JUDGMENT :

Nand Prabha Shukla, J.

1. Heard Sri Dileep Kumar, learned Senior Counsel assisted by Sri Sachin Mishra, who have appeared to assist the Court as Amicus Curiae and Ms. Archana Singh, learned Additional Government Advocate appearing for the State.

2. This Criminal (Capital) Appeal has been filed by the accused/appellant Ajay Kumar against the Judgement and Order dated 04.04.2019 passed by learned Sessions Judge, Auraiya in Sessions Trial No. 54 of 2016 (State Vs. Ajay Kumar and 3 others) arising out of Case Crime No. 142 of 2014, under Sections 452, 302/34, 506 and 225 IPC, Police Station-Arwakatra, District-Auraiya whereby appellant has been convicted and sentenced to death for offence under Section 302 IPC and to pay a fine of Rs. 1,00,000/-, for offence under Section 452 IPC to undergo rigorous imprisonment for three years and a fine of Rs. 5000/- and in Sessions Trial No. 55 of 2016 (State Vs. Ajay Kumar) arising out of Case Crime No. 143 of 2014, under Section 25/27 of the Arms Act, Police Station-Arwakatra, District-Auraiya whereby appellant has been convicted for offence under Section 25 of the Arms Act and to undergo rigorous imprisonment for three years and a fine of Rs. 5000/-, for offence under Section 27 of the Arms Act to undergo rigorous imprisonment for five years and a fine of Rs. 5000/-. The fine shall be recoverable as an arrear of revenue. In default of payment of fine, there shall be no stipulation for additional imprisonment. Eighty per cent of the fine recovered shall be payable to the parents of the deceased as compensation.

3. In the present matter, the Trial Court has proceeded to send a Reference under Section 366 Cr.P.C. for confirmation of death sentence which is being decided herein below:-

4. Prosecution story, in brief, is as follows:-

The first informant Ram Pratap Awasthi, son of Shiv Shankar Lal, resident of Erwatipur, Police Station-Arwakatra, District-Auraiya moved a written Tehrir dated 10.10.2014 at 20:10 P.M. stating that on 10.10.2014 at around 6:30 P.M., when the first informant was sitting in his house talking to Prabha Kant and Ravish Kumar while his young daughter Km. Nisha, aged about 14 years, was busy studying in the courtyard, in the meantime, his neighbourer Ajay Kumar, son of Ram Naresh alias Naresh Chandra Kori, entered into the house and fired at his daughter on her chest with a country-made pistol. Hearing the noise, people gathered and tried to nab the accused but the accused escaped leaving the country-made pistol on the spot. While nabbing, the parts of his torn clothes were left in his hands. The mother of the accused Radha Devi, brother Vijay and his wife intervened and helped him in escaping. Accused Ajay Kumar often stalked his daughter while she was on her way to school and extended threats. He did not complain to anyone due to family prestige. His daughter died on the spot due to fire-arm injury. Hence the FIR.

5. Thus, on the basis of the written report (Tehrir), a Chik FIR No. 142/2014, under Sections 452, 302, 506/34 IPC, Police Station Arwakatra, District-Auraiya was registered against four persons on 10.10.2014. The investigation was entrusted to Station House Officer-Vinod Kumar.

6. On 11.10.2014, on the pointing of accused/appellant Ajay Kumar, a country-made pistol of 315 bore, an empty cartridge and five live cartridges were recovered in a plastic bag kept inside his house. On the basis of which another FIR arising out of Case Crime No. 143 of 2014, under Section 25/27 of the Arms Act, Police Station Arwakatra, District-Auraiya was registered against Ajay Kumar.

7. During the course of investigation, plain earth and blood stained earth were recovered on 10.10.2014. The inquest report was prepared on 10.10.2014 at 9.00 P.M. On 11.10.2014, post-mortem report was prepared. During the post-mortem examination, following ante-mortem injuries were found on the body of the deceased (Km. Nisha):-

“(i) Entry Firearm wound size (1x1 cm) right side of chest in upper inn