Case: Jagjit Singh @ Jagga Vs. State of Punjab

1. This appeal by special leave has been preferred by Jagjit Singh @ Jagga who was tried by the Sessions Judge, Fatehgarh Sahib charged of the offences under Sections 302, 460 and 458 read with Section 34 IPC. The learned Sessions Judge by his judgment and order dated 31.03.2003 found him guilty of all the three charges and sentenced him to death under Section 302/34 IPC, while imposing the sentence of 10 years rigorous imprisonment and a fine of Rs.5,000/- in default to undergo two years rigorous imprisonment under both Sections 458 and 460 IPC. The appellant herein preferred Criminal Appeal No.369 DB/2003 before the High Court of Punjab and Haryana which was heard along with Murder Reference 2 of 2003 for confirmation of the death sentence. The High Court dismissed the Criminal Appeal preferred by the appellant, and accepting the murder reference, affirmed the sentence of death.2. The prosecution had alleged the commission of the aforesaid offences by the appellant Jagjit Singh @ Jagga as well as by his companion Raju Bhaiya @ Gobind Sharma who absconded and was ultimately declared a proclaimed offender. The occurrence giving rise to the instant appeal is said to have occurred on the night intervening the 29th and 30th August, 1996 in which three persons were killed and the sole eye witness Billo, PW-6 a child aged about seven years was injured. The persons who were alleged to have been killed by the appellant and his companion were Sahu and his daughter Jamila @ Guddo, apart from Rabi Singh, an uncle of the appellant and brother of the first informant Amar Singh, PW-5, who is the father of the appellant.3. The case of the prosecution is that Amar Singh, PW-5 and his brothers Labh Singh and Rabi Singh (deceased) jointly cultivated lands belonging to them in village Khamanon Kamli. For that purpose they had installed a tube well on their land which had a room where the motor was installed and just outside that room was a Chhan (a thatched Verandah). Sahu (deceased) along with his wife and daughter Jamila @ Guddo (deceased) resided at the tube well. He was engaged for cultivation of the lands belonging to Amar Singh and his brothers. Rabi Singh (deceased), used to reside at the tube well along with Sahu and his family members aforesaid. Sahu had kept his cattle at the tube well and for that purpose he had employed Raju Bhaiya @ Gobind Sharma (since absconding) who used to graze the cattle and look after them. He had been in their employment for about 6 to 7 months before the occurrence and also resided with them at the tube well. Only 5 or 6 days before the occurrence Raju Bhaiya had taken leave to go to Ludhiana on the pretext that he had to collect money from someone. A couple of days before the incident the wife of Sahu (deceased) namely, Jeewani had gone to see her daughter Hazaran at Jalandhar. While going to Jalandhar she had requested her son-in-law Bashir PW-4 a resident of Village Madera to take care of her daughter Jamila @ Guddo in her absence. According to prosecution on the evening of 29.08.1996 Bashir PW-4 along with his wife and children visited the tube well where Sahu resided in village Khamanon Kamli. They were together for sometime and thereafter he had his family members returned to their village leaving behind Billo, who was only 7 years old, to give company to Guddo. That is how Billo PW-6 was at the tube well along with Sahu and Jamila @ Guddo (deceased) on the night of occurrence.4. The case of the prosecution is that late in the night the appellant came to the tube well on a motor-cycle and Raju Bahiya also joined him armed with a hammer. The appellant caught hold of Sahu who was sleeping on a cot and threw him on the ground. Raju assaulted him on his chest with the hammer. Seeing the occurrence Jamila @ Guddo (deceased) caught hold of Billo, PW-6 and took her towards the cattle shed. However, the appellants caught hold of Jamila @ Guddo. Raju attacked her with his hammer from behind on her shoulder, as a result of which she fell down. Billo, Pw-6 started weeping, But Raju put a hand on her mouth and hit her on her head with the wooden peg. The accused tied the Chunni of Jamila @ Guddo round the neck of Billo and tried to strangulate her. Thereafter they threw her under a dek tree. By that time Billo had become unconscious.5. In the morning, Amar Singh, PW-5 father of the appellant came to the tube well with tea for his brother Rabi Singh, who used to reside at the tube well. He found the dead body of Rabi Singh smeared with blood in the motor room. He also found Sahu lying dead on a cot outside the Kotha while Jamila @ Guddo was lying dead in the Chhan. They found Billo, PW-6 lying injured under a Eucalyptus tree near the tube well. Amar Singh, PW-5, called a worker from the nearby factory and with his assistance shifted Billo to the local hospital for medical aid on a scooter. According to Amar Singh, PW-5 on the way Billo (PW-6) told him that Raju Bhaiya and a motor-cyclist had killed her Nana and Masi with hammer. She uttered the same words when she was taken to Dr. Sharma, the local doctor, who advised them to take the injured girl to the Civil Hospital. Accordingly injure Billo, PW-6 was taken to the Civil Hospital at Khamanon Kamli. Later she was shifted to the Mohandevi Oswal Hospital at Ludhiana for better treatment.6. In the meantime, at about 7.00 a.m. Amar Singh, PW-5 went to the police station Khamanon Kamli and lodged a report. In that report he stated about his brother as well as Sahu and members of his family residing at his tube well where they had kept their cattle which were looked after by Raju. He stated that at 6.00 a.m. when he went to the tube well for serving tea to his brother Rabi Singh (deceased) he found his dead body lying in the motor room with his face downward. He also saw the dead bodies of Jamila @ Guddo and Sahu. He found Billo, PW-6 lying injure under a Eucalyptus tree. He immediately called for help from the nearby factory and when a scooterist came he took her to the hospital on the scooter. On the way Billo had told that Raju Bhaiya and a motor cyclist had killed her Nana and Masi by inflicting injuries with a hammer. They first went to the clinic of Dr. Sharma who asked him to take her to the civil hospital. Thereafter she was taken to the civil hospital. At the hospital also in the presence of the doctor she stated that she had been strangulated with Chunni and had also been assaulted on her head. He further stated that he had found things lying scattered in the room and therefore he got the impression that the occurrence had taken place when the assailants had come to commit theft. One blood stained hammer was lying outside the motor room.7. On the basis of the report made by Amar Singh, PW-5, a formal FIR was registered whereafter Sub-Inspector Manjit Singh, PW-13 the Investigating Officer, commenced investigation and went to the place of occurrence. He prepared the inquest reports in respect of Rabi Singh, Sahu and Jamila as P-8, P-13 and P-18 respectively. He also prepared a rough site plan of the place of occurrence which is Ex.PW-13/A. He recovered blood stained earth from the place of occurrence and the recovery memos are Exbs.P-9A and B. The hammer recovered from the place of occurrence is Exb.PM/1 and the memo prepared in connection with such recovery is P-9/C. The dead bodies were then sent to Civil Hospital, Bassi Pathanan and the post mortem reports are Exbts. P-3, P-9 and P-14.

Reasoning:
18. The learned Sessions Judge came to the conclusion that PW-6 Billo was a reliable witness and though a child witness she could be relied upon as she impressed the Court as a truthful eye witness. The Trial Court noticed the fact that PW-6 was examined as a witness almost 5 years after the occurrence and during this period she was residing with her parents. She knew Jagga the appellant since he used to come to the tube well and there was sufficient opportunity for her to identify the appellant. The medical evidence supported her version, and the fact that she was herself an injured witness added credibility. The first statement recorded my PW-7, Dr. Bhupinder Singh was relied upon by the Trial Court on a finding that she was fully conscious as per the certificate of fitness given by the doctor. The fact that she named the appellant in response to a leading question put to her by her father was no ground to discard her statement. It further held that no prejudice was caused to the accused, even though there was delay in recording the statement of PW-6 by the Magistrate. The learned Sessions Judge found that since the victim was under a great shock, she was not in a position to make a statement earlier. He further observed that mere omissions and improvements made by her in her statements before the Magistrate or the doctor was no ground to doubt her credibility. As regards the appellant being known to the aforesaid witness the Trial Court was content with observing that since he used to come to the tube well, she had known him from before. Further it held that on the day of occurrence there was sufficient opportunity for PW-6 to identify the appellant. He, therefore, found her evidence acceptable. Considering the evidence of PW-4 the Court found that though there were some improvements appearing in his testimony, those improvements did not go to the root of the case and that his evidence corroborated the testimony of Billo PW-6.Before the High Court as well similar submissions were advanced and for similar reasons the High Court dismissed the appeal and affirmed the sentence of death. The observations in the judgment of the High Court also suggest that the High Court concurred with the view of the Trial Court with regard to the commission of offence of rape by the appellant. As we have observed earlier this finding cannot be sustained at all in the absence of any charge being framed under Section 376 IPC and in the absence of any evidence whatsoever to support this allegation.Though a submission was made before the Trial Court that the appellant was not known to PW-6, Billo, the Trial Court brushed aside this argument holding that since the appellant used to come to the tube well, she had occasion to see him and identify him. Apart from the fact, as we have pointed out above, that in the course of her deposition, she does not say so, it is also difficult to accept the explanation furnished by PW-6 five years after the occurrence, namely that since he happened to be the son of Amar Singh, who was the owner of the tube well, where her maternal grandparents were residing she knew the appellant. One cannot lose sight of the fact that this child was only 7 years old when the occurrence took place. She had come to the tube well where her grandparents resided only in the evening preceding the night of the occurrence. There was, therefore, no truth in her assertion made in an earlier statement that she knew the appellant since he used to frequently come to the tube well. As noticed earlier, in the course of her deposition, she does not say so. There is no evidence on record to suggest that PW-6 had ever stayed at the tube well earlier. In the course of investigation, she had not claimed to have known the appellant since he was the son of Amar Singh at whose tube well her grandparents were residing. In fact in her earlier statements, Amar Singhs name has not been mentioned at all. We entertain a serious doubt whether a girl 7 years old and residing in a different village would have known to whom the tube well belonged. These facts expose a serious lacuna in the prosecution case because there is no evidence to establish beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an opportunity of seeing or knowing the appellant. The mere fact that he happened to be the son of Amar Singh, who was the owner of the tube well, by itself does not establish that the witness had ever seen the appellant before the day of occurrence. This, coupled with the fact that in her first statement PW-6/A recorded on 30th August, 1996, her father PW-4 by putting a leading question to her suggesting the involvement of the appellant, got the appellant implicated creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening.