GOYAL, J. - (1.) THE appellant, Kanhaiya Lal, has filed this appeal against the judgment dated 2. 8. 1995, passed by learned Special Judge (Abolition of Sati)-cum- Additional Sessions Judge, Jaipur City, Jaipur, in Sessions Case No. 9/1995, whereby he was convicted and sentenced under Sec. 302 IPC, to imprisonment for life & a fine of Rs. 1,000/- and in default, to undergo three months rigorous imprisonment.
(2.) THE facts in brief are that on 10. 5. 1994, at about 5. 10 p. m. , a telephonic message was received at Police Station, Vidhyadhar Nagar, Jaipur, that two dead bodies were lying in house No. C. L. 64, Vidhyadhar nagar, Jaipur. THE S. H. O. of that Station reached the place of occurrence. THEreafter at about 7. 30 p. m. on the same day, a written report Ex. P. 14 was lodged by P. W. 16 Murlidhar, brother of deceased Vidhya alias Rita, with the averments that his elder sister Vidhya was married to Kanhaiylal accused about four years ago. One daughter Lata was born out of this wedlock after one year. His sister was being harassed by Kanhaiylal for last two years. THE accused appellant even deserted his sister and served a notice for divorce. THEreafter a compromise took place in writing. It is further stated that his sister made a complaint regarding beating with her by accused one and half month's prior to this incident. Today at about 6-6. 30 p. m. the informant was at his shop in Kishan Police Market. Udhav Das came and informed about the death of his sister and Kumari Lata, (Daughter of his sister ). He came to the place of occurrence and found dead bodies of his sister and her daughter in the house. Hair of his sister were ruffled, blood was oozing from the mouth and nose. Injuries were also found on the person of Smt. Vidya Devi and Kumari Lata. Mouth of Kumari Lata was also tightened with cloth. THE accused has killed them and is not present at the house. Formal FIR Ex. P. 15 was registered under Sec. 302 IPC and after investigation challan under Sec. 302 IPC and after investigation challan under Sec. 302 IPC was filed in the Court of learned Judicial Magistrate No. 7 Jaipur city, Jaipur, who committed this case to the Court of learned Special Judge, jaipur City, Jaipur. Charge under Sec. 302 IPC was framed against the accused, who pleaded not guilty and claimed trial. The prosecution examined 21 witnesses viz. Prahlad P. W. 1, Ghashi Ram P. W. 2, Salim P. W. 3, Prakash Chand P. W. 4, Ghanshyam Das P. W. 5, Laxmi Devi P. W. 6, Vishini Devi P. W. 7, Rajkumar P. W. 8, Mahesh P. W. 9, Kamla Devi P. W. 10, Ishwari Devi P. W. 11, Tikam P. W. 12, Kailash Kumar P. W. 13, Kailash Chandra P. W. 14, Vashudev P. W. 15, Murlidhar P. W. 16, Mumtaz Khan P. W. 17, Banwari lal P. W. 18, Dr. S. K. Pathak P. W. 19, Narendra Singh P. W. 20 and Harpal Singh P. W. 21. The accused was examined under Sec. 313 cr. P. C. He denied the entire evidence of the prosecution and stated that he has been falsely implicated. Five witnesses viz Ramesh Chandra Shukla DW 1, Yogesh Kumawat DW 2, Bharat Kumar D. W. 3, Monohar Lal D. W. 4, and Bhamba Mal D. W. 5, were examined on behalf of the accused. After hearing learned counsel for the parties, accused appellant was convicted and sentence as aforesaid.
(3.) WE have heard learned counsel Mr. A. K. Gupta for the appellant and Mr. Rajendra Yadav learned Public Prosecutor on behalf of the State and have gone through the entire record. First of all we take the medical evidence. The post mortem on the dead bodies was conducted by a Board of three doctors including Dr. S. K. Pathak PW. 19. Post Mortem report of Smt. Vidhya Devi is Ex. P. 23 and that of Kumari Lata is Ex. P. 24. There were as many as 28 injuries on the body of Smt. Vidhya Devi and 11 injuries on the body of Kumari Lata. Most of the injuries on the body of Smt. Vidhya Devi were abrasions, bruises and lacerated wounds on both legs, hands, eye-brow chest and neck. The cause of death of Smt. Vidhya Devi was asphyxia brought about as the result of pressure on the neck. similarly, 11 injuries on the body of Kumari Lata were abrasions, and bruises on legs, neck, chin, cheek and face. The soft tissues under injury No. 4 to 11 are showing haemotoma and extra variation of blood. Skin on both sides of neck shows parchment like changes. Upper part of clavicular reason haemotoma seen. There is haemotoma over and surrounded the right cornea of hyoid bone and hyoid bone-Intact and trachea found congested. The cause of death was Asphyxia as a result of the pressure on the neck. Thus, on the basis of this medical evidence, it is well proved that Smt. Vidhya and Kumari Lata died due to strangulation and there is no reason at all to disbelieve this medical evidence. Now, it has to be seen as to whether this accused committed murder of his wife and daughter. At the outset it may be stated that there is no direct evidence and the case rests on circumstantial evidence. In Sharad Birdi Chand Sarda vs. State of Maharastra (1), the Hon'ble Supreme Court has, summarized the requirements which much be fulfilled for conviction under Sec. 302, in case of circumstantial evidence:- (1) The circumstances from which the conclusion of guilt to be drawn should be fully established. The circumstances concerned ``must or should'' and not ``may be'' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be provided,and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. '' ;