P.D. Kode, J.

The aforesaid Confirmation Case arises out of a reference made by learned Extra Joint Ad-hoc. Additional Sessions Judge, Thane under section 366 of the Code of Criminal Procedure (hereinafter referred as "Code" for the sake of brevity) for confirmation of sentence of death awarded to both accused in Sessions Case No.78 of 2005. The said accused have preferred above stated Criminal Appeal challenging judgment and order of the conviction, sentence of death and so also other sentences awarded to them.

2. By the judgment and order delivered on 28/29th March, 2012, the learned Judge convicted both the accused/appellants for in furtherance of their common intention along with juvenile accused Nasim Muddus Ansari having committed the offences punishable under:-

(i) Section 364-A read with Section 34 of Indian Penal Code and sentenced each of them to death for committing murder of one Kumar Nitesh of aged 4 years i.e. son of PW1 Prakash Wadhwa and his wife PW5 Naina, kidnapped and detained by them for compelling PW1 to pay a ransom of Rs.15 lacs demanded by them;

(ii) Section 387 read with Section 34 of Indian Penal Code, for in order to commit extortion putting PW1 in fear of death of his said son and sentenced each of them to suffer R.I. for 7 years and to pay a fine of Rs.1,000/-and in default to suffer R.I. for 6 months;

(iii) Section 386 read with Section 34 of Indian Penal Code, for committing extortion by putting PW1 in fear of death of his said son and sentenced each of them to suffer R.I. for 7 years and to pay a fine of Rs.1,000/- and in default to suffer R.I. for 6 months;

(iv) Section 302 read with Section 34 of Indian Penal Code, for committing murder of said Nitesh son of PW1 & PW5 and sentenced each of them to death;

(v) Section 201 read with Section 34 of Indian Penal Code, for causing disappearance of the evidence of the offences committed by them (and/or giving false information knowingly in respect of the offences committed) with intention to screen themselves from the legal punishment and sentenced each of them to suffer R.I. for 7 years and to pay a fine of Rs.1,000/- and in default to suffer R.I. for 6 months;

The learned Judge also ordered concurrent running of sentences awarded on second, third and fifth count with set off for the period undergone by them in custody.

3. Such of the facts of said prosecution, necessary for deciding present proceedings are as under:

3.1 According to the prosecution both the appellants i.e. original accused no.1 Nihal and original accused no.2 Rafiq and the juvenile offender Nasim (hereinafter for the sake of brevity are respectively referred as A-1, A-2 and J.O.) are original inhabitant of District Ajamgadh, State of Utter Pradesh. They came to Mumbai for livelihood and were residing in room no.876 at Turbhe Stores, Navi Mumbai of PW38 Ramsaroj Rajbhar on rent. PW1 was residing in Sector No.8, Navi Mumbai, Washi. Nitesh son of PW1 used to play in evening along with his friends in front of row houses. A-1 used to sit at said place since 6 to 10 days preceding 26th April, 2004. A-1 by giving chocolates developed intimacy with Nitesh.

3.2 A-1 at 1830 hours on 24th April, 2004 kidnapped Nitesh and boarded Autorickshaw of PW14 Satish More at Sector 8 and asked PW14 to take autorickshaw hurriedly towards Navratna Hotel situated in Sector 17. On the way to said hotel, A-1 abruptly asked PW14 to stop the rickshaw at Shivaji Square. He alighted along with Nitesh by paying Rs.10/- and ran towards Hotel Navratna.

3.3 PW9 Ramnihor Gupta running grocery shop, PW10 Dindayal Gupta running a tea-stall and PW15 Sou. Mangal Patil also running a grocery shop at Turbhe Stores Navi Mumbai were acquainted with A-1, A-2 and J.O. visiting their shops. So also PW16 Kesharbai More neighbour of PW15 was acquainted with them. According to the prosecution on 27th April, 2004 , Nitesh was lastly seen alive in the company of A-1, A2 and J.O. by the said witnesses when they had take