Point of law: Convict/appellant is a menace to the society and there is no chance of his rehabilitation or reformation and no leniency in imposing punishment is called for.

JUDGMENT :

Ramesh Sinha, J.

(A) INTRODUCTION

1. The accused, Deen Dayal Tiwari, was tried by the learned Additional District & Sessions Judge, Court No.5, Faizabad in Sessions Trial No.24 of 2013 : State Vs. Deen Dayal Tiwari, arising out of Case Crime No. 746 of 2011, under Section 302 I.P.C., Police Station Pura Kalandar, district Faizabad.

2. Vide judgment and order dated 29.01.2014/30.01.2014, the learned Additional District & Sessions Judge, Court No.5, Faizabad, convicted the appellant-Deen Dayal Tiwari under Section 302 I.P.C. and sentenced him to be hanged to death till he is dead and with fine of Rs.50,000/-.

3. Aggrieved by the aforesaid judgment and order dated 29.01.2014/30.01.2014, convict/appellant, Deen Dayal Tiwari, preferred Criminal Appeal No. 1776 of 2016 : Deen Dayal Tiwari Vs. State of U.P.

4. Capital Case No. 1 of 2014 arises out of the Reference made by the learned trial Court under Section 366 (1) of the Code of Criminal Procedure, 1973 to this Court for confirmation of the death sentence of convict Deen Dayal Tiwari.

5. Since the above-captioned capital sentence reference and appeal arise out of a common factual matrix and impugned judgment and order dated 29.01.2014/30.01.2014 passed by the trial Court, we are disposing of the aforesaid reference and appeal by this common judgment.

(B) FACTS

6. The informant P.W.1-Dinanath Tiwari had lodged a written report (Ext. Ka.1) on 12.11.2011, at 06:10 a.m., in police station Pura Kalandar, district Faizabad, alleging therein that on 11/12.11.2011, at about 02:30 a.m., on hearing the noise “ cpkvks&cpkvks ” (save-save) of the wife and daughters of his elder brother Deen Dayal Tiwari (convict/appellant), he (P.W.1) and his wife Smt. Suneeta alias Anita (P.W.2) came out of their house and reached to the house of Deen Dayal Tiwari (convict/appellant). Thereafter, they asked Deen Dayal Tiwari (convict/appellant) to open the door but the door was not opened. Then, they threatened to break the door. After that Deen Dayal Tiwari (convict/appellant) came out of the house armed with blood stained axe and attacked upon them also and asked them to leave from there and said that he had cut down his wife and four daughters; and he would also kill all of them. On being cried, villagers gathered there, then, they all controlled his elder brother Deen Dayal Tiwari (convict/appellant) and went inside the room, where they saw that Deen Dayal Tiwari (convict/appellant) had cut down all his four daughters and his wife.

7. The informant P.W.1-Dinanath Tiwari got scribed the aforesaid written report (Ext. Ka.1) from a person of his village and after affixing signature thereon, proceeded to lodge the same to police station Pura Kalander, District Faiazabad and lodged it. A perusal of the chik FIR shows that the distance between the place of incident and Police Station Purakalander was 15 kilometer. A perusal of the chik FIR also shows that on the basis of written report of P.W.1-Dinanath Tiwari, Case Crime No. 748 of 2011, under Section 302 I.P.C., Police Station Pura Kalander, district Faizabad was registered against convict/appellant, Deen Dayal Tiwari.

8. The investigation of the case was conducted by P.W.5-Ajay Prakash Mishra, who, in his examination-in-chief, had deposed before the trial Court that on 12.11.2011, he was posted as Station Officer at police station Pura Kalandar, district Faizabad. On the same day, he got information that the incident had taken place in his area. After getting the investigation, he made entry of chik and the F.I.R. in the case diary and recorded the statement of informant Dinanath Tiwari (P.W.1). He reached the spot in the morning and saw that Deen Dayal Tiwari (convict/appellant) was present inside the room in his house after closing the door from inside; the door was bolted from outside also; and many people of the village and nearby places were present there. One brick of the eastern wall of the room was out from which he peeped and saw inside the room th