The main legal point established in the judgment is the requirement for the prosecution to prove the charges beyond reasonable doubt, especially in cases involving circumstantial evidence and the awarding of death sentence.

JUDGMENT :

Pritinker Diwaker, J.

1. This death reference was made to this Court under Section 366 of the Criminal Procedure Code, 1973 (in short 'Cr PC') for confirmation of death sentence passed against the appellants. The appeal of accused preferred under Section 374 (2) Cr.P.C and the death reference are heard together and this judgment will govern the disposal of both the death reference and the appeal preferred by the appellants.

2. This death reference and the capital case arise out of the judgment and order dated 06.12.2021 passed by the Court of Additional District & Sessions Judge/FTC, Court No.1, Mau in Sessions Trial No. 209/2009 arising out of Crime No. 437 of 2009 & Sessions Trial No. 210 of 2009 arising out of Crime No. 485 of 2009 in which, accused/appellants herein were tried, found guilty, convicted and sentenced to undergo death sentence with a fine of Rs.10,000/-, in default of payment of fine, the same was to be recovered as arrears of land revenue.

3. As per prosecution case, on or about 17.03.2009, some goats belonging to accused appellant Akloo Chauhan, entered the agricultural field of complainant Tulsi Gupta and damaged his crops. Those goats were driven out by the complainant by throwing some stones towards them. It is said that some of the goats got injured and out of them, one died as a result of which accused Akloo Chauhan and his son Jai Chand got annoyed with the complainant and he was held responsible for the death of the said goat. That apart, there was some land dispute also between the two families.

On 17.03.2009 in the evening, when Ram Sanehi father of the was sleeping near the village tube well and the second deceased Pabbar Maurya was also sleeping near his tube well, accused appellant Akloo Chauhan, Jai Chand, Befu Chauhan (since deceased) and Ram Saran Chauhan, who were relatives amongst each others, reached there and caused the death of his father Ram Sanehi and Pabbar Maurya by causing gun shot injuries. A strong suspicion has been shown by the complainant upon accused persons and when he reached to the place of occurrence, he found two dead bodies lying there. Based on this offence, FIR under Sections 302 & 404 of I.P.C. was registered against the accused Akloo Chauhan, Jai Chand, Befu Chauhan and Ram Saran Chauhan.

4. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.6 & Ex.Ka.11 on 18.03.2009 and the bodies were sent for postmortem, which was conducted on the same day, vide Ex.Ka.2 & Ex.Ka.3 by PW-5 Dr. S.P. Yadav.

As per Autopsy Surgeon, deceased Ram Sanehi suffered four injuries vide Ex.Ka.2, whereas other deceased Pabbar Maurya suffered ten injuries vide Ex.Ka.3. As per Autopsy Surgeon, cause of death of the two deceased was coma as a result of ante mortem injuries.

5. While framing charge, trial Judge has framed charge against the accused-appellants under Sections 302/34 & 404 of IPC, whereas separate charge under Section 4/25 of Arms Act has also been framed against the accused Jai Chand.

6. During trial, accused Befu Chauhan had expired and the trial court proceeded with the trial in respect of appellants Akloo Chauhan, Jai Chand and Ram Saran Chauhan.

7. So as to hold accused appellants guilty, prosecution has examined seven witnesses, whereas one Court witness has also been examined. Statement of the accused-appellants were recorded under Section 313 of Cr.P.C. in which, they pleaded their innocence and false implication.

8. By the impugned judgment and order, the trial Judge has convicted the appellants under Sections 302/34 of I.P.C. and has awarded death sentence, as mentioned in paragraph-2 of this judgment, whereas accused appellant Jai Chand has been acquitted of the offence under Section 4/25 of Arms Act. Hence this appeal.

9. Counsel for the appellants submits :

(i) that there is no eyewitness account to the incident and the appellants have been convicted solely on the basis of so called evidence of last seen.

(ii) that disbelieving the recovery part, accused-app