Hon'ble Arvind Singh Sangwan,J.

Hon'ble Ram Manohar Narayan Mishra,J.

(Per Hon'ble Arvind Singh Sangwan,J.)

1. Reference No. 17 of 2021 is made by the Additional Sessions Judge, Court No. 43, Shahjahanpur for confirmation of capital punishment in Sessions Trial No. 853 of 2003. The Jail Appeal being Capital Case No. 20 of 2021 has been filed by the appellants challenging the judgment of conviction dated 22.11.2021 holding the appellants- Rajendar and Narvesh guilty of offence punishable under Section 302 of IPC and order of sentence of the same date vide which both the accused- appellants were sentenced to death under Section 302 of IPC.

2. The Reference and Appeal were admitted. The Trial Court’s record is received and paper books are ready.

3. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Aditya Gupta, learned counsel for the appellant, Sri Kuldeep Johri, learned counsel for the informant and learned A.G.A. for the State.

4. With the aid of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. After judgement was reserved, certain clarification were again sought by both the learned counsels for the parties by giving hearing in open Court.

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5. The case of the prosecution is that on the intervening night of 15.10.2002/16.10.2002, a complaint was given by the informant-Avdhesh Kumar (who was later on charge sheeted as an accused). The written complaint (Ex.Ka-2) reads as under :

“...one Chutkannu alias Nathulal of our village harbours enmity towards me since I have given evidence as a witness in a criminal case against him. Due to this reason on dated 15-10-2002 at around 6 PM when after giving fodder to my milch animals, I was lying on a cot in my house, just at that time Chutkannu alias Nathulal having his licensed gun, alongwith one Rajendarr who was having a local made gun and Narvesh Kumar who was having a local made Rifle, came to my house and opened fire at me to commit my murder. I ran away from there to save my life. On hearing the sound of gunshot fire, my neighbour Ramesh s/o of Kanauji Lal, his wife Alka, Devesh Kumar, Hari Sharan s/o of Ram Chander came over there. On raising the hue and cry, all the accused persons hit my three daughters who were sleeping near me, in the mosquito net, vizually, Rhohini 09years, Neeta 08 years, both of whom died on the spot due to the gunshot injuries while my third daughter Surbhi 07 years also passed away in the way, while I was coming to the police station. I, my wife Shashi and the witnesses mentioned above besides other people of our village have seen the accused persons commit the murder. Due to fear of the accused persons I have come hiding to the police station. The dead bodies of my daughters are lying in my house..”

6. On the basis of the aforesaid written complaint (Ex.Ka-2), the police registered formal F.I.R. (Ex.Ka-26), against three accused persons namely Chutkannu alias Nathulal and his brother Rajendar and son - Narvesh Kumar. Accused-Chutkannu died around the year 2010 as verified by the Trial Court.

7. During the course of investigation, a site plan of the crime was prepared as pointed out by complainant-Avdhesh Kumar. The same was exhibited as Ex.Ka-7. The dead body of all three daughters of informant were sent for postmortem examination which was also done on 16.10.2002. The Postmortem reports of Rohini aged 09 years is Exhibit A- 5, Neeta aged about 08 years is Exhibit A-4 and Surbhi aged about 07 years is Exhibit A-6. During investigation, the Investigating Officer did not arrest any of the above named three accused persons and rather started investigating of the case in a manner that, Avdhesh Kumar, the father of 2 of 50 three girls, had in fact committed the gruesome murder in presence of his wife namely Shashi Devi (PW-5). Accordingly by giving a clean chit to the three accused persons, at initial stage itself, the Investigating Officer namely Hoshiyaar