Allahabad High Court
Sunil vs State Of U.P. on 23 May, 2008
Author: Vijay Kumar Verma
Bench: Vijay Kumar Verma
JUDGMENT Vijay Kumar Verma, J.
1. Challenge in these appeals is to the judgment and order dated 04.04.2007 passed by Sri S.P. Singh, the then Addl. Sessions Judge, Court No. 1, Etawah in S.T. No. 424 of 2000 (State v. Guddu @ Suresh Pal Singh and Anr.), whereby the appellant-accused Sunil has been convicted and sentenced to death under Section 302 read with Section 34 of the Indian Penal Code (in short 'the I.P.C.') and fine of Rs. 500/- under Section 429 read with Section 34 IPC.
2. Capital sentence reference in terms of Section 366 of the Code of Criminal Procedure (in short "the Cr. P. C.") has been sent by the Trial Court for confirmation of death sentence.
3. In a very sensational incident which occurred in the intervening night of 2/3-09.2000 in Mohallah Vijay Nagar, Etawah, murders of four persons, namely Sri Ran Veer Singh Sengar Advocate, his wife Smt. Shashi Prabha and their two Advocate daughters Smt. Indu and Km. Beena, were committed.
4. The appellant-accused Sunil and co-accused Guddu @ Suresh Pal Singh, husband of the deceased Smt. Indu, were put on trial. During pendency of the trial, murder of the co-accused Guddu @ Suresh Pal Singh was committed and hence the case was abated against him vide trial court's order dated 19.04.2003.
5. The deceased Sri Ran Veer Singh Sengar was a practicing lawyer in Etawah. He had only three daughters, out of whom the deceased Smt. Indu was married to the co-accused Guddu @ Suresh Pal Singh. Deceased Km. Beena and surviving daughter Km. Rekha Sengar (P.W.2) were unmarried. Since before the incident, Km. Rekha Sengar was living in Gautam Nagar, South Extension, New Delhi in a rented house bearing No. 216, in which telephone No. 6853693 was installed in the name of her landlord. In the fateful night also Km. Rekha Sengar was in Delhi on the aforesaid address.
6. The case of the prosecution as appearing from the First Information Report Ext. Ka 16, lodged by Km. Rekha Sengar (P.W.2) at P.S. Civil Lines Etawah, on 03.09.2000, in brief, is that on 02.09.2000 at about 11.00-11.30 p.m. in the night, Smt. Shashi Prabha, mother of Km. Rekha Sengar made a telephone call to her in Delhi and told her that her brother-in-law (Jeeja) Guddu and his friend have come to the house and they are demanding Rs. 50,000/- from her father and when her father declined to give money, they are becoming very angry. It was also told by the mother of Km. Rekha Sengar that these persons had come about ten days ago also and at that time also they had demanded money and when the money was not given to them, they had gone away in the night itself showing annoyance. On getting this news, when Km. Rekha Sengar talked to her brother-in-law Suresh Pal Singh @ Guddu on telephone, he told her that he is in great need of money and if rupees were not given to him, he can do anything. Km. Rekha Sengar tried to passify her brother-in-law, but he made irrelevant talks and cut the telephone. After some time Km. Rekha Sengar made a telephone call at her house in Etawah, but there was no response. She again tried to have talks on the telephone from Delhi at her house in the morning at about 5.00 a.m., but again there was no response. On this, Km. Rekha Sengar departed from Delhi immediately to her house by taxi and when she reached in front of her house, she saw the huge gathering of people there. She immediately came to understood that his brother-in-law Guddu and his friend have committed some mishappening with her family. When she entered into the house, she saw that the dead body of her mother was lying in a room. The dead body of her sister Smt. Indu was also lying in another room. When she went to first floor of the house, she found that the dead bodies of her father and sister Beena were lying inside the room. The dead body of the bitch was also found lying near the dead body of her mother in the room of ground floor. It is further alleged by Km. Rekha Sengar in the FIR that murders of her father, mother, sisters and bitch have been committed in the night by her brother-in-law (Jeeja) Guddu and his friend.
7. After seeing the dead bodies, Km. Rekha Sengar got the written report Ext. Ka 7 scribed from Shri Ravindra Singh Chauhan (P.W.3) and handed over the same at P.S. Civil Lines, Etawah, where the then head- moharrir Mahendra Pal Singh (P.W.8) prepared chik FIR Ext. Ka 16 and registered a case under Section 302 and 429 IPC at Crime No. 296/2000 on 03.09.2000 at 12.45 p.m. against Guddu, brother-in-law (Jeeja) of the complainant and his unknown friend. Entry regarding registration of the case was made in G.D. NO. 21 vide G.D. extract Ext. Ka 17.
8. P.W.7 S.I. Ran Veer Singh was posted as Station Officer at P.S. Civil Lines, Etawah. At about 8.00 a.m. on 03.09.2000, constable Namwar Singh informed him that huge gathering of people is present in-front of the house of Sri Ran Veer Singh Sengar Advocate in Mohallah Vijay Nagar and the people are talking about some untoward incident. When on getting this information, S.I. Ran Veer Singh along with police force with a view to control the law and order situation reached the house of Sri Ranveer Singh Sengar, he came to know that murders of Sri Ranveer Singh Sengar, his wife and two daughters as well as the dog have been committed.
9. The first information report was lodged in presence of S.I. Ranveer Singh. He himself took up the investigation and after recording the statements of Km. Rekha Sengar and Balvir Singh, he again went to the place of incident and after collecting blood stained and simple cement plaster and piece of bed-sheet, fard Ext. Ka 1 to Ext. Ka 6 were got prepared by S.I. Nanhu Mal Nigam, in presence of the witnesses Shiv Pratap Singh (P.W.1) and Ajay Bahadur. Thereafter, spot inspection was made by him (P.W.7) at the instance of Km. Rekha Sengar and site plan Ext. Ka 14 was prepared.
10. On the direction of the investigating officer, P.W. 9 S.I. Nanhu Mal Nigam started inquest proceedings on the dead bodies of Sri Ranveer Singh Sengar, Km. Beena, Smt. Shashi Prabha, and Smt. Indu and prepared inquest reports Exts. Ka 18, Ext. Ka 23, Ext. Ka 28 and Ext. Ka 33 respectively. Connected papers Ext. Ka 19 to Ext. Ka 22, Ext. Ka 24 to Ext. Ka 27, Ext. Ka 29 to Ext. Ka 32 and Ext. Ka 34 to Ext. Ka 37 were also prepared and thereafter, all the dead bodies in sealed condition were sent through the constables Santosh Kumar and Ram Yash Verma for post-mortem examination.
11. The post-mortem examination on the dead bodies of all the four deceased persons was conducted by Dr. Man Mohan Arya (P.W.5). Ante-mortem injuries as per details given below were found on the person of deceased:
I. Ante-mortem injury of the deceased Ran Veer Singh Sengar (post-mortem examination on 04.09.2000 at 10.45 a.m.) vide postmortem report Ext. Ka-9:
1. Incised wound of 12cm x 5cmx bone deep. Extending from (illegibile) right ear to the front of neck above the thyroid cartilage.
2. Incised wound of 6cm x 1cm x skin deep present on right side of neck 3cm behind the injury No. 1.
3. Incised wound of 13cm x 4cm x muscle deep extending behind left neck, 3cm in front of the left angle mandible on left side of neck.
4. Incised wound of 8cm x 0.5cm x muscle deep, front at the chin of left side of face,extending from 1cm below the lower lip.
5. Incised wound 7cm x 0.5cm x skin deep, 4Cm above the left clavicle and left side of neck.
6. Incised wound 2cm x 0.5cm x skin deep present on left side of neck, 1cm above the injury No. 5.
7. Incised wound 2cm x 0.5cm x skin deep, present on left side of neck, 1cm above the injury No. 6.
8. Incised wound 7cm x 0.5cm x skin deep, present on left shoulder, 2cm medial to the injury No. 9.
9. Incised wound 6cm x 1cm x muscle deep, present on top of left shoulder.
10. Incised wound of 2.5cm x 0.5cm x skin deep present on the back of left shoulder, 12cm below the injury No. 9.
11. Incised wound of 2cm x 1cm x muscle deep present on left hand in between left thumb & left index finger.
12. Incised wound of 2cm x 1cm x muscle deep present on the right hand in between right thumb and right index finger.
13. Incised wound of 1.5cm x 1cm x bone deep distal phalynx of middle ring finger of right hand (illegible).
14. Incised wound of 1cm x 0.5cm x muscle deep present of middle phalynx of right finger of right hand palm.
15. Incised wound 1cm x 0.5cm x muscle deep present on (illegible) phalynx of little finger of right hand (illegible).
16. Incised wound of 10cm x 0.5cm x skin deep present on right side of chest, 12cm below the right nipple.
The death was caused about 1 and 1/2 day prior to the examination, due to shock and haemorrhage as a result of ante-mortem injuries.
II. Ante-mortem injury of the deceased Smt. Shashi Prabha (post-mortem examination on 04.09.2000 at 11.15 a.m.) vide postmortem report Ext. Ka 10:
1. Incised wound of 18cm x 2cm. X trachea and (illegible) deep present front side of neck below the thyroid cartilage. Large vessels of neck were cut.
The death was caused about 1 and 1/2 day prior to the examination due to shock and haemorrhage as a result of ante-mortem injuries.
III. Ante-mortem injury of the deceased Km. Beena (post-mortem examination on 04.09.2000 at 11.45 a.m.) vide postmortem report Ext. Ka-11:
1. Incised wound of .13cm x 2cm x (illegible) and trachea deep present on frond of side of neck below the thyroid cartilage. Large vessels of neck were cut.
2. Incised wound 4.5cm x 1cm x muscle deep 1cm lateral to injury No. 1 on right side of neck.
3. Incised wound of 5cm x 0.5cm x skin deep present on side of neck, extending down from just below the left ear.
4. Incised wound of 4cm x 0.5cm present on right shoulder x skin deep.
5. Incised wound of size 4.5cm x 1.5cm x bone deep present on the middle side of right elbow joint.
6. Incised wound 16cm x 1cm x S/C fat deep present on left side of abdomen 8cm away from the umblicus.
7. Incised wound of 17cm x 1cm x S/C fat deep present on right side of abdomen 8cm away from the umblicus.
8. Incised wound of 4cm x 1cm x muscle deep present on left hand on dorsal aspect in between left thumb and left index finger.
The death was caused about 1 and 1/2 day prior to the examination due to shock and haemorrhage as a result of ante-mortem injuries.
IV. Ante-mortem injury of the deceased Smt. Indu (post-mortem examination on 04.09.2000 at 12.40 a.m.) vide postmortem report Ext. Ka-12:
1. Incised wound of size 10cm x 2cm. Present on the front and side of neck X trachea deep. Large vessels of neck were cut.
The death was caused about 1 and 1/2 day prior to the examination due to shock and haemorrhage as a result of ante-mortem injuries.
12. The post-mortem examination of the bitch was conducted on 04.09.2000 by Dr. S.P. Singh P.W. 6 vide post-mortem report Ext. Ka 13. The death of the bitch was caused due to excessive haemorrhage as a result of the cut of neck region.
13. During the course of investigation, S.I. Ran Veer Singh arrested the accused Suresh Pal on 04.09.2000 and pursuant to his confessional/ disclosure statement recovered a bag (material Ext. 1) containing blood stained Chhura (material Ext. 2), blood stained pant (material Ext. 3), belt (material Ext. 4), T-shirt (material Ext.5), two Baniyan (material Ext. 6 & 7), one lungi (material Ext. 8) one angochha khadi (material Ext. 9), one angochha (material Ext. 10), one comb (material Ext. 11), one underwear (material Ext. 12), one sando baniyan (material Ext.13), one pair of shocks of blue colour (material Ext. 14) and one pair of shocks (material Ext. 15) on the same day at about 5.00 p.m. on his pointing out from a rajwaha situated within the limits of village Nagla Aankhe in presence of P.W.4 Upendra Singh and other witnesses including police personnel. All these articles were taken into possession and recovery memo Ext. Ka 8 was prepared. On 03.09.2000, the then In charge field unit police office Etawah Shyam Lal Vimal P.W. 12 along with the then police proficient Field Unit Sri Ram Sewak P.W.11 and other employees of the field unit visited the house of Shri Ran Veer Singh Sengar, from where various photos were taken. Specimen of foot and finger prints of co-accused Suresh Pal Singh and appellant-accused Sunil were also taken on 05.09.2000 and 06.09.2000 respectively. On the basis of the negatives material Ext. 16 to Ext. 48, photos material Ext. 49 to Ext. 81 were prepared.
14. S.I. Ran Veer Singh during investigation obtained the telephone call details Ext. Ka 38 of the calls of telephone No. 52177 of the deceased Shri Ranveer Singh Sengar from the office of Bharat Sanchar Nigam Limited Etawah. Call details Ext. Ka 38 have been proved by P.W. 10 Hari Narayan Verma, who was posted as Sub-Divisional Engineer in the telephone exchange Etawah. The photos and finger/ foot prints as well as other articles were sent to the Forensic Science Laboratory Lucknow for Examination. Statements of various other witnesses were recorded and after extensive investigation, charge sheet Ext. Ka 15 was submitted against both the accused.
15. On the case being committed to the court of session for trial, charge under Section 302 and 429 both read with Section 34 IPC was framed on 07.11.2000 against both the accused, to which they pleaded not guilty and claimed to be tried.
16. The prosecution in order to prove its case examined twelve witnesses in all. P.W.1 Shiv Pratap Singh is the witness of collecting blood stained and simple cement plaster and piece of bed sheet. He has proved fard Ext. Ka 1 to Ext. Ka 7. It is also stated by this witness that on 02.09.2000 at about 10.30 p.m. he along with Sri Pushkar Singh Chauhan was going to friends colony, Etawah, through Ram Nagar crossing (Phatak) and when they reached near the house of late Sri Ran Veer Singh Sengar, he saw the accused Suresh Pal and Sunil knocking the door of Sri Sengar and calling him to open the door. It is further said by this witness that when he asked these persons as to why they have come at late night, Suresh pal Singh told him that he had some work with his father-in-law. This witness has further stated that both the accused were known to him and in a marriage function the accused Suresh Pal Singh had introduced Sunil as his special friend.
17. P.W.2 Km. Rekha Sengar is the daughter of the deceased Ranveer Singh Sengar she had lodged the FIR at P.S. Civil Lines Etawah on 03.09.2000. Written report Ext. Ka 7 has been proved by her in her statement. P.W. 3 Ravindra Singh Chauhan, is the scribe of the written report Ext. Ka 7. P.W. 4 Upendra Singh is the witness of the recovery of the bag and other articles material Ext. 1 to 15, which were recovered on the pointing out of the co-accused Suresh Pal Singh. He has proved his signature on the recovery memo Ext. Ka 8. Rest are the formal witnesses who have proved various papers in their statements as mentioned herein-above.
18. In his statement recorded under Section 313 Cr. P.C., the accused-appellant Sunil has denied his participation in the alleged incident and he has stated that due to misunderstanding, he has falsely been implicated in this case. The following further statement has been made by the appellant in reply to question No. 12 of his examination under Section 313 Cr.P.C.:
lqjs'k iky ds lkFk muds xkao dk ukbZ gksus ds dkj.k eq>s bl dsl esa ?klhVk x;k eS Lo;a dHkh lqjs'k iky ds lkFk dHkh bVkok ugha vk;kA 'kknh esa Hkh ugha vk;kA igyh ckj fy, x;s fQaxj fizaV o QqV fizaV ?kVuk LFky ls fy, x;s fizaVksa ls blfy, esy ugha [kk;kA okfnuh i{k izHkko'kkyh gS] blfy, nqckjk fizaV ysdj iqfyl ls feydj gsjkQsjh djkuk pkgrs FksA igyh ckj ds fizsaV foospuk esa lg;ksx ds fy, iqfyl ds ikl FksA muds [kksus dh fjiksVZ nkf[ky ugha gqbZA gsjkQsjh dh otg ls fizaV nsus ls nqckjk euk fd;kA VsyhQksu foHkkx }kjk n'kkZ;s x;s okfnuh ds bVkok ds vkokl dk uEcj o fnYyh ds js[kk lsaxj dk uEcj eqdnesa dks jaxr nsus ds fy, xyr nkf[ky fd;s gSA
19. After examination of the accused under Section 313 Cr.P.C., opportunity was given to him to lead evidence in defence, but he neither examined any witness nor produced any documentary evidence.
20. We have heard Sri P.N. Mishra, learned senior counsel assisted by Sri Apul Mishra Advocate, appearing for the appellant, learned AGA for the State and perused the impugned judgment and entire evidence on record carefully.
21. Admittedly there is no direct evidence about the incident of committing the murders of the deceased persons and bitch on the alleged date, time and place and the case of the prosecution is based upon circumstantial evidence. The learned trial court believing the circumstantial evidence produced by the prosecution convicted and sentenced the appellants-accused as mentioned in para one above. Before making comments on the testimony of prosecution witnesses,let us have a look on the legal position to base a conviction on circumstantial evidence. It is often said that witnesses may lie, but the circumstances cannot. To convict a person on the basis of circumstantial evidence, all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be of such a nature as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. The Hon'ble Apex Court has consistently held that when the evidence against the accused, particularly when he is charged with a grave offence like murder, consists of only circumstances, they must be qualitatively such, that on every reasonable hypothesis, the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences, but rational deductions which reasonable minds make from the probative force of facts and circumstances.
22. The following observations made in para 7 & 8 by the Hon'ble Apex Court in the case of State of U.P. v. Hari Mohan and Ors. AIR 2001 SC 142 are worth mentioning:
7. While appreciating the ocular testimony of witnesses and the circumstantial evidence in a criminal case, the criminal courts are expected to keep in mind the observations of this Court in State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh , wherein it was held (para 23 of AIR,Cri LJ):
A criminal trial is not like a fairy tale, wherein one is free to give fight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arrainged at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
8. This Court again in State of Himachal Pradesh v. Lekh Raj and Sons reiterated the position of law and while reminding the criminal courts of their obligations held (Para 10 of AIR, Cri LJ):
The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and Judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper-technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.
23. It has been consistently laid down by the Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person(See Hukum Singh v. State of Rajasthan , Eradu v. State of Hyderabad , Earabhadrappa v. State of Karnataka , State of U.P. v. Sukhbasi , Balwinder Singh v. State of Punjab and Ashok Kumar Chatterji v. State of M.P. ).The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances, must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt.
24. We may also make a reference to a decision of the Hon'ble Apex Court in C. Chenga Reddy v. State of A.P. , Wherein it has been observed thus in para 21:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
25. In Padala Veera Reddy v. State of A.P. , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10).
10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2).those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstance, taken cumulatively,should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence."
26. In State of U.P. v. Ashok Kumar Srivastava , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
27. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability: (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits: (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon an other reasonable hypothesis than that of his guilt: and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
28. There is no doubt that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of the law relating to circumstantial evidence laid down by the Hon'ble Apex Court as far back as in 1952. In Hanumant Govind Nargundkar v. State of M.P. It was observed thus:(SCR PP 1097-98) It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
29. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra . Therein, while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of the Hon'ble Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185,para 153) (1) 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:
(2) 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:
(3) the circumstances should be of a conclusive nature and tendency:
(4) they should exclude every possible hypothesis except the one to be proved; and (5) 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.
30. Let us now analyse the evidence in the background of the principles highlighted above. The learned trial court has relied upon the following circumstances and evidence to base the conviction of the appellant-accused Sunil.
I. Statement of P.W.2 Km. Rekha Sengar, in which she has stated that on 02.09.2000 at about 11.00 or 11.30 p.m. her mother Smt. Shashi Prabha (deceased) informed her on telephone that her brother-in-law (jeeja) Suresh Pal and his friend Sunil had come and they are demanding Rs. 50,000/- from her father and on declining to pay the money, they are quarrelling.
II. Statement of P.W. 1 Shiv Pratap Singh, who has stated that he had seen the appellant-accused Sunil and co-accused Suresh Pal on 02.09.2000 at about 10.30 p.m. knocking the door of the deceased Ran Veer Singh Sengar and calling him to open the door.
III. Recovery of a bag on 04.09.2000 pursuant to the confessional/discloser statement of co-accused Suresh Pal Singh @ Guddu (since deceased) on his pointing out allegedly having some clothes and other articles belonging to the appellant-accused Sunil.
IV. Refusal of the appellant-accused Sunil to give his specimen palm impression in compliance of the Court's order.
31. Let us now see whether the conviction of the appellant-accused Sunil on the basis of the aforesaid circumstances and evidence is sustainable or not. First, we are taking up the statement of Km. Rekha Sengar, who has been examined in the Trial court as P.W. 2. In her statement, Km. Rekha Sengar has stated that on 02.09.2000 at about 11.00 or 11.30 p.m., her mother Smt. Shashi Prabha had made telephone call to her in Delhi informing that her Jeeja(brother-in-law) Guddu and his friend Sunil have come and they are demanding Rs. 50,000/- and on declining to give the money, they are quarrelling. This statement of P.W.2 is not worthy of reliance. In the FIR, it is nowhere stated that Smt. Shashi Prabha had told the name of appellant Sunil on the telephone and it is only stated by Km. Rekha Sengar in her FIR that on 02.09.2000 at about 11.00 or 11.30 p.m. her mother had told her on telephone that her Jeeja (brother-in-law) Guddu and his friend have come to the house and they are demanding Rs. 50,000/- from her father and on declining to pay the money by her father, they are becoming very angry. Name of the friend of Guddu is not mentioned in the FIR. Making improvement in the Trial court, P.W. 2 Km. Rekha Sengar has stated in her statement that on 02.09.2000 at about 11.00 or 11.30 p.m. her mother Smt. Shashi Prabha had made a telephone call to her in Delhi from telephone No. 52177 and she had informed her that her Jeeja (brother-in-law) Suresh Pal and his friend Sunil have come and they are demanding Rs. 50,000/- from her father and on declining to pay the money, they are quarrelling. Mentioning of the name of the appellant-accused Sunil in the statement of Km. Rekha Sengar in the court is clear improvement, as she had neither named the appellant Sunil in her FIR, nor in her statement recorded under Section 161 Cr.P.C. during investigation by the investigating officer S.I. Ran Veer Singh P.W.7. Although due to ignorance of legal procedure, the learned amicus curie, who defended the appellant-accused in the trial court, did not ask Km. Rekha Sengar whether she had told the name of appellant Sunil to the investigating officer, but with a view to do the complete justice, exercising the power under Section 172 Cr.P.C. we ourselves have gone through the statement of Km. Rekha Sengar, which is recorded in the case diary of 03.09.2000. In parcha No. 1, the following statement is recorded in the case diary:
fnukad 02-09-2000 dks le; djhc 11 ;k 11-30 cts ds yxHkx jkf= esa esjs ikl fnYyh esjh eEeh dk Qksu bVkok ls vk;k FkkA mUgksaus eq>s Qksu ij crk;k fd rEgkjs thtk th xqMMw o mudk ,d nksLr ?kj ij vk, gSa vkSj rsjs ikik ls 50]000@&:i;k ekax jgs gSaA rsjs ikik us :i;s nsus ls euk dj fn;k gS rks dkQh xqLlk gks jgs gSaA
32. In the whole statement of Km. Rekha Sengar recorded under Section 161 Cr.P.C., name of the appellant-accused Sunil is nowhere mentioned. Therefore, mentioning of the name of the appellant Sunil by P.W.2 Rekha Sengar in her statement recorded in trial court carriage no weight, being a deliberate improvement. Although on the basis of the telephone call details Ext.Ka 38 of telephone No. 52177, it is established that a telephone call was made from this telephone in Delhi on telephone No. 6853693 on 02.09.2000 at 11.28 p.m., but on the basis of the statement of P.W.2 Km. Rekha Sengar, it cannot be said to be proved that her mother had told the name of appellant Suhnil to her on the telephone, because the name of the appellant Sunil was neither mentioned in the FIR nor in the statement of Km. Rekha Sengar recorded during investigation by the investigating officer. Therefore, no reliance can be placed on that part of the statement of Km. Rekha Sengar, in which she had stated that her mother had told the name of appellant Sunil on telephone on 02.09.2000 at about 11 or 11.30 p.m. as friend of her brother-in-law (Jeeja) Guddu @ Suresh Pal Singh. Had the name of the appellant Sunil was told to Km. Rekha Sengar on telephone by her mother, then his name ought to have been mentioned in the FIR itself or in the statement of Km. Rekha Sengar recorded under Section 161 Cr.P.C. by the investigating officer just after lodging of the FIR. But as we have mentioned above, it is nowhere stated either in the FIR or in the statement of Km. Rekha Sengar recorded under Section 161 Cr.P.C. that the deceased Smt. Shashi Prabha had told her the name of appellant Sunil on telephone on 02.09.2000 at about 11.00 or 11.30 p.m. as now stated by Km. Rekha Sengar in her statement recorded in trial court as P.W. 2. Therefore, in our considered opinion, this circumstance and evidence led by the prosecution in support thereof cannot be used against the appellant-accused Sunil to base his conviction for the murders of the deceased persons.
33. The second circumstance on which reliance has been placed by the learned trial court to base the conviction of the accused-appellant Sunil is the statement of Shri Shiv Pratap Singh, who has been examined in trial court as P.W. 1. On careful scrutiny of the statement of this witness, this fact is borne out that he is merely a chance witness and there was no occasion for him to know the name of the appellant-accused Sunil. In his statement P.W.1 Shiv Pratap Singh has stated that on 02.09.2000, he and Pushkar Singh Chauhan were going to Friends Colony Etawah through Ram Nagar Phatak (crossing) and when at about 10.30 p.m. they reached near the house of late Sri Ran Veer Singh Sengar, they saw the accused Suresh Pal and Sunil (present in the court) knocking the door and calling Sri Sengar to open the door. Regarding knowing the name of the accused Sunil, he (P.W. 1) has stated that Sri Ran Veer Singh Sengar had three daughters, out of whom two were married and one was unmarried and in a marriage ceremony he had participated from the side of Sri Sengar and in that marriage function, husband of Indu (deceased) also had participated. It is further stated by this witness that in that marriage function, Suresh pal, husband of Indu, had introduced Sunil as his special friend. From this statement of Shiv Pratap Singh, it seems that he had participated in the marriage ceremony of the second daughter of Sri Ran Veer Singh Sengar, in which co-accused Suresh Pal, husband of the deceased Indu, also had participated. While making aforesaid statement, the witness Shiv Pratap Singh was certainly not referring to the marriage of Indu, eldest daughter of Sri Ran Veer Singh Sengar, as it is specifically stated by him that in the marriage of the daughter of Sri Sengar in which he had participated from the side of Sri Sengar, the husband of Indu had also participated, meaning thereby that the witness Shiv Pratap Singh and husband of Indu had met in the marriage function of second daughter of Sri Sengar and in that function the co-accused Suresh Pal, husband of Indu, had introduced Sunil as his special friend. This statement made by P.W. 1 Shiv Pratap Singh is absolutely false, because out of three daughters of Sri Sengar, only Indu (deceased) was married and other two daughters including Km. Rekha Sengar were unmarried at the time of incident. In this regard, statement of Km. Rekha Sengar is relevant, in which she has specifically stated at page 54 of the paper book that they were three sisters and they had no brother. It is further stated by Km. Rekha Sengar that her sister Indu was the eldest, Been was second and she is youngest and out of three sisters, only Indu was married. From this statement of Km. Rekha Sengar, it is fully proved beyond any doubt that out of three daughters of late Sri Ran Veer Singh Sengar, only Indu was married to the co-accused Suresh Pal Singh and his other daughters namely Km. Beena and Km. Rekha Sengar were unmarried at the time of incident. On the basis of this statement of Km. Rekha Sengar, this fact is borne out that P.W.1 Shiv Pratap Singh had no knowledge about the family of late Sri Ran Veer Singh Sengar and it was for this reason that he had deposed in the trial court that out of three daughters of Sri Sengar, two were married. When two daughters of Sri Sengar namely, Beena and Rekha Sengar were unmarried, then there was no occasion for the co-accused Suresh Pal Singh to take part in the marriage function and to introduce the appellant Sunil to the witness Shiv Pratap Singh as his special friend in that marriage function. P.W.1 Shiv Pratap Singh has nowhere stated in his statement that the appellant Sunil was introduced to him by the accused Suresh Pal in his marriage function with Indu. In his statement, P.W.1 had certainly referred about the marriage of another daughter of Sri Sengar, in which he had participated from the side of Sri Sengar and husband of Indu had also participated in that marriage. When the marriage of any other daughter of Sri Sengar except Indu was not solemnized, then there was no occasion for P.W.1 Shiv Pratap Singh to know the name of appellant Sunil. Therefore, the statement of P.W.1 regarding knowing the name of Sunil on the basis of the introduction by co-accused Suresh Pal Singh in the marriage function of the daughter of Sri Ran Veer Singh Sengar is not at all worthy of reliance, because P.W.2 Km. Rekha Sengar, daughter of the deceased Ran Veer Singh Sengar, has specifically stated that her sister Indu only was married at the time of incident. Therefore, the question of the husband of Indu to take part in the marriage function of any other daughter of Sri Sengar and to introduce the appellant Sunil to P.W.1 Shiv Pratap Singh does not at all arise. It shows that aforesaid statement of Shiv Pratap Singh is fabricated and concocted story, which has been invented with a view to falsely implicate the appellant-accused Sunil in the alleged incident.
34. In addition to the above mentioned falsehood in the statement of P.W.1 Shiv Pratap Singh, he is merely a chance witness. Admittedly the witness Shiv Pratap Singh was not residing in the mohallah where the house of Sri Ran Veer Singh Sengar was situated and house of this witness was situated at the distance of about 2 km. from the house of Sengar, as stated by this witness himself in his statement at page 36 of the paper book. In his examination-in-chief, P.W.1 has stated that on 02.09.2000 he was going to Friends Colony through Ram Nagar Phatak (railway crossing), but he has not stated as to why he was going there so late in the night. There was no special occasion for this witness to go to Friends Colony Etawah in the late night at about 10.30 p.m. On this basis it can very well said that P.W.1 Shiv Pratap Singh is got-up and chance witness. There must be some purpose for a person to go to other mohallah in the late night at about 10.30 p.m. after covering a distance of about 2 km. No person would go to other mohallah without any purpose so late in the night. The witness Shiv Pratap Singh has nowhere stated in his examination-in-chief as to why he was going to Friends Colony after covering a distance of about 2 km. from his house so late in the night. Therefore, being a got- up and chance witness also, no reliance can be placed on the testimony of P.W.1 Shiv Pratap Singh.
35. The conduct of P.W. 1 Shiv Pratpa Singh was also against human nature, as he remained silent till the evening on 03.09.2000 and did not disclose to any person that he had seen the accused Suresh Pal and Sunil on 02.09.2000 at about 10.30 p.m. knocking the door of Sri Ran Veer Singh Sengar and calling him to open the door. It has come in the statement of Shiv Pratap Singh that when he came to know about the incident of committing the murders of Sri Sengar, his wife Smt. Shashi Prabha and daughters Beena and Indu, he reached the house of Sri Sengar at about 9.00 a.m. on 03.09.2000. Admittedly at that time S.O. P.S. Civil Lines S.I. Ran Veer Singh (P.W.7) along with police force had reached there to control the law and order situation, as stated by P.W.7 in his statement. At that time, P.W. 1 Shiv Pratap Singh did not tell S.I. Ran Veer Singh or any other person that he had seen the accused Suresh Pal Singh and Sunil knocking the door of Sri Ran Veer Singh Sengar on 02.09.2000 at about 10.30 p.m. This fact shows that P.W.1 had not seen the accused persons knocking the door of the deceased as alleged by him in his statement. Had P.W.1 seen the accused persons on 02.09.2000 at about 10.30 p.m. knocking the door of Sri Ran Veer Singh Sengar and calling him to open the door, then he ought to have disclosed this fact to the police immediately after knowing about the murders of Sengar and his family members, but as told by P.W.1 in his statement, he did not disclose this fact to any person including the police personnel. P.W.1 has made following statement (page 33 of the paper book):
ml jkr 10-30 cts tc eS lsaxj lkgc dk mijksDr nkekn o mldk lkFkh eq>s feys ;g ckr eSus QnZ dh fy[kk i<+h ds ckn 'kke dks ,l0 vks0 juchj flag dks crk;h FkhA mudks crkus ls iwoZ fdlh vU; dks ;g ckr crkuk mfpr ugha le>k FkkA lk;adky 7-00 cts fnukad 03-09-2000 dks ,l0vks0 lkgc dks ;g ckr crkbZ FkhA
36. From the statement of Shiv Pratap Singh P.W.1, recorded in the trial court, it is revealed that he had signed the fards Ext. Ka 1 to Ka 6 also, which were prepared in connection with collecting blood stained and simple cement plaster etc. According to this witness, these fards were prepared by the investigating officer at about 1.30 p.m. on 03.09.2000. At that time also he did not inform the investigating officer or any other police personnel that he had seen the accused persons on 02.09.2000 at about 10.30 p.m. knocking the door of deceased Ranveer Singh Sengar and calling him to open the door. He remained silent till evening and he is said to have disclosed this fact for the first time at about 7.00 p.m. on 03.09.2000 at the time of recording his statement by the investigating officer. This conduct of this witness is against human nature, which shows that actually he did not see the co-accused Suresh Pal Singh and applicant Sunil at the door of the house of the deceased on the alleged dated, time and place as stated by him in his statement and false storey has been invented by the police with the help of this got-up witness.
37. In addition to the above mentioned infirmities in the testimony of P.W.1 Shiv Pratap Singh, his statement does not find corroboration from any other evidence and hence on this ground also, it is not safe to place implicit reliance on his testimony. In his statement P.W.1 Shiv Pratap Singh has stated that on 02.09.2000 at about 10.30 p.m. he was going to Friends Colony Etawah via Ram Nagar Phatak (railway crossing) along with his companion Pushkar Singh Chauhan and at that time, they had seen the accused persons standing out side the door of Sri Ran Veer Singh Sengar and calling him to open the door. Statement of Sri Pushkar Singh Chauhan was also recorded by the investigating officer, but for the reasons best known to the prosecution, Sri Pushkar Singh Chauhan was not examined in trial court to lend support to the statement of Sri Shiv Pratap Singh. If actually both these persons had seen the co-accused Suresh Pal and the appellant-accused Sunil knocking the door of Sri Sengar on 02.09.2000 at about 10.30 p.m., then statement of Sri Pushkar Singh Chauhan might be helpful to the prosecution to corroborate the statement of P.W.1 Shiv Pratap Singh, but as mentioned above, Sri Chauhan has been withheld by the prosecution. The testimony of the sole witness Shiv Pratap Singh on the aforesaid fact is not worthy of credence for the reasons which we have mentioned above. Therefore, merely on the basis of the statement of P.W.1 Shiv Pratap Singh, it cannot said to be proved that the appellant-accused Sunil was seen on 02.09.2000 at about 10.30 p.m. in the company of co-accused Suresh Pal at the door of the house of deceased Ran Veer Singh Sengar.
38. The third circumstance, which has been relied upon against the appellant by the learned trial court is the recovery of the bag on the pointing out of the co-accused Suresh Pal on 04.09.2000, which allegedly contained some clothes etc. of the appellant Sunil. The co-accused Suresh Pal is shown to have been arrested by the police on 04.09.2000 in connection with the murders of his father-in-law Sri Ram Veer Singh Sengar and other deceased. It is said that after his arrest, the accused Suresh Pal made a confessional statement and in pursuance of that statement, a bag containing material Ext. 2 to 15 was recovered on 04.09.2000 on his pointing out in the evening at about 5.00 p.m. from a rajwaha. The said recovery is alleged to have been made by the investigating officer Ran Veer Singh (P.W.7) in presence of other police personnel and public witness Upendra Singh P.W.4. Ext. Ka 8 is the recovery memo of chhura and other articles, which are said to have been recovered on the pointing out of the co-accused Suresh Pal from the rajwaha. Although on the basis of the testimony of P.W. 4 Upendra Singh and P.W. 7 S.I. Ran Veer Singh, it is proved that after arrest of the co-accused Suresh Pal on 04.09.2000, a bag material Ext. 1 containing blood stained chhura material Ext. 2 and other articles material Ext. 3 to 15 was recovered from a rajwaha on his pointing out, but in our considered opinion, the evidence of recovery of all these articles, which was made pursuant to the confessional/discloser statement of co-accused Suresh Pal, cannot be used against the appellant-accused Sunil. Although the evidence of the recovery of the aforesaid articles could be relevant against the co-accused Suresh Pal under the provisions of Section 27 of the Indian Evidence Act, but we are of the considered opinion that the recovery of above mentioned articles cannot be read in evidence against the appellant-accused Sunil to establish his guilt for the murders of deceased Sri Ran Veer Singh Sengar and his family members. The learned AGA could not show any authority or provision of any law, according to which the recovery made under Sections 27 of Indian Evidence Act in pursuance of the confessional/disclosure statement of co-accused, can be used against another accused. It is said that one pant, leather belt, sando baniyan, T-shirt, angocha, one purse having a currency note of Rs. 10/- and coin of 20 paise, three negatives, ten tablets and one pair of shocks, which were recovered from the bag, belong to the accused Sunil, as told by the co-accused Suresh Pal. In our considered opinion, the alleged confessional statement made by the co-accused Suresh Pal regarding aforesaid articles at the time of alleged recovery while in the custody of police is not relevant against the appellant-accused Sunil. Moreover, there is not even a iota of evidence to prove that the aforesaid articles actually belonged to the accused-appellant Sunil. The prosecution has not examined any witness to prove that these recovered articles belong to the appellant Sunil. P.W. 1 Shiv Pratap Singh is said to have seen the appellant-accused Sunil in the company of co-accused Suresh Pal on 02.09.2000 at about 10.30 p.m. at door of the house of deceased persons. The prosecution by producing the pant material Ext. 3, leather belt material Ext. 4, and T-shirt material Ext. 5 before P.W.1 Shiv Pratap Singh at the time of his examination in trial court could prove that the accused Sunil was wearing aforesaid pant, belt and T-shirt at the time, when he was seen in the company of co-accused Suresh Pal on 02.09.2000 at about 10.30 p.m. knocking the door of the deceased persons, but for the reasons best known to the prosecution, these articles were not produced and shown to the witness Shiv Pratap Singh at the time of his examination in Trial court. P.W.1 Shiv Pratap Singh has stated in his statement at page 30 of the paper book that when he had seen the accused Sunil, then he was having one black leather bag in his hand. One bag material Ext.1 is said to have been recovered on the pointing out of the co-accused Suresh Pal on 04.09.2000 from the rajwaha. That bag was also not produced before the witness Shiv Pratap Singh to establish that accused Sunil was carrying this very bag in his hand at the time when he was allegedly seen at the door of the deceased persons in the company of co-accused Suresh Pal on 02.09.2000 at about 10.30 p.m. as alleged by P.W.1. Therefore, for all these reasons the evidence of the recovery of the bag and other articles on the pointing out of the co-accused Suresh Pal is not relevant against the appellant Sunil and this evidence cannot be used against him to prove his complicity in the incident of the murders of Sri Ran Veer Singh Sengar and his family members.
39. The fourth circumstance, which has been relied upon by the learned trial court for convicting the appellant-accused Sunil for the murders of deceased persons is his refusal to give specimen palm impression in spite of the order of the court. On this basis adverse inference has been drawn by the learned trial court against the appellant. In our opinion, this circumstance alone is not sufficient to base the conviction of the appellant-accused in this case, because as mentioned above, other evidence and circumstances relied upon by the learned Trial court for convicting the appellant-accused for aforesaid murders are not worthy of reliance. From the order-sheet of S.T. No. 424 of 2000, it is seen that on 08.10.20002, both the accused were asked by the trial court to give their specimen palm impression. From the order dated 08.10.2002 passed by the learned Additional Session Judge, Court No. 1, Etawah, it is revealed that the accused persons had declined to give their specimen palm impression. On this basis the learned Trial court had passed an order that necessary inference in this regard shall be drawn according to law. Consequently, at the time of passing the impugned judgment, the learned trial court has drawn adverse inference against the appellant-accused Sunil. In our opinion, drawing adverse interference and to make this circumstance as the basis of the conviction of the appellant is not justified. In his statement recorded under Section 313 Cr.P.C., the appellant -accused Sunil has given explanation as to why he had refused to give specimen impression. We have mentioned herein-above extract of the statement of the accused-appellant Sunil recorded under Section 313 Cr.P.C. Keeping in view this explanation of the appellant for declining to give specimen palm impression, in our view, drawing the adverse inference against the appellant is not justified. Specimen of fingers and foot prints of both the accused were obtained during investigation. Various photos from some articles inside the house of deceased Sri Ran Veer Singh Sengar were also taken. Those photos and specimen fingers/foot prints were sent for examination to Forensic Science Laboratory Lucknow. It was submitted by the learned Counsel for the appellant that specimen fingers and foot prints of both the accused were not tallying with the photos taken from certain articles inside the house of deceased persons and it was for this reason that the report of the Forensic Science Laboratory was not brought on record and hence on this ground also there was no justification for drawing the adverse inference against the appellant-accused due to refusal to give specimen palm impression in pursuance of the court's order dated 08.10.2002. This argument of the learned Counsel for the appellant-accused is not without force. During trial, an application (paper No. 106Kha) was moved on 08.01.07 on behalf of accused Sunil through his counsel Sri D.D. Mishra, in which it is alleged that the complainant has political protection and her political leaders have approach in Central Laboratory Delhi and they can adversely affect the report, if the specimen impression are sent there for examination. It was prayed in that application that the accused is ready to give his foot and fingers print impression again on the condition that the same be sent for examination to some other laboratory and information thereof be not given to the State counsel or to the complainant counsel, so that they may not affect the report. That application was opposed by the Addl. D.G.C.(Criminal) vide his endorsement made on 09.01.2007. The Trial court did not accept the request made by the accused Sunil and his application (paper No. 106 Kha) was rejected by the learned Trial court vide order dated 09.01.2007. Having regard to all these facts, in our opinion the learned trial court was not justified to draw the adverse inference against the appellant-accused Sunil due to his refusal to give specimen palm impression and to take this circumstance into consideration against the accused to base his conviction for the murders of deceased persons.
40. Barring the above mentioned circumstance and the evidence led by the prosecution in support thereof, there is no other evidence worth relying to prove the complicity of the appellant accused Sunil in the murders of deceased persons. There was no eye-witness of the incident of these murders. The testimony of P.W.1 Shiv Pratap Singh is not worthy of credence for the reasons which we have mentioned above. He also had not seen the accused persons entering inside the house of deceased Sri Ran Veer Singh Sengar on 02.09.2000 at about 10.30 p.m. or thereafter. According to the FIR, the name of the appellant-accused Sunil was not told to the complainant Km. Rekha Sengar by her mother on telephone. In her statement recorded under Section 161 Cr.P.C. during investigation just after lodging the FIR, Km. Rekha Sengar did not name the appellant-accused Sunil as the friend of her brother-in-law (Jeeja) Suresh Pal @ Guddu. Hence, naming of the appellant Sunil for the first time in trial court by Km. Rekha Sengar is not worthy of reliance, being clear improvement. The recovery of the bag material Ext. 1 containing blood stained chhura material Ext. 2 and other articles material Ext. 3 to 15 on the pointing out of the co-accused Suresh Pal on 04.09.2000 is not relevant against the appellant-accused Sunil and the evidence of recovery of these articles cannot be used against him for proving his complicity in the incident of these murders. Drawing adverse inference against the appellant due to his refusal to give specimen palm impression was also not justified for the reasons mentioned herein-above. Therefore, keeping all these facts in view, in our considered opinion, conviction of the appellant-accused Sunil for the offence with which he was charged is not sustainable.
41. Consequently, both the appeals are allowed. The impugned judgment and order are set aside and the appellant-accused Sunil is hereby acquitted of the offence punishable under Section 302 read with Section 34 IPC. He shall be set at liberty, if not required to be detained in jail for some other case.
42. Capital sentence reference for confirmation of the death sentence is rejected.
The office is directed to return Trial court record expeditiously along with a copy of this judgment for necessary action.