ORDER

The appellant has filed the present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 against thejudgment of conviction and sentence dated 02.12.2011 passed by the -2- First Additional Sessions Judge, Dhar in Sessions Trial No.239/2011, whereby he has been convicted under Section 302 of the Indian Penal Code on two counts and sentenced to undergo Life Imprisonment along with fine of Rs.500/- with default stipulations for commission of murder of his wife – Basanti Bai and daughter – Ranjana.

02.As per prosecution story, on 03.05.2011 near about 4:00 am, Shivani (daughter of present appellant) aged about 10 years along with Kalu (P.W-1) went to Police Station – Dhamnod and lodged a report that she along with her mother and present appellant went to sleep after taking the dinner. In the night, his father started shouting on his mother and thereafter, he poured kerosene upon her mother and sister Ranjana from black colour cane and blazed them by way of matchstick. Her mother and sister burnt alive. The appellant told her not to tell anyone about the incident, thereafter, he ran away.

03. Suresh Singh Jadaun (P.W-8), Assistant Sub Inspector, PoliceStation – Dhamnod registered an F.I.R. At Crime No.187/2011 (Ex-P/2). He went to the spot and prepared a spot map vide Ex-P/10. Lash Panchayatnama of both the deceased were prepared vide Ex-P/13. Thereafter, the dead bodies of the deceased were sent for postmortem.

Dr. Ashok Saxena (P.W-9) conducted the postmortem and found both the death due to 100% burning and from its complications. He submitted the reports Ex-P/19 & Ex-P/20 to that effect.

04.On 03.05.2011, Sunil Jolly (P.W-10), Station House Officer, Police Station – Dhamnod arrested the present appellant and recorded his memorandum statement under Section 27 of the Indian Evidence Act, 1872 (Ex-P/5) and upon his disclosure, a five litre kerosene oil cane, pant and shirt were seized vide Ex-P/6. Viscera of both the deceased was sent to Forensic Science Laboratory, Rao for chemical -3- examination, from where report Ex-P/24 was received. On 25.05.2011, five litre cane, pant, shirt, half burnt matchstick, plane soil and soil containing kerosene were sent to Forensic Science Laboratory, Sagar vide Ex-P/22, from where report (Ex-P/23) was received. Upon completion of investigation, charge-sheet was filed under Section 302 of the IPC against the present appellant. Thereafter, the trial wascommitted to the Sessions Court on 04.07.2011. Charges were framed against the present appellant, which he denied and pleaded for trial. The prosecution examined 12 witnesses and exhibited 24 documents. In defence, the appellant did not examine any witness and pleaded false implication at the instance of police. After appreciating the evidence that came on record, the present appellant has been convicted for the aforementioned offence.

05. Learned counsel for the appellant submits that entire conviction is based on the testimony of sole eye-witness Shivani (P.W-2) aged about 8 – 9 years, who came to the Court along with his maternal uncle.

Learned counsel further submits that she was taken to the police stationby his father, i.e. present appellant, therefore, she is unreliable. As per the case of the prosecution, she went to the police along with Kalu (P.W-1). Apart from P.W-2, no one witnessed the present appellant committing the crime. Learned counsel further submits that even if entire prosecution story is believed as it is, the present appellant is liable to be convicted under Section 304 Part – II of the IPC in place of Section 302 of the IPC because the said incident occurred all of a sudden out of anger and there was no previous enmity between them. He is in jail since last 10 years. Hence, the period of custody be reduced to the period already undergone by the present appellant.

06. Learned Government Advocate for the respondent / State -4-