In cases based on circumstantial evidence, the burden of proof is on the accused to provide a plausible explanation for the incriminating circumstances.

JUDGMENT :

B.K. SHRIVASTAVA, J.

1. This criminal appeal has been filed on 16-1-2008 under section 374(2) of Criminal Procedure Code against the judgment dated 18-12-2007 passed by the Sessions Judge, Raisen in Sessions Trial No. 49/2007. By the impugned judgment, the learned lower Court convicted appellant for the offence under section 302 (double count) of Indian Penal Code and sentenced to life imprisonment with a fine of Rs. 1000/- for each with default stipulation.

2. As per prosecution case, Kala Bai (PW-4) is the wife of accused. They were married about 19 years back. Two sons namely Dinesh and Nilesh were born out of their wedlock. The accused was having some doubt upon the character of his wife Kala Bai, therefore, they used to quarrel with each other. Because of frequent quarrel, Kala Bai started living separately in Village Udaypura, whereas the appellant was residing in the Village Noniabareli. Sometimes the appellant used to take both the children for few days. The accused brought his children to his home 4 to 5 days back from the date of incident i.e. 30-5-2004. On 25-5-2004 Kala Bai went to the house of the appellant for taking the children back. At that time, the accused asked her to come in the morning. On the next day i.e. 26-5-2004 when Kala Bai went to the house of the appellant, she found that the house was locked. Bateshi Bai mother of Kala Bai who was residing in the neighbourhood of the appellant, noticed on 30-5-2004 that foul smell is coming out from the house of appellant. Bateshi Bai pushed the door and went inside the house where she found that the dead bodies of both children covered by Rajai. She informed Chokidar Meharban Singh who lodged the FIR to the police.

3. Ganesh Prasad Tiwari (PW-10) registered the Marg No. 23/2004 Ex.P-1 and Ex.P-14 Marg No. 24/2004. Upon the information given by the Chokidar, he reached on the spot and prepared spot map Ex.P-2. Thereafter, he issued the notices Ex.P-3 and P-4 to the witnesses. In the presence of witnesses, he prepared the inquest Panchnama Ex.P-5 and P-6. Thereafter, dead bodies were sent for post-mortem with the applications Ex.P-15 and P-16. Dr. K.K. Silvat (PW-8) conducted the post-mortem and gave post-mortem reports Ex. P-11 and P-12 and the detailed Post-mortem reports Ex P-9 and P-10.

4. Bhartendu Sharma (PW-11) registered the Crime No. 135/2004 on 2-6- 2004 upon the basis of inquiry reports of Marg Nos. 23/2004 and 24/2004. Thereafter, police recorded the statements of various witnesses and came to the conclusion that the accused himself committed the murder of his both sons aged about 11 and 8 years.

5. After investigation, the police filed the challan No. 255/04 under section 302 of Indian Penal Code against the accused before the JMFC Udaypura, District Raisen. On 29-12-2004 the Magistrate registered Case No. 439/2004. The accused was absconded, therefore, the Magistrate issued the arrest warrant. On 6-5-2005, the Magistrate declared the accused as absconded accused. When the accused arrested, the Court called original case form the record room on 12-1-2007. On the said date, the accused was not produced. On 8-2-2007, the Magistrate committed the case to the Court of Sessions.

6. On 22-2-2007, the Sessions Judge, Raisen registered the ST No. 49/2007. Thereafter, on 25-4-2007, the Court provided advocate from legal aid to the accused. On 14-6-2007 the Court framed charges under section 302 of Indian Penal Code against the accused.

7. The accused denied the charges and demanded for trial. Thereafter, the prosecution examined as many as 11 witnesses in support of its case. Accused did not produce any witness in his defence and thereafter, the trial court passed the impugned judgment on 18-12-2007 and convicted the accused for the offence under section 302 (double count) of Indian Penal Code and passed the sentence as stated in para-1 of this judgment.

8. It is submitted by the appellant that the trial court did not appreciate the evidence properly. The e