S. S. BYAS, J. - (1.) BY his judgment dated January 19, 1987 the learned Sessions Judge, Pratapgarh convicted the accused Umaidsingh under section 302, I. P. C. and sentenced him to death. He further convicted the accused under section 301, I. P. C, but awarded no separate sentence. The Sessions Judge has submitted the proceedings under section 366, Cr. P. C. for the confirmation of the death sentence. As usual, the accused challenges his conviction and has filed two appeals one through Jail and the other represented, for that purpose. We have, thus, two matters before us. , viz. (l) reference made by the Sessions Judge and (2) the appeals of the accused.
(2.) THE blame-load on the accused is that he wiped off his wife, who was in her middle twenties son (aged about four years) and daughter (hardly four months of age ). THE motive alleged is that the wife had brought insufficient dowry and the accused had developed illicit intimacy with some other woman. Put briefly, the prosecution case runs as under:- Accused Umaidsingh, aged about 30 years, was married to Smt. Maanu Bai somewhere seven/eight years before 1984. The marriage was solemnized in village Damodhar, where her parents resided. After marriage, she came to live with the accused in village Bagrera P. S. Nimbahera district Chittorgarh. At the time of the solemnization of the marriage, the accused's father, grand-father and uncle made a demand of five Tolas of gold and the bus-fare. When Smt. Maanu Bai returned to her parent's house on the occasion of her first delivery, she told them that she was ill-treated in the family of her in-laws as five Tolas of gold was not given. However, the marriage continued and Smt. Maanu Bai gave birth to three children one son and two daughters. The accused used to operate a flour-mill in his village. It is suggested that he developed illicit intimacy with PW 12 Smt. Manjula Devi when she was living in village Bagrera with her husband, who was a teacher there in the government school. The accused was displeased with his wife as she has not brought five Tolas of gold and she was an obstacle in his affairs with - Smt. Manjula Devi. Somewhere in July 1983, he purchased Parthian (rat poison) from a shop-keeper in village Nimbahera. He, thereafter, purchased sweets from some shop. He mingled Parthian with the sweets and administered the mixture to his wife Smt. Maanu Bai, son Vikram and daughter Seema in the intervening night of July 24 and 25, 1983. As a result they became unconscious. The accused and the members of his family spread a false story that the three were beaten by the snake. Message was conveyed on telephone to the wife's brother Surendra Kumar (PW 1), who was then residing in Nimach, by the accused's relative that the condition of Smt. Maanu Bai was serious. Accordingly, PW 1 Surendra Kumar, his wife Smt. Sampat Bai (PW 6), his cousin Ramesh Chandra (PW 6) and his wife Smt. Saroj Bai (PW 9) came to village Bagera at about 8. 00 a. m. They found the three victims lying dead in a room. Surendra Kumar asked the accused as to what had happened. The accused told that it was a case of snake bite. Surendra Kumar and others were not satisfied with this explanation of the accused and a doctor was sent for from Nimbahera. Dr. R. K. Gupta (P W 7) arrived there in the noon and examined the dead bodies. Dr. Gupta told Surendra Kumar and all others, who were present there, that the death had not taken place on account of snake bite. The doctor went to Nimbahera and informed the police. Surendra Kumar and others insisted upon the post-mortem examination of the dead bodies, but the accused and the members of his family refused to do so. It was raining on that day and the three dead bodies were taken to the cremation ground. The cremation was performed hurriedly and the dead-bodies were cremated by pouring 35/40 litres of kerosene oil in the burning pyre. Surendra Kumar, his wife, cousin and cousin's wife returned to Nimach. Though doctor Gupta had informed the Police, Nimbahera, but the police failed to initiate any action. Pw-1 Surendra Kumar remained silent for some days and ultimately presented written report Ex. P. 1. on August 4, 1973 before the Deputy Superintendent of Police, Nimbahera. It was alleged therein that Smt. Maanu Bai and her children had not died on account of snake bite. Their deaths were suspicious. They were done to death by the accused and the members of his family. The Deputy Superintendent of Police directed the S. H. O. , Police Station, Nimbahera for initiating necessary action in the matter. The S. H. O. , however, took no action. On August 14, 1983, Surendra Kumar (Pw1) again presented typed report Ex. P. 2 before the S. H. O. Police Station, Nimbahera and stated therein that the deaths of his sister and her children were not natural; they were done to death and it was a case of murders. The police registered a case under sections 302 and 201 I. P. C. against the accused and swing into action. The accused was arrested on October, 2, 1983 and in consequence of the disclosure statement made by him on the same day, a paper-packet containing Parthian was recovered from the room of his flour-mill. It was seized and sealed. He also pointed out the shops from where he had purchased the para thion and sweets. The clothes of the deceased persons were seized and sealed and were sent for chemical examination. But no poison could be detected on them. On the completion of investigation, the police submitted a crime report against the accused in the court of the Munsif cum Judicial Magistrate Nimbahera, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 302 and 201, I. P. C. against the accused, to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined twenty witnesses and filed some documents. In defence, the accused examined two witnesses. One Madan Lal Verma, Junior Scientific Officer in the State Forensic Science Laboratory, Rajasthan, Jaipur was examined as the court witness. The reason was that the paper packet of the Powder recovered at the instance of the accused and alleged to be Parthian, did not reach the Laboratory. On the conclusion of the trial, the learned Sessions Judge held both the charges duly proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.
(3.) WE have heard the learned Public Prosecutor the learned counsel for the complainant and the learned counsel for the appellant. WE have also gone through the case file carefully. When the proceedings are submitted under section 366, Cr. P. C to the High Court for confirmation of the death sentence, it is always open to the accused not only to challenge the sentence of death but also his conviction even without filing any appeal. Section 368 (c), Cr. P. C. lays down that in a case submitted under section 366, Cr. P. C. the High Court may acquit the accused person. Here in the instant case, the accused has also filed appeals challenging his conviction. We are, therefore, first to see whether the conviction of the accused is justified and should therefore, be up-held. Admittedly, there is no ocular witness who has professed to have seen the accused administering poison to his wife and two kids. The prosecution case rests entirely on circumstantial evidence which has been catalogued as under by the trial Court:- (1) there was strong motive for the accused, which prompted him to finish the victims for ever. His relations with his wife Smt. Maanu Bai were extremely strained because:- (a) she had not brought sufficient dowry. Her parents and brothers promised to give five Tolas of gold to the accused at the time of his marriage but they failed to carry-out their promise; and (b) he (accused) was in illegal intimacy with PW 12 Smt. Manjula Devi. The wife disapproved this relationship and expressed her strong resentment. The accused took his wife to be an obstacle in his way of leading lustful life. (2) the wife and the kids were perfectly healthy. Their death was sudden. The accused came out with a false story that they died on account of snake bite. He did not procure any medical help. Instead, he took them to a Dewra ( place of worship ) and utilized the services of exorcist (Bhopa); (3) Dr. Gupta (PW 7), on seeing the three dead-bodies, found that the death of the victims was not on account of snake bite. The deaths were suspicious and had a big question-mark; (4) the accused did not lodge any report to the police of the sudden deaths. He hurriedly took them to the cremation ground and cremated the dead-bodies with undue haste by pouring kerosene oil on the pyre; (5) poison (Parthian) in a paper packet was recovered in consequence of the information furnished by the accused, lying concealed in his flour-mill; and (6) the accused pointed out the shop of the confectioner from whom he had purchased the sweets. ;