BYAS, J. - (1.)Since these two appeals arise out of one and the same judgment of the learned Sessions Judge, Pali, D/- Jan. 10, 1980, they were heard together and are disposed of by a common judgment. By the said judgment, accused Mangal Singh was convicted under Ss.302 and 307, I.P.C. and was sentenced to imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo one month's simple imprisonment on the first and three years' rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo seven days simple imprisonment on the second count. Substantive sentences were directed to run concurrently. The accused has come up in appeal to challenge his conviction and sentence while the State in its appeal has prayed for the enhancement of the sentence. The charge against the accused is of committing the murder of his wife and four minor children. The story put forward by the prosecution is grim, sad, tragic and pathetic. Briefly stated, it runs as under.
(2.)The accused is a resident of Jodhpur and joined the Defence Services as a Jawan in 1956-57. Due to his illness, he was discharged from there. In 1962 he got a commission in the army and became a Major. In 1969 he was again discharged. Since then he was living at Jodhpur. Nearly 26 or 27 years before (from 19751 he was married to Smt. Bhanwari daughter of PW13 Shri Kishan Ram. She was a simple and illiterate woman. From him she gave birth to seven children, out of whom two died in their infancy. Those who remained alive were three daughters and two sons. PW 6 Ku. Kamla, who is a surviving victim is their third daughter. The accused could not adjust himself happily with Smt. Bhanwari. It is alleged that he wanted to have a second marriage and to start the life afresh. But his wife and five children were standing as obstacles in the fulfilment of his desire. He wanted to finish them all to have a new venture in his life.
(3.)On July 10, 1973, the accused took his wife and the five children namely Ku. Kamla, Ku. Parvati, Ku. Vimla, Harish and Dinesh in his car to Ajmer. It was a four doors vehicle. The accused wrapped a rope around the dickey and the two back doors on the pretext that the doors may not open suddenly and the occupants on the rear seat may not be thrown out accidently. At Ajmer, he stayed with his family in a Dharmshala. He also took the family to Pushkar from there. On July 12. 1973 he alone went to Jaipur and returned in the night of July 13, 1973. At about 8.00 p.m. on July 14, 1973 he left Ajmer with his wife and children in his car. The dickey and the back doors were again wrapped with the rope. The accused also took two tins of petrol and a bucket with him. The party reached Beawer at about 11.00 p.m. There they stayed for sometime. The accused took the pretext that as there was heavy rush of trucks on the road, it would be better to leave Beawer after some-time. A few hours later, the accused drove the car and proceeded further. When the car was nearly two miles away from village Bar, the accused stopped it on the road-side where there was a deep Khud nearby. He raised the bonnet of the car to show that it was out of working-order and required some repairs. His wife and children came out but he asked them to remain inside the car. Whenever the vehicles passed on the road, the accused made a show to look towards the engine. Some of the drivers of the vehicles offered their help to the accused but he refused to be obliged by them for the simple reason that there was nothing wrong with the car. The accused poured petrol in the bucket, thereafter he lit a match-stick and threw it in the bucket. The accused was then standing with his one foot in car and the other on the road. The driver's door was open. As soon as the petrol caught the fire, the accused moved the steering-wheel towards the khud and gave a push to the car. The car was in flames and rolled down towards the khud. PW 6 Ku. Kamla and Ku. Parvati, who were on the rear seat came out of the rolling car by tilting the driver's seat. The car fell-down in the Khud and continued to burn. Ku. Kamla and Ku. Parvati when came up to the road, the accused caught hold of Ku. Parvati and threw her down in the Khud where the car was burning. Ku. Kamala (PW 6), aged about 13 years at the time of incident escaped the notice of the accused. Apprehending danger to her life she ran for safety towards village Bar. Nearly a kilometre away, she found Karim Khan (PW 24) coming on a bicycle from the opposite direction. She narrated the incident to him and requested him to take her to police Station or village Bar. Karim Khan (PW 24) took pity on her and took her on his bicycle towards village Bar. Meanwhile it so happened that the R.S.R.T.C. bus on its way from Kota to Jodhpur reached the place of occurrence where the car was burning. The bus was stopped there by PW 47 Bheeksingh, who had stopped his truck there. Bheeksingh informed the Conductor and Driver of the bus and the passengers travelling therein that a girl had run towards village Bar. The driver, the conductor and the passengers got down from the bus. Ku. Parvati was raising screams. Some of the passengers got down in the Khud and took out Ku. Parvati who, told them that her father had set the fire to kill her and her mother and others. The accused was also found lying down nearly 15 yards away from the road. He was also lifted and put in the bus. Ku. Parvati too was put in the bus. The bus proceeded further and nearly at a distance of two miles, found Ku. Kamla going on a bicycle with Karim Khan (PW 24). The bus was stopped and Ku. Kamla was also lodged in the bus. Ku. Kamla was extremely fear-sticken and seeing her father (accused) in the bus became highly alarmed. The conductor, the driver and some of the occupants of the bus assured her of no more harm. She then narrated the whole incident to them as to how her father (accused) had set fire to the car to kill her, her mother, sisters and brothers. The bus proceeded further and reached Nimaz where there is a Police Out Post and the Government Dispensary. The bus stopped there. Dr. Kaidar Nath (PW 18) gave treatment to Ku. Parvati and Ku. Kamla. He pricked the morphea injection to the accused to cool down him and to prevent his escape. Both the girls and the accused were left in the dispensary and the bus proceeded further. It stopped at Jetaran where there is a Police Station. The distance between Nimaz and Jetaran is only 7 or 8 kilometre. PW 4 Sajjan Lal the driver of the bus went to the Police Station and verbally lodged report Ex. P13 of the occurrence at about 6.00 A.M. on the same day (July 15, 1973), it was taken down in the Rojnamcha and F.I.R. Ex. P 75 was prepared on its basis. Since the occurrence had taken place within the local limits of the jurisdiction of Police Station, Raipur, Ex. P 75 was sent with a special messenger there. Ex. P75 was delivered by Police Constable Akbar Khan at Police Station, Raipur at about 8.30 A.M. A case under Sa.302, 201 and 435, I.P.C. was registered and the investigation followed. The Station House Officer Modsingh (PW 49) happened to be at Jetaran on July 15, 1973 in connection with his official duty. He was immediately contacted by the Police, Jetaran. Modsingh (PW 49) contacted the Circle Officer and the police party immediately left for Nimaz where it reached at about 7.45 A.M. Ku. Parvati, despite medical treatment could not survive and passed away in the dispensary at Nimaz before the Police party reached there. The Investigating Officer Modsingh recorded the statement of Ku. Kamala (PW 6). He prepared the inquest report of Ku. Parvati. The accused, who was in the dispensary was arrested. The Investigating Officer reached the place of occurrence and prepared the inquest reports of the dead bodies of four victims namely Smt. Bhanwari, Ku. Vimla, Harish and Dinesh. The medico-legal autopsy of the four victims was conducted on the spot by Dr. Deoraj (PW 33). The autopsy of Ku. Parvati's deadbody was conducted by Dr. Kaidarnath (PW 18). According to doctors, the cause of death of the five victims was burns. The post mortem reports are Ex. P1, Ex. P2, Ex. P3, Ex. P4 and Ex. P5. The site was inspected and the site inspection memo as well as the site plan Ex. P7 and Ex. P15 were prepared by the Investigating Officer. The car was got examined and it was found that both its rear doors were perfectly in good condition with locks in working condition. A search of the house of the accused was taken. Some letters and photos of the girls for whom he had made matrimonial correspondence, were found. They were seized.