JUDGMENT :

Syed Aftab Husain Rizvi, J.

Heard Ms. Tanisha Jahangir Monir, learned counsel for the appellant, and Ms. Archana Singh, learned AGA for the State.

2. This capital criminal case (appeal) has been preferred by the appellant Ranvir Singh against the judgment and order dated 20/21.7.2016 passed by Additional Sessions Judge, Court Nos. 4 Bulandshahr in S.T. Nos. 33 of 2009 (State v. Ranvir Singh and another) under Section 302 /34 and 302/120 B IPC, P.S. Aurangabad, District Bulandshahr whereby the appellant has been convicted under Section 302 IPC and sentenced to penalty of death with a fine of Rs. 1 lac and in default of payment of fine rigorous imprisonment of 2 years. The appellant has also been convicted in S.T. Nos. 35 of 2009 under Section 25 of the Arms Act and sentenced to undergo three years rigorous imprisonment with a fine of Rs. 50,000/- and in default of payment of the fine, he has been directed to undergo further rigorous imprisonment of one year.

3. The Additional Sessions Judge has also made a reference to this Court under Section 366 Cr.P.C. registered as reference Nos. 7 of 2016. The appeal and the reference have been heard together and are being disposed of by this common judgment.

NARRATION OF FACTS

4. This is a case where Sukhveer and his entire family comprising 7 members namely Sukhveer Singh (D-1) his two sons Surya Pratap (D-2) and Abhishek (D-3), his two daughter-in-laws Mamata (D-4) and Lata (D-5 full term pregnant), his wife Suremvala (D-6) and grandson Cheekoo aged about two years (D-7) were exterminated in the night of 28/29.7.2008. Four persons were charge-sheeted namely Ranvir Singh, Manveer Singh alias Sanjeev Kumar (brothers of Sukhveer Singh), A S/o Ranvir Singh, and Smt. Devendri W/o of Ranvir Singh. During trial, A was declared juvenile and his file was separated whereas Manveer Singh alias Sanjeev Kumar and Smt. Devendri W/o Ranveer Singh have been acquitted of the charges of the offence of criminal conspiracy.

5. Brief facts of the case are that in the intervening night 0f 28/29.7.2009 at 3:20 a.m., information was received in the city control room from mobile Nos. 9410670741 of which entry is made to the effect that at village Barari the house of Sukhveer Singh (D-1) has been surrounded by miscreants and incessant firing is going on and some murders have also been committed. On receiving this information the police team headed by SHO Balveer Singh (P.W.-9) reached the village by which time several persons had gathered at the house of Sukhveer Singh (D-1). The police team witnessed the scary scene. Six bodies with bullet injuries were strewn all over the house and the body of Sukhveer Singh (D-1) was lying at his tube well.

6. FIR of this case was lodged on the written report of Sanjeev Kumar S/o Shiv Charan Singh with the allegations that his brother Sukhveer Singh was sleeping at his tube-well situated at his agricultural field. His two sons Surya Pratap alias Rinku and Abhishek and their wives Mamata and Lata and the wife of Sukhveer Singh namely Suremvala and Chiku the son of Surya Pratap were sleeping inside their house. In the night at about 2 a.m., some unknown miscreants after scaling the boundary wall entered the house and started indiscriminate firing and done to death the wife of Sukhveer, both the sons of Sukhveer, their wives, and grandchild Cheeku. Hearing the sound of gunshots the villagers and family members challenged the miscreants but they did not allow anyone to move forward and the miscreants after committing murder of all the family members of Sukhveer Singh went away. Thereafter, the complainant and others went to the field of Sukhveer and saw that he was also done to death by slitting his neck. All the family members have been done to death by the miscreants and the bodies are lying on the spot. On the aforesaid written information, an FIR case crime Nos. 199 of 2008, under Section 302 IPC against unknown was registered.

7. S.I. Surendra Singh (P.W.-4) conducte