The main legal point established in the judgment is the reliance on the identification of the appellants by the eye witnesses and the absence of admissible evidence to establish previous convictions.

JUDGMENT :

S. L. KOCHAR, J.

1. This Judgment shall also govern the disposal of Criminal Appeal No. 1221/2006 filed by the appellants/accused through Legal Aid against the impugned judgment and order of conviction and sentence.

2. The learned II Addl. Sessions Judge, Ujjain/trial Court submitted the Criminal Death Reference No. 2/2006 for confirmation of death sentence passed by the impugned judgment and order in Sessions Trial No. 318/2004 decided on 26-9-2006 whereby the learned Judge has convicted Padamnath s/o Dhannanath, Guddunath s/o Bejnath and Dharmendra s/o Heeranath under section 396 of the Indian Penal Code and sentenced to death. The learned Judge had also convicted all the seven appellants under section 395 read with sections 397, 398 of the Indian Penal Code, sentenced to RI for life with fine of Rs. 1,000/-. All the appellants were further convicted under section 460 of the Indian Penal Code, sentenced to RI for 10 years and fine of Rs. 1,000/-. In default of payment of fine every appellant shall undergo six months RI under each count. However the substantive jail sentences were directed to run concurrently. Appellants/accused persons have also filed Criminal Appeal No. 1221/2006 aggrieved with the judgment and order of conviction and sentence as mentioned hereinabove.

3. The necessary facts as per prosecution case, for deciding the Criminal Death Reference and Criminal Appeal are as follows :-

4. The occurrence leading to death of Hemendragiri and Narayangiri, had taken place in the intervening night of 18th and 19th May, 2004. The complainant Tejgiri was residing along with his family consisting of his father, mother, son, daughter and daughter-in-laws near Ankaleshwar Temple, Abhilasha Colony, Ujjain. On the date of the incident i.e. intervening night of 18th and 19th May, 2004 complainant Tejgiri was sleeping outside his house along with his father, wife, son Sanjay and grand-daughter Lalita. Inside the house, the son of complainant Hemendra, his wife Lata, Kiran, wife of Sanjay etc were also sleeping. Around 3-3.15 a.m in the night, on account of beating given by unknown miscreants, complainant Tejgiri woke up and saw that he was surrounded by 3-4 miscreants. All of them had covered their faces with clothes and wearing lungi, baniyan and underwear. Among the miscreants, one person threatened Tejgiri with knife not to howl else he would be done to death, thereafter they snatched his automatic watch as also Rs. 200/- and beaten him as well as father Narayan, wife Madhukanta and son Sanjay by lathi due to which all suffered injuries on their faces, legs, ear and other parts of the body. Thereafter all of them were tied with the cot by rope and got opened the door of the house by forcing grand-daughter of complainant named Lalita to call the persons inside. All the miscreants entered inside the house and inflicted blow on the head of Hemendragiri by blunt side of axe, resulting into his fall on the ground and he became unconscious. The assailants also beaten Lata; wife of Hemendragiri, daughter-in-law Kiran and looted silver paijabs, mangalsutra, ring etc. from the box in which they were kept. After looting the ornaments, they locked all the inhabitants inside the room and fled away. Son of complainant named Sanjay somehow or the other untied his rope and got freed the other persons of the family. Complainant and his daughter-in-law Kiran went to the house of journalist Jaiswal who was residing in Abhilasha Colony and from there made telephone call to P.S. Narwar and informed about the occurrence, upon which SHO and other police personnels reached on the spot, prepared dehati nalishi and sent the injured persons to the hospital. Hemendragiri was declared dead on the same day and on the next day injured Narayangiri also succumbed to the injuries.

5. On the basis of Dehati Nalishi (Ex.P.7), FIR (Ex.P.37) vide Crime No. 160/2004 was registered. On the basis of mukbir information and on suspicion, the appellants/accused w