The present Death Reference alongwith connected Capital Appeal arises out of judgment of conviction and sentence dated 23.10.2010 passed by learned Additional Sessions Judge, Court No.1, Hathras in Sessions Trials No.192 and 193, both of 2007, by which Chaman and Irshad were convicted for charge under Section 302/34 I.P.C, and sentenced to death. Accused Chaman, was also convicted for charge under Section 4/25 of the Arms Act and sentenced to three years rigorous imprisonment alongwith fine of Rs.2,000/- and in default was directed to undergo six months additional imprisonment.

2. The reference was made by the Learned Trial Judge for confirming the sentence of death under Section 366 Cr.P.C, in respect of Chaman and Irshad who also challenged their conviction and sentence in the connected Capital Case Appeal No.7409 of 2010.

3. We have heard the death reference and the connected capital appeal preferred by the convicts arising out of the same judgment of conviction and order of sentence, and the same are being disposed of by this common judgment.

4. The prosecution case has its genesis in a written report dated 31.1.2007 lodged by Akhtyar ( P.W.2) wherein he alleged that he alongwith Shabbir had taken the fields of one Jawahar Baheriya Chauhan for cultivation on annual premium of Rs.3,000/- for a period of one year in which they had sown Barseem ( fodder grass). On the fateful day, i.e, on 31.1.2007 at about 3 P.M. his nephew Hashim son of Mushtaq and Rehan son of Shabbir, both aged 12 years had gone to the fields by their cycle to collect Barseem. It was further alleged that the accused persons, namely, Chaman and Irshad, with whom the informant's family had previous enmity and pending litigations, came around 3.30 P.M. armed with knives, when Hashim and Rehan were cutting Barseem in the aforesaid field. Chaman caught hold of Rehan. Hashim attempted to run away, but was intercepted in the same field of green fodder by acused Irshad. Thereafter, both Chaman and Irshad, with their knives slit the throats of Rehan and Hashim respectively. This incident was witnessed by Nahna ( P.W.3) and Aslam ( P.W.1) whose yellings, attracted the attention of the persons working in the nearby fields, but the accused persons made good their escape.

5. P.W.6 constable Bhagwan Singh of P.S. Sadabad, Hathras on 31.1.2007 drew up the F.I.R on the basis of the aforesaid written report, under his signature ( Exhb Ka-5) lodged by the informant, made relevant entries in the general diary at Entry no.30 at 18:15 hours. After closure of investigation, charge sheet was submitted under sections 302/34 I.P.C and Section 25 of the Arms Act and the accused persons were put on trial.

6. The prosecution in support of the charges examined 11 witnesses. P.W.1 Aslam, an eyewitness, stated that he alongwith Nahna ( P.W.3) were cutting Bathua in the potato field of one Rama Shankar and Rehan and Hashim ( victims) were cutting Barseem in the nearby fields of Jawahar and Hari Singh. At the spot accused Irshad, Chaman and Arman came armed with one knife. Accused Arman and Chaman caught hold of Rehan and Chaman slit the throat of Rehan ( deceased), and Irshad caught hold of Hashim, whereupon he saw Hashim yelling and witnessed that Chaman proceeded towards Hashim and with the same knife he slit Hashim's throat too. On distress calls of P.W.1 Shahnshah and Kalam ( both not examined) arrived at the scene but all the three accused fled away.

7. P.W.2 Akhtyar was the informant and not an eye witness to the occurrence. He was allegedly informed about the occurrence by P.W.1- Aslam ( eyewitness). He was subsequently informed by Kalam and Shahnshah ( both not examined) that they had seen Arman, Irshad and Chamn running away with a knife from the scene of occurrence. He further alleges his previous enmity existing with the accused on account of pending litigations in respect of an occurrence which took place 7-8 years ago, in which father of accused Chaman and Irshad w