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CASE NO.:

Appeal (crl.) 745 of 2000

PETITIONER:

State of Rajasthan

RESPONDENT:

Kashi Ram

DATE OF JUDGMENT: 07/11/2006

BENCH:

B.P. Singh & Tarun Chatterjee

JUDGMENT:

J U D G M E N T

B.P. Singh, J

This appeal by special leave has been preferred by the State of

Rajasthan against the common judgment and order of the High Court

of Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal

No.622 of 1999, D.B. Jail Appeal No.619 of 1999 and D.B. Criminal

Murder Reference No.2 of 1999 whereby the High Court by its

impugned judgment and order dated December 21, 1999 allowed the

appeals preferred by the respondent and declined the murder reference

made by the learned Additional Sessions Judge for confirmation of the

sentence of death. We notice that both the criminal appeals were

preferred by the respondent herein, one from jail and the other

presented through an advocate. The judgment and order of the

Special Additional District and Sessions Judge (Women Atrocities),

Sri Ganganagar in Sessions Trial No.39 of 1998 dated September 29,

1999 sentencing the petitioner to death under Section 302 I.P.C. was

set aside.

The respondent herein Kashi Ram was married to Kalawati

(deceased) about seven years before the occurrence. They were

blessed with two children, Suman (deceased) and Guddi (deceased)

aged two and half years and two and half months respectively. It

appears from the record that the relationship between them was not

cordial and there were incidents of the respondent assaulting Kalawati

and treating her with cruelty. A Panchayat had also been convened at

the house of the father of the respondent, however, the respondent's

father pleaded helplessness since the appellant did not pay any heed to

his advice. The result was that Kalawati stayed with her parents for

about two years. Later Harchand, father of the respondent assured her

parents that Kashi Ram had improved in his behaviour and, therefore,

Kalawati should be sent to her matrimonial home. On being

convinced, Kalawati was sent to her matrimonial home.

The case of the prosecution is that after some time Kashi Ram

again started mis-behaving in the same old manner and used to beat

his wife Kalawati off and on.

The case of the prosecution is that the respondent killed his

wife and two daughters on the night intervening 3rd and 4th February,

1998 and thereafter disappeared. The first information regarding the

incident was given by Inder Bhan, PW-6, a cousin of the father of

Kalawati (deceased). On the basis of information given by him, a

formal first information report was drawn up and a case registered

against the respondent under Section 302 IPC. The first information

was recorded at 10.15 a.m. on February 6, 1998 in which the

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informant stated as follows:-

The respondent was married to Kalawati (deceased) about

seven years before the occurrence. Kalawati used to come to her

parents off and on in the first six months after marriage but it appears

that there were frequent quarrels between Kalawati and her husband

(respondent herein) who used to complain that she had brought a

camel instead of a buffalo at the time of marriage. He also

complained that she was dark complexioned. Things came to such a

stage that Kalawati had to return to her parents. On the very next day,

the informant along with the father of the deceased and others went to

the father of the respondent namely - Harchand and complained to

him about the behaviour of his son. Harchand pleaded helplessness

in the matter and advised them to do whatever they liked, since his

son was not under his control. In these circumstances, Kalawati

continued to stay with her parents for about one and half or two years.

One day, Harchand, father of the respondent came to the house of the

father of Kalawati and assured him that his son Kashi Ram

(respondent herein) had improved in his behaviour and assured him

that she will be cared for in her matrimonial home. The father of the

deceased and other relatives after getting assurance from the brothers

of Harchand decided to send her back to her matrimonial home. The

respondent along with his father Harchand came and the deceased

accompanied them to her matrimonial home. The respondent and his

wife Kalawati (deceased) were blessed with two daughters who were

two and half years and two and half months old at the time of

occurrence. The respondent and Kalawati (deceased) resided with the

respondent's parents for some time but about two months before the

occurrence the respondent shifted to a rented premises in Prem Nagar.

Milk used to be sent to Kalawati's house from her father's

house, and her brother Mamraj, PW-2, used to supply milk everyday.

On February 3, 1998 as usual Mamraj, PW-2 had gone to supply milk.

His sister Kalawati told him not to bring milk in future. On the next

day, that is on February 4, 1998 Mamraj PW-2 noticed that the

entrance of the house of the respondent was locked. On enquiry, he

was told by a neighbour Gurdayal Singh that he had seen the

respondent and his family members till last evening but he did not

know where they had gone thereafter.

In the evening at about 5.30 p.m. the mother of Kalawati (PW-

5) came to the informant and told him that she suspected something,

and therefore, requested him to find out the whereabouts of the

respondent and his family members. The informant went on a motor-

cycle along with one Sheo Narayan (PW-1) to search for the

respondent and his family members. On the way, he met Kashmiri

Lal and another son of Harchand on the bridge. On enquiry they told

him that the respondent along with his family members may have

gone to the Suratgarh fair and that they were also waiting for them. In

the meantime, Harchand father of the respondent also came. The

informant asked them to come to the house of the respondent rather

than wait on the bridge. Accordingly, they all proceeded towards the

house of the respondent on their respective vehicles, but as soon as

they came near Prem Nagar, the two brothers of accused disappeared

from his sight. At about 7.30 p.m. the informant came to the house of

the respondent and found the main entrance locked. The doors were

got opened and inside the house they found the dead body of Kalawati

lying on a cot and dead bodies of the two children lying on another

cot. It was, therefore, alleged by the informant that the respondent

had committed the murder of his wife and two daughters and had

thereafter disappeared.

Dr. Prem Arora, PW-10 conducted the post mortem

examination of the dead bodies of Kalawati and her two children. On

Kalawati he found the following injuries:-

"Mark of ligature present on neck 2cm in width and

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knot present on back of neck, ligature mark is situated

just below the thyroid certilage and encircling neck

completely. Base of mark is pale, dry and hard. One

cut section tissue below ligature mark is dry and

white. No external injury present anywhere in body".

Death in his opinion was caused by asphyxia. In his opinion,

death of the two children was also caused by asphyxia. In his opinion,

deaths had occurred 48 to 72 hrs. before the post-mortem examination

which was conducted on February 7, 1998.

At the trial several witnesses were examined to prove the case

of the prosecution. PW-1, Sheo Narayan, is the person with whom

PW-6 Inder Bhan had gone to search for the respondent and his family

members on the request of the mother of the deceased namely - PW-5,

Jai Kauri. He fully supported the case of the prosecution to the effect

that he had gone with the father of the respondent and Inder Bhan,

PW-5 to the house of the respondent in the evening of February 6,

1998 and after opening the main gate and removing the door from the

entrance of the house they entered the house and found the dead

bodies lying on two cots inside the house.

PW-5, Jai Kauri, mother of the deceased has also deposed to the

effect that her daughter was treated with cruelty by the respondent.

She has narrated the incidents which took place before deceased

Kalawati was sent back with her husband to her matrimonial home.

She has deposed that milk used to be delivered by her son Mamraj,

PW-2 at the house of the respondent and on February 3, 1998 when

Mamraj had gone to deliver milk Kalawati had asked him not to bring

milk thereafter since milk was to be supplied by her husband's elder

brother. She claimed that she had gone to the house of the deceased

on Thursday, i.e. on February 5, 1998, but finding the doors locked

she had returned. She had made enquiries from the neighbourers, who

told her that they had seen them on Tuesday (February 3, 1998)

evening but not thereafter. She had again gone to her daughter's

house on Friday and it was again found locked. She grew suspicion

and, therefore, requested Inder Bhan, PW-6 and Sheo Narayan, PW-1

to search for them.

PW-2, Mamraj, a brother of deceased Kalawati has also

narrated the incidents relating to the cruel treatment meted out to

Kalawati by her husband. According to this witness, he used to

deliver milk at the house of the respondent, since the brother of Kashi

Ram, who used to supply milk to them, was ill. On February 3, 1998

when he had gone to supply milk he was told by the respondent and

his sister Kalawati (deceased) to stop further supply of milk. On

February 4, 1998 while returning home he had found the house of

Kalawati (deceased) locked. On the next day, when his mother PW-5,

went to the house of Kalawati, she also found the house locked. The

neighbourers had informed them that Kalawati and Kashi Ram were

last seen on Tuesday evening (3.2.1998). When his mother again

went to the house of Kalawati on February 6, 1998 she found the

house locked and, therefore, she had requested Inder Bhan and Sheo

Narayan to search for them. This witness has been cross-examined at

length but nothing has been elicited in his cross-examination which

may discredit him. The assertion of this witness that he has been told

by deceased Kalawati and her husband (respondent herein) on

Febraury 3, 1998 to stop supply of milk, went unchallenged in his

cross-examination. Only with a view to assure ourselves that this

witness had also said so in his statement recorded under Section 161

Crl.P.C. we read his police statement and we find that he had said so

even in the course of investigation. We have looked into the case

diary not as substantive evidence but only to verify whether PW-2 had

omitted to say so in the course of investigation. The substantive

evidence of PW-2 that he had seen his sister and the respondent on

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February 3, 1998, has gone unchallenged.

The prosecution examined two witnesses Dinesh Kumar, PW-3

and Om Prakash, PW-4 to prove that the respondent had made an

extra-judicial confession before these two witnesses on February 17,

1998. The prosecution also relied on the evidence of recovery made

at the instance of the respondent pursuant to which a waist chord and

keys of the locks put on the two doors were recovered from the

possession of the respondent on February 18, 1998. The prosecution

also examined several other witnesses to prove its case.

The trial court on an exhaustive consideration of the evidence

on record came to the conclusion that the prosecution had successfully

established that the deceased Kalawati was last seen alive in her house

on February 3, 1998 and that Mamraj, PW-2 had seen her as well as

her husband in their rented premises. It also held that the prosecution

had proved that the two doors of the house were found locked on the

morning of February 4, 1998 and that the concerned prosecution

witnesses entered the house after removing the door on February 6,

1998. The house was also found locked on February 4, 1998 when

the mother of deceased Kalawati had gone to her house. The trial

court relied on the recoveries made of the weapon of offence namely -

the waist chord, and the keys of the two locks, from possession of the

respondent pursuant to his statement recorded under Section 27 of the

Evidence Act. Reliance was also placed by the trial court on the

extra-judicial confession said to have been made by the respondent

before PWs 3 and 4. The trial court also found that the house was

found locked on February 4, 1998, and till he was arrested on

February 17, 1998, the whereabouts of the respondent were not

known. Even after his arrest he did not offer any explanation and

even at the trial only denied the allegations made against him without

offering any explanation for his absence during the crucial days.

Relying on these circumstances, and finding that the deaths were

homicidal as proved by the medical evidence on record, the trial court

came to the conclusion that the only inference that could be drawn

from the proved facts and circumstances was that the respondent after

committing the murder of his wife and his two daughters locked the

house and disappeared from the scene. He was arrested two weeks

later but failed to give any explanation in defence. Accordingly, the

trial court finding the respondent guilty of the offence punishable

under Section 302 IPC sentenced him to death having regard to the

heinous nature of the crime committed by him in which three innocent

lives were lost including two infants.

On appeal, the High Court reversed the findings of fact

recorded by the trial court and acquitted the respondent. Before

adverting to the other incriminating circumstances we may at the

threshold notice two of them namely - the circumstance that the

respondent made an extra-judicial confession before PWs 3 and 4, and

the circumstance that recoveries were made pursuant to his statement

made in the course of investigation of the waist chord used for

strangulating Kalawati (deceased) and the keys of the locks which

were put on the two doors of his house. The High Court has

disbelieved the evidence led by the prosecution to prove these

circumstances and we find ourselves in agreement with the High

Court. There was really no reason for the respondent to make a

confessional statement before PWs 3 and 4. There was nothing to

show that he had reasons to confide in them. The evidence appeared

to be unnatural and unbelievable. The High Court observed that

evidence of extra-judicial confession is a weak piece of evidence and

though it is possible to base a conviction on the basis of an extra-

judicial confession, the confessional evidence must be proved like any

other fact and the value thereof depended upon the veracity of the

witnesses to whom it was made. The High Court found that PW-3

Dinesh Kumar was known to Mamraj, the brother of deceased

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Kalawati. PW-3 was neither a Sarpanch nor a ward member and,

therefore, there was no reason for the respondent to repose faith in

him to seek his protection. Similarly, PW-4 admitted that he was not

even acquainted with the accused. Having regard to these facts and

circumstances, we agree with the High Court that the case of the

prosecution that the respondent had made an extra-judicial confession

before PWs-3 and 4 must be rejected.

So far as the recoveries are concerned, the High Court has not

accepted the same since PW-6, Inder Bhan admitted in the course of

his cross-examination that the waist chord which had been used for

strangulating Kalawati was recovered much earlier from the scene of

offence by the police itself. Moreover, the waist chord as well as the

keys were not even produced before the Court. It may be that some

other witnesses have stated that the waist chord was not recovered

from the spot, but in the facts of the case the benefit of doubt must go

to the accused.

The most important circumstance that the respondent was last

seen with the deceased on February 3, 1998 whereafter he had

disappeared and his house was found locked and that he had offered

no explanation whatsoever, was disposed of by the High Court in one

short paragraph observing that there was nothing unusual if the

accused was seen in the company of his own family members in his

house. On such reasoning, the High Court held that the circumstantial

evidence relied upon by the prosecution was not strong enough to

sustain the conviction of the respondent. Accordingly, the High Court

allowed the appeals preferred by the respondent and declined the

death reference made by the trial court for confirmation of the

sentence of death.

We have been taken through the entire evidence on record. The

medical evidence on record clearly proves that the death of Kalawati

and her two minor daughters was homicidal caused by strangulation.

The cause of death was asphyxia. It is also established on record that

the deceased was last seen alive in the company of respondent on

February 3, 1998 at her house. The prosecution has also successfully

established the fact that the house was found locked on the morning of

February 4, 1998 and continued to remain locked till it was opened

after removing the door on February 6, 1998. Throughout this period

the respondent was not to be seen and he was arrested only on

February 17, 1998. Neither at the time of his arrest, nor in the course

of investigation, nor before the Court, has the respondent given any

explanation in defence. He has not even furnished any explanation as

to where he was between February 4, 1998 and February 17, 1998. It

has been argued on behalf of the prosecution that this most important

circumstance has been completely ignored by the High Court. The

case of the prosecution substantially rested on this circumstance. The

respondent was obliged to furnish some explanation in defence. He

could have explained where he was during this period, or he could

have furnished any other explanation to prove his innocence. Counsel

for the respondent on the other hand, contends that though the

respondent furnished no explanation whatsoever, there is evidence on

record to prove that he had gone to attend Suratgarh fair with his

family members. A question, therefore, arises whether the

presumption under Section 106 of the Evidence Act may be drawn

against the respondent in the facts of the case, since the facts as to

where he was during the relevant period and when he parted company

with the deceased, were matters within his special knowledge the

burden of proving which was cast upon him by law.

Learned counsel for the State strenuously urged before us that

the High Court committed an apparent error in ignoring the evidence

on record which disclosed that the respondent was last seen with

deceased Kalawati in his house on February 3, 1998 late in the

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afternoon. Thereafter, he was not seen by anyone and his house was

found locked in the morning. The evidence of PW-5, mother of the

deceased Kalawati, and her brother Manraj, PW-2, clearly prove the

fact that the house was found locked on February 4, 1998. The

evidence also establishes beyond doubt that the doors were removed

and dead bodies of the deceased Kalawati and her daughters were

found inside the house on February 6, 1998. In these circumstances,

the disappearance of the respondent was rather suspicious because if

at all only he could explain what happened thereafter. He, therefore,

submitted that in the facts of the case, in the absence of any

explanation offered by the respondent, an inference must be drawn

against the respondent which itself is a serious incriminating

circumstance against him. He has supported his argument relying

upon several decisions of this Court.

Before adverting to the decisions relied upon by the counsel for

the State, we may observe that whether an inference ought to be

drawn under Section 106 IPC is a question which must be determined

by reference to proved. It is ultimately a matter of appreciation of

evidence and, therefore, each case must rest on its own facts.

In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC

197; the facts were that the deceased was an employee of a school.

The appellant representing himself to be the husband of one of the

sisters of Gracy, the deceased, went to the St. Mary's Convent where

she was employed and on a false pretext that her mother was ill and

had been admitted to a hospital took her away with the permission of

the Sister in charge of the Convent, PW-5. The case of the

prosecution was that later the appellant not only raped her and robbed

her of her ornaments, but also laid her on the rail track to be run over

by a passing train. It was also found as a fact that the deceased was

last seen alive only in his company, and that on information furnished

by the appellant in the course of investigation, the jewels of the

deceased, which were sold to PW-11 by the appellant, were seized.

There was clear evidence to prove that those jewels were worn by the

deceased at the time when she left the Convent with the appellant.

When questioned under Section 313 Cr.P.C., the appellant did not

even attempt to explain or clarify the incriminating circumstances

inculpating and connecting him with the crime by his adamant attitude

of total denial of everything. In the background of such facts, the

Court held:-

"Such incriminating links of facts could, if at all, have

been only explained by the appellant, and by nobody

else, they being personally and exclusively within his

knowledge. Of late, courts have, from the falsity of

the defence plea and false answers given to court,

when questioned, found the missing links to be

supplied by such answers for completing the chain of

incriminating circumstances necessary to connect the

person concerned with the crime committed (see State

of Maharashtra Vs. Suresh, (2000) 1 SCC 471). That

missing link to connect the accused \026 appellant, we

find in this case provided by the blunt and outright

denial of every one and all the incriminating

circumstances pointed out which, in our view, with

sufficient and reasonable certainty on the facts

proved, connect the accused with the death and the

cause for the death of Gracy".

In Ram Gulam Chaudhary and Ors. Vs. State of Bihar (2001)

8 SCC 311; the facts proved at the trial were that the deceased boy

was brutally assaulted by the appellants. When one of them declared

that the boy was still alive and he should be killed, a chhura blow was

inflicted on his chest. Thereafter, the appellants carried away the boy

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who was not seen alive thereafter. The appellants gave no explanation

as to what they did after they took away the boy. The question arose

whether in such facts Section 106 of the Evidence Act applied. This

Court held:

"In the absence of an explanation, and considering the

fact that the appellants were suspecting the boy to

have kidnapped and killed the child of the family of

the appellants, it was for the appellants to have

explained what they did with him after they took him

away. When the abductors withheld that information

from the court, there is every justification for drawing

the inference that they had murdered the boy. Even

though Section 106 of the Evidence Act may not be

intended to relieve the prosecution of its burden to

prove the guilt of the accused beyond reasonable

doubt, but the section would apply to cases like the

present, where the prosecution has succeeded in

proving facts from which a reasonable inference can

be drawn regarding death. The appellants by virtue of

their special knowledge must offer an explanation

which might lead the Court to draw a different

inference".

In Sahadevan alias Sagadevan Vs. State represented by

Inspector of Police, Chennai (2003) Vol. 1 SCC 534, the prosecution

established the fact that the deceased was seen in the company of the

appellants from the morning of March 5, 1985 till at least 5 p.m. on

that day when he was brought to his house, and thereafter his dead

body was found in the morning of March 6, 1985. In the background

of such facts the Court observed:

"Therefore, it has become obligatory on the

appellants to satisfy the court as to how, where and

in what manner Vadivelu parted company with

them. This is on the principle that a person who is

last found in the company of another, if later found

missing, then the person with whom he was last

found has to explain the circumstances in which

they parted company. In the instant case the

appellants have failed to discharge this onus. In

their statement under Section 313 CrPC they have

not taken any specific stand whatsoever".

It is not necessary to multiply with authorities. The principle

is well settled. The provisions of Section 106 of the Evidence Act

itself are unambiguous and categoric in laying down that when any

fact is especially within the knowledge of a person, the burden of

proving that fact is upon him. Thus, if a person is last seen with the

deceased, he must offer an explanation as to how and when he parted

company. He must furnish an explanation which appears to the Court

to be probable and satisfactory. If he does so he must be held to have

discharged his burden. If he fails to offer an explanation on the basis

of facts within his special knowledge, he fails to discharge the burden

cast upon him by Section 106 of the Evidence Act. In a case resting

on circumstantial evidence if the accused fails to offer a reasonable

explanation in discharge of the burden placed on him, that itself

provides an additional link in the chain of circumstances proved

against him. Section 106 does not shift the burden of proof in a

criminal trial, which is always upon the prosecution. It lays down the

rule that when the accused does not throw any light upon facts which

are specially within his knowledge and which could not support any

theory or hypothesis compatiable with his innocence, the Court can

consider his failure to adduce any explanation, as an additional link

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which completes the chain. The principle has been succinctly stated

in Re. Naina Mohd. AIR 1960 Madras, 218.

There is considerable force in the argument of counsel for the

State that in the facts of this case as well it should be held that the

respondent having been seen last with the deceased, the burden was

upon him to prove what happened thereafter, since those facts were

within his special knowledge. Since, the respondent failed to do so, it

must be held that he failed to discharge the burden cast upon him by

Section 106 of the Evidence Act. This circumstance, therefore,

provides the missing link in the chain of circumstances which prove

his guilt beyond reasonable doubt.

Counsel for the respondent submitted that no reliance can be

placed on the evidence of Mamraj, PW-2, the brother of the deceased,

who stated that when he had gone to the house of the deceased on

February 3, 1998 he had seen his sister as well as the respondent in

the house and he was asked not to bring milk thereafter since

alternative arrangement had been made. This statement of Mamraj,

PW-2 was not even challenged in his cross-examination. Even in the

course of investigation Mamraj, PW-2 had made a statement to the

same effect. It cannot therefore, be said that he had introduced this

fact for the first time at the trial. Learned counsel submitted that the

aforesaid statement of PW-2 was not specifically put to the accused

when he was examined under Section 313 Cr.P.C.. That may be so,

but in the facts of the case, we find that by such omission no prejudice

has been caused to the appellant. Mamraj, PW-2 had deposed in his

presence and was exhaustively cross-examined by counsel appearing

for him. The statement of Mamraj, PW-2 regarding his having seen

the deceased last in the company of the respondent was not even

challenged in his cross-examination. Moreover, from the trend of the

answers given by the respondent in his examination under Section 313

Cr.P.C., it appears that the respondent made only a bald denial of all

the incriminating circumstances put to him, and had no explanation to

offer.

It was then submitted on behalf of the respondent that the

neighbourers who had stated that they had seen the respondent and

deceased Kalawati on the evening of February 3, 1998 were not

examined by the prosecution. In view of the evidence of PW-2,

Mamraj who proved this fact, the non-examination of those witnesses

does not have any adverse effect on the case of the prosecution. It

was also submitted that there is no evidence to show that the

respondent No.1 was absconding after the occurrence. From the facts

proved on record it is established that on February 4, 1998 the house

was found locked. The same was the position on February 5, 1998.

when PW-5, Jai Kauri, mother of deceased Kalawati visited the house

of her daughter and found the house locked. Finding the house also

locked on February 6, 1998, she became anxious to know about the

welfare of her daughter and, therefore, she went to the informant, PW-

6 and requested him to find out the whereabouts of her daughter

Kalawati and members of her family. These facts clearly prove that

while the doors of the house of the respondent were locked, he was

nowhere on the scene. The fact that PWs-1 and 6 went in search of

the respondent and the deceased and their children, and were informed

by the respondent's brother that he may have gone to Suratgarh fair,

also points in the same direction. Obviously, therefore he was

absconding after commission of the offence. In fact, he never

appeared on the scene till his arrest on February 17, 1998. There is,

therefore, abundant evidence to prove that the respondent was

traceless between February 4, 1998 and February 17, 1998. Reliance

placed by counsel on the decision of this Court in P. Mani Vs. State

of Tamil Nadu (2006) 3 SCC 161, is of no avail in the facts and

circumstances of this case.

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It was lastly submitted that in his examination under Section

313 Cr.P.C. though the circumstance regarding his having been seen

on the evening by his neighbourers on February 3, 1998 was put to the

respondent accused, the name of PW-2 was not mentioned as a person

who had also seen him on that day with the deceased. The fact

remains that the incriminating circumstance was put to the accused

and his response was a bald denial. We do not find that any prejudice

was caused to the respondent by not mentioning the name of PW-2,

when the incriminating circumstance appearing against him was put to

him.

In the facts and circumstances of the case, we are satisfied that

this appeal ought to be allowed. The High Court completely brushed

aside the most incriminating circumstance which was proved by the

prosecution namely - that the respondent was last seen with his wife

on February 3, 1998 whereafter the house was found locked and the

respondent was not to be seen anywhere. He continued to be traceless

till February 17, 1998 when he was arrested. The respondent did not

offer any explanation in defence and his response to all the

incriminating circumstances put to him in his examination under

Section 313 Cr.P.C. was a bald denial.

The following incriminating circumstances are clearly

established against the respondent :

a) That he was not on cordial terms with his wife Kalawati.

b) On the evening of February 3, 1998 he was seen in his house

with his wife Kalawati (deceased).

c) The house of the respondent was found locked on the 4th, 5th

and 6th February, 1998.

d) On February 6, 1998 when his house was opened the dead

bodies of his wife and daughters were found, and the medical

evidence established that they had been strangulated to death, the

cause of death being asphyxia.

e) Since the respondent was not traceable the mother of the

deceased PW-5, Jai Kauri became anxious to know about their

whereabouts and requested PWs-1 and 6 to search for them.

f) In the course of investigation the respondent never appeared

at any stage, and for the first time he appeared on the scene when he

was arrested on February 17, 1998.

g) Even after his arrest he did not offer any explanation as to

when he parted company with his wife nor did he offer any

exculpatory explanation to discharge the burden under Section 106 of

the Evidence Act.

These incriminating circumstances in our view form a complete

chain and are consistent with no other hypothesis except the guilt of

the accused respondent. If he was with his wife on the evening of

February 3, 1998, he should have explained how and when he parted

company and/or offered some plausible explanation exculpating him.

The respondent has not pleaded alibi, nor has he given an explanation

which may support his innocence.

We are aware of the fact that we are dealing with an appeal

against acquittal, but having appreciated the evidence on record we

have come to the conclusion that the High Court has completely given

a go bye to the most important incriminating circumstance which

appeared against the accused respondent. In the facts and

circumstances of the case the most incriminating circumstance about

the respondent being seen with his wife on February 3, 1998 and

disappearing thereafter, and his failure to offer any explanation when

arrested, has been completely ignored by the High Court by simply

recording the finding that there was nothing unusual in the husband

being found with the wife in his house. The High Court failed to

appreciate the other co-related circumstances namely - his

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disappearance thereafter locking of the house, and his failure to offer a

satisfactory explanation in defence. Thus, the High Court has ignored

important clinching evidence which proved the case of the

prosecution. Therefore, interference with the judgment of the High

Court is warranted.

In the result, we allow this appeal and set aside the impugned

judgment and order of the High Court. On the question of sentence,

having regard to the fact that the offence took place in February 1998

and the respondent was acquitted by the High Court, we sentence him

to imprisonment for life. The respondent may have been released

pursuant to order of this Court dated 1.9.2000 issuing bailable warrant

of arrest. His bail bonds are cancelled and he is directed to be taken

into custody forthwith to serve out his sentence.