MATHUR, J. - (1.) THE appellant was put to trial on the charge of murder of his wife Mst. Antri and daughter baby Jarain aged 3 years. THE learned Additional Sessions Judge, Barmer by judgment dated 22. 12. 1999 has convicted the appellant for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-; in default of payment to further undergo one years rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that the appellant Mange Khan, a resident of village Sohara was married to deceased Mst. Antri about 14 years back. For last four years he was residing in the village of his in laws namely Loharva. Out of the said wedlock, deceased Antri bore two male and one female child. Two days prior to the date of incident, Mange Khan arrived in his village Sohara from his in law's house along with his wife and children. A day before the incident, the appellant Mange Khan along with his wife Mst. Antri and daughter baby Jarain aged 3 years went to the `that of Gogaji' (a religious place ). He left behind his both the sons. It is alleged that at the `than of Gogaji' the appellant abused and reprimanded his deceased wife for leading a immoral life. He asked her to take oath before `gogaji' that henceforth she would lead a chaste life. He also threatened her that if she fails to maintain the chastity in life she would be killed. PW-4 Moolaram pacified them. It is alleged that in the evening the appellant visited the shop of PW-5 Nainaram along with his wife and female child. It is also alleged that PW-2 Mukna Bheel informed PW-1 Kachhab Khan in the intervening night of 2nd and 3. 03. 1998 to the effect that Mange Khan has confessed before him that he has killed his wife and daughter as he suspected her fidelity. Thereafter, the uncle of appellant namely PW-1 Kachhab Khan along with PW-2 Mukna Bheel went in search of the wife and children of Mange Khan. They found the dead bodies of mst. Antri and baby jarain in sand dunes in village Pora. PW-1 Kachhab Khan submitted a written First Information Report of the incident at Police Station, Gida on 3. 3. 1998. The police immediately swing into action, reached on the spot, prepared the site plan and the inquest reports of dead body of Mst. Antri and baby Jarain. Police arranged the autopsy of the dead bodies. The appellant was apprehended vide Exhibit P-2. During the investigation, police collected the necessary material and laid charge sheet against the appellant for offence under Section 302 IPC. The appellant pleaded not guilty to the charge levelled against him and claimed trial. The prosecution in support of the case examined 14 witnesses and produced certain documents. The appellant in his statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him. The trial Court relying on the circumstantial evidence, recorded the finding of guilt against the appellant and, therefore, convicted the appellant under Section 302 IPC and sentenced him in the manner noticed above. Miss Sangeeta Elhence, learned Amicus Curiae has defended the accused appellant stoutly. The learned counsel has made serious endeavour to dig out holes on the edifice of the prosecution case for which she has read the entire evidence. She has dealt with each circumstance and pointed out that they have been neither established by cogent evidence, nor they are of conclusive nature. It will be useful to recast the circumstances relied upon by the prosecution as follows:- (1) The appellant arrived in village Sohara from village Loharva along with his wife and three children. On the next day he left the house along with his deceased wife and daughter. Thereafter, mst. Antri and baby Jarain were not seen alive. Thus, both the deceased persons were last seen in the company of appellant. (2) The dead bodies of Mst. Antri and Jarain were found in sand dunes on 3. 3. 1998. Although, the wife and daughter were murdered, the appellant did not go to see them and remained away from the village till he was arrested on the next day. (3) That blood stains were found on the cloths of the appellant at the time of his arrest. He has not given any explanation as to the presence of blood stains on his cloths. (4) On the disclosure statement made by the appellant a blood stained chhuri (knife) was recovered and seized at the instance of the appellant concealed in a shrub. (5) Extra judicial confession made by the appellant before PW-2 Muknaram. (6) There was motive, for committing murder as the appellant suspected the fidelity of his wife. The standard of proof required to convict a person on circumstantial evidence is now well settled by catena of decisions of the Apex Court and this Court. The prosecution is required to establish each circumstance firmly by cogent evidence. Each circumstance taken together should form a chain pointing towards the guilty of the accused and cumulative effect of the circumstance must lead to no other inference but of the guilt of the accused. The question for consideration arises whether the aforementioned circumstances have been established by cogent evidence and they are of conclusive nature and further consistent only with the hypothesis of the guilt of the accused and the same are not capable of being explained by any other hypothesis, except the guilt of the appellant which if taken cumulatively together lead to only irresistible conclusion that appellant alone is the perpetrator of the crime. Pw-1 Kachhab Khan is the uncle of the appellant. He has stated that the appellant Mange Khan had married with mst. Antri of village Loharva about 14 years back. He used to reside with his wife and three children at his in law's house in village Loharva. He along with his children arrived in the village Sohara two days prior to the date of incident. He went to the `than of Gogaji' along with his wife and younger daughter. He heard from Pw-2 Muknaram that Mange Khan has killed his wife and female child. Thereafter he went in search of the wife and daughter of Mange Khan. Two dead bodies were found in the sand dunes. There is no cross examination worth the name about the visit of Mange Khan with his children to the village Sohara. Thereafter, the deceased Antri and baby Jarain were not seen alive. On the next day, the dead bodies were found in the sand dunes. There is no reason to disbelieve the statement of Pw-1 Kachhab Khan. Thus, the prosecution has succeeded in establishing first circumstance by cogent evidence that deceased Antri and Baby Jarain were last seen in the company of the appellant Mange Khan.
(3.) AS regards the second circumstance, PW-1 Kachhab Khan has stated that on 3. 3. 1998 the dead bodies of Mst. Antri and Baby Jarain were found in the sand dunes. PW-13 Lakh Singh is the Investigating Officer. He has stated that on receiving the information Exhibit P-1, he went to the spot and found the dead bodies of Mst. Antri and Baby Jarain. He prepared the site plan Exhibit P-15. He also prepared the inquest report Exhibit P-18. The post-mortem of both the bodies were conducted on the same day vide Exhibit P-22 and P-23. Two dead bodies were handed over to PW-1 Kachhab Khan vide Exhibit P-19. The dead bodies were buried on 3. 3. 1998 in absence of the appellant. He was arrested on 4. 3. 1998 vide Exhibit P-4. If the murder was committed by third person there was no reason for the appellant to remain away from the village and not to attend the burial. The appellant was arrested vide Exhibit P-4. At the time of arrest he was wearing pant and shirt. Blood stains were found on pant and shirt. Therefore, pant and shirt were seized, sealed and packed on the spot vide Ex/p-7. The packet was handed over for deposition in the malkhana. It was sent to the Forensic Science Laboratory for chemical examination. We are not referring to the link evidence s the defence has not challenged the same. The F. S. L. Report Exhibit P-34 shows that blood spots on the pant and shirt in packet `h' were found to be of human origin. The cloths of the deceased were also seized on the spot vide Exhibits P-20 and P-21. They were seized, sealed and packet. They were also sent to the Forensic Science Laboratory. The F. S. L. Report Exhibit P-34 shows that the blood on the ghaghara, Kurti, Kanchali, odana and ghagari (frock) was found to be of human original. The Serologist also found that the presence of blood on the cloths of the deceased and that of the appellant were of same group i. e. , of group `b'. Thus, the prosecution has succeeded in establishing the third circumstance by cogent evidence. The circumstance is of conclusive nature as there is no explanation of the appellant as to the presence of human blood on his cloths. Pw-13 Lakh Singh stated that appellant was arrested on 4. 3. 1998 vide Ex/p-4. He made a disclosure statement Exhibit P-34 leading to recovery of knife vide Ex. P-5. The recovery was made in presence of Pw-5 Nainaram and Pw-6 Gomaram. The knife was seized, sealed and packed on the spot. It was deposited in the malkhana. Thereafter, it was sent to the Forensic Science Laboratory for chemical examination. The prosecution has produced the link evidence but it is not necessary to deal with same as the defence has not challenged it. The F. S. L. Report Exhibit P-34 shows that the blood stains on the knife have been found of human origin. The blood on knife is of the same group which is present on the cloths of deceased as well as of appellant. ;