JUDGMENT:

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. These two appeals are directed against the common judgment of the Uttranchal High Court.

3. Challenge in this appeal is to judgment of a Division Bench of the Uttaranchal High Court which disposed of Criminal Reference No. 2 of 2004 and two Criminal Appeal Nos. 45 and 46 of 2002. The two criminal appeals were filed by Liyakat the present appellant and co-accused Smt. Zahira. The reference was necessitated as the Learned Additional District and Sessions Judge, Ist Fast Track Court Hardwar has awarded death sentence to the accused Liyakat. awarded death sentence to accused Liyakat. He had also awarded sentences of imprisonment for life to Zahira and the accused No. 3. Both of them were convicted for offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (in short the IPC). The trial court, however had acquitted Accused Nos. 2 and 4 namely Riyasat and Jeewani.

4. Noor Alam was child of PW 1 Rashid and his wife PW 2 Nasreen. PW 1 Rashid and PW2 Nasreen used to reside in the neighbourhood of Jeewani, original accused No. 4. On the fateful day i.e. on 12th day of January, 1999, Nasreen was sitting alongwith her child in the courtyard of Gulamis house, who is husband of original accused no.4 Jeewani. At that time Zaheera, Jiwani, Liyakat and Riyasat were also there. Her husband Rashid, P.W. 1 came there and asked his wife to go with him to feed fertilizer to the standing crop in the field. However, Nasreen declined to go with him as there was nobody to lookafter Noor Alam. Hearing this, Jeewani and other accused persons told that they will look after the child and she could leave the child with them. P.W.3 Brahm Pal and one Rishipal were also there at that time. The child was left by Nasreen with the accused persons and she left the place alongwith her husband. When both of them returned at about 4 Oclock, they straightaway went to the house of Gulami and enquired about Noor Alam. Accused told them that Noor Alam was playing in the vicinity only. However, they could not find the child. They searched for the child for the rest of the day and night and even on 13th of January, 1999, but to no effect. However, in the morning of 14th, when Rashid was searching for child alongwith Brahmpal, Bhagwan and Yasin, they searched the house or hut of Liyakat and saw that in the northern corner of that hut, foot of small child was protruding out of the ground. Seeing this Rashid reached to the Police Station, Laksar and reported the matter.

5. A case was registered on that basis and the Incharge of the Police out-post (Chauki) was informed on wireless and received the message. O.P. Sisodia PW 8 with other officials reached the house of the accused and in presence of the witnesses, body of Noor Alam, which was buried in the pit in the northern corner of the hut was recovered. Panchnama and other formalities were completed and on that very day all the accused persons were arrested.

6. The prosecution relied on eight witnesses. They being the parents of the child PW 1 Rashid and PW 2 Nasreen and two other witnesses PW 3 Brahm Pal and PW 4 Rishipal. They all supported the prosecution story. Besides them, PW 6 Dr. R.K. Pande is the medical officer, who had conducted post mortem on the dead body and PW 7 Rishipal and PW 8. O.P. Sisodia are the police witnesses.

7. Case of the prosecution in short was that appellant Liyakat, Riyasat, Zahira and Jeewani committed murder of Noor Alam a child aged about 1= years, the deceased and they buried to the body of the child with an idea of screening the act. The trial court accepted the prosecution version in part so far as the appellant and Zahira are concerned but directed acquittal of the co-accused. The trial court found that the evidence was clear and cogent and therefore the appellant Liyakat was given life sentence and Zahira was given death sentence. Since the sentence of death was awarded, the reference was made to the High Court f