OM PRAKASH, J.

1. Present reference under Section 366 Cr.P.C. and Capital Case under Section 374(2) Cr.P.C. have arisen assailing judgment and order dated 20.03.2017 passed by Additional Sessions Judge, Court No. 10, Agra in Session Trial No. 502 of 2012, whereby accused-appellant Gambhir Singh has been convicted under Sections 302 read with 34 IPC and 404 IPC. Considering the case to be rarest of rare, accused-appellant was awarded death sentence under Section 302 read with 34 IPC with a fine of Rs. 50,000/- and in default of payment of fine, he has to undergo one year additional imprisonment. Further under Section 404 IPC, he was sentenced to undergo three years imprisonment with a fine of Rs. 10,000/- and in case of default in payment of fine, he has to further undergo three months additional imprisonment. It was further directed that all sentences shall run concurrently.

2. Vide impugned judgment and order dated 20.03.2017 passed by Trial Court in Sessions Trial No.502 of 2012, accused Smt. Gayatri was acquitted of charge under Sections 302 read with 34 IPC and 404 IPC. Against her acquittal, an Appeal on behalf of the State, being Government Appeal No.3574 of 2017, has been preferred, which is connected with this Capital (Criminal) Appeal.

3. Since both the connected cases arise out of same judgment and order, it were heard together and are being disposed of by this common judgment and order.

4. Prosecution story, in brief, as unfolded in written report (Ex.Ka.1) is as follows :

Informant (P.W.1) Mahaveer son of Balveer Singh resident of Village Ardaya, Police Station Achhnera, District Agra moved written report (Ex.Ka.-1) dated 09.05.2012 at Police Station Achhnera mentioning therein that marriage of informant's sister Pushpa was solemnized 12 years back with Satyabhan son of Shiv Singh resident of Turkiya. Out of wedlock, three daughters namely, Aarti, Mahla and Gudia and one son Kanhaiya were born. Gambhir, younger brother of informant's brother-in-law, bore enmity with them due to partition of land. On 08.05.2012, Gambhir Singh was staying along with his friend Abhishek at the house of informant's sister. On 09.05.2012 at 6:30 in the morning, informant received information that his sister, brother-in-law, nephew and nieces i.e. whole family have been done to death. On information, informant and his family along with villagers reached village Turkiya and saw all dead bodies lying there. On inquiry being made, it is revealed that yesterday evening, Gambhir along with his friend Abhishek and sister Gayatri was seen going from village Turkiya in bewildered condition. Informant believed that Gambhir and his friend have murdered his sister Pushpa, brother-in-law Satyabhan and their four children with some sharp edged weapon.

5. On the basis of written report Ex.Ka.-1, chik first information report (hereinafter referred to as "F.I.R.") No. 105 of 2012 (Case Crime No.329 of 2012) Ex.Ka.-18, was registered against accused Gambhir, Abhishek and Smt. Gayatri under Section 302 IPC at Police Station Achhnera, District Agra by P.W.11 Constable Sunil Kumar. He also made entry in General Diary, certified copy whereof is Ex.Ka.-19 on record.

6. Investigation of the case commenced. During investigation, Investigating Officer copied the chik and G.D. in case diary and recorded the statement of informant and also proceeded to the place of occurrence along with police personnel. He also deputed two Sub Inspectors to prepare the inquest report. Inquest report of the dead body of Gudia as Ex.Ka.-10, Satyabhan as Ex.Ka.-7, Kanhaiya as Ex.Ka.-6, Priyanka as Ex.Ka.-8, Pushpa as Ex.Ka.-11 and Arti as Ex.Ka.-9 were prepared along with relevant documents i.e. letter to C.M.O., letter to R.I., letter to C.M.S., photo nash, form 13 etc.

7. Dead bodies were kept in sealed cloths preparing sample seals and were dispatched through Constables for postmortem.

8. P.W. 8 Dr. Vinod Kumar conducted post-mortem on dead body of Satyabhan on 09.05.2012 at 5:0