MEHTA,J. - (1.) The accused appellant stands convicted and sentenced as below vide judgment dated 13.08.2015 passed by the learned Additional Sessions Judge No.1, Bhilwara Camp, Gangapur, District Bhilwara in Sessions Case No.54/2013: Offence Sentence Fine Fine Default sentence Section 302 Life Imprisonment Rs.5,000/- 6 Months' IPC Rigorous Imprisonment. Section 201 3 Years' R.I. Rs.1,000/ 3 Months' IPC Rigorous Imprisonment. All the sentences were ordered to run concurrently. Being aggrieved of his conviction and sentence, the accused appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
(2.) Brief facts relevant and essential for disposal of the appeal are noted herein below: Shri Prakash Chandra Soni resident of Raipur Road, Gangapur submitted a written report (Ex.P/1) to the SHO Police Station Gangapur, District Bhilwara on 27.08.2013 at 11.55 pm. alleging inter alia that he was walking near the Ramrasora on the Gangapur- Raipur Road at about 10.30 pm. At that point of time, he saw Shri Shailesh Patel, who was working as a Compounder in the Government Hospital and was residing on rent in the premises of Gauri Shankar Sharma with his wife Jenifer and six months child Aarav, coming from towards his house with a bundle covered in a cloth placed on his motorcycle. On noticing the presence of Prakash Chand, Shri Shailesh panicked and ran away leaving behind the motorcycle. The bundle fell down. The informant checked the same and found that the dead body of Jenifer was tied up in the bed-sheet. Blood was effusing from the body and the bed-sheet was also stained with blood. Prakash Chand alleged that the road was well-lit and thus, he clearly identified Shailesh taking the dead body of his wife. He alleged that Mohanlal Sharma also saw this incident. On the basis of this report, a formal FIR No.232/2013 was registered at the Police Station Gangapur for the offence under Section 302 IPC and investigation was undertaken by Shri Gangaram, the SHO Police Station Gangapur. The dead body of Jenifer and a Hero Honda Splendor Plus motorcycle No.RJ- 03-SE-5604 were recovered lying besides the road. The dead body was sent to the mortuary. Panchayatnama (Ex.P/3) was prepared on 28.08.2013. The motorcycle used by the accused for carrying the dead body was seized vide seizure memo (Ex.P/2) dated 28.08.2013. The accused appellant was apprehended on 28.08.2013 at 03.30 am., vide arrest memo (Ex.P/17). While preparing the arrest memo, the I.O. noticed bleeding wound on both the hands of the accused. While arresting the accused, the clothes worn by him were found to be stained with blood and the same were seized vide seizure memo (Ex.P/18). It is stated that the accused gave voluntary information to the I.O. under Section 27 of the Evidence Act which was recorded in Memo (Ex.P/39) in which, he divulged that he had tied up the dead body of his 7 months old son Aarav in a gunny bag and had thrown the same in the naala beside the puliya on the Gangapur- Raipur Road. In furtherance of the information so provided by the accused, the dead body of Aarav was discovered and taken into possession vide recovery memo (Ex.P/6). The accused gave information to the I.O. regarding having concealed the knife used to commit the murder under the bed inside his room. The knife was seized vide seizure memo (Ex.P/9). The I.O. collected blood stained and control soil and pieces of stones, etc. from outside the house and from inside the room and the place from where the dead body of Smt. Jenifer was recovered. The Mobile Forensic Unit was summoned and the photography of the place of recovery and the dead body and motorcycle was got conducted. The Forensic Unit, collected the blood stains from the motorcycle in a cotton gauze. Both the dead bodies were subjected to postmortem. The statements of various witnesses were recorded and finally, a charge-sheet came to be filed against the accused appellant for the offences under Sections 302 and 201 IPC. The articles seized during investigation were forwarded to the FSL for comparison from where, FSL report (Ex.P/56) was received with an opinion that all the relevant things i.e. the Baniyan, Barmuda, T-shirt (of the accused), the knife used for committing the murder, the blood stained soil and concrete, the blood stained gauze pieces, the rope, the bed-sheet, the bra, the petticoat, the underwear, the gown (those of the deceased Smt. Jenifer) tested positive for the presence of 'B' Group blood. Since the offences were Sessions triable, the case was committed and transferred to the court of Additional Sessions Judge No.1, Bhilwara Camp, Gangapur, District Bhilwara for trial. The prosecution examined as many as 20 witnesses in support of its case. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence. He denied the same and claimed to be innocent. However, neither did the accused offer any explanation regarding the homicidal deaths of his wife and small child and nor did he lead any evidence in defence.
(3.) After hearing the arguments advanced by the prosecution and the defence counsel, and upon appreciating the material available on record, the learned Trial Judge proceeded to convict and sentence the accused appellant as above. Hence this appeal. Shri Charan, learned counsel representing the appellant vehemently and fervently urged that there is no proof worth the name of the record of the case so as to affirm the conviction of the appellant as recorded by the trial court. The first informant Prakash Chandra did not support the prosecution case; he resiled from the first information report and was declared hostile. He urged that the entire procedure of securing the informations from the accused under Section 27 of the Evidence Act and effecting recoveries in furtherance thereof is tainted and unworthy of credence. He urged that as a matter of fact, some unknown assailant, killed the appellant's wife and child and dumped their dead bodies. The appellant had no motive whatsoever to murder them. He thus implored the Court to accept the appeal, set aside the impugned judgment and acquit the appellant from the charge. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellants counsel. He urged that the prosecution has proved the guilt of the accused by providing foolproof circumstantial evidence which is trustworthy and clinching. He contended that the fact regarding accused appellant residing on rent in the house of Shri Gauri Shankar (PW-2) has been well and truly established by Shri Gauri Shankar himself in his evidence. Blood stains were noticed on the floor of the room where the accused resided with his wife and small child. The accused did not take any such plea that he was not present in the room with the two deceased when the incident took place. He offered no explanation as to how both Smt. Jenifer and Aarav were assaulted and killed inside the rented room and thus, as per the learned Public Prosecutor, the presumption of Section 106 of the Evidence Act operates to the hilt against the accused appellant. He further urged that the case does not have any adversarial undertones and thus, I.O. had absolutely no reason to fabricate the evidence in an evidence to prove the guilt of the accused appellant. He urged that the incriminating recoveries were made in the routine course of events without any prejudice in the approach of the I.O. The dead body of the child had been thrown in a water canal and thus, the I.O. could not have had an inkling regarding its whereabouts. This fact was exclusively in the knowledge of the accused who furnished the voluntary information under Section 27 of the Evidence Act and got the dead body recovered. The apparel of Smt. Jenifer and the blood stained articles (including the weapon of offence i.e. knife) recovered in furtherance of the information provided by the accused to the I.O. under Section 27 of the Evidence Act, all tested positive for presence of 'B' Group human blood. Thus, learned Public Prosecutor contended that the prosecution has led full-proof evidence to establish the complicity of the accused in the crime. As per him, simply because the first informant Prakash Chand resiled from his own statement that by itself would not adversely affect the prosecution case which is firmly proved even if the evidence of Prakash Chand is excluded from consideration. In addition thereto, the contention of Shri Bhati was that the admissible parts of testimony which can be discerned from the evidence of Prakash Chand, can be utilized despite he having been declared hostile. On these grounds, the learned Public Prosecutor urged that the trial court was absolutely justified while recording the guilt of the accused by the impugned judgment which is based on a thorough appreciation of evidence available on record and as per him, the same does not warrant any interference.;