P. K. BHASIN, J.

( 1 ) CONVICTION of the appellant Sushil Sharma for the murder of one Ms. Naina sahni @ Ravi Naina Sahni vide judgment dated 03-11-2003 rendered by an additional Sessions Judge, Delhi in Sessions case No. 88/96 pertaining to FIR no. 486/95 of Connaught Place police station and imposition of death sentence upon him vide order dated 07-11-2003 has led to the filing of an appeal by the appellant and making of a reference to this court by the trial court for confirmation of the death sentence. The Reference and the appeal were taken up together for hearing and both are now being disposed of by this common judgment.

(1. The relevant facts leading to the prosecution of the appellant Sushil sharma along with one Keshav Kumar for the offence of murder and three other persons for harbouring Sushil Sharma after the murder have been noticed by the trial court in paras no. 1"12 and 17 and are as follows:- (2. Accused Sushil Sharma former President of Delhi Youth Congress (I), naina Sahni (hereinafter referred to as "the deceased") former General secretary of Delhi Youth Congress (I) Girls Wing were working for Delhi Youth congress. Office of Delhi Youth Congress earlier used to be at 4, Bhai Veer singh Marg, Gole Market, New Delhi. Later on office was shifted to 2, talkatora Road, New Delhi. The deceased used to visit accused Sushil Sharma at the office of Youth Congress at both said places.

( 2 ) IN the year 1992 accused Sushil Sharma obtained flat 8/2a at Mandir marg from its allottee Shri Jagdish Pd. Deceased was also visiting accused sushil Sharma in the said flat at Mandir Marg. At times she stayed there in the night also. Later it is investigated by the State that both accused sushil Sharma and deceased had married at the said residence in their own way. The deceased, thereafter, continued to live in the said flat claiming to be the wife of accused Sushil Sharma till she was murdered.

( 3 ) IN the heart of the National Capital Territory at Ashoka Road India tourism Development Corporation (ITDC) a company duly incorporated under the companies Act, 1956 was running its unit called Ashok Yatri Niwas. ITDC entered into a licence agreement on 10. 11. 94 with (i) Sh. Lalit Kishore Sachdeva s/o Sh. Ram Rattan Sachdeva r/o B-37 Gujranwala Town, Delhi (ii) Sh. Virender kumar Nagpal s/o Sh. (late) Basant Lal r/o HIG 49, Sector E, Aliganj, Lucknow (iii) Sh. Manoj Malik s/o Sh. R. P. Malik r/o A-16 Nirman Vihar Delhi (iv)Sh. R. P. Sachdeva s/o Sh. Hansraj Sachdeva r/o 5/16 Line no. 2, Geeta Colony, Delhi and (v) accused Sushil Sharma s/o Sh. I. M. Sharma r/o MP-27 Maurya Enclave, Delhi partners of M/s. Excel Hotel and Restaurant Inc. 159 Kamla Market, Delhi. The licence granted by ITDC permitted the user of park in front oif main gate of ashok Yatri Niwas towards Ashok Road by said partners of M/s. Excel Hotel and restaurant for running a Bar-be-que. As per the licence Bar-be-que was continuously run by the accused Sushil Sharma at said part of Ashok Yatri Niwas. The business of Bar-be-que being run there was called as "bagia Bar-be-que -. Arrangements were made of a kitchen, a tandoor in the said park. The park had fencing of bamboos called as Jafri and also for sitting of customers chair made of stem of tree.

( 4 ) ON the night of 2/3rd July, 1995 Constable Abdul Nazir Kunju PW3 who was posted at police station Connaught Place a day or two earlier along with PW4 chander Pal 3151/delhi Home Guard were assigned the duty to patrol the area of ashoka Road Western Court etc. While on patrol duty at about 11 p. m. they reached near Ashok Yatri Niwas they heard the cry of a woman namely Anaroo PW-7 crying, "hotel mein aag lag gayi". Hearing cry both PW3 and PW4 rushed towards Janpath lane where Ashok Yatri Niwas is situated. They noticed boom of smoke spiraling and flames leaping out of Bagia Bar-be-que from the side of the kitchen. Constable Kunju then rushed to telephone available at near by telephone booth to inform the cont