JUDGMENT - VISHNU SAHAI, J.:---Since Confirmation Case No. 3 of 1993 and the bunch of the aforesaid three appeals arise out of the same set of facts we propose disposing them off by a common judgment. The five appellants in the three connected criminal appeals, namely (1) Maria John Dyanprakash Nadar, (2) Raju alias Rajendra Vijayan Pille Nair, (3) Guru Nadar Keshav Natkar, (4) Rajendra Mohan Kalmadi and (5) Devraj Deju Suvarna were convicted by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 587 of 1991, under the below enumerated counts :

a) 143 I.P.C.

b) 147 I.P.C.

c) 148 I.P.C.

d) 302/149 I.P.C.

in the alternative under section 302 read with section 34 of I.P.C. for murdering Pramod Manual Kakde, and

e) 302/149 I.P.C. or in the alternative under section 302 read with 34 I.P.C. for murdering Anil Namdeo Shirsat.

As they were sentenced to death on both the counts under section 302 read with 34 I.P.C. the learned trial Judge did not award them a separate sentence on the remaining counts.

2. Feeling aggrieved by the aforesaid convictions and sentences, the five appellants have preferred the three connected criminal appeals. Clubbed with these three appeals is Confirmation Case No. 3 of 1993 which is the reference by the Additional Sessions Judge for confirmation of the death sentence awarded to the appellants.

3. At the very outset, we cannot restrain expressing our indignation at the trial Judge for two things which he has done:---

Firstly, after convicting all five appellants and there being a charge under section 302 read with section 149 of the Indian Penal Code, he has chosen to convict them under section 302 read with section 34 I.P.C. This, in our opinion is shocking. Secondly, after finding the accused guilty in utter disregard of the Criminal Procedure Code, the learned trial Judge has chosen first to award capital punishment to the appellants and then, a farce of hearing them on the quantum of sentence has been done.

The matters in consideration before us, arise out of two gruesome murders namely of Pramod Manual Kakde alias Balu and Anil Namdeo Shirsat which were committed at about 2.30 a.m. on 25th March, 1991 at the culvert of Kamraj Nagar hutments, Eastern Express Highway, Ghatkopar (East) Police Station Pant Nagar, District Bombay.

4. The case for the prosecution as it emerges from the recitals contained in the F.I.R,. lodged by Pravin Namdeo Shirsat (P.W. 2) and from his deposition made in the trial Court, in brief, runs as under :

The brother of the informant Anil Namdeo Shirsat and one Pramod Manuel Kakde alias Balu on the night of 24th March, 1991, are alleged to have gone to the house of appellant Maria John Dyanprakash Nadar who lives in the same locality, namely Kamraj Nagar hutments, for purchasing English liquor. The case for the prosecution is that Maria John Dyanprakash Nadar illegally sells bottle of English liquor. The prosecution case is that at about 2.30 a.m. on the night of 25th March, 1991, the informant who was a student of Class IX was preparing for his examinations and was awake. At that time his brother Anil came and told him that he and Promod had gone to purchase liquor from the house of Maria John. At that time, Sadanand (absconding accused, not arrested till conclusion of the trial) assaulted him (Anil) and Pramod Manuel Kakade. Finding opportunity, he ran to his house, woke up the informant, some boys and thereafter, first Anil left for the place of incident, and then, after two minutes of his leaving, Pravin followed him. The case is that when Pravin reached the place of the incident, he saw that five appellants and the absconding accused Sadanand were there armed with choppers, swords and soda water bottles. Pravin saw that Pramod Kakade was being attacked by Maria John and Raju with swords, by Sadanand and Devraj with choppers and by Guru and Kalmadi with soda water bottles. P.W. 2 Pravin Namdeo Shirsat further saw that Anil tried to save his brother but, the accuse

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