Judgment

DESAI, J. :- Respondent M. K. Anthony was prosecuted for having committed murder of his wife Smt. Anna Kutti and his two children - a son Sajji aged 6 years and a daughter Rita aged 4 years during the night between February 26 and 27, 1973. Learned Sessions Judge, Jhansi convicted him for having committed murder of the aforementioned three persons and awarded him maximum penalty under the law. An appeal preferred by the respondent. with the reference made by the learned Sessions Judge under Sec. 366 of the Code of Criminal-Procedure, 1973 for confirmation of the sentence came up before a division bench of the Allahabad High Court. The High Court gave the respondent the benefit of doubt and acquitted him. Hence this appeal by special leave.

2. Prosecution case briefly stated is that the respondent, a resident of Kerala, was serving as a clerk in the Cash Office of the Central Railway at Jhansi. At the relevant time he was staying with his wife deceased. Anna Kutty and two children deceased Sajji and deceased Rita at Jhansi in a. quarter of R. P. F. in Laxminagar. Smt. Anna Kutty was admitted in the hospital popularly known as German Hospital for some gynaecological disorder. A surgical operation was performed on February 22, 1973. When Smt. Anna Kutty was confined in the hospital the respondent had left his two minor children with one V., S. Radhakrishnan Nair, P.W. 1. The minor operation performed on Smt. Anna Kutty revealed that she had a tumor in the uterus and a major operation which may Cost around Rs. 600/- was considered necessary. After consulting P.W. 1 - Nair it was decided that Smt. Anna Kutty be taken to Kerala for arranging the major operation. Respondent had to pay the hospital Rs. 206/- in all. As the accused did not have the necessary cash he requested PW-1 Nair to advance a loan but as Nair was not in a position to do so, at his instance Shri Krishana Tiwari PW 14 on February 26, 1973 advanced a loan of Rs. 206/- in two instalments to the respondent. When Smt. Anna Kutty was being brought home from the hospital, on the way the respondent picked up his two children from the house of Nair and requested Sh. Nair to send his wife to the house of the respondent to look after his ailing wife and for preparing food for the children. Accordingly, on February 27, 1973 around 10 A.M. Nair went with his wife and the children to the house of the respondent. He knocked on the door of the quarter in occupation of the respondent but there was no response. Wife of Sh. Nair called Put the wife of the respondent but received no response. On pushing the door it was found to be bolted from inside. There was a window by the slide of the door covered with a. screen. On pushing aside the screen Nair and his wife were struck with horror by the scene as they found Smt. Anna Kutty and the two children of the respondent lying on the ground and - their Clothes soiled with, blood. As the wife of. Nair was shocked At the site she was taken to her house. and Nair rushed to the office where the respondent was serving and told him what he had seen. One Prabhakar Malyali, a friend of the respondent and a colleague in his office was summoned and he was asked to arrange for ambulance. One Sh. V. M. Phillips PW 12 also a common friend of Nair and the respondent met them on the way and he also accompained Nair and the respondent to his house. The respondent on reaching his house peeped from the window and started raising screems. In the meantime Phillips. PW 12 went toward the back door and found the three back doors of the house closed but not bolted., Phillips entered the house and opened the latch of the front door. In the meantime Prabhakar Malyali accompanied by the railway doctor arrived with an ambulance. The railway doctor examined Smt. Anna Kutty and the two children of the respondent and declared that they were dead. He also found that there was a cut on the neck of each of the victims. The railway doctor asked Nair to immediately