JUDGMENT :

DEBANGSU BASAK, J.

1. A death reference and an appeal have been heard analogously as they relate to the same impugned judgment of conviction dated August 29, 2023 and order of sentence dated August 31, 2023 passed by the Fast Track, Third Court, Behrampore, Murshidabad in Session Serial No. 1387 of 2022 convicting the appellant under Section 302 of the Indian Penal Code and under Section 28 of the Arms Act and sentencing the appellant to death.

2. Appellant not being represented on several dates of hearing of the death reference and the appeal we had appointed the learned Senior Advocate and the learned Junior Advocate appearing for the appellant, as advocates for the appellant and requested the Secretary, State Legal Services Authority to regularize such appointment, which was done.

3. Learned Senior Advocate appearing for the appellant has submitted that, the prosecution failed to prove the charges beyond reasonable doubt. He has submitted that, Prosecution Witness (PW) No. 3 has stated in his deposition that, apart from himself, there were other employees of his present at the place of occurrence. However, such employees have not been examined by the prosecution. According to him, this failure to examine all the eyewitnesses violates the principles of fair trial as has been laid down in 2004 Volume 13 Supreme Court Cases 308 (State of Madhya Pradesh versus Dharkole alias Govind Singh and others)

4. Learned Senior Advocate appearing for the appellant has submitted that, trial Court placed undue reliance on the testimonies of PW 2 and PW 3, which is without corroborative support from independent and neutral witnesses. According to him, the same impinges upon the veracity of the testimonies of those prosecution witnesses. The learned trial judge has erred in not disbelieving them. He has contended that, the testimony of PW 2 where he claimed that, despite being threatened with a gun, he proceeded to video record the incident should be disbelieved. Similarly, the claim of PW 3 that, he called the police should be disbelieved as the same did not result in registration of a first information report. He has also pointed out the conduct of PW 4 who resided near the place of occurrence and did not become aware of the incident although, the other 2 witnesses had seen the incident with such clarity.

5. Referring to the digital evidence, learned Senior Advocate appearing for the appellant has contended that, learned trial Court accepted closed-circuit television footage and a video allegedly recorded by PW 2 as conclusive proof without establishing the chain of custody or ensuring compliance with the mandatory requirements of section 65B of the Indian Evidence Act. In this regard, he has relied upon 2020 Volume 7 Supreme Court Cases 1 (Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others)

6. Learned Senior Advocate appearing for the appellant has contended that, the forensic evidence introduced at the trial, particularly the gait analysis is scientifically inconclusive as it is yet to be and universally accepted a valid method of identification.

7. Learned Senior Advocate for the appellant has submitted that, the purported incident occurred in the context of a failed personal relationship and appears to have been triggered by intense emotional disturbance and heartbreak. According to him, the prosecution has not been able to establish that the act was cold-blooded or meticulously planned. Rather, the incident appears to be a spontaneous act of emotional collapse. He has pointed out to the date of birth of the appellant and referred to 1999 Volume 5 supreme Court Cases 702 (Sunil Baban Pingale vs. State of Maharashtra) that age should be considered as a mitigating circumstance, in favour of the appellant.

8. On the aspect of death penalty, learned Senior Advocate appearing for the appellant has relied upon 1983 Volume 3 Supreme Court Cases 470 (Macchi Singh and others versus State of Punjab), 2009 Volume 6 Supreme Court