P. Sathasivam, J. - (1.) This appeal is filed on behalf of the appellants through the Jailor, District Jail, Sitapur, U.P. against the impugned judgment dated 03.03.2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, in Criminal Reference No. 2 of 2005 and Criminal Appeal No. 713 of 2005 whereby the High Court allowed Criminal Reference No. 2 of 2005 filed by the State confirming the death sentence awarded to the appellants herein and dismissed Criminal Appeal No. 713 of 2005 filed by the appellants herein.
(2.) The prosecution case is as under: (a) On the fateful night of 21.12.1995 when Shiv Ratan, Nanhakey, Ram Kishore and Sushil were irrigating their fields in the northern side of the village from the tubewell of Sundari, widow of Jai Narain, at about 8.30 p.m., eight miscreants armed with guns reached the spot. A boy and two girls were also with them. All the miscreants caught hold of the four persons who were irrigating their fields and enquired about their properties and made a demand of Rs. 10,000/- each and threatened that otherwise they would be killed. At the very moment, Harnam, Ganga Dai, Chhotakey s/o Gaya Ram and Hari Kumar Tripathi who were returning home after irrigating their fields were also stopped by the miscreants demanding Rs. 10,000/- each from them. When all of them expressed their inability to pay the money, the miscreants assaulted Sushil, Shiv Ratan and Harnam by butt of the gun and took away Hari Kumar Tripathi, Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai towards western side of tubewell leaving Sushil, Shiv Ratan and Harnam directing them to bring money otherwise they would be killed. These three persons returned to the village and informed the villagers about the incident and by the time the villagers reached near the field, the miscreants had taken away all the five abducted persons along with them. Due to the night and being afraid of the miscreants, the villagers could not lodge a complaint immediately. On the very next day i.e. 22.12.1995 at 6.10 a.m., a complaint was lodged at P.S. Sandana, Dist. Sitapur and a case was registered and the investigation was commenced for searching the abducted persons. At about 25 mts. away from the tubewell in the sugar cane field of Laltu, the dead body of Hari Kumar Tripathi was recovered and the dead bodies of Nanhakey, Ram Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai were found in the Arhar field at a distance of 1 km. from the tubewell. After recovery of the dead bodies, they were sent for post-mortem. After recording the statements, S.H.O. Ram Shankar Singh arrested Mulla and Guddu on 01.01.1996 and Tula on 08.01.1996 and recovered a countrymade gun, two cartridges and one knife. (b) After completion of investigation, charge sheet was filed against Mulla, Guddu, Tula and Asha Ram. The accused persons were produced in the Court of Judicial Magistrate, First Class, Sitapur. Before committal of the case, the Judicial Magistrate vide his order dated 19.11.1996, separating the case of accused Asha Ram committed the case to the Additional Sessions Judge, Sitapur for trial vide his order dated 03.03.1997. During the trial, since accused Tula was absent, his case was separated. By order dated 30.4.2005, the trial Court convicted Mulla and Guddu under Section 365 IPC and sentenced them to undergo R.I. for 7 years and a fine of Rs. 1000/- each and in default of payment of fine further simple imprisonment for one year. The appellants herein were also convicted under Section 148 IPC and sentenced to undergo R.I. for 3 years. They were further convicted under Section 302 read with Section 149 IPC and sentenced to death. (c) Challenging the said judgment, Guddu filed Crl. A. No. 698 of 2005 and Mulla filed Crl. A. No. 701 of 2005 before the High Court from Jail and both of them jointly filed Crl.A. No. 713 of 2005 through counsel. The High Court, vide order dated 03.03.2006, confirming the death sentence imposed on the appellants dismissed the appeals filed by both the appellants. Aggrieved by the said judgment, both the accused persons filed this appeal through the Jailor, Distt. Sitapur, U.P. On 14.7.2006, this Court issued notice and on 21.7.2006, stayed the execution of death sentence pending further orders.
(3.) We heard Ms. Ranjana Narayan, learned amicus curiae for the appellants and Mr. Pramod Swaroop, learned senior counsel for the respondent-State.;