Hon'ble Judges/Coram:
D.A. Desai and Ranganath Misra

JUDGMENT

D.A. Desai, J.

1. Respondent M.K. Anothony 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 afore-mentioned 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 Section 366 of the CrPC, 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 genealogical 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, PW. 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 PW-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 installments 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 out the wife of the respondent but........