- (1.)This appeal is directed against the impugned common judgment dated 11th August, 2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench in Capital Sentence Reference No.1 of 2005 with Criminal Appeal No.252 of 2005 from Jail and Criminal Appeal No. 384 of 2005. By the impugned common judgment the High Court while dismissed the appeal preferred by the appellant, answered the reference affirming the death sentence imposed by the Trial Court for the offence committed under Section 302 IPC for having committed murder of Km. 'x' (victim: original name not disclosed). The High Court also affirmed the conviction and sentence passed against the appellant under Section 376 read with Section 511 of Indian Penal Code for having made an attempt to commit rape on Km. 'x' aged about 18 years and sentenced him to undergo five years rigorous imprisonment thereunder.
(2.)Initially the appeal was heard by the Division Bench of the Allahabad High Court, Lucknow Bench and after conclusion of the arguments the Hon'ble Judges pronounced their judgments but had a divided opinion; one Hon'ble Judge affirmed the order of conviction and sentence recorded by the Trial Court and the other Hon'ble Judge reversed the whole judgment and the order of the Trial Court and out rightly acquitted the accused-appellant on both the counts. Therefore, the case was referred under Section 392 Cr.PC to a third Judge who after hearing the parties and on appreciation of evidence by the impugned judgment dated 11th August, 2006 dismissed the appeals preferred by the appellant and another on his behalf. The judgment rendered by the Trial Court has been upheld and the reference was answered confirming the penalty of death sentence.
(3.)Learned counsel appearing for the appellant, inter alia, made following submissions in assailing the judgment under appeal:
(i) 'The prosecution has failed to produce any witness to prove the very factum of the registration of the FIR. Irrespective of the same it is ante-timed.

(ii) Ram Chandra Chauarasiya (PW-1) is a highly interested witness and has entered into the witness box only for the purpose of achieving the conviction of the appellant. The statement of PW-1 is not corroborated by any one even though witnesses were available for the same.

(iii) Sriram(PW-9), who was produced to prove recovery memo is not an independent but an interested witness who is the son-in-law of brother of PW-1.

(iv) The 'polythene' bag in which the 'sickle' was wrapped was taken by the Investigating Officer without any seal from the site of recovery.

(v) The alleged recovery of clothes 'Baniyan and towel' do not satisfy the mandate of Section 27 of the Indian Evidence Act. Therefore, the result of chemical examiner is of no value to prove the charge.

(vi) Identification by sniffer dog cannot be taken as evidence for the purpose of establishing guilt of the appellant.