V. B. SERPURKAR, C. J.

( 1 ) THIS judgment shall dispose of the Criminal Appeal no. 58 of 2004 along with Criminal reference No. 3 of 2004 and also the Criminal appeal No. 56 of 2004. Criminal Appeal No. 56 of 2004 has been filed by the accused-smt. Naresho agamst the conviction under s. 120-B, I. P. C. and the resultant sentence for life imprisonment. Criminal Appeal No. 58 of 2004 has been filed by the accused-surendra Singh, who is also convicted for the same offence under S. 302, I. P. C. , but has been awarded death sentence. A reference is made only for confirmation of the death sentence awarded by the Sessions judge. Needless to mention that both the accused-appellants were tried in a common sessions trial, where one Shiv Kumar alias shibbu was said to have been murdered in the night of 23/24th February, 1993. While accused-Surendra Singh, who was accused no. 1 in the trial, was charged with a sub-stantive offence, the accused-Naresho, who was accused No. 2 in the trial, was roped-in in the aid of S. 120-B, I. P. C. In this judgment, the accused persons shall be referred either by their names or by their original accused number during the trial.

( 2 ) THE deceased-Shiv Kumar alias shibbu was the husband of original accused no. 2-Naresho and they resided with their father Molhar Singh at Village Landhora, police Station Manglaur, District Haridwar. Deceased-Shiv Kumar was in the business of selling milk. Mosoum (P. W. 1) S/o shauqut All used to go to the house of the deceased-Shiv Kumar for milking the cattle and collection of milk. When he went to the house of Shiv Kumar in the morning of 24th february, 1993, he found Shiv Kumar sleeping near the cattle shed, who did not wake up on being awakened. However, Mosoum (P. W. 1) went inside, at that time, original accused No. 2-Naresho enquired whether it was a milkman, who had come. On that, he asked for a bucket for milking the cattle. However. he found that the said room, from which the original accused No. 2-Naresho was talking to him, was locked. Naresho, then passed him the key through the window. He opened the lock and original accused No. 2-Naresho, then, gave him the bucket. Both of them came to the cattle shed, where Shiv Kumar was sleeping. Again, narevsho tried to wake up Shiv Kumar, but he did not wake up on which, Naresho started crying. Mosoum (P. W. 1), therefore, went to the nearby house of Niranjan Singh (P. W. 2), who came with him there. He also tried to wake up Shiv Kumar. However, finding that Shiv Kumar was not speaking, he removed the quilt and found that he was not breathing nor was there any pulse. He, therefore, went to call the doctor. In the meantime, neighbour Krishan Pal Singh (P. W. 3) and his wife also came there. Son of krishan Pal Singh (P. W. 3) came with a torch. The doctor also came and all of them found that Shiv Kumar's neck was cut. There was blood on the bed as also on the ground. This was at about 6'0 Clock in the morning.

( 3 ) NIRANJAN Singh (P. W. 2) got a report scribed through Ajay Kumar and gave it at the Police Station. After registering the offence, D. P. Tyagi (P. W. 2), In-charge of the police Station Manglaur, came on the spot along with him. He started the investigation and recorded the Panchayatnama. He seized the blood stained articles in presence of the panchas. He then recorded the statement of witnesses. The prosecution alleges that the original accused No. 1-Surendra Singh came to Krishan Pal Singh (P. W. 3) in the afternoon of 24th February, 1993 and confessed that he had illicit relations with original accused No. 2-Naresho, the wife of the deceased-Shiv Kumar and that she was also carrying his baby and that this was suspected by the deceased-Shiv Kumar, who used to beat his wife, original accused No. 2-Naresho and refuse to give her food and naresho used to be hungry and without food when he used to beat her and could not see the sufferings of Naresho. In his further confession to Krishan Pal Singh (P. W. 3), he

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