  at Panchwati  Colony in the town of  Bilaspur. However, at the material item Anuj Prasad Dubey  (P.W.9)    was  in  Bombay  in  connection  with  his business. Sohan  Lal Dixit  (P.W.1), Kumari  Shredhdha Dixit (P.W.6), Dr.  Awadhesh Kumar Singh (P.W.7), and Smt. Shailja Singh (P.W.8)  were,  amongst  others,  neighbours  of  Anuj Prasad. The appellant Mukund happens to be the son-in-law of one Santosh Dubey, a cousin of Anuj Prasad and he was also a resident  of   the  same   town.  In   view  of   the  above relationship, Mukund  used to visit the house of Anuj Prasad even when  he was  out of  station in  connection  with  his business. (b)  About 7 or 8 months prior to the incident with which we are concerned  in these  appeals Mukund  had taken a loan of

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Rs. 10,000/-  from Anuj  Prasad assuring  repayment  thereof within a  week. On  his failure  to keep  the  promise  Anuj Prasad approached Santosh Dubey and he repaid the loan after about three  months.  Three  months  later  Mukund  demanded another sum  of Rs.  10,000/- from  Santosh Dubey  but as he declined to  pay,  Mukund  started  pestering  Anuj  Prasad. Mukund used  to tell  Anuj  Prasad  that  either  he  should accommodate from or persuade Santosh Dubey to do so. (c)  In the  evening of  January 17,1994 Shailja went to the house of Dubeys and after having a cup of tea there when she left, Sarita, as was her wont, locked up her compound gate. (d)  on the  following day,  that is   January  18,1994,  at about 12  noon Shailja  called one bangle seller to purchase some bangles. Expecting that Sarita might also be interested in purchasing bangles, She sent a girl to call her. The girl came back and reported that Sarita could not be found in the drawing room  or in the court-yard. Shailja then went to the house of  Sarita and  entering her  bed room found her lying dead on the floor with hands and legs tied with a coir strip and the  two children  lying dead  on the  bed. She  further found household articles lying scattered all around the room and the  steel almirah  open. Immediately  thereupon Shailja came out  of  the  house  screaming  and  called  neighbours including Dr.  Awadhesh Singh  who rushed  to the  spot. Dr. Singh then  sent a  message to  Anuj Prasad  at  Bombay  and thereafter went  to Sarkanda  police Station  and lodged and information. (e)  On that  information (Ext. P/26) Shri R.K. Roy, Station Incharge registered  a case  and took  up investigation.  He went to the house of Dubeys alongwith other police officers, a  photographer   and  a   scientist  of   Forensic  Science Laboratory (F.S.L.)  department. After  holding inquest upon the three  dead bodies  found there  he sent  them for  post mortem examination.  He seized a number of articles from the spot including  broken plastic ornament box with ‘Ajay Kumar Shah’ printed  thereon as  the owner  of the shop which sold it. (f)  In the  night that  followed both  the appellants  were arrested and interrogated. Pursuant to the statement made by Mukund the  Investigating officer  recovered and seized some gold and  silver ornaments  and  a  knife  from  his  house. Besides he  seized a woollen sweater from his house of which two buttons  were found missing. Thereafter the house of the other appellant  Deva was  searched and  some currency notes were recovered. Pursuant to his statement, one polythene bag containing some  silver and  gold articles  ornaments and  a lady’s wrist watch were recovered from beneath some earth in the house.  He also  produced a  dagger (bhujali)  and  some clothes  which  were  all  blood  stained.  Since  both  the appellants were found to have some injuries on their persons they were thereafter sent for medical examination. (g)  In course  of Investigation  identification proceedings in respect  of the  articles governed  from the  house of he appellants were  conducted by  Shri M.L.  Sisodia,  (P.W.16) Executive Magistrate  and those  articles were identified to be those articles were identified to be those of Sarita. (h)  On receipt  of the  report of  F.S.L. and completion of investigation the  police submitted charge sheet against the appellants. 3.   The  appellants  pleaded  not  guilty  to  the  charges levelled against  them and  contended  that  they  had  been falsely implicated. 4.   That Sarita  and her  two children  met with  homicidal death  as  alleged  by  the  prosecution  stands  proved  by overwhelming evidence  on record. Apart from the evidence of

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the neighbours  of Dubeys,  namely, Sohan  Lal Dixit (P.W.1) Kumari Shradhdha  Dixit (P.W.6),  Dr.  Awadesh  Kumar  Singh (P.W.7) and  Smt. Shailja Singh (P.W.8), who testified about having seen  the three members of the family lying dead with injuries on  their  persons  in  the  afternoon  of  January 18,1994, there is the evidence of Mr. R.K. Rai (P.W.11), the Investigating officer  who held inquest and Dr. S.K. Chandel (P.W.3), who held the autopsies. The doctor found an incised wound on  the neck  of Sarita  with  all  the  vessels  cut; multiple bruises  on the   throat  of Jyoti  with hyoid bone fractured; and  an incised  wound in  the  middle  of  front portion of  neck of  Deepak. He opined that all the injuries he found  on the  persons of  the three  deceased were ante- mortem and homicidal in nature. Indeed, we find this part of the   prosecution case  was not  seriously challenged during the trial. 5.   In absence  of any  eye witness to prove the complicity of the  appellants in the commission of the offences alleged against them  including the  above murders,  the prosecution rested   its    case   on   circumstantial   evidence.   The circumstances alleged against Mukund are as under : (a)  mukund used to remain indebted and short of funds; (b)  He was  the son-in-law  of the  cousin of  Anuj  Prasad Dubey and  was on visiting terms with the Dubey family. Even in absence of Anuj Prasad he used to meet Sarita; (c)  Being very  conscious of her own safety and security as also of  her children  Sarita used  to lock the channel gate fixed in  the compound wall of her house, in the early hours of the  night daily  and would  not open it unless and until she was assured that the person intending to enter was known to her.  On the date of the incident also she had locked the gate; (d)  No marks  of forcible  entry into the house was noticed on the  gate which  indicated that miscreant/miscreants were known to Sarita; (e)  A button  was found  lying on  the  spot,  the  colour, design and  physical quality  of which  was similar  to  the buttons that  were found  stitched in  the  woollen  sweater (jacket) seized  from  the  house  of  Mukund.  Besides  two buttons which were stitched on the upper side of the sweater were found missing; (f)  Soon  after  the  incident-on  January  19,1994  to  be precise - a number of articles including ornaments belonging to sarita  were recovered  at the  instance of  and from the possession of Mukund; (g)  The clothes an the degger seized from the possession of accused Mukund as well as his nail cuttings were found to be stained with blood; and (h)  At the time of arrest injuries were found on the person of Mukund  which could  have been caused by the victim while defending his/her person. 6.   As against  the other  appellant Deva,  the prosecution relied upon the following circumstances; (a)  Two persons  were seen  in the vicinity of the house of Dubeys in  the evening  of January 17, 1994 with cycles and, of them  one entered  inside the  house of  Dubeys while the other stood nearby; (b)  Injuries were  found on  the person of Deva which could have been  caused by  teeth bite and also by human nails and he failed  to give  any explanation  as to  how he sustained those injuries; (c)  Soon after  the incident, valuable properties belonging to Sarita  including her  wrist watch  were  recovered  from Deva: (d)  Blood was found on the bhujali seized from him and also

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on the cuttings of his nails; 7.   Another circumstance  which proved  joint participation of both  the appellants  in commission of the crimes was the manner in  which looted  properties were distributed between them. 8.   On consideration  of the  evidence adduced during trial the learned  judge held  that the  prosecution succeeded  in proving each of the above circumstances and, as according to him, the  circumstances so  proved unerringly pointed to the guilt of  the appellants convicted and sentenced them in the manner stated  earlier. In  appeal the  high Court concurred with each of the findings recorded by the trial Court. 9.   Mr.  Jain,   appearing  for   the  appellants,  firstly contended that  the prosecution failed to establish that any incriminating article  was  recovered  from  the  respective houses of  the appellants,  far less,  that it was stolen at the time  of the  murders. We  are  not  impressed  by  this contention of Mr. Jain for on perusal of  the record we find that both  the Courts  below have  discussed in  details the entire evidence  adduced by the prosecution and given cogent and convincing  reasons for  accepting the same. Having gone through the evidence we are constrained to say that no other reasonable view  of it  could have been taken. Mr. Jain next submitted that  even if  it was  assumed that  the  articles stolen from  the house  of Dubeys  were recovered  from  the appellants it  could at best be said that they committed the offence they  stood convicted.  we do not find any substance in this  submission of  Mr. Jain also. If in a given case as the present  one the prosecution can successfully prove that the offences of robbery and murder were committed in one and the  same   transaction  and   soon  thereafter  the  stolen properties were  recovered, a  Court may legitimately draw a presumption not  only of  the fact  that the person in whose possession the  stolen articles  were  found  committed  the robbery but  also that  he committed  the murder. In drawing the above  conclusion we  have  drawn  sustenance  from  the judgment of this Court in Gulab Chand Vs. State of M.P. 1995 3 SCC  574, We  hasten to  add that  the other incriminating circumstances   detailed   earlier   reinforce   the   above conclusions,  rightly   drawn  by   the  Courts   below.  We therefore find no hesitation in upholding the convictions as recorded by the trial Court and affirmed by the High Court. 10.  That brings  us to the last contention of Mr. Jain that in any  case the  appellants did not deserve the sentence of death. From the judgments of the Courts below we notice that in awarding  the death  sentence  the  trial  Court  and  in confirming the  same the  High Court were considerably moved by the facts that the victims were helpless and innocent and that the  appellants committed the gruesome murders for some gain. While  there cannot  be any  manner of  doubt that the murders were ghastly and in committing  them Mukund betrayed his trust  we did  not think  this case  to be  one  of  the ’rarest of rare cases’ as exampled in Bachan Singh vs. State of Punjab  1980 (2)  SCC 684  and Machhi  Singh vs. State of Punjab 1983 (3) SCC 470. We, therefore, commute the sentence of death  imposed upon  the appellants  for their conviction under Sections  302/34 IPC  to  imprisonment  for  life  but maintain the  sentences imposed  for the  other convictions. The appeals are thus disposed of.