J.G. Chitre, J.
1. Both these matters are being decided by this common judgment and order because the Death Reference and the said appeal are arising out of the same incident. Learned Sessions Judge, Shajapur after passing the judgment and order on 30-6-2001 in the matter of Sessions Trial No. 112/99, after holding Ashish s/o Hari Narayan Batham r/o 8-B/2, Indira Bhavan Parisar, Professor Colony, Bhopal, guilty of offences punishable under provisions of Sections 449 and 302 of IPC and sentencing him to the sentence of death by hanging by neck till death. The reference arises because Ashish has been held guilty by the Sessions Judge, Shajapur, while deciding the said Sessions Trial for committing house trespass in order to commit offence in view of provisions of Section 449 of IPC and further holding him guilty of committing murder of Ku. Priti Mudgal daughter of Dr. Ramawatar Mudgal as well as for committing murder of Ku. Nidhi daughter of Dr. Ramawatar Mudgal and thereby committing offence punishable in view of provisions of Section 302 simpliciter. The reference has been made for confirmation of this sentence by the High Court in view of provisions of Section 368 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for convenience). The accused Ashish Batham who has been so convicted and sentenced has preferred the appeal as mentioned above for assailing the correctness, propriety and legality of the judgment and order passed by the Sessions Judge, Shajapur, while deciding the said prosecution.
2. For understanding the matter some facts need to be mentioned which would unfold the case. Dr. Ramawatar Mudgal happens to be a Dental Practitioner serving in Govt. Hospital, Shajapur and as such was residing in Govt. Quarter situated near 'Nai Sadak' (it appears that the said vicinity was so identified by citizens of Shajapur city that way). He was residing with his wife and two daughters in the said quarter. The elder's name was Ku. Priti aged about 22 years and younger one was named Ku. Nidhi aged about 17 years. It is the prosecution case which has not been disputed by the defence that accused Ashish Batham was prior to the incident in question serving in one Corporation known as 'M.P. Agro State Industry and Development Corporation' (hereinafter referred to as 'Agro Corporation' for convenience) and was posted at Shajapur. It is the prosecution case that on the unfortunate day he had been working as Asstt. Manager at Bhopal office of said Agro Corporation but was present at Shajapur. It is the prosecution case that Ashish Batham was having love affair with the elder daughter Priti of Dr. Ramawatar Mudgal since December, 1997 till the said girls died. The prosecution alleged that both Ashish Batham and Priti Mudgal were seen frequently sitting together behind Hanuman Temple situated at the outskirts of Shajapur city accompanied by her younger sister Nidhi Mudgal. It has been alleged by the prosecution that they used to visit almost daily to the said spot and there Priti Mudgal used to be with Ashish Batham and he used to be sleeping on the laps of Priti and used to chat with her and at that time younger Nidhi used to sit there but at some distance. As per prosecution case, Ashish Batham used to give some dolls as gifts to younger Nidhi. Accused denied these allegations and also denied that he was having love affair with Priti Mudgal, as alleged by the prosecution.
3. It is the prosecution case that about a month or so, prior to the fateful day, the father of Ashish Batham, Hari Narayan Batham had telephoned Dr. Ramawatar Mudgal from Bhopal and had told him that there was affair between his son Ashish and daughter of Dr. Mudgal - Priti and, therefore, Dr. Mudgal should visit his house at Bhopal for talking of their marriage. Prosecution alleged that during the said conversation Dr. Mudgal informed Hari Narayan Batham that he was against the idea of marrying Priti to a boy who was not 'Brahmin', the caste to which Dr. Mudgal belongs and hence that was also the view of his daughter Priti. Thus, he refused the offer of Hari Narayan Batham for marriage of Ashish and Priti. As per prosecution case in the said conversation Hari Narayan Batham told Dr. Mudgal that in case of refusal he would be required to repent. It is the prosecution case that after some days he again rang Dr. Mudgal and asked him as to what was his decision and again reiterated in the same tone.
4. From the evidence on record it is disclosed that Dr. Mudgal and Mrs. Mudgal used to go for walk early in the morning at about 6.15 or 6.30 a.m. and at that time their daughters Ku. Priti Mudgal and Nidhi Mudgal used to be in the house themselves alone. The evidence discloses that during the tenure of service at Shajapur, accused Ashish Batham used to live in Upkar Lodge situated in the vicinity of 'Nai Sadak area' and was well acquainted with the persons residing in the same locality being a lodger in the said lodging house and amongst them are Advocate Narayan Prasad Pande (P.W. 4), Jai Prakash Malviya (P.W. 5), Advocate Rajmal Bhimawat (P.W. 10), Rishikesh (P.W. 16), Priest of Hanuman Mandir and some other persons including some other prosecution witnesses. It is also the prosecution case that number of persons in Shajapur city were having the knowledge of this love affair between Ashish Batham and Priti Mudgal.
5. The main incident starts from the said unfortunate morning when the couple doctor and Mrs. Mudgal left their house at about 6.15 a.m. or so for a morning walk on 8-4-99 for taking the pleasure of exercise and fresh air unmindful of the waiting fate which ruined their happiness of the life by loosing both the daughters. They started so for the morning walk but were not aware of the future destiny which was waiting for the happening of unfortunate incident which was to ruin their life which they were to know when they were to return back to their home and were to see that their two daughters, the pleasure of their life, were to be seen by them slained to death in their home which would be deprived of the homeness. After they left their home for morning walk, as per prosecution case, accused Ashish Batham made the entry being armed with a sufficiently long knife by pressing the call-bell affixed on the outer side of the said house. It is the prosecution case that by pressing the bell he got the entry in the said house and slained both the daughters of Dr. Mudgal - Priti and Nidhi Mudgal and thereafter made the show of a burglary coupled with murders by opening the doors of almirah, stealing amounting in currency notes as well as a golden chain which was being used by younger one Nidhi Mudgal. The prosecution case also shows that while doing so, he used hand-gloves and one out of them was left behind in the Dental Clinic Room with tears on it. Priti Mudgal was slained in latrine as she had gone there for answering the call of nature while Nidhi Mudgal was slained in the Dental Clinic Room. Priti was having 33 mechanical injuries on the body and Nidhi was having 10 such injuries on her body. The blood was seen on the floor as well as on various portions of the wall of the spots where those two girls were slained. A towel was also found.
6. The prosecution rested on circumstantial evidence for establishing the guilt of accused Ashish Batham on following points :--
(1) Ashish was having love affair with Priti Mudgal and was desirous of marrying with her;
(2) At his instance, his father Hari Narayan Batham had telephoned Dr. Mudgal and had called him to Bhopal at his house for settling the said marriage by discussion which was refused by Dr. Mudgal which enraged Hari Narayan Batham and more prominently Ashish Batham, the accused;
(3) Accused Ashish Batham was absent in his office at Bhopal 7-4-99, 8-4-99 and had placed the application for leave on those days on the table in the said office;
(4) On 8-4-99 at about 6 a.m. to 8 a.m or so he was present in Shajapur city. At 6.15 a.m. or so he had entered in the residential quarter of Dr. Mudgal where Priti and Nidhi Mudgal were alone as their parents had left the house for their regular morning walk;
(5) Poonam Garg (P.W. 3), neighbour of Dr. Mudgal, had heard the noise of a bell which was being pressed at the residence of Dr. Mudgal at about 6.15 a.m. or so;
(6) Advocate Narayan Prasad Pande (P.W. 4) had seen accused Ashish Batham near the residential house of Dr. Mudgal at about 6.15 a.m. when he was marching towards bus-stand for catching the bus for going to Indore for attending the High Court work which was specially fixed for outside lawyers on Thursday;
(7) Jai Prakash Mandloi (P.W. 5) had seen the accused Ashish Batham coming out and in the outer compound of the residential quarter of Dr. Mudgal at about 6.30 a.m. when Jai Prakash Mandloi was coming back from his newly constructed house where he had gone to do watering;
(8) The accused had created the evidence establishing his alibi by reserving the tickets in the name of his sister and in his own name for his alleged journey by train from Bhopal to Dahod (Gujarat) where his sister used to reside after her marriage with her husband;
(9) Advocate Bhimawat (P.W. 10) who was a witness to the discovery of a fact in pursuance of the information given by accused Ashish Batham that a blood stained blue jean and blood stained knife was concealed in a ditch in bushes behind the Hanuman Temple (which was the meeting spot of Ashish Batham and Priti Mudgal frequently as good as daily);
(10) Rishikesh, the priest, who has seen Ashish batham and Priti on such number of occasions sitting together and Priti Mudgal holding the head of Ashish Batham on her laps and both of them talking with each other in such manner;
(11) The evidence of Dr. Rathore, Casualty Medical Officer at Shajapur Hospital who had given a call in the morning to Dr. Mudgal to come to the hospital for the medical treatment to be given to a patient in respect of dental problem which was not urgent and could be attended to by Dr. Mudgal later on.
7. These are the main points around which the prosecution decided to weave the web for fastening the guilt around accused Ashish Batham for proving that he was the murderer of both Priti and Nidhi Mudgal in the morning at about 6,15 a.m. or 6.30 a.m. on 8-4-99 at the residential house of Dr. Mudgal near 'Nai Sadak' and after the murder he created a show of burglary and murders wherein he had stolen the currency notes worth Rs. 12,000/- and a golden chain which was being used by younger one Nidhi Mudgal.
8. For establishing the complicity of accused Ashish Batham in the crime of murders of Priti and Nidhi Mudgal the prosecution brought forth the evidence to prove following points :--
(1) Accused Ashish Batham had the motive of killing both Priti as well as Nidhi Mudgal for taking revenge and teaching a lesson to Priti of her betrayal of his love and in the course, he had committed the murder of younger one Nidhi Mudgal;
(2) It was so because the father of Priti had refused the offer of marriage of Ashish Batham and Priti Mudgal proposed through father of accused - Hari Narayan Batham;
(3) The accused was seen entering in the said house of Dr. Mudgal at the relevant time and thereafter coming out of it at the relevant time;
(4) He was in possession of the golden chain which Nidhi Mudgal was wearing which was having a special identification mark in the form of whitish wire which was used for repairing its brokenness along with some currency notes as well as purse;
(5) After committing the murder of both Priti and Nidhi accused Ashish Batham concealed the blood stained knife - weapon of murders and the blue jean which he was wearing at the time of murder which was blood stained, in a ditch behind the bushes behind Hanuman Temple which is situated at the outskirts of Shajapur city;
(6) For misguiding the investigation and keeping himself away from the eyes of the police and investigating agency, he created a scene of burglary and the murders by keeping open the doors of almirah in the said house and stealing some currency notes worth about Rs. 12,000/-;
(7) Accused Ashish Batham fabricated the false evidence for establishing his alibi showing his innocence and absence at Shajapur in the nature of so called journey with his sister from Bhopal to Dahod (Gujarat) and he stayed at the house of his sister at Dahod on 8-4-99.
9. To keep the continuity of the circumstances and to blossom out the circumstantial evidence in support of prayer for conviction against the accused Ashish Batham. Prosecution examined other witnesses like investigating officer Samadhiya and other witnesses which were necessary for unfolding of the case. Dr. Maina who performed the autopsy in respect of the dead-bodies of Priti and Nidhi Mudgal was examined who stated that at the time of post-mortem examination of Priti Mudgal, he noticed 32 mechanical injuries on the dead-body which he had mentioned in the post-mortem examination report respectively:--
Six incised wounds were found by him on the neck of Priti Mudgal. Seven injuries were on the chest of Priti which were stab wounds. About seven wounds were on the abdominal portion.
Three injuries were on the spine between chest to abdomen region.
Two were on the hands; one was on the hip.
Two-three injuries were on the lips and the portion of the mouth near about it and some were abrasions.
Nidhi Mudgal was having four injuries on the neck; one on the surrounding portion leaning towards the abdominal region; some injuries on the lips with haematomas.
The medical evidence shows that those injuries were ante-mortem and could have been caused by a weapon which was sharp and hard.
10. Priti's lungs and its pleura were cut in the lower lobe which was corresponding to injury No. 13 mentioned in the respective post-mortem examination report which was on the chest portion of the body of Priti Mudgal. Her intestines were cut traversely and otherwise which was corresponding to injury No. 14 in respect of post-mortem examination report. The injury which was on the abdominal portion whereby omentum was protruding and it was near mid-line abdominal portion. Her liver, right lobe and frontal portion was cut of the size of 3 cm x 1 cm x 2 cm which was corresponding to injury No. 12 of respective post-mortem examination report which was a stab wound on chest portion tilting downwards. Her spleen was cut which was corresponding to injury No. 28 of respective post-mortem examination report which was a stab wound on abdominal portion going to the abdominal cavity. Her abdominal peritonium was cut and on account of that there was collection of the blood in the abdominal cavity. The cause of death of Priti Mudgal was, according to Dr. B.S. Maina, shock and fatal haemorrhage which was on account of injuries on liver, lungs, spleen, intestines and peritonium. The said doctor opined that those injuries were 8 to 10 hours prior to the time of post-mortem examination and those injuries were homicidal in nature.
11. The cause of death of Nidhi Mudgal was shock and excessive haemorrhage as well as on account of asphyxia on account of the pressing of mouth. The injuries which were noticed on the dead body of Nidhi Mudgal were 6 to 8 hours prior to the time of her post-mortem examination. According to medical opinion those injuries were homicidal and could have been caused by a weapon like knife.
12. Dr. Maina opined that hymens of both the girls were intact. The uteruses were normal. So far as Nidhi is concerned, the fecal matter was found in large intestine. There was no such finding in respect of Priti Mudgal (This assumes importance in context with the prosecution case that Priti had gone to latrine for answering the call of nature and she was assassinated in the latrine while Nidhi was assassinated in the Dental Clinic Room and the time was at about 6.30 a.m. or so.
13. The learned Trial Judge accepted the evidence of Advocates Shri Narayan Prasad Pande and Shri Rajmal Bhimawat, as well as the evidence of Jai Prakash Mandloi. He accepted the evidence of Punam Garg also. The learned Judge believed in the evidence of Rishikesh, the Priest, and evidence of Investigating Officer Shri Samadhiya. He acted on the evidence of these witnesses for coming to the conclusion that this evidence established the guilt of the accused in respect of the charge for which he faced the said trial. He held that prosecution had proved that from about 6 a.m. to 8 a.m. or so accused Ashish Batham was present in Shajapur and between 6.15 a.m. to 6.30 a.m. or so he was in the house of Dr. Mudgal. The learned Judge also held that Ashish Batham was not present in his office at Bhopal on 7th & 8th April, 1999. He held that evidence of Advocate Narayan Prasad Pande, Jai Prakash Mandloi, Punam Garg and Advocate Bheemawat had passed the test of truth. The same is the case of the evidence of Investigating Officer Shri Samadhiya and Priest Rishikesh. He accepted the evidence of Dr. Mudgal on that point and, thus, appreciating this evidence as a whole concluded that prosecution had proved each circumstance beyond reasonable doubt and these circumstances formed the chain of circumstantial evidence, each one was connected with each other and the chain formed, was sufficient enough to lead him to a conclusion holding Ashish Batham, the accused, guilty for the murders of both Priti and Nidhi Mudgal. He relied on the evidence of Dr. Maina, Dr. Rathore while coming to the conclusion of establishment of the guilt of accused Ashish Batham by circumstantial evidence. He dismissed the defence put forth by accused Ashish Batham as indicated by him in his examination under the provisions of Section 313 of the Code and through the mouth of Purnima Kahar (D.W. 1) and Taraben Soni (D.W. 2). He dismissed the defence of alibi raised by accused Ashish Batham in his defence. Thus, the result was his judgment and order convicting and sentencing accused Ashish Batham for the charges of committing the murders of Priti Mudgal and Nidhi Mudgal for which he faced the trial before him. The said judgment and order has been assailed by the criminal appeal filed by Ashish Batham and it would be dealt with by us while deciding the reference made for confirmation of the sentence of hanging inflicted on accused Ashish Batham and for deciding both, this Court would be examining evidence of every relevant witness and the circumstance brought forth in that context and is available for scrutiny and examination for the purpose of adjudicating either the innocence or the guilt of accused Ashish Batham as well as the competency of the sentence awarded to him as well as its sufficiency and tenability.
14. Shri J.P. Gupta, Senior Advocate assisted by Shri S. Abhayankar heavily criticised the judgment and order passed by learned Sessions Judge, Shajapur which happens to be the subject-matter of the Cr. Appeal and Reference before us. Cutting short his elaborate arguments following points were depicted and have been put forth for our consideration in defence of accused Ashish Batham :--
(1) Accused Ashish Batham did not have a fair investigation and fair trial. The investigation was dubious, one sided and unfair. The prosecution suppressed the evidence which was vividly pointing out the innocence of accused Ashish Batham. The prosecution suppressed the evidence proving the alibi of accused Ashish Batham. So also it suppressed the evidence of finger print expert, which could have shown that the murders of Priti and Nidhi was not the act of Ashish Batham but was the act of more than one person and was with the intention of committing burglary;
(2) The prosecution did not examine all material and relevant witnesses more particularly the other panch witness in respect of seizure of a purse, golden chain and some currency notes from accused Ashish Batham when one panch witness who was examined by the prosecution did not support its case;
(3) When accused Ashish Batham was arrested at Bhopal, his search was not taken immediately and was brought to Shajapur. However, at Bhopal a diary was seized from him;
(4) The prosecution fabricated the evidence by creating unnatural witnesses who either could not have been present at the respective spots or were chance witnesses. The presence of witnesses was doubtful as well as unnatural. There was absolutely no motive present prompting Ashish Batham to go for murdering the girls in whose love he had fallen and whom he desired to marry. Motive was absent for committing the murder of Nidhi, the younger sister of Priti Mudgal who accused Ashish Batham was immensely loving and was desiring to marry;
(5) The prosecution was unable to prove that on 8-4-1999 at about 6.15 a.m. or 6.30 a.m. or so accused Ashish Batham was present in Shajapur much less near the residential house of Dr. Mudgal. On the contrary, the evidence which was collected by the prosecution itself showing, proving that accused Ashish Batham had gone from Bhopal to Dahod along with his sister Purnima Kahar to whom she had gone to reach her husband's house;
(6) The prosecution concocted the evidence for showing that Ashish Batham was possessing a golden chain of special type of joint for repairing, which was allegedly used by Nidhi Mudgal before her death;
(7) The Blue Jeans Pant which has been shown to have been discovered and recovered in pursuance of the information given by accused Ashish Batham was not having the blood stains at all. If it was blood stained how that could not be noticed by Jai Prakash Mandloi. Had it been stained with some blood spots, it should have been soaked with blood when, keeping in view the injuries sustained by both Priti and Nidhi Mudgal, the blood must have spurted out;
(8) The knife was not the weapon of the assault at all and it was not recovered and discovered at the instance of accused Ashish Batham;
(9) The act of suppression of evidence in respect of the finger prints by the prosecution was with oblique motive of suppressing the evidence that the said slayings of Priti and Nidhi Mudgal was not the act of accused Ashish Batham but was the acts of more than one person who had burgled the house of Dr. Mudgal and in the course had killed those two girls;
(10) The presence of blood on the roof was suggestive of the burglary or something else, which was indicative of innocence of accused Ashish Batham;
(11) No proof adduced from the prosecution for proving that the said golden chain was being used by Nidhi Mudgal and it was seized from the possession of Ashish Batham and was legally identified in the test identification by Dr. Mudgal;
(12) No test identification parade was held by the Tehsildar and in this context the prosecution suppressed Mrs. Mudgal who could have been the better witness than Dr. Mudgal;
(13) The said chain was not sent to Chemical Examiner because had that been on the neck of Nidhi at the time of her death, it would have been normally blood stained;
(14) The presence of hand glove was also indicative of the acts of burglary of a burglar, who had used that and during the process of assault it was cut.
15. While canvassing the innocence and non proof of guilt of accused Ashish Batham, Shri J.P. Gupta submitted that why Ashish Batham would commit the murder of a girl whim he loved immensely and was to marry with her. He submitted, on the contrary, it is very much possible that Dr. Mudgal might have killed both the daughters for the purpose of protecting his so-called prestige and protecting his reputation being damaged on account of the said love affair of his daughter with a person who was not from his caste. He submitted that a father, who refused the offer of Ashish Batham to marry with Priti, put forth through the mouth of father Hari Narayan Batham, was turned down by Dr. Mudgal by saying that he was not ready to marry his daughter to a boy from other caste as the family was of the opinion that she should be married with Brahmin only. He submitted that when Dr. Mudgal is having such ideas, such father would go to the extent even killing his daughters for protecting his so-called prestige and reputation in such false ideas of castism. He submitted that those two girls might have been assassinated by the burglars, who had entered in the house of Dr. Mudgal for committing the burglary as the doors of Almirah were found opened, cash was stolen, golden chain was stolen and a cut hand glove was found in Dental Clinic Room.
16. Shri Gupta further submitted that the evidence which has been brought by such prosecution agency, which was interested in suppressing the evidence showing the alibi of accused Ashish Batham and the evidence in respect of his finger prints, should not be believed because that evidence has not been brought forth by a fair prosecuting agency. He further submitted that one person would not be able to cause so many injuries, which were seen on the dead bodies of Priti and Nidhi Mudgal, therefore, in all probability it must have been the act of more than one persons and if that is so, accused Ashish Batham was not their killer.
17. Shri Gupta submitted that it was for the prosecution to examine Saiyyad Wahid Uddin and the T.T.I., who had met Ashish Batham and his sister Purnima Kahar, during the journey when he examined their tickets and drank tea with them. Shri Gupta blamed the prosecution for not examining the Ticket Collector, who collected the tickets from Ashish Batham when they alighted at Dahod (Gujarat). Shri Gupta, then blamed the prosecution for not examining Shri Gaud, the Police Officer, who apprehended Ashish Batham at Bhopal and had seized a diary from him.
18. Shri Gupta submitted that the spot from which the Blue Jeans Pant and knife have been shown to have been recovered as discovered at the instance of the accused Ashish Batham was accessible to all and sundries and was visible to them. Therefore, there was no discovery of fact as contemplated by Section 27 of the Evidence Act and this circumstance was not sufficient enough to establish the guilt of accused Ashish Batham.
19. Lastly Shri Gupta submitted that when the prosecution is depending on the circumstantial evidence for the purpose of proving the guilt of an accused in a murder trial, the prosecution is obliged to prove each circumstance beyond reasonable doubt independently by reliable and legal evidence. Not only that, those circumstances should be so linked forming a chain which would exclude any hypothesis pointing towards the innocence of the accused. According to him the evidence adduced in this case against him is very much insufficient and, therefore, the learned Trial Judge committed the error basing his conclusions holding Ashish Batham guilty of the charge. At this juncture, in this context, he submitted that the learned Trial Judge discarded the defence evidence which was worthy of credence proving the alibi of accused Ashish Batham, who has been proved to be present at Dahod (Gujarat) on 8-4-99, which was at a very long distance from Shajapur, He submitted that a person can not reach Shajapur from Dahod at such time as indicated by the prosecution and the learned Trial Judge has lost sight of this aspect of the matter and, therefore, landed in error of passing the judgment and order holding Ashish Batham guilty of the charge of murders of Priti and Nidhi Mudgal and finally sentencing him to the sentence of death in that context. In this context he made reference to some judgments of the Supreme Court, The relevant judgments would be considered and referred to by us in our judgment in appropriate context keeping in view their relevancy in the mission of this Court in finding the truth while examining the evidence carefully and cautiously for adjudication of either innocence or guilt of the accused, who has come before us in the reference and in the appeal.
20. Repelling this, Shri Prakash Verma submitted that the criticism in charge of unfairness on the Investigating Agency and prosecuting agency is nothing but a false cry raised by accused Ashish Batham. He pointed out in his submissions that prosecution is at liberty to adduce the evidence for proving only those things which are necessary to be proved for establishing the guilt of the accused. He submitted that it is very clear that prosecution is obliged to adduce the evidence only on those points which are necessary to be proved for establishing the guilt of the accused in context with the charge for which he is facing the trial. He submitted that the Prosecuting Agency is not required to put forth before the Court every circumstance or every piece of evidence which was available with it after the process of investigation. He submitted that prosecution has to scan out the circumstances and points and has to adduce the evidence only on those points which are relevant for proving the charges levelled against the accused and, therefore, the prosecution was not expected to lead the evidence in respect of the defence of alibi set forth by accused Ashish Batham in his defence. He submitted that the defence was at liberty to prove those points by examining requisite witnesses and none prevented the defence from doing that but for the reasons best known to the defence, the defence did not do any over-act for which either it has to thank itself or it has to blame itself. He submitted that investigation was very much fair and that fairness has been indicated that the defence which was indicating alleged evidence in respect of the journey from Bhopal to Dahod (Gujarat) was not suppressed. He submitted that the copies of documents in that context were supplied to accused Ashish Batham and that shows fairness of the Investigating Agency. Shri Verma submitted that it was not necessary at all to examine the finger print expert because, the finger-print expert's report did not disclose any positive point. He submitted that the finger-print expert's report showed that he was unable to decipher any finger print at all from the spot of offence.
21. Shri Verma wanted to tender the report of finger print expert in view of provisions of Section 293 of the Code. Shri J.P. Gupta objected to it very seriously and submitted that such evidence would be taken on record only when it happens to be the evidence of Director of Finger-print Bureau. We do not permit that report to be taken on record. However, the prosecution cannot be prevented from explaining the criticism levelled against it of unfairness and suppression of evidence in that context. It is well accepted that negative evidence is not to be permitted to be brought on record and we also are of the opinion that by permitting the irrelevant evidence, negative evidence to be adduced, no purpose would be achieved except fattening the record unnecessarily. This leads us to the next aspect of the submissions advanced by Shri P. Verma.
22. Shri Vcrma submitted that the evidence of prosecution witnesses Advocates Narayan Prasad Pande and Bhimawat is sterling sound and that evidence is above board. He submitted that both Narayan Prasad and Bhimawat Advocates had no reason to give false evidence against accused Ashish Batham. He submitted that evidence of Jai Prakash Mandloi is above board because he has stated what he saw and nothing more. He also justified the evidence of Punam Garg who gave the evidence in respect of pressing of the bell and the sound created by it when she was swinging in the courtyard of her house early in the morning. Shri Verma justified the evidence of Priest Rishikesh and I.O. Samadhiya in context with the criticism levelled against the credibility of the evidence of these witnesses.
23. Shri Verma repelled the criticism levelled against the belatedness of the mentioning of the loss of golden chain which Nidhi was wearing before her death. He submitted that when Mr. Mudgal noticed about it, he immediately informed the police that such chain was missing and it has been very honestly recorded so. He justified the conduct of the witness Jai Prakash Mandloi by submitting that he preferred not to disclose his doubt about Ashish Batham in the morning when he saw the crowd collected in front of the house of Dr. Mudgal. But when he returned from his farm, he chose to speak about it. Shri Verma submitted further that Advocate Narayan Prasad Pande was also frank enough in giving evidence about the things which he saw when he was going towards the bus-stand for catching the bus for going to Indore for attending his Court work. He pointed out in this context that nowhere it has come in the evidence that Narayan Prasad Pande had met Dr. Mudgal in the afternoon and the evidence does not show at all that Advocate N.P. Pande had come to Shajapur before 9.30 P.M. Shri Verma submitted that the conduct of all these witnesses is very much natural and they had spoken about the things which they saw.
24. Shri Verma submitted that the ditch from where the said jean pant and knife have been recovered as discovered in pursuance of the information given by Ashish Batham was not visible because it was behind the bushes. Being it so, was not accessible and visible to all and sundries. Shri Verma further submitted that on account of the casualness Jai Prakash Mandloi might not have noted whether the jean pant which was on the person of Ashish Batham was blood-stained or not. He submitted that number of persons are so casual in their approach. According to him what he saw was that Ashish Batham was coming out from the house of Dr. Mudgal and he stated about that.
25. After attempting to dent the prosecution evidence qua the charge levelled and guilt indicated therein so far as accused Ashish Batham is concerned, Shri J.P. Gupta submitted for accused that the evidence indicating the alibi of Ashish Batham has not come on record, same is the case in respect of finger-prints. He pointed out that there is no evidence on record to show as to what was the blood-group of the accused and as to what was the blood-group of the parents of both Priti and Nidhi Mudgal; more particularly the blood-group of Dr. Mudgal and, therefore, for rendering a fair trial to accused the case be remanded for retrial with a direction to the Trial Court to record additional evidence on these points. Shri Verma submitted that the evidence on record is sufficient enough to establish the guilt of the accused Ashish Batham beyond reasonable doubt. He further submitted that when opportunity was available to defence, it did not do anything for bringing such evidence on record and, therefore, now this prayer does not deserve to be allowed. He pointed out that the remand was opposed to by the defence by engaging the lawyer and a complaint was also made that accused Ashish was given insufficient food. He pointed out that it has been argued by Shri J.P. Gupta hammering the evidence in respect of discovery and recovery of knife and blue jean that no such information was disclosed by accused Ashish Batham till 22nd April, 1999 and only on 23rd April, 1999 such information surfaced. He further submitted that all attempts were made by the accused Ashish Batham to create hindrance in the prosecution. It was said that accused Ashish Batham would not get a fair trial at the hands of the Addl. Sessions Judge who framed the charge against him. A transfer application was moved against the said Judge and accused Ashish Batham could get an order from the High Court directing his trial to be conducted by the Sessions Judge, more experienced Judge at the station. He submitted that when Ashish Batham had gone to such an extent, how he can pray for a retrial on such grounds which he did not utilise for his defence. He submitted that he should have been the first man to examine those witnesses which would have been proving his alibi. Shri Verma submitted that on the contrary the said documents are nothing but fabrication of evidence deliberately in his own defence by accused Ashish Batham. He pointed out at this juncture that leave application was left on the table at Bhopal Office showing that Ashish Batham was on leave on 7-4-99 and on 8-4-1999. He submitted that the said prayer for remand be dismissed.
26. After touching the core and relevant submissions advanced on behalf of the parties at litigation, we start examining the evidence carefully in view of the submissions advanced and the judgments relied on by both Shri J.P. Gupta and Shri Prakash Verma.
27. Shri J.P, Gupta submitted with criticism that the investigation in this case was unfair to the accused. Not only that the trial was also unfair. Therefore, initially this point has to be considered with eyes of scrutiny. Had the investigation been unfair, the investigating agency would not have collected the material to show that the reservation was made and tickets were purchased for so called journey of accused Ashish Batham with his sister Purnima Kahar from Bhopal to Dahod on 7-4-99. The investigating agency has recorded the statements of Saiyyad Wahid Uddin, the concerned ticket collector at Dahod (Gujarat). The finger print expert also collected the finger prints from the spot of offence. It is pertinent to note that the copies of the statements of Saiyyad Wahid Uddin, the ticket-collector of Dahod Railway Station were supplied to the accused along with the challan papers when the charge-sheet was submitted against accused Ashish Batham in the Court. In fact this evidence could have been withheld but it was not done. Can such investigation be called at any stretch of imagination unfair and unjust to accused The answer would be unequivocally 'no'. Shri Gupta criticised that the trial was unfair to the accused. This takes us to another aspect of the matter touching this submission.
28. According to Shri Gupta non-examination of the finger print expert and non-examination of said Saiyyad Wahid Uddin, the ticket-collector of Dahod Railway Station was unfair and unjust to the accused because according to Shri J.P. Gupta had those two witnesses been examined, there would have been material on record to show that on 7-4-99 accused Ashish Batham had travelled from Bhopal to Dahod alongwith his sister Purnima Kahar and, therefore, he could not have been present at Shajapur on 8-4-99 between 6.15 a.m. to 7.30 a.m. or so. Prima facie this submission appears to be lucrative and alluring but if it is viewed with prudence and reasonableness. Its mischievousness stands revealed to its proper value. We would be speaking about this at later portion at appropriate stage of this judgment but so far as this point of submission is concerned, it will have to be recorded that the trial was not unfair trial to accused Ashish Batham. He was afforded sufficient opportunity of utilise this situation for his benefit. The prosecution has played no mischief whatsoever as we find it to record after careful scrutiny of evidence on record and the facets exhibited by it touching the core of the prosecution and the trial.
29. Shri Verma has submitted that the finger print expert did not find anything which could be decipherable for the decision of this trial. Shri Gupta argued that had the finger prints evidence been brought on record it would have revealed that the said act was not of a single person but was of more than one. Shri J.P. Gupta submitted that, the presence of finger prints of more than one person would have been the best evidence in defence of the present accused Ashish Batham. Shri Prakash Verma has submitted that the report of the finger print expert was revealing that the finger prints specimen which were collected from the spot of the offence were not decipherable and were not implicating the presence or the activity of any person and, therefore, this negative evidence has not been brought on record by the prosecution. We find no impediment in upholding this submission of Shri Prakash Verma, Govt. Advocate, appearing for the prosecution. There is no point in asking the prosecution to adduce negative evidence and to burden the file. The law does not expect that also. Apart from that, when the prosecution did not examine any witness on this point and when the defence was sure that the report of the finger print expert was exhibiting that there were finger prints of a person or more than one person, what prevented it from moving an application before the Court for insisting the examination of finger print expert Some order would have been passed by the Court had that been done by the defence. But that was not done and without making any effort for the purpose of enforcing the opportunity which according to the defence, was available to the accused, no grumbling on the point would be of any help to the defence.
30. The defence has grumbled that the prosecution did not examine said Shri Saiyyad Wahid Uddin, the ticket collector of Railway Station, Dahod, which would have according to the defence, established the plea of alibi for accused Ashish Batham. Shri Verma for the prosecution submitted that the defence was entitled to make the prayer to the Court for examining those persons as defence witnesses. That is true, but even we go further and point out that besides examining those persons as defence witnesses, the accused would have very well made a prayer to the Court to examine those two witnesses as Court witnesses in view of provisions of Section 311 of the Code. The question arises that when it was the defence of the accused Ashish Batham, as contended by him and as he was supplied with the statements of said Saiyyad Wahid Uddin, the Ticket Collector of Dahod Railway station, what prevented the defence from exercising its right to move the Court for calling those two witnesses as Court witnesses for the purpose of protecting his defence, indicating his innocence and maintaining the interest of justice as campaign by defence. Nothing was done. It assumes importance when accused Ashish Batham did examine two defence witnesses in support of his plea of innocence. It is true that accused can keep mum and utilise the infirmities of prosecution evidence for indicating his innocence. But when the defence falls in the category of special defences indicated by those special provisions of the IPC the accused is obliged to bring material on record to the point of truthfulness of his such special plea of defence. The plea of defence of alibi fails within this category of the defence and, therefore, it was necessary for accused Ashish Batham to take appropriate action for the purpose of bringing such material on record by enforcing his trump-card. For the reasons best known to him, he has not done so when this fact was within special knowledge of accused Ashish Batham. As submitted by Shri J.P. Gupta, according to the case of accused Ashish Batham he had drank tea with said Saiyyad Wahid Uddin, the ticket collector of Dahod Railway Station during the said journey. When that is so, he should have in all probability be the first man to enforce this trump card in his defence when he had been offered the opportunity of doing so by none else but the investigating agency which supplied him the copies of the relevant statements of the witness or the witnesses. It assumes more importance when he had examined two witnesses to establish his alibi and presence at Dahod on 7-4-99 in the morning. He has examined his real sister Purnima Kahar (D.W. 1) and Smt. Taraben Soni (D.W. 2), co-tenant in the said house where Purnima Kahar was residing with her husband at Dahod. When accused Ashish Batham could afford to examine these two witnesses, it is not only surprising but astonishing as to why he has not examined Saiyyad Wahid Uddin, the ticket-collector of Dahod Railway Station, who would have been the trump witness for bringing his defence of alibi to the point of truthfulness. It is pertinent to note at this juncture that copy of the statement of Saiyyad Wahid Uddin was furnished by the investigating agency to him and those relevant witnesses were interrogated by the investigating agency during the course of the investigation. In that case, had they been examined by accused Ashish Batham either by requesting the Court to call them as Court witnesses or by examining them as defence witnesses, the prosecution would have been put to difficulty in denying their presence in relevant activities at relevant time. When the accused who got the opportunity of bringing the material on record in his defence but does not do it for no reasons or for non-acceptable reasons and is grumbling at later stage his grumbling cannot be appreciated and upheld in his defence and his blaming the prosecution, in these circumstances added with one that no effective suggestions were made to concerned witnesses examined by the prosecution cannot be upheld. Therefore, we dismiss the submissions of Shri J.P. Gupta on this point and move to further important aspects of the matter.
31. Shri J.P. Gupta submitted that the police officer Shri M.S. Gaur, who apprehended accused Ashish Batham at Bhopal was not examined though he had seized a diary from accused Ashish Batham at Bhopal, which was produced by the prosecution in the matter of the trial. Shri Gupta also submitted that Hari Narayan batham, father of accused Ashish Batham, was not examined by the prosecution. According to Shri Gupta non-examination of these two witnesses has caused prejudice to the defence of the accused in this case and his trial has become unfair. Shri Verma has explained the situation by submitting that Hari Narayan Batham, the father of Ashish Batham, was included in the list of witnesses furnished by the accused whom he wanted to examine as defence witness and the name of Hari Narayan Batham, his father was appearing in the said list. The prosecution is not obliged to examine every witness. It is necessary for it to examine only those witnesses whose evidence is relevant for establishing the guilt of the accused or unfolding the prosecution case for a lawful adjudication. Shri Verma submitted that when the investigating officer Shri Samadhiya (P.W. 27) learnt after coming to the spot of the offence that accused Ashish Batham had love affair with Priti Mudgal, the elder daughter of Dr. Mudgal and that was the talk of the town, as an investigating officer he though it fit to send the police officers for the purpose of tracing the whereabouts of accused Ashish Batham, which according to him would have been material for interrogation and carrying forward the flag of investigation. Shri Gaur went to Bhopal. He could find Ashish Batham and, therefore, he apprehended him and brought him to Shajapur. When a person is brought for the purpose of investigation, a police officer cannot immediately arrest him without getting himself satisfied about his participation in the crime as an accused. Shri Gaur was justified in not arresting him there at Bhopal but bringing him to Shajapur before the investigating officer because T.I. Shri Samadhiya was senior officer to him and he was in charge of the work of investigation in the present crime. Police Officer Shri Gaur would have taken care of collecting some material with him for the purpose of justifying the apprehension of Ashish Batham because Ashish Batham was himself Assistant Manager working in Agro Corporation and was a son of retired Deputy Collector. Therefore, as a matter of precaution he would have thought it fit to get the diary from his possession to his possession for safe-guarding his interest for bringing him from Bhopal to Shajapur. There had to be some reason or reasonable ground with him for bringing him from Bhopal to Shajapur for the purpose of interrogation and to prevent him from escaping or absconding because there was a talk of the town about the love affair between Ashish Batham and Priti Mudgal, which was sufficient to put him in the category of suspects.
32. When Shri Narayan Prasad Pande, Advocate (P.W. 4) had gone to meet Dr. Mudgal on 8-4-99 in the night after 9.30 p.m. or so, during the talk he disclosed that he had seen Ashish Batham going to the Govt. Quarter of Dr. Mudgal at about 6.15 a.m., when Advocate Pande was proceeding towards the bus-stand for the purpose of catching a bus enabling him to go to Indore for attending the Court work. When that was so stated or disclosed by Advocate Shri Pande, immediately that was disclosed to T.I. Shri Samadhiya and the statement of Shri Pande, Advocate was recorded in the same night. That despatched the criticism which has been levelled by Shri J.P. Gupta in his submissions indicating the point that Shri Narayan Prasad Pande, Advocate (P.W. 4) did not stop or go to the quarter of Dr. Mudgal or did do anything more than seeing Ashish Batham going to his Govt. Quarter at 6.15 a.m. or so. Prima facie there was no reason for Shri N.P. Pande, Advocate (P.W. 4) to get suspicious of his entry in the residential quarter of Dr. Mudgal at 6.15 a.m. because Ashish Batham was residing in Upkar Lodge which was in front of the house of Shri Pande and at near distance from the residential quarter of Dr. Mudgal and the existence of love affair between Ashish Batham and Priti Mudgal was the talk of the town. When that was so, Advocate Shri Pande was not likely to be suspicious of his so walking. Besides that, being an Advocate he would have been very much reasonable and prudent in not taking extra actions after seeing such activity on the part of Ashish Batham because without there being extra suspicious movement of Ashish why Advocate Pande (P.W. 4) should stop there and miss his bus which was meant for taking him from Shajapur to Indore which would have enabled him to attend his important work that means the work at Indore in the High Court on that Thursday which was a specified day on which the work of outside lawyers is generally fixed as per the Rules of the High Court.
33. Shri Gupta pointed out in his submissions that the evidence of Dr. Mudgal disclosed that Advocate Narayan Prasad Pande (P.W. 4) had met him at about 4.00 p.m. or 4.15 p.m. on 8-4-99 at Shajapur and, therefore, the statement made in the deposition by Shri Pande, Advocate that he had returned to Shajapur at 9.30 p.m. or so was a contradiction to his stand. Shri Prakash Verma pointed out from the evidence that there is no such material on record in evidence. When Advocate Shri Pande (P.W. 4) said in his evidence that he had gone to Indore for his work in the High Court and returned back to Shajapur by getting an appropriate bus at 6.30 p.m. from Indore, which was to taken him to Shajapur and which in fact reached him at Shajapur at 9.30 p.m., why it should be doubted without there being any reason to do so. It is the evidence of Shri Pande, Advocate (P.W. 4) that after coming to Shajapur from Indore at 9.30 p.m. he left his attache-case at his house and went to Dr. Mudgal's residential quarter for talking with him as he learnt from his family members that in the morning two daughters of Dr. Mudgal were assassinated. Advocate Shri Pande must have sat for some minutes with Dr. Mudgal and must have talked for consoling such bereaved father and during such conversation as a lawyer might have thought it fit to place this information of presence of Ashish Batham near his residential quarter at 6.15 a.m. He did so and that was conveyed to the investigating officer T.I. Shri Samadhiya (P.W. 27) who recorded the statement of Shri Narayan Prasad Pande (P.W. 4) in the course of investigation the same night, Tt is very much natural. Therefore, we dismiss this initial submission of Shri J.P. Gupta on his point at this juncture because we are going to examine the evidence of Shri Narayan Prasad Pande, Advocate (P.W. 4) for the purpose of assessing its value in respect of the adjudication of the innocence or guilt of accused Ashish Batham.
34. We deal with the point of motive now. The prosecution has brought the evidence on record to prove that Ashish Batham had the motive to commit murders of Priti and Nidhi Mudgal because the love affair of Ashish Batham did not result in marriage but stood frustrated. The prosecution brought the evidence on record that Hari Narayan Batham, the father of Ashish Batham had a talk with Dr. Mudgal about 15 days prior to the death of Priti and Nidhi Mudgal when he had called for Dr. Mudgal on telephone in the morning. The evidence of Dr. Mudgal and Anil Sharma (P.W. 20) from Govt. Hospital shows that one Hari Narayan Batham had contacted Dr. Mudgal on telephone from Bhopal. It is the prosecution evidence that the telephone number of Hari Narayan Batham at Bhopal was 547396. Dr. Mudgal has stated in his evidence that Hari Narayan Batham asked him to come to Bhopal for talking about the marriage between Ashish Batham and Priti Mudgal because he had told him that both were in love with each other and Hari Narayan Batham wanted to take this aspect further for resulting it into marriage between both of them. It is the evidence of Dr. Mudgal that he told him that his family was a Brahmin family and they were not desirous of marrying their daughter to a groom who was not Brahmin. His evidence also discloses that he had informed Hari Narayan Batham that, that was the opinion of Priti Mudgal also. It has come further in the evidence of Dr. Mudgal that in the evening of the same day said Hari Narayan Batham had again asked on telephone as to what was the decision in that context and at that time Dr. Mudgal had told him about the same decision which was disclosed to him in the morning. It is the evidence of Dr. Mudgal that Hari Narayan Batham had told him in threatening tone that its result was not going to be good. It is pertinent to note here that the name of Hari Narayan Batham was included as the defence witness in the list of witness to be examined in defence of accused Ashish Batham.
36. It is the prosecution case that as there was a stubborn refusal of the offer from Dr. Mudgal, Ashish Batham was annoyed, disheartened because the said love affair was not likely to be resulted in marriage. It is pertinent to note that it has come in the evidence of his sister Purnima Kahar that she was knowing that there was love affair between Ashish Batham and Priti Mudgal. When that was so this aspect was known to family members of Ashish Batham and, therefore, it is very likely that Ashish batham might have requested his father to talk with the proposal of their marriage with Dr. Mudgal and in view of that Hari Narayan Batham talked with Dr. Mudgal about their marriage. The defence denied this aspect of the prosecution case which was weaving towards establishing the motive. Not only that but, as pointed out by Shri S. Verma, in the answers given in the examination under Section 313 of the Code, Ashish Batham denied that he was having love affair or love relations with Priti Mudgal. The tone of the submissions advanced by Shri J.P. Gupta shows that there was no such talk between Hari Narayan Batham, father of accused Ashish Batham and Dr. Mudgal and Hari Narayan Batham had not threatened Dr. Mudgal at all. If that is the tune of the defence, a question harbours in the mind as to who had talked with Dr. Mudgal on that day and in the night Was he (Ashish Batham) himself This inference if is true, would be more dangerous to Ashish Batham and, therefore, we rely on the cardinal principle of criminal jurisprudence, that when two inferences are cropping up, the inference which is in favour of the accused has to be preferred and, therefore, we prefer the less dangerous inference but that establishes the participation of Hari Narayan, father of accused Ashish Batham in the said talk which was dealing with proposal of marriage between accused Ashish Batham and Priti Mudgal. The refusal of the marriage proposal would definitely dishearten accused Ashish Batham. This disheartening has in fact resulted in frustration and that is evident by the submissions which has been advanced by Shri J.P. Gupta in his arguments which he attempted to utilise for defending accused Ashish Batham. Shri J.P. Gupta had pointed out that there was a talk between Priti Mudgal and Ashish Batham for 84 minutes on telephone and prior to their deaths. What all this 84 minutes talk indicates Was it not a verbal arguments or talk on telephone between, once upon a time, two loving beings Was it not a talk wherein one was convincing other for accepting the continuation of that affair further Was it not indicating that one was convincing other for the marriage Was it not indicating that one was asking the explanation of not standing to the expectation of another being who was in love of that one The answers to all these questions indicate one thing and that was the frustration of such defeated lover who was expecting that this love affair should result in marriage. At this stage some entries in the diary which was seized from the possession of Ashish Batham becomes relevant. Ashish Batham has admitted that hand-writing of the entries in the said diary was his hand- writing. It has been mentioned at one page that he was very much disappointed by getting the treatment of Shajapur. Other material is also tilting towards obscurism. That explains the mental state of affairs and the things going on in the mind of such a defeated lover. The talks continued from the initial talk between Hari Narayan Batham and Dr. Mudgal, for some days because there is evidence on record to show that there was conversation between the telephone set of Hari Narayan Batham at Bhopal and the telephone set at the residence of Dr. Mudgal - 2970 as well as the telephone number of one STD-PCO Booth. As human experience tells, Ashish Batham must have started convincing Priti Mudgal or have started accosting her and seeking her explanation for failing him down at the last and important stage of talk of the marriage. May that be true that Priti Mudgal might have also changed her mind. If that is so, then the prosecution theory of motive will have to be accepted because it has come to the point of 'proved' as indicated by provisions of Section 3 of the Indian Evidence Act. By assessing the evidence on this point a prudent man would reasonably come to a conclusion that this thing must have existed.
37. Frustration of love so far as Ashish Batham is concerned, gives the answers to the submissions advanced by Shri J.P. Gupta, wherein he questioned as to why a person who had loved Priti Mudgal to maximum extent would commit her murder. Partially it is true partially it is untrue also. Human behaviour is very complex which one cannot predict or one cannot regulate also. It is very difficult to anticipate as to how the human mind would start working. A loving person like Romeo, Kais - Majnoo would react in the way which has been suggested by Shri J.P. Gupta in his submissions but at the same time human experience tells that there would be totally opposite case also which has been informed by commission of number of crimes. The sentimental lover would react in the way as heroes of love as indicated by the submissions of Shri J.P. Gupta, reacted in the past as tale-tells but a frustrated lover also known to have given the punishing lessions to other being which betrayed the love and sentiments. Both sort of examples are there. Therefore, this Court would not be influenced by the attractive submissions of Shri Gupta brought forth in the defence of the accused but would adhere to the legal evidence on record for the purpose of adjudicating this point.
38. After careful scrutiny of the prosecution evidence on this point and entries of conversation on telephone number, substantive testimony of Dr. Mudgal and Anil Sharma (P.W, 20), non-examination of Hari Narayan Batham by the accused on this point lead us to one conclusion that the prosecution has proved that Ashish Batham had the motive for committing the murder of Priti Mudgal. He had the motive to commit the murder of Nidhi Mudgal also because Nidhi Mudgal was present in the said residential quarter at the relevant time as per prosecution case and she was the witness of their love on number of occasions because it has come in the evidence of Rishikesh (P.W. 16), the priest of Hanuman Temple that he had seen both of them sitting at the back side of the temple of Lord Hanuman at Shajapur wherein he had seen Ashish Batham sleeping on the laps of Priti and talking with and Nidhi Mudgal sitting at some distance but in their vicinity. It is to be noted that it is the evidence of Rishikesh that Ashish Batham used to bring gifts for these two girls and they used to be there for 3-4 hours enjoying the time like picnic. Nidhi Mudgal may have been present there on all these occasions as a person giving moral courage to them or to act as a guard in their safety and interest. May that be but she was a witness to their love and as per prosecution case was present in residential quarter of Dr. Mudgal. When Ashish Batham was to kill Priti Mudgal and when Nidhi was present in the dental clinic room of the residential quarter he had to finish her before reaching to Priti who was further inside of the quarter. Generally the witnesses to the crime are not spared so as to take care that none shall speak against the offender for proving his guilt. Shri J.P. Gupta while criticising the prosecution evidence submitted in a remindful way that ingenious brain works ingeniously. Yes, it is partially true but when it is true, it may act like boomering and may give a clue as to in what way ingenious brain of Ashish Batham would react. Ashish Batham happens to be an engineer, means at least a cream of the society so far as class of intelligensia is concerned. Such intelligensia would definitely take care to see that none remains to be the eye-witness to speak against him for his crime. Therefore, also he had the motive to kill Nidhi Mudgal who might have been present there at that time. When he noticed that Nidhi Mudgal was present in the dental clinic room, in all probability, she must be Nidhi Mudgal who must have opened the door answering the bell which was pressed by Ashish Batham as deposed to by Punam Garg (P.W. 3). When she had opened the door and when Ashish Batham wanted to make the entry in the quarter he might have asked as to where Priti was. There may have been some resistance by Nidhi Mudgal also for his entry, therefore, he had formed the motive to kill her initially, for the purpose of getting access to Priti Mudgal who was inside the said quarter. Thus, we have got no hesitation in our mind that the prosecution had proved that accused Ashish Batham had motive to kill Priti Mudgal as well as Nidhi Mudgal also.
39. We focussed our attention to other important aspects of the matter which leads us for considering the evidence whether both Priti and Nidhi Mudgal had died homicidal death or not. It has not been disputed by defence that both of them had died homicidal death. The evidence of Dr. Maina (P.W. 18) leaves no doubt about that. He had noticed ten injuries on the dead-body of Nidhi Mudgal and 32 injuries on the dead-body of Priti Mudgal when he performed the autopsy. There were serious cut wounds on the neck of both Nidhi and Priti Mudgal. Priti Mudgal had stab wounds on her chest, abdomen and sternum area also. It is the evidence of Dr. Maina (P.W. 18) that those injuries were ante-mortem and were sufficient to cause the death of human being and those could have been caused by sharp and edged weapon like knife which, according to the prosecution case, was recovered in view of the discovery of the fact that it was concealed in a ditch behind the bushes behind said Hanuman Temple in pursuance of the information given by accused Ashish Batham and it was stained with human blood. Therefore, the prosecution has proved that both Priti and Nidhi Mudgal had died homicidal death on account of the injuries sustained by them. The learned Trial Judge has also recorded his finding in favour of the prosecution on these two points and we approve these two findings to be correct, proper and consistent with evidence on record. We confirm them.
40. We now come to the evidence of Shri Narayan Prasad Pande, Advocate (P.W. 4). It is the evidence of Shri Pande that on 8-4-99 at 6.15 a.m. he has started from his house and was proceeding towards the bus-stand by walking for catching the bus for going to Indore for attending his Court work and while he was proceeding so, he saw that Ashish Batham was entering in the residential quarter of Dr Mudgal. It is the evidence of Advocate Shri Pande that his house is in front of 'Upkar Ledge' where Ashish Batham was residing during the tenure of his service in Agro Corporation at Shajapur. Prosecution witness Shri Pradhan has also stated in his evidence that he was residing alongwith Ashish Batham in Upkar Lodge when both were serving at Shajapur. It is the evidence of Jai Prakash Mandloi (P.W. 5) that Ashish Batham used to lodge in Upkar Lodge which was in the adjacent vicinity of the house of Jai Prakash Mandloi (P.W. 5). Both Advocates Shri Pande and Jai Prakash Mandloi were knowing Ashish Batham as the person who was residing in said Upkar Lodge and as the love affair between Ashish Batham and Priti Mudgal was the talk of the town, Advocates Pande and Jai Prakash Mandloi must have been knowing him very well because such persons engaged in such activities to kindle the interest in human minds. Human inquisitiveness is well eloquent. Therefore, there is no difficulty in accepting that Shri Narayan Prasad Pande, Advocate must have identified accused Ashish Batham correctly and might have committed no mistake in noticing that Ashish Batham was going towards the residential quarter of Dr. Mudgal at 6.15 a.m. There was no necessity for him to accost him because an Advocate would not engage himself in such activities unless there are good reasons to do so. Apart from that, Shri Pande, Advocate must have been interested in catching his bus and not missing it which would have enabled him to attend his more important work connected with his profession but being and Advocate he must have been careful enough to keep a note of that movement of Ashish Batham towards the residential quarter of Dr. Mudgal.
41. It is the evidence of Shri Pande, Advocate that after coming from Indore at 9.30 p.m. to Shajapur, he kept his bag at home and got the information about the assassinations of two daughters of Dr. Ram Awatar Mudgal (P.W. 2). Therefore, he went to the house of Dr. Mudgal (P.W. 2) for talking with him in that context. During the conversation, naturally, he must have occurred that it was necessary for him to reveal as to what he had seen in the morning at 6.15 a.m. when he was proceeding towards the bus-stand and therefore, as a natural conduct he must have disclosed the said information to Dr. Mudgal which resulted in disclosure of that information to T.I. Shri Samadhiya, the investigating officer, who recorded the statement of Advocate Pande during the course of the investigation. Some doubts were suggested in the arguments advanced on behalf of the defence to show that Advocate Pande had already come to Shajapur and had met Dr. Mudgal at about 4.00 or 4.15 p.m. But evidence does not support this argument. On the contrary, it proves clinchingly that Advocate Shri Pande did not come to Shajapur prior to 9.30 p.m. It was also suggested in the arguments on behalf of the defence that evidence of Advocate Pande was not fit to be accepted but no cogent reasons were put-forth for substantiating this submission. A lame attempt was made to indicate that Advocate Pande had some intimacy with Dr. Mudgal as both were engaged in morning walk and there was a talk between them in that contest. That was a normal talk between such morning walkers that does not show any special intimacy or an intimacy which would make an Advocate to give false statement against a person who is likely to be involved in a serious crime of commission of two killings. Why Advocate Pande should speak such lie against accused Ashish Batham when there is nothing on record to shew that Advocate Pande had an axe to grind against Ashish Batham There is absolutely nothing on record to show that Advocate Pande was no intimate with Dr. Mudgal and was no enimical against Ashish Batham. Without there being any reasonable cause, there would be no justification in discarding the evidence of Shri Narayan Prasad Pande, Advocate (P.W. 4). On the contrary, if examined his evidence on the anvil of truth, it comes out as sterling sound so far as the aspect around which his evidence is revolving and that is the proof of a fact that at 6.15 a.m. or so, Advocate Pande had seen accused Ashish Batham going towards the residential quarter of Dr. Ram Awatar Mudgal (P.W. 2).
42. We come to another piece of evidence in respect of the circumstances which the prosecution wanted to prove against accused Ashish Batham. It is the evidence of Jai Prakash Mandloi (P.W. 5). It is his evidence that he had constructed a house near to his old house and as it was the time when the taps were to flow with the water, he had gone to his newly constructed house for the purpose of watering the construction. It is his evidence that he was knowing accused Ashish Batham who was residing in Upkar Lodge, in adjacent vicinity to his house to the side of his house. He saw Ashish Batham coming out of the residential quarter of Dr. Mudgal at about 6.30 a.m. When he saw him in the garden courtyard of the residential quarter of Dr. Mudgal. Jai Prakash Mandloi (P.W. 5) was busy in watering his house or had come back from watering his house. Small variation here makes no difference because his presence at that time was on account of watering of his newly constructed house. There may be variance on fringes because human memory is fallible. Only few can give the correct narrations of the incidents after lapse of days or months. Human memory is a strange thing. It rises to the optimum level crosses it above or falls short of average one. Human memory is such a strange thing, as human experience tells, that it sharpens on some occasions and falls the person down for no reason. On many occasions we do remember a small thing but on many occasions we forget an important event also. Therefore, in a trial what is to be seen is the core of the evidence and the infirmities indicated by small dents are not to be given undue importance. The cause of watering the newly constructed house was giving the cause of the presence of Jai Prakash Mandloi (P.W. 5) at the spot from where Ashish Batham coming out of the residential quarter of Dr. Mudgal could be seen by him.
43. Shri J.P. Gupta has criticised the evidence of these two witnesses by pointing out the variance in their evidence creating damage to it, touching the credibility of the core of their evidence. We do not agree with him because the credibility of evidence is to be judged from its core and not from the dents on unimportant fringes, variances at fringes and discrepancies on minor particulars. It is to be tested by putting the tcstor of human experience and finding out whether there happens to be a cause for such witness to speak lie against the accused or not Whether his evidence has been shattered to the core of it. Whether his evidence is not satisfying the human test of truth informed by the experience. If the evidence is passing the test of truth if tested on the anvil of the test of human experience, that evidence has to be accepted keeping in view the definition of word 'Proved' indicated by Section 3 of Indian Evidence Act. It should be the adjudication of a reasonable and prudent person and not a timid mind in giving importance to variances and its insufficiencies on unimportant details. By dismissing the submissions advanced by Shri J.P. Gupta challenging the credibility of evidence of these two witnesses, we confirm the finding of the learned Sessions Judge accepting their evidence against the accused and holding that it is proving the entry of Ashish Batham in the residential quarter of Dr. Mudgal at 6.15 a.m. or so and his exit from it at 6.30 a.m. or so on 8-4-99. There may be difference of some minutes here and there; that makes no difference.
44. After dealing with the evidence of these two witnesses P.W. 4 and P.W. 5, we now proceed to the evidence of Advocate Raj Mal Bhimawat (P.W. 10) because it is dealing with very important facets of the prosecution case. Advocate Bhimawat (P.W. 10) is a lawyer doing his practice dealing with the cases which are dealt with by Consumer Protection Forum. It is his evidence that on 12-4-99 he was informed by a constable that T.I. Shri Samadhiya had called him in the Police Station and, therefore, he went along with him to Shajapur Police Station and met T.I. Samadhiya. His evidence reveals that Samadhiya had told him that one accused was to give some information and he has to act as a panch witness in respect of the said information and consequential discovery and recovery. Another panch witness also there. Accused Ashish Batham was brought there. He told Bhimawat and other panch witness that he was giving some information which was leading to discovery of a fact and that the said information was that a knife and blue jean were concealed in a ditch behind the bushes behind Hanuman Temple at the outskirts of Shajapur. Accused Ashish Batham led T.I. Samadhiya with police squad and panch witness Bhimawat and other panch witness towards the said bushes and he led them to a ditch behind the bushes where a knife and a blue jean were concealed. Both these articles were taken out and were seized under a memorandum. The said information which was disclosed by Ashish Batham in the police station was also recorded in the nature of memorandum. Shri Gupta submitted that the evidence of Bhimawat cannot be believed because it is very likely that being an Advocate he must have been well acquainted with T.I. Shri Samadhiya and the police personnel working at Shajapur. We do not find any reason to agree with the submissions advanced by Shri Gupta in defence of accused Ashish Batham because it is pertinent to note that Advocate Bhimawat happens to be a person practising exclusively before the Consumer Protection Forum. He is normally not supposed to have such thick intimacy and relations with the police personnel. His conduct in responding the call of T.I. Samadhiya and going to the police station shows that he acted like a responsible person. He happens to be a responsible citizen because he is not only an educated person but also happens to be an Advocate. What is wrong in it when he responded to the call of T.I. and went to police station and acted as a panch witness to the recording of the information which-was as per the prosecution case given by Ashish Batham and thereafter accompanying him to the discovery of the aid ditch and discovery of the fact that a knife and blue jean have been concealed in the said ditch behind those bushes behind Hanuman Temple If his evidence is scrutinised it passes the test of truth and we find no hesitation in accepting his evidence and coming to the conclusion that by his evidence the prosecution has proved that on 23-4-99 Advocate Bhimawat and other panch witness had gone to Shajapur police station and in their presence accused Ashish Batham had disclosed the information that he was willing to lead them to a pit where a knife and a blue jean were concealed behind bushes behind Hanuman Temple. We confirm the finding of fact recorded by the Sessions Judge, Shajapur, against the accused Ashish Batham on this point.
45. Shri J.P. Gupta submitted that this evidence which has been adduced by the prosecution in support of proof of its point against Ashish Batham does not anywhere disclose that Ashish Batham gave the information to the Investigating Agency and panch witnesses that 'he had concealed said knife and said blue jean in the said pit'. Shri Gupta further submitted that the said ditch, said knife and said blue jean were visible to all and sundries and was accessable to all and sundries and, therefore, this circumstance cannot be called as incriminating Ashish Batham in the complicity in this crime. Shri Prakash Verma submitted that it is so and had referred to this evidence and submitted that the evidence has to be accepted in such a tone that it was sufficiently proving that the said information was given by Ashish Batham in the way which was indicating that he was speaking himself to be the author of said concealment of those articles in the said ditch. The evidence of a witness is to be read as a whole and not by piecemeal or not by dissecting it as suitable to once purpose. Shri Verma has submitted that it may be inefficiency of the person writing the said memoranda of information and discovery of the fact. We uphold the submissions of Shri Prakash Verma because they are reasonable and stand to the legal requirement of the provisions relevant to the point in issue,
46. Section 27 of the Evidence Act is an exception to the normal rule dealing with contessionary statement of the accused as indicated by Sections 24, 25 and 26 of the Evidence Act. The provisions of Section 27 speak of 'discovery of fact' and is not restricted only to the discovery of articles and this discovery of the fact should be in pursuance of the information given by the accused. If the fact is discovered in pursuance of the information which was given by the accused willingly it fastens his involvement in the commission of the crime if he happens to be the author of concealment of articles at a particular place. If he happens to be the author of concealment, then the said information and discovery of the fact reveals that he had the knowledge of concealment of such incriminating articles at a place which was not likely to be known by others except the one who was author of the concealment. It is true that the memorandum of information likely to lead to the discovery of the fact may prove that accused was having the knowledge of such concealment of the articles at a particular place but in that case, the accused has to come with an explanation that he was not the author of the concealment of the articles but was a person knowing that such articles are concealed there. If he does not give that explanation he cannot escape his involvement in the commission of the crime. If he is not an innocent person having the knowledge of such concealment only how he happens to be knowing that such particular articles are concealed at a particular spot It is true, that if the articles are found at a spot which was visible to all and sundries then the inference may not involve him unless coupled with other acceptable implicating evidence on record but in that case the said spot should be visible to all and sundries. Same is the case in respect of 'accessibility of the said spot to all and sundries'. But in that case the spot should be by itself either visible to all and sundries or accessible to all and sundries. In the present case the said pit may be accessible to some persons other than accused being a spot behind the bushes at a public place but it is pertinent to note that the said blue jean and said knife were concealed in a pit and it was behind the bushes and the said spot was a seclude one. At this juncture it becomes prominent and significant that the said spot was just behind Hanuman Temple where Ashish Batham and Priti Mudgal alongwith Nidhi Mudgal used to be present for having picnic time and other activities which included the act on the part of Ashish Batham that he was sleeping on the laps of Priti Mudgal. That indicates that, that was a preferable spot for Ashish Batham to conceal the said knife and blue jean in the said pit behind the said bushes because like few other persons, he was a person who was having the knowledge that there happens to be such a spot and the pit. It becomes quite significant when there is no explanation given by Ashish Batham that on account of some reasons he was having the knowledge that such a knife and such a blue jean were concealed in the said pit. The said blue jean and the said knife, were sent to the Serologist who opined in his report that both the articles were stained with human blood. Shri Gupta submitted that the prosecution has not proved that 'AB' was the blood group of Ashish Batham. The prosecution did not prove that 'AB' was the blood group of the parents of Priti and Nidhi Mudgal. The report of the Serologist shows that the blood was disintegrated and, therefore, the grouping was not possible. We would deal with that point later on but we come to the conclusion that the finding of fact recorded by the Sessions Judge on this point in favour of the prosecution and against accused Ashish Batham is consistent with the evidence on record and he has accepted it properly, correctly and his said finding is legal one also.
47. Shri J.P. Gupta submitted that the blood has been found on the roof of the residential quarter of Dr. Mudgal. So also, he submitted that the door of Almirah was found opened and cash of Rs. 12,000/- has been reported to have been stolen by the miscreants. Shri Gupta submitted that there was blood on the walls of the inner side of the quarter, there was a rubber hand glow which was cut near the fingers and according to Shri Gupta all these things indicate that it must have been the act of killings of those two girls by some burglars and, therefore, it could not have been the act of Ashish Batham and that too Ashish Batham alone. Shri Prakash Verma submitted that the reddish spot which was found on the roof, was not of the human blood. He submitted that a sum of Rs. 1,223/- was found in possession of Ashish Batham when he was arrested at Shajapur by T.I. Shri Samadhiya (P.W. 27). He submitted that when he was arrested, a Panchnama was prepared and at the time of seizure of the articles a purse containing a golden chain was found possessed by Ashish Batham. He submitted that the said purse, golden chain, a diary and Rs. 1223/-were seized from the possession of Ashish Batham. Shri Verma submitted that the said chain was being used by Nidhi Mudgal, the younger daughter of Dr. Mudgal and it had a special identification mark that it was tied by a metal piece. Shri Verma submitted that the said chain has been identified by Dr. Mudgal before the Tehsildar, who held test identification, wherein the said chain was mixed with similar type of golden chains. Shri Verma submitted that accused Ashish Batham was possessing the said chain which was being used by Nidhi Mudgal proves his complicity in the said crimes. Shri J.P. Gupta submitted that the test identification is not lawful because Tehsildar did not follow proper legal precautions while holding the said test identification of articles. He submitted that when initially the FIR was filed the said FIR does dos disclose that a golden chain which was being used by Nidhi Mudgal was stolen by the miscreants. Shri Gupta submitted that had that been being used by Nidhi Mudgal, her father would have disclosed it while lodging the FIR. He submitted that the Tehsildar acted in improper way in collecting similar type of golden chains and arranging the test identification. Shri Gupta criticised the prosecution for suppressing Mrs. Mudgal by not examining her as a prosecution witness, he submitted that Mrs. Mudgal would have been the best witness available with the prosecution for identification of the said golden chain.
48. The prosecution has examined Shri R.K. Sharma, Tehsildar (P.W. 14) for adducing the evidence in respect of test identification of the golden chain which according to the prosecution case Nidhi Mudgal was wearing and was found missing after her assassination. The prosecution has also adduced the evidence of Dr. Ram Awatar Mudgal (P.W. 2) on the point of test identification. It is the evidence of Shri R.K. Sharma, Tehsildar (P.W. 14) that on 23-4-99 at about 11 a.m. or so, he received a requisition requesting him to hold test identification in respect of the golden chain, which was sent to him by police station through a sealed envelope. After receiving the said envelope, he was informed that he was to hold test identification in Gandhi Hall Dharamshala, which was near the premises of Govt. Hospital, Shajapur. Accordingly, Shri R.K. Sharma, Tehsildar went to said Gandhi Hall Dharamshala at about 11.15 a.m. or so and thereafter opened the envelope by removing the wax-seal and after taking out the said golden chain, collected similar golden chains which some women found present in the vicinity of the Govt. Hospital, Shajapur were wearing by personally requesting those women to spare the golden chains for arranging the test identification, he stated in his evidence that those chains were similar to the same which was sent from the police station. It is his evidence that he arranged those golden chains and held the test identification in which Dr. Ram Awatar Mudgal (P.W. 2) and Mrs. Mudgal identified the chain which was sent by the police station to him for arranging the test identification by saying that the same chain was being used by their daughter Nidhi and she was wearing it before her assassination. Shri Gupta in his arguments criticised the evidence adduced by the prosecution on this point by pointing out some infirmities whom he called illegalities. According to him on account of those infirmities in the evidence on test identification, the prosecution was unable to prove that the golden chain which Nidhi Mudgal, as per prosecution case, was wearing before her death, was identified by Dr. Mudgal in the test identification. He submitted that it is very much unnatural for Tehsildar to go for requesting the women folk present in the vicinity of govt. Hospital, Shajapur, for sparing their chains for the test identification. He pointed out that Shri Sharma,Tehsildar (P.W. 14) has admitted in his evidence that he was not able to tell whether the chains which were obtained by him from other women were made of gold, silver or of any other metal and that shows the falcity of the test identification. He further submitted that when the FIR was lodged it was not mentioned in the said FIR that Nidhi was wearing a golden chain and it was found missing after her assassination. Shri Gupta also pointed out that nowhere it has been mentioned that the said chain was tied by a wire for its repair. Shri Prakash Verma submitted that the evidence of Tehsildar, Shri Sharma (P.W. 14) is very natural and the infirmities pointed out by defence do not wash out his evidence which has been well corroborated by the evidence of Dr. Mudgal. Shri Gupta submitted that for no reason the prosecution suppressed Mrs. Mudgal by not examining her as a witness.
49. After examining the evidence of Shri Sharma, Tehsildar and Dr. Mudgal on this point, we find that the evidence of Shri Sharma shows that he acted like a simple person and whatever he stated about the metal of which those other chains were made, was nothing but his cautious approach to save himself from any possibility of the loss of those chains or any blame on him in that context. We find also that like other persons concerned with this case from the side of the prosecution, Tehsildar Sharma also suffers from lack of proper training in this context. He knew perhaps, from the information gathered from other concerned persons that in test-identification the similar chains are needed to be mixed for the purpose of maintaining the sanctity of the test-identification. It seems that being the matter concerning with the golden chains he though it proper to do it personally by requesting the women-folk present in the vicinity of the Govt. Hospital, Shajapur to spare their golden chains for the test identification. It is also coupled with the normal human experience at the present time. Had a peon being sent for collecting such chains, Shri Sharma, Tehsildar (P.W. 14) may have been apprehending that the womenfolk would not part with their golden chains being cautious and very touchy about such ornaments. It sounds to be so, keeping in view the normal human experience. It is important to note here that Shri Sharma stated in his evidence that he was not knowing those women-folk and was not knowing even whether they were the employees of the Govt. in context with the said Hospital or were patient or were connected with the said Hospital. It shows his simpleness in stating the things which took place in respect of the test identification held by him. According to his evidence Dr. Mudgal and Mrs. Mudgal identified the golden chain sent by police station to him for arranging the test-identification, as the chain which was being used by their daughter Nidhi Mudgal. It is also pertinent to note that it has come in the evidence of Dr. Mudgal that till 9.00 p.m. on 8-4-99 he did not see as to what was being stolen or as to what was being missing from his house or from the persons of his daughters. It is also consistent with the present human experience. Dr. Mudgal being a Govt. employee, working in the Govt. Hospital at Shajapur which is a small city, the happening of two assassination of teen-agers would have been a matter of turbulence in the members of public and that would have been a talk of the town. Keeping in view his designation in Shajapur city, the people connected with him, acquainted with him, must have started flowing to his house for showing sympathy to him and for knowing as to what was the matter and as to what was the cause. Inquisitive on lookers matters might have also collected. The persons who were acquainted with him, must have met him and must have talked with him one after other and that would have continued till 9.00 p.m. He could not have been in a position to say no to them in the circumstance of happenings of the day. Because on happening of such incident, it is very difficult to refuse the persons who come for expressing their feelings of sympathy and expressing the feeling of sharing the grief. In the midst of that, Dr. Mudgal must have been engaged in maintaining the balance of his emotions as well as pacifying his wife who must have been shocked mentally, emotionally and seriously on account of such assassination of her two daughters. Therefore, Dr. Mudgal could not have got the peace of mind, coolness of mind to think for searching the things lost from the house. He must have been prevented by the people surrounded from touching and seeing the dead-bodies of his daughters for the purpose of saving him from mental shock which would have caused anything. It is the human experience that the near relatives or very closely connected persons arc taken away from the dead-bodies by the persons gathered for the purpose of avoiding such shocks -mentally, morally and emotionally. Therefore, Dr. Mudgal would not have got the opportunity of verifying whether the golden chain which Nidhi was wearing prior to her assassination was there or was lost. The same case would have been in respect of the cash which was as per prosecution case stolen from the cupboard and other places. The evidence on record shows that the total amount was Rs. 12,000/- from cup-board, from the almirah and from the spot which was behind the photo-frame of deity. It is pertinent to note that when he got the knowledge about that, he informed immediately to the Investigating Officer and in that context his supplementary statement was taken on the same day but in the night. It is necessary to note here that a golden chain was found to be missing from the body of Nidhi and golden earning were found to have been missing from the body of Priti Mudgal.
50. Shri J.P. Gupta submitted that in respect of the seizure of this golden chain from accused Ashish Batham, a witness named Mouzud Mohd. (P.W. 9) was examined by the prosecution, who did not support the prosecution and when that was so the prosecution did not examine the other panch witnesses and the reason which was given by the prosecution, was not acceptable. Shri Gupta submitted that it was the duty of the prosecution to examine other panch witnesses on oath in the Court and prosecution was not permitted to declare him hostile only by submitting a statement in writing. It is true that such witnesses should be examined in the Court. The prosecution has to face the calamity apprehended by it in the nature of the witnesses not supporting the prosecution case. The other panch witnesses should have been examined and had he gone hostile to the prosecution, the questions in the nature of cross-examination should have been asked to him. But only on account of that, the prosecution case cannot be thrown out because the evidence of Investigat- ing Officer Samadhiya (P.W. 27) proves it beyond reasonable doubt that when police officer Shri Gaur produced Ashish Batham before him, at the time of his arrest, a panchnama was drawn and in view of that panchnama, a purse was seized from his person which was containing the said gold chain. The amount of Rs. 1223/- was also seized in view of the same panchnama along with a diary. The evidence of Investigating Officer Shri Samadhiya (P.W. 27) satisfied the test of truth and passes the examination for veracity and comes out as sterling sound. It is also pertinent to note that the prosecution declared by making a statement in writing that other panch witness was hostile to the prosecution and, therefore, the prosecution was not intending to other panch witnesses examination. This difficulty is attributable to the timidness of the prosecutor who was conducting the trial. But on that count prosecution case if stands on other points firmly, cannot be thrown out. For such timidness or improperness, the prosecuting agency has to be blamed for not giving appropriate training to the persons who are supposed to conduct serious trials like the trials revolving around the charge of murder and other serious cases. The society should not also criticise the decision taken by such prosecutors in trials. May be that the prosecutor may have been apprehending that in the event of examining such panch witnesses who is not supporting the prosecution case, he would be severely criticised for exposing such witness to such situation. The total atmosphere has to be 'proper' for the purpose of allowing concerned persons to take decisions boldly and to work boldly.
51. There has to be coordination between the prosecutors and the Investigating agency. Now a days seldom or say never the Investigating Officer is available to give appropriate instructions to the prosecutors while conducting trials from day one. On account of that, the prosecutor is left alone to take decision and the concerned persons are at liberty to make him the scape-goat. In this case, the performance of some of the officers of Investigating agency, Tehsildar and the prosecutor concerned disclose and urgent and serious need of appropriate training. We would be speaking about that in later portion of our judgment by sparing a separate paragraph for it.
52. It is pertinent to note here at this juncture that even Mouzud Mohd. (P.W. 9) has not totally disowned the prosecution case so far as his part in it was concerned. He has accepted that Ex. P-21 was bearing his signature. He also admitted that he was shown a purse which was kept on table with some rupees which were on the table and thereafter he signed on a piece of paper which he identified to be Ex. P-22. He also admitted that the purse Art. 'L' was the same. Thus, examining the evidence adduced by the prosecution on this point, we come to the conclusion that by the evidence of Investigating Officer Shri Samadhiya, the prosecution has proved that the chain Art, 'K' was seized from the possession of accused Ashish Batham and the same chain was identified by Dr. Mudgal before Tehsildar Shri Sharma. At this juncture, it is pertinent to note that Dr. Mudgal has stated in his evidence that he identified the said chain because he was knowing that Nidhi was wearing the said chain and a wire was used for repairing it. Shri Gupta pointed out that this identification mark has not been mentioned by Dr. Mudgal in the FIR or even in the supplementary statement and, therefore, the prosecution case suffers seriously on the point of test identification and on the point of proof of fact that the said chain was being used by Nidhi Mudgal prior to her death and it was stolen from her body after her death or during the assassination. We dismiss this submission because Dr. Mudgal has stated in his evidence very frankly that he did not mention about this in his FIR but in the supplementary statement. He state that he identified the said chain as the chain which was being used by Nidhi Mudgal. A person who is not conversant with legal requirements of test identification has been asked to identify the chain of his daughter who has been assassinated and that too before a person who lacks the training of holding the test identification, these things are bound to happen. What is to be seen is the sincereness and honesty of the prosecution to admit the important facets of the situation. Had there been the intention of prosecution to concoct, fabricated evidence, the things would have come in belter shape because every thing which is arranged, planned neatly comes in neat shape and does not accept to its exposure like one, which has been exhibited by the present aspect of the case.
53. Only Dr. Mudgal has been examined for this identification of the said chain and Mrs. Mudgal has not been examined. Same seems to be case of the feeling of the prosecutor that one witness is sufficient for proving a factum. There may be other reasons also like emotional reasons by which Mrs. Mudgal has not been examined as a prosecution witness. It may be the case that there may be lack of the training on the part of the concerned prosecutor and lack of co-ordination between the Investigating agency and the prosecutor. On that count alone the prosecution case cannot be thrown out totally but it will have to be assessed on the evidence of the witnesses whom the prosecution examined. If the evidence stands on its legs and on the point of satisfactory coming out of the test of truth, then prosecution stands exonerated though moving by risky path of dependency on testimony of solitary witness. We hold that the prosecution has proved that the golden chain which Nidhi Mudgal was wearing before her assassination was found in possession of accused Ashish Batham and, thus, they have proved a connection between Ashish Batham and the said chain and death of Nidhi Mudgal, the daughter of Dr. Ram Awatar Mudgal (P.W. 2).
54. Shri J.P. Gupta submitted in his argument that the evidence in respect of the discovery of the fact that blue jean stained with blood and a knife stained with human blood were recovered from a pit behind the bushes behind Hanuman Temple in pursuance of the information given by accused Ashish Batham, does not connect Ashish Batham with the death of either Nidhi or Priti Mudgal. He submitted that had that blue jean been on the person of the assailant at the time of committing assassination of Priti and Nidhi Mudgal, it would have been stained with blood on many portions of the pant because as the blood was found on the waits, the blood must have spurted out after the blows were given. He further pointed out that there were cut wounds, incised wounds, stab wounds on neck, chest, abdomen of Priti and on the neck of Nidhi Mudgal. It means, as submitted by Shri Gupta that blood must have come profusedly out and in that event the clothes which were on the person of the assassinator are bound to be profusedly blood stained or soaked with blood. He submitted that had that been so, Jai Prakash Mandloi (P.W. 5) was bound to notice it when according to him he saw Ashish Batham coming out of the residential quarter of Dr. Mudgal, Shri Verma submitted that Jai Prakash Mandloi might have been casual in approach and, therefore, might not have noticed the presence the blood stains on the said blue jean. He further submitted that accused Ashish Batham must have taken precautions to see that clothes should not get stained with blood. We find force in the submissions advanced on behalf of the submissions of Shri P. Verma. Jai Prakash Mandloi (P.W. 5) was busy in watering his newly constructed house and, therefore, he may not have been particular to observe whether there were blood stains on the blue jean, which accused Ashish Batham was wearing at that time. It is also important to note that jeans are made of such a cloth which shows many colour-shades either faded tinges or stony tinges or ash tinges. An aged person like Jai Prakash Mandloi may not be well conversant with all these aspects. He may have been casual also in seeing towards Ashish Batham. On many occasions what attracts is the face and appearance of the persons personality-wise and in such cases the minor details of the colours of the clothes worn or the tinges of the clothes worn or other things like spots are not noticed. At this juncture it is pertinent to note that a rubber hand-glove was found in the dental clinic room where Nidhi's dead-body was found. It means also that the person assassinating Nidhi and Priti might have used the said hand-glove in the hand which was used for giving blows on the person of Nidhi and Priti Mudgal. Therefore, it is possible that he might have taken the care of seeing the blood should not get more profusedly on his clothes. A person who chose to use hand-glove would be also expected to take precautions to see that he should be concealed from being detected.
55. This brings us to another aspect of the matter touching to this aspect and that is the scene created for showing that the house was burgled and the cash was stolen. It sounds to be an attempt of giving a misdirection to the investigation so as to prevent the culprit being caught who by the evidence adduced by the prosecution and which have been considered up to the stage touches accused Ashish Batham. It is pertinent to see as to how these two assassinations took place. Nidhi was found assassinated in the dental clinic room of Dr. Mudgal. She sustained ten injuries while Priti was found assassinated in latrine and she suffered 32 injuries. Nidhi was found wearing maxi. Priti was also found wearing maxi but material on record shows that she was with nicker upto the knee and her dead body was found in the latrine. The said rubber hand-glove was cut near the finger's portion. It means keeping in view the inference deducible from the circumstances which speak for themselves that when the press button of call-bell was pressed, as indicated by Punam Garg (P.W. 3), Nidhi opened the door. There might have been some conversation between Ashish Batham and Nidhi wherein he might have asked as to where Priti was. Nidhi might have told him that she was in toilet-latrine and might not have permitted Ashish Batham to go inside or it is also possible that Ashish Batham might have immediately rushed towards latrine for the purpose of getting hold of Priti. In that context, there must have been scuffle and by noticing that noise Priti must have thought it proper to get up from the latrine after completing the action of answering the nature's call. In that process, she must have been with nicker upto the knees. The photograph which has been produced by the prosecution shows that no night soil-excreta was found in commode. That indicates that she must have completed the act of call of nature and must have been in the process of opening the door on noticing the dash on door. It is also possible that the door might not have been latched from inside, there being only sister in the house. The frustrate lover must have entered with the feeling of revenge and feeling of teaching a lesson to once upon a time a companion loving one affectionate, dedicated but not standing up to the expectation of the love. For teaching a lesson to her for betrayal, he must have dealt with those blows which were seriously on the body of Priti on neck, on chest and abdomen.
56. Shri J.P. Gupta pointed out in the judgment in the matter of Regina v. Hodge [(1938) 2 Lewin 227] wherein Baron Alderson warned to the jury 'the mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that it wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete'. He reiterated it for the purpose of cautioning for not becoming ingenious in drawing the inference. But when the circumstances are self eloquent and heralding its existence and implications, significance and the directions, how a human reasonable mind should keep silence and refrain itself from drawing legitimate inferences blossoming out themselves, for the purpose of examining the evidence before it for finding out the truth. In case of direct evidence this exercise is not needed to such an extent but when the prosecution case is dependent totally on the circumstances, due weightage has to be given to self eloquent circumstances and its heralding and raising the pointer towards proper directions. Truth never surface all together and at-once. It exhibits its appearance piecemeal, and in a concealing way. The human brain has to draw appropriate conclusions for the purpose of finding out a true and whole picture of the truth and, therefore, the piecemeal surfacing the truth by the circumstances has to be properly gathered and has to be arranged in such a way which would project a neat, clean and decipherable picture. Therefore, all necessary inferences have to be drawn,
57. Apart from heat, when the accused happens to be also ingenious and happens to be from the strata of the cream of the society of intelligensia, the way in which he has committed the crime has to be also kept in mind and for that purpose the circumstances have to be properly calculated and legitimate and legal inferences are to be drawn for the purpose of finding out the proper direction for reaching the truth. Therefore, though such a note has to be taken, the intelligent exercise is not to be discarded because that is for the purpose of finding out the truth which is the mission of the Court which adjudicates the innocence or the guilt of the accused in a criminal trial.
58. Here it is pertinent to note that an attempt was deliberately made for misdirecting the direction of investigation by creating the scene of burglary. But the circumstances speak heralding their existence and true meaning which is to be exhibited by them. The finding of dead-body of Priti Mudgal in the latrine shows that she was caught in latrine and assaulted in the latrine. Who he could have been He must have been the person who was knowing that Priti was there at that time, the knowledge might have been acquired through talk with Nidhi. A common burglar would not have gone to the latrine and in that case Priti could not have been assassinated in the latrine itself. A common burglar would have been interested in looting from the cup-board and thereafter escaping in a concealed way so as to prevent himself from being caught or identified while committing the crime. He would not have gone to the latrine and would not have assassinated Priti Mudgal by inflicting several blows on her body. Presence of 32 wounds on the body of Priti Mudgal shows that it was an act of giving her lesson. The common burglar would not have done so when he was happy or satisfied by giving ten blows or causing ten injuries to Nidhi Mudgal. There has been a distinct difference between the injuries sustained by Nidhi and the injuries sustained by Priti Mudgal. This shatters the theory of burglary put forth by Shri Gupta in defence of accused and it also dispells the show created showing that it was a matter of burglary.
59. The fact that a knife stained with human blood, a blue jean stained with human blood were found concealed in a pit and were recovered in view of the information furnished willingly by accused Ashish Batham has its own role so far as his connection with the assassinations of Priti and Nidhi Mudgal is concerned. We would deal with the criticism levelled by Shri Gupta on the point of group of blood found on those two articles.
60. The accused has raised the defence of alibi. The prosecution also interrogated the witnesses connected with the alleged journey of accused Ashish Batham from Bhopal to Dahod (Gujarat). Saiyyad Wahid Uddin, the ticket collector at Dahod Railway Station was not examined by prosecution. He was not also examined by the defence. But defence reiterated in this Court also in the argument that those witnesses were the main witnesses who were proving the innocence of the accused. The accused did not pray to the Court that they be examined as Court witnesses in Trial Court though opportunity was available, they were not examined as defence witnesses though Purnima Kahar, his real sister, Taraben Soni, the co-tenant of the house of Purnima Kahar were examined as defence witnesses in the defence by Ashish Batham. Shri Gupta placed reliance on the judgment of Sheoprashad and Ors. v. Emperor, reported in Vol. 39 Cr.LJ 1938 Page 917, for the purpose of canvassing his submission that when some documents are produced by the prosecution but witnesses proving them, have not been examined, the accused can taken benefit of those documents and may refer to them in his defence. That case is not applicable to the present case because it happens to be dealing with the FIR and that point has been considered by the Division Bench of Nagpur High Court in the part of the discussion. Shri Gupta has also placed reliance on the judgment of Single Bench of this Court in the matter of Bharat s/o Rajaram v. State of M.P., reported in 1992 Cr.LR (MP) 72. It is of no relevance to this case because that was in context with the prosecution connected with offence of rape. He placed reliance on another judgment of Single Bench of this Court in the matter of Shatrughan Gond v. State of M.P., reported in the same Reporter at Page 83 Paragraph 10, That also pertains to gang-rape case, citing of all these judgments do not assume any importance except consuming the time of the Court. But that speaks against the accused otherwise as indicated by the Supreme Court in the matter of Anant Chintaman Lagu v. The State of Bombay, reported in AIR 1960 SC 500. That was also in respect of a murder case and the prosecution was depending on the circumstantial evidence brought forth for proving the guilt of accused Dr. Anant Lagu. In that case Dr. Lagu had fabricated false evidence for the purpose of proving that a woman name Indumati Ponkshe was admitted in G.T. Hospital Bombay and was treated there by Dr. Ugale, Dr. Mouskar, Dr. Miss Aneeja and Dr. Variava. In that case the said woman had travelled in a passenger train from Pune to Bombay in a separate compartment and Dr. Lagu was also travelling by the same train but shown to have travelled by different compartment though Dr. Lagu was a family medical practitioner treating Indumati Ponkshe, a widow who died and for murder of that lady Dr. Lagu was facing the said trial and was convicted. Though Dr. Lagu was staying in the main room of her apartment, he showed that he did not travel by the compartment where said Laxmi Karve was found unconscious and was taken to the G.T. Hospital where she died. In that case said Dr. Lagu fabricated the evidence to show that said Indumati Ponkshe - Laxmi Karve sent letter to her relatives informing them that she had married a person during her pilgrimage and, therefore, her whereabouts should not be traced. In that case, though Dr. Lagu had sought the appointment from Dr. Sathe for examining Laxmibai Karve. He denied to have done it. In that case, though Dr. Lagu was the person who admitted Laxmibai Karve in G.T. Hospital, disowned that and though a telegram was sent by Dr. Mouskar to remove the dead-body, Dr. Lagu did not do anything and disowned the dead-body. The intention behind that was that the dead-body be handed over to the students of Medical College for dissection as unclaimed dead-body. The falsity of creation of such evidence for preventing from he being caught in the investigation and for destroying the investigation, such methods were used by Dr. Lagu. The Court gave due importance to such circumstance and other circumstances which are not necessary to be maintained here in this case. That case is relevant to the judgment of this case because in this case also Ashish Batham has disowned his love affair with Priti Mudgal when he was answering the questions put to him in his examination in view of provisions of Section 313 of the Code. He fabricated the evidence for showing his journey from Bhopal to Dahod on 7-4-99, made hue and cry for non-examination of Saiyyad Wahid Uddin, the ticket collector of Dahod Railway Station but not examined such witnesses though the opportunity was available to him. such act of accused Ashish Batham shows that the said defence was created for the purpose of proving his alibi or misdirecting the investigation by creating as a scene of burglary at the residential quarter of Dr. Mudgal. Not only that, but a leave application was left in Bhopal office for showing that he was on leave on 7-4-99 and 8-4-99. The record is also available in the present case to show that on 7-4-99 at 11.00 a.m. there is entry to show the arrival of accused Ashish Batham in the office but thereafter there is no entry in electronic system to show his departure from the office. All these things have been arranged so as to misdirect the investigation or to create the defence of alibi. Here his ingenious brain has acted for fabricating false evidence in his defence. For the purpose of drawing of appropriate inferences in respect of such activities of ingenious brain, ingenious brain will have to work for adducing the evidence and for drawing appropriate inferences by interpreting the circumstances appropriately. There is nothing wrong in it for the purpose of finding out the truth for adjudication of innocence or the guilt of the accused.
61. Shri Gupta placed reliance on the judgment of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC1622, wherein the Supreme Court has indicated the guidance to the Courts for dealing with the cases depending on the circumstantial evidence. The Supreme Court laid down the rules of guidance 'before a false explanation can be used as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved; (2) the said circumstances point to the guilt of the accused with reasonable definiteness; and (3) the circumstance is in proximity to the time and situation. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend and assurance to the Court and not otherwise'.
62. In the said judgment Supreme Court laid down the guideline for dealing with the case dependent on circumstantial evidence '(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) 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'.
63. It also laid down that it is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.
64. We are aware of the necessary requisite evidence for basing the conviction. If there is any hypothesis present indicating towards the innocence of the accused, the accused is entitled to get the benefit of that and is entitled to get the acquittal on benefit of doubt. However, it is pertinent to note that it is also well accepted principle of law that the witnesses may tell lie, but circumstances do not. At this juncture it is important to note the observations of the Supreme Court in the matter of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra, reported in AIR 1973 SC 2622, wherein the Supreme Court dealt with the variances on the fringes and casualness of the rustic villagers as well as city dwellers. The Supreme Court pointed out that the Court can base the conviction on solitary evidence of a witness examined by the prosecution.
65. In Shivaji Bobade's case (supra), the Supreme Court held that where the witnesses to a criminal case are rustics, their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses the Court has to inform itself that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.
66. In the same case, the Supreme Court further held that the Court which has seen the witnesses depose, has a great advantage over the Appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the Trial Judge of observing the demeanour and delivery, of reading the straight forwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity, of persons who swear to the facts before him. Nevertheless, where a judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the Court of appeal is in as good as position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can a fetish be made of the Trial Judge's psychic in sight.
67. In the same judgment, the Supreme Court further held that the sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reasons to observe and remember the hour of minor event like taking a morning meal existed. Too much play on such slippery facts goes against realism so essential in a testimonial appraisal.
68. Shajapur city is a grown up town and no more sophisticated as a city normally indicates. It is a big village which has started growing as town. It is a District place but still not away from the country side habits about which the Supreme Court has said in Shivaji Bobade's case (supra). Therefore, the witness who deposed to in this case or from such area which cannot be said to be away from such sluggish, notorious habits of casualness and slippery habits of telling the time and other things in minute details as sophisticated big city dwellers or even on some occasions do not do. What is essential is the core of testimony delivered. If it inspires the confidence, assurance of veracity, discrepancies on unimportant details is to be ignored, and core of evidence is to be accepted as coming out satisfactorily after being tested on anvil of truth. If the core inspires the confidence, the Court has to base its conclusions on it. Therefore, though serious criticism has been made by Shri Gupta on behalf of the defence pointing out the contradictions on fringes, casualness in approach and omissions in minor details, they do not wash out the credibility of prosecution evidence adduced for proving the guilt of accused Ashish Batham. We accept it but before endorsing finally the approval of finding of Trial Court appreciate defence evidence.
69. It takes us to the defence evidence which has been adduced by accused Ashish Batham for proving his alibi. Ashish Batham has examined his sister Purnima Kahar who stated in her evidence that on 7-4-99 she did travel with her brother Ashish Batham from Bhopal to Dahod (Gujarat) and Ashish Batham was at Dahod till afternoon say about 4.00 p.m. or so and thereafter left Dahod for Bhopal. Purnima Kahar stated that she was not able to remember the reservation ticket number. One could have condone her on this point but she stated that she had noted down the said ticket reservation number in her diary. What was the need for noting it in the diary Was it not the part of fabrication of false evidence because normally one does not mention such number in the diary. Even taking a case that she was in habit of taking notes in the diary, that diary should have been produced in the Court which would have definitely rendered a strong corroboration to her evidence. The said diary would have shown that other such numbers were also noted in it regularly in normal life of Purnima Kahar. Co-tenant of the same building where Purnima Kahar was staying at Dahod at the relevant time happens to be Taraben Soni. She also stated in her evidence that in the morning of 8-4-99 she did see Ashish batham present in the said building where both Purnima Kahar and Taraben Soni were residing as tenants. She pointed out that Ashish Batham had left the door of the latrine opened and therefore, she had called him and asked him to close the door of latrine. Her evidence also indicates that Ashish Batham was present in the said building at Dahod till the afternoon of 8-4-99. It means that he was not present at Shajapur in the early morning of 8-4-99 between 6.15 a.m. to 7.30 a.m., when as per prosecution case both Priti Mudgal and Nidhi Mudgal were assassinated. Purnima Kahar did not say anything about the proposal of marriage between Ashish Batham and Priti Mudgal which was spoken through the mouth of their father Hari Narayan Batham, though she did speak that the love affair between them was going on. She refused to give the information on another important facets of the case on which she should have had normally the knowledge. Her attitude is to keep the ignorance on the other facets of the case and to go on pleading that Ashish Batham was present at her house at Dahod on 8-4-99. Same is the attitude of Taraben Soni. Taraben Soni was remembering the date on which Ashish batham was seen by her at Purnima Kahar's house at Dahod. She could remember the date of Ashish Batham's alleged presence at Dahod but she was not able to remember the date of an important festival day like Dashehra which is significantly celebrated in Gujarat. She expressed her ignorance on other such festival days so far as the dates are concerned. Normally a lady who could remember the date of such sort of alleged visit of Ashish Batham at Dahod and an opportunity of seeing him for solitary view, should remember about other important incidents of day to day life. There attitude is 'suppresio vesisugestio false'.
70. Though these two witnesses were examined by accused Ashish Batham in his defence he did not examine the said TTI who travelled along with him in the said alleged journey and drank tea with him in the train. He did not examine the Ticket Collector Saiyyad Wahid Uddin of Dahod Railway Station for supporting the evidence of Purnima Kahar and Taraben Soni. These two persons were important witnesses even per submissions advanced by Shri Gupta for the accused. When that was so it is very strange as to why they were not sought to be examined as Court witnesses by Ashish Batham and were not examined as defence witnesses when Purnima Kahar and Taraben Soni could be examined so. The summons could have been prayed for securing their presence for examining them as defence witnesses but even then that was also not done. Therefore, in presence of the evidence of above mentioned prosecution witnesses which is sufficient enough to prove the case of the prosecution beyond reasonable doubt, this Court has no alternative but to endorse the finding of the Trial Court which dismissed the defence evidence. The defence evidence so brought on record deserves to be dismissed and it has been rightly dismissed by Trial Court.
71. The fabrication of false evidence for showing the defence or creation of the scene for misdirecting the investigation will have to be given appropriate treatment while finding out the assurance to the conclusions deduced from the circumstantial evidence brought forth in this case.
72. As pointed out in above paragraphs in discussion, we have tested each and every relevant piece of evidence brought forth by the prosecution for proving every circumstance. After scrutinising we have confirmed the finding of fact of the learned Sessions Judge who had the advantage of observing the demeanour of the witnesses, who tendered the evidence before him and testified on oath. We have come to the conclusion that the prosecution has proved every essential link by establishing it beyond reasonable doubt. The evidence which has been adduced in this case is establishing a link between circumstances so brought forth through the evidence of witnesses. The said chain is forming a strong cordon which is excluding any hypothesis pointing out the innocence of the accused Ashish Batham. Further more, the assurance spelt has been tendered by the false evidence created by accused Ashish Batham for establishing his defence of alibi and misdirecting the investigation. The falsity of the defence suggested, answers given in the examination under Section 313 of the Code show a support of assurance to the inferences which are to be drawn by taking into consideration this strong cordon of circumstantial evidence linked together.
73. The way in which Priti and Nidhi Mudgal have been assaulted leave no doubt that the accused Ashish Batham had no other intention but to commit their murders because the injuries caused are so dangerous that by their appearance itself, they show that they are sufficient to cause the death of human being in the ordinary course of nature. The cut wounds on the neck of Priti Mudgal, stabs on the chest and abdomen are by themselves so dangerous that they would cause the death of human being in the ordinary course of nature. The way in which Nidhi Mudgal has been assaulted in dental clinic room and Priti Mudgal has been assaulted in latrine show that she was sought, assaulted and murdered. It reflects by itself that it was nothing but the act of a frustrated lover whose father had offered the offer of marriage but was refused by the father of Priti and Nidhi Mudgal and whose name was cited as defence witness but was not examined in defence for the reasons best known to the accused.
74. The learned Trial Judge has assessed every facet of the prosecution case and has reached to the conclusions which are consistent with the evidence on record though he may not have been able to express it in proper way. We find that the conclusions drawn by him recording the guilt of accused Ashish Batham are proper, correct and consistent with the evidence on record. His way of appreciation is legal and consistent with principles of appreciation of evidence. Therefore, we endorse which confirmation his judgment of holding accused Ashish Batham guilty of offences punishable under Section 449 of IPC for committing the house trespass with intent to commit the offences like murders. We endorse with confirmation his finding holding accused Ashish Batham guilty of murders of Priti and Nidhi Mudgal separately and for offence punishable under Section 302, IPC simpliciter respectively and separately.
75. Thus, after recording our finding of confirmation of guilt of accused Ashish Batham recorded by the Sessions Judge, we come to the point of sentence.
76. Shri J.P. Gupta submitted that if proved the act of the accused is an act of a frustrated lover and, therefore, the capital sentence is totally not called for. He cited the judgment of the Supreme Court in Ronny alias Ronald James Alwaris etc. v. State of Maharashtra, reported in AIR 1998 SC 1251, where the Supreme Court reduced the capital sentence inflicted on accused Ronny and his two associates by Sessions Court which was confirmed by the Bombay High Court to imprisonment for life though it was a tripple murder case. He also placed reliance on the judgment of the Division Bench of this Court in the matter of State of M.P. v. Samamsingh, reported in 2000(3) M.P.H.T.311 = 2000(1) MPLJ 515, wherein the Division Bench of this Court reduced the capital sentence of Sarnamsingh and two others to sentence of imprisonment for life. He submitted that the accused is a young boy who happens to be an engineer with no criminal background and, therefore, the act of frustrated lover should not be punished with capital sentence. After hearing the accused on the point of sentence, we heard Shri Prakash Verma, Dy. G.A., appearing for the prosecution in the interest of justice on the point of sentence. Shri Verma placed reliance on the judgment of the Supreme Court in the matter of Macchi Singh v. State of Punjab, reported in AIR 1983 SC 957; Munawar Harun Shah v. State of Maharashtra, reported in 1983 Cr.LJ 971; and Shankaria v. State of Rajasthan, reported in AIR 1978 SC 1248.
77. In the interest of justice we have considered the ratio of the judgments of the Supreme Court in other cases also (a) Vemireddy Satyanarayan Reddy and Anr. v. State of Hyderabad, AIR 1956 SC 379; (b) Vadivelu Thever v. The State of Madras, AIR 1957 SC 614; (c) Rajendra Prasad v. The State of U.P, AIR 1979 SC 916; (d) Kannan and Ors. v. State of T.N., AIR 1989 SC 396; and (e) Om Prakash v. State offfaryana, 1999 SCC (Cr.) 34.
78. In the matter of Shankaria (supra) the Supreme Court had found that the accused had committed the crime in most brutal way. The victims were taken away when they were asleep. Two of them were blind persons. His Neronian conduct even after the occurrence in languishing in the stricken premises, looking for something to cat in the kitchen, drinking water, smoking bidis, bringing water and bathing himself, mindless of the spectre of the slain and the groans and gasps of the dying, betrayed an extreme depravity of character. The risly and grueless and helpless state of the victims, the fiendish, modus operandi of the appellant to first kill and then steal all, steal the heart of law to call for its extreme penalty.
79. Kannan's case (supra) and Ronny's case (supra) indicate the lesser punishment inflicted on the accused who was held guilty of the murders. In Kantian's case the sentence of hanging was modified to a term of sentence for imprisonment for life. In Ronny's case (supra) also though there were three murders, the capital sentence was reduced to the sentence of imprisonment for life. Shankaria's case (supra), Macchi Singh's case (supra) and Munawar Harun Shah's case (supra) arc different from the present one. In Shankaria's case the conduct of accused was different as indicated in the above paragraph. In Macchi Singh's case the Supreme court indicated that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. The Supreme Court further indicated before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be in altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment tor life cannot be conscientiously exercised having regard to the nature and circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In Sarnam Singh's case though seven murders were committed by those accused and the Division Bench of this Court found that in that case deep rooted insult and hurt ego flared and the episode took place.
80. This case is not a case wherein a boy was killing the human beings as flies for fun. Here also deep rooted feeling of insult and hurt ego were in existence. This accused submitted an offer for marriage but was refused by the father of the desired bride on the ground that accused Ashish Batham was not a Brahmin to which the family of Priti and Nidhi Mudgal belonged. When he came forward to marry Priti Mudgal with whom he had love affair, he was thrown out with the refusal as if he was snubbed on face with insult. He talked on telephone for 84 minutes is eloquent here. It shows indirectly that there was an attempt to convince or to get the explanation of betrayal in love. Though accused Ashish Batham created the scene of burglary and created the documents or material to show his alibi all that was within the domain of the acts of frustrated lover who was not rewarded with the marriage with one whom he loved and wanted to marry. His love was rejected on the ground of caste and was rewarded with not the marriage but the insult. The injuries caused on the body of deceased Priti Mudgal were though 32 in number, that shows that the accused had lost the control over his brain faculties which was the result of deep rooted of insult and hurt ego and betrayal in love. Therefore, obviously it is not a case which can be called as 'rarest of rare' or it was not a case of the person killing the victims with coolness of mind and languishing in the premises cooly unmindful of the act committed by him. On the contrary after committing the murders of both Priti and Nidhi Mudgal accused Ashish Batham had walked out of the said house. It is not a case which depicts the horrendous character, irreparable deprivity and chronic propensity. It is a case where life needs to be salvaged keeping in view the balance-sheet of the circumstances drawn for adjudicating the nature of the acts committed by the present accused Ashish Batham.
81. Therefore, summing up all, we come to the conclusion that the death sentence is not at all called for in this case. The learned Trial Judge committed the error in misdirecting himself in not acquainting himself with proper approach of visualising the circumstances echoed by the proof adduced against this accused qua those two murders of Priti and Nidhi Mudgal. The Court cannot permit itself to be susceptible to omissions and to loose the sight of the real facet exposed by the evidence adduced by the prosecution in this case. Thus, we do not confirm the sentence of death by hanging by neck till death inflicted on accused Ashish Batham by learned Sessions Judge, Shajapur.
82. Thus, we answer the reference by upholding the conviction recorded by the Sessions Judge, Shajapur, against accused Ashish Batham s/o Hari Narayan Batham for offences indicated by him. We uphold his convictions recorded by the Sessions Judge, Shajapur, separately for the murders of Priti Mudgal and Nidhi Mudgal qua Section 302 of IPC - simpliciter respectively. We allow the criminal appeal filed by accused Ashish Batham so far as the sentence inflicted on him is concerned. We dismiss his appeal so far as challenge to his conviction recorded by the learned Sessions Judge, Shajapur is concerned. We declare that his sentence of death by hanging by neck till death stands modified and reduced to the sentence of imprisonment for life by maintaining his convictions for offence under Sections 449 and 302 of IPC simpliciter (separately for murders of Priti and Nidhi Mudgal). The substantive sentences are directed to run concurrently.
83. This case makes us to write a separate paragraph without blaming the persons conducting the investigation and prosecution. This case has exhi bited lack of training on the part of police officers engaged in investigation of the crime and allied sides of it. Tehsildar and prosecutor also lacked training. They have to be well conversant to up to date training in their respective branches. Experts, Tehsildars and prosecutors need to be trained with modern dimensions of investigations and proper and legal methods of conducting the trials. There has to be coordination between all these wings responsible for putting a proper case on behalf of the prosecution in the interest of people at large, before the Courts. If they are not properly trained the persons who are to suffer are innocent victims of the crimes and their relatives who would be left with nothing but to seek solace to their injured minds on account of the omissions in investigation and trial. Lack of training would give indirectly momentum of increasing crimes and increasing criminality at the cost of innocent victims and their relatives who would be deprived of the redress which they are entitled to have in respect of their injured hearts and minds. They would be robbed of opportunity of being solaced for their injured minds on account of commission of crimes and omissions in bringing the offender before law. Fortunately, this case escapes from such acts of omissions untrained persons connected with investigation of present crime and resultant prosecution.
84. Copy of this judgment and order be sent to the Sessions Judge, Shajapur, who decided this case and Special Judge, Shajapur, for information.