IMPORTANT POINT
The court upheld the conviction for murder but commuted the death sentence to life imprisonment, emphasizing the need for extreme caution in imposing capital punishment.

JUDGMENT :

(Attau Rahman Masoodi, J.)

Prelude

(1) Two accused persons, namely, Vijay Prakash Sharma and Dheeraj Sharma, were tried by the Additional Sessions Judge/ Fast Track Court-II, Lucknow in Sessions Trial No. 579 of 2005 : State of Uttar Pradesh Vs. Vijay Prakash Sharma and another, arising out of Case Crime No. 196 of 2005, under Sections 302, 307/34 of the Indian Penal Code, 1860 (in short, referred hereinafter as ‘I.P.C.’), Police Station Hazratganj, District Lucknow.

(2) Vide judgment and order dated 13.09.2022, the Additional Sessions Judge/Fast Track Court-II, Lucknow, convicted both accused persons, Vijay Prakash Sharma and Dheeraj Sharma, under Sections 302/34 I.P.C. and vide judgment and order dated 16.09.2022, sentenced them under Sections 302/34 I.P.C. to be hanged to death till they are dead and a fine of Rs.5,00,000/- each, in default of payment of fine to undergo additional two months’ imprisonment, however, both accused persons were acquitted under Section 307/34 I.P.C. It was also directed that on payment of the aforesaid fine by the accused persons, Rs.8,00,000/- would be paid to the legal heirs of deceased Kapil Gupta as compensation in terms of Section 357 of the Code of Criminal Procedure, 1973.

(3) Aggrieved by the aforesaid conviction and sentences, accused, Vijay Prakash Sharma, has preferred Criminal Appeal No. 2504 of 2022 : Vijay Prakash Sharma vs. State of U.P., whereas accused Dheeraj Sharma preferred Criminal Appeal No. 2524 of 2022 : Dheeraj Sharma Vs. State of U.P..

(4) Capital Case No. 2 of 2022 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 convicts/appellants Vijay Prakash Sharma and Dheeraj Sharma.

(5) Since the above-captioned capital sentence reference and criminal appeals arise out of a common factual matrix and impugned judgment/orders dated 13.09.2022 and 16.09.2022, we proceed to decide the same by the common judgment.

Prosecution Case

(6) Shortly stated, the prosecution case runs as under :-

I Informant Uday Swaroop Bhardwaj (P.W.1), resident of Niralanagar, Police Station Hasanganj, Lucknow, was an architect and builder. An agreement was executed between him (P.W.1) and Krishna Kumar Gupta (deceased), resident of C-160 Sector-D, LDA Colony, Kanpur Road, Police Station- Krishnanagar, Lucknow, for construction of shops and office on the place situated above Basant Talkies near Mayfair Tiraha, Hazratganj, which was purchased from Kuber Finance by Krishna Kumar Gupta (deceased). As per agreement, P.W.1 had started the construction work of shops on the aforesaid place.

II Convict/appellant Vijay Sharma was the owner of Bajrang Security Agency and V.I.P. Security Agency and its office was situated appurtenant to other portion of the aforesaid place of construction.

III P.W.1-Uday Swaroop Bhardwaj gave a written complaint (Ext. Ka.1) in the Police Station Hazratganj, district Lucknow, stating that construction of shops was almost completed in the aforesaid place. During construction, convict/appellant Vijay Sharma often used to come and threatened Krishna Kumar Gupta (deceased) that the construction place of shops belongs to Kuber Finance Company upon which Rs.17,00,000/- of him was outstanding and in lieu thereof, he (deceased Krishna Kumar Gupta) would have to give three shops to him (convict/appellant Vijay Sharma). On this matter, Krishna Kumar Gupta (deceased) used to say that he had bought this place, therefore, he (convict/appellant Vijay Sharma) did not have any right on it.

IV On 16.04.2005, when he (P.W.1), Krishna Kumar Gupta (deceased), his son Kapil Gupta (deceased) and his friend Rajeev Dixit (P.W.2) were working in the gallery near the stairs of first floor of office and shop, then, around 3:00 p.m., convict/appellant Vijay Sharma and his son Dheeraj Sharma (convict/appellant) came and told to Krishna Kumar Gupta (deceased) that Rs.17,00,000/- was outsta