D. Raju, J. -
(1.)The above appeal has been filed by the appellant who was convicted by the learned Sessions Judge, Shajapur, Madhya Pradesh, for the offence under Section 302 IPC (on two counts) on the ground that he killed Ms. Nidhi and Ms. Priti, the daughters of Dr. Ram Avtar Mudgal (PW -2), and sentenced to death and imposition of life imprisonment for the offence under Section 449 IPC for committing house trespass to commit the said murders. The appeal filed by the appellant herein before the High Court in Criminal Appeal No. 763 of 2001 and the reference made to the High Court for confirmation in death reference No. 1 of 2001 came to be heard together by a Division Bench of the Madhya Pradesh High Court, Indore Bench, and while sustaining the conviction under Sections 302 IPC and 449 IPC, the High Court altered and reduced the sentence to imprisonment of life by making the sentence to run concurrently. The present appeal is against the same.
(2.)The case of the prosecution, as unfolded from the evidence, is that Dr. Ram Avtar Mudgal (PW2), a dental practitioner at Shajapur, father of the two unfortunate victims; was residing in Government Quarters situated near "Nai Sadak" with his wife and two daughters, the eldest of whom by name Kumari Priti, aged about 22 years and the younger one, by name, Kumari Nidhi, aged about 17 years. The appellant was said to have been serving as Assistant Manager from 3-12-1997 to 5-10-1998 in M.P. Agro State Industry and Development Corporation (for short "Agro Corporation") at its office at Shajapur and was staying in Upkar Lodge situated in the vicinity of Nai Sadak. During the said period he was said to have become friendly with the eldest daughter, though he was familiar with both of them, and often they used to meet and sit behind Hanuman Temple situated on the outskirts of Shajapur city. During such time of visit, said to be almost daily, Priti Mudgal used to be with the appellant and he used to lie down keeping his head on her lap and chat with her when the younger Ms. Nidhi used to sit at some distance. The appellant used to give some gifts to the girls. Thereafter, the appellant came to be transferred as Assistant Manager to Bhopal Office of the Agro Corporation and about a month or so prior to the day of occurrence the father of the appellant Shri Hari Narayan Batham was said to have telephoned to Dr. Ram Avtar Mudgal (PW-2) from Bhopal and told him that there was an affair between his son, the appellant, and Priti, his daughter, and, therefore, he should visit his house at Bhopal for talking about their marriage to which the father of the girls was said to have informed that he was against the idea of marrying Priti to a boy who was not Brahmin by caste, to which they belong and that was also the view of his daughter Priti. It is also the case of the prosecution that the father of the appellant told PW-2 that in case of refusal he would be required to repent and that was the same tone of reply given by PW-2 when called up over phone once again, thereafter. On the ill-fated morning of 8-4-1999, it is said that the Dr. Ram Avtar Mudgal (PW-2) and his wife left their house at about 6.15 a.m. or so for a morning walk and when they returned back home by about 7.00 to 7.15 a.m., the outer door was open and a newspaper 'Nai Duniya' was lying in the verandah and on entry into the house, they found the younger daughter Ms. Nidhi dead with injuries at the dental clinic room and the eldest daughter Ms. Priti in the toilet with injuries, almost in a sitting position. The further case of the prosecution is that during the time between 6 a.m. and 8 a.m. or so on the day the appellant was present in Shajapur and between 6.15 a.m. and 6.30 a.m. or so he was inside the house of Dr. Ram Avtar Mudgal (PW-2) and it was he who killed the daughters to wreak vengeance due to failure of love. PW-4, Advocate by name Shri Narain Prasad Pande, was said to have seen the appellant near the residential house of Dr. Ram Avtar Mudgal at about 6.15 a.m. when he was going towards bus stand for catching the bus to go to Indore for attending the High Court work. PW-3, Ms. Poonam Garg, a neighbour, was said to have heard the noise of bell which was being pressed at the residence of Dr. Mudgal at about 6.15 a.m. or so followed in a few minutes by the cries 'Mummy save, Mummy save'. Jai Prakash Mandloi (PW-5), who lives in a house just opposite the District Hospital, was said to have seen the appellant coming out in the outer compound of the residential house at about 7.00 to 7.30 a.m. when he was returning from his newly constructed house where he had gone to do watering. The appellant, after committing the murders of both the girls, was said to have concealed the blood stained knife, weapon of murders and the blue jean which he was said to have been wearing at the time of the incident, which was blood stained, in a ditch behind the bushes behind Hanuman Temple situated at the outskirts of Shajapur city. He was said to have deliberately created the scene of burglary and murder by keeping open the doors of almirah and stealing some currency notes worth Rs.12,000/- for misguiding the Investigating Authorities and also fabricated false evidence for establishing an 'alibi' to prove his innocence by showing that at the same time he was absent and away at Dahod in Gujarat, accompanying his sister from Bhopal and said to be present on 8-4-1999 at that place. The priest in Hanuman Temple by name shri Rishikesh (PW-16) was examined to prove the visits of the appellant to the temple in the company of the two girls. Immediately on his return to the house, Dr. Mudgal seems to have informed Dr. Rathore and Dr. Sisodia on telephone and Dr. Sisodia along with Dr. Gupta seems to have reached the place and thereafter Dr. Gupta seems to have telephoned the Police Control Room giving information about the occurrence. PW-26, an ASI, who received the information, informed PW-27, B.P. Samadhiya, City Police Inspector, about the incident. PW-27 on his arrival on the spot was told by Dr. Mudgal (PW-2) about the occurrence and the same was registered as 'First Information Report' (Ex.P-11) and the death of the two girls was recorded as information marked as Ex.P-12 by sending the raiding officer to the Judicial Magistrate and Departmental Sentencing Authority and the investigation was said to have been started. It is stated that during investigation Police Inspector, M.S. Gaur, brought the appellant from Bhopal and produced him before the City Police Inspector, who arrested him. Dr. Mudgal (PW-2) was also stated to have given on 21-4-1999 the list of articles said to be missing from place of incidence to PW-27 marked as Ex. P-14. After the arrest and personal search of the appellant, it was stated that a purse, in which one chain and Rs.1223/- were found, was seized and panchnama marked as Ex. P-22. In the Identification Parade held on 22-4-1999 by Shri R. K. Sharma, Tehsildar (PW-14), Dr. Ram Avtar Mudgal (PW-2) and his wife were said to have identified the chain, noticed above, to be the chain missing from the neck of the younger daughter Ms. Nidhi. On a disclosure statement said to have been made on 23-4-1999 under S. 27 of the Evidence Act, the appellant was said to have produced the knife and blood stained clothes from the place where they were said to have been hidden vide Ex. P-23. The knife and blood stained clothes were said to have been seized under seizure panchnama Ex. P-24. the appellant's specimen handwritings and signatures were also said to have been obtained and seized.
(3.)The appellant was charged under S. 302, IPC separately for the murder of two girls, in addition to being charged under S. 449 IPC. The appellant denied the charges. After trial, in which witnesses were examined and documents were marked, the learned Trial Judge accepted the evidence of Narain Prasad Pande (PW-4), Rajmal Bhimawat (PW-10) as well as Jai Prakash Mandloi (PW-5) and Poonam Garg (PW-3) and placing reliance upon the evidence of Hanuman Temple priest PW-16, Rishikesh, and PW-27. Investigating Officer Samadhiya, found that the evidence was sufficient to establish the guilt of the appellant in respect of the charge of murder of two girls. The learned trial Judge also held that during the time between 6 a.m. and 8 a.m. or so on 8-4-1999 the appellant was present in Shajapur and between 6.15 a.m. and 6.30 a.m. or so, he was inside the house of Dr. Mudgal by committing house trespass and from the further circumstances proved from the recovery of the chain and the weapon for committing the offence and blood stained clothes, the guilt of the appellant stood substantiated beyond doubt by the overwhelming circumstantial evidence. The defence put forward by the appellant, including the one based on the plea of alibi, was rejected. Consequently, the trial Court convicted the appellant and imposed sentences, as noticed earlier. The Division Bench of the High Court, while dealing with the Death Reference as well as the appeal filed by the accused, affirmed the conviction and modified only the death sentence into one of life imprisonment.