M.C.JAIN, J. - (1.) This appeal has been preferred by the accused-appellants Bhoorey Tewari alias Kamlesh and Prem Babu alias Prem Narain Kori against the Judgment and Order dated 3-5-1999 passed by Sri B. K. Srivastava, Special Judge (Dacoity Affected Area), District Orai at Jalaun whereby each of them has been convicted under Sec. 396, I.P.C. and sentenced to the punishment of death and to pay a fine of Rs. 20,000.00. In default of payment of fine each has to undergo rigorous imprisonment for two years. The learned trial Judge has also made a reference under Sec. 366, Cr. P.C. for the confirmation of death sentence passed by him against each of the accused-appellants named above.
(2.) An armed dacoity had been committed by 5-7 dacoits in between night of 6th and 7th November, 1994 at about 2 O' clock in the house of Mahesh Gupta situate in village Chhiriya Salempur, Police Station Jalaun, District Jalaun. A first information report was made at 5.30 A.M. on 7/11/1994 by Ram Swarup Gupta (father of Mahesh Chandra Gupta). The distance of the Police Station from the place of occurrence was 7 Kms. The present two accused- appellants along with one Nazaruddin residents of the same village were named in the first information report as being the participants in the commission of this crime along with unknown other persons. The culprits were allegedly armed with knives and iron rods as mentioned in the F.I.R. Smt. Meena, wife of Mahesh Chandra Gupta PW-1 and his daughter Chandni were murdered in this incident whereas Mahesh Chandra Gupta PW-1, his daughter Km. Nisha aged about 7 years, Km. Pinki aged about 5 years, Km. Shilpi PW-2 aged about 9 years, his son Anshu aged about 3 years and one Km. Suman daughter of his relative Govind Das were injured. The dacoits looted away cash, gold/silver jewellery and other articles. The accused-appellants had allegedly been recognised by the witnesses in the light of electricity and torches. The incident was witnessed by the informant Ram Swarup, his another son Raju, Ram Das Tiwari, Ayodhya Kachhi, Kishori Lal Kori, Jai Narain and Mahesh Chandra Gupta's tenants Gopal Singh and Onkar Singh. The list of looted away jewellery and other valuable articles had subsequently been supplied by the informant Ram Swarup Gupta to the Investigating Officer.
(3.) As per the post-mortem report of Smt. Meena, wife of Mahesh Chandra Gupta PW-1, she was aged about 28 years. Post-mortem over her dead body was conducted on 8-11-1994 at 2.30 P.M. She had sustained three lacerated wounds, one contusion and one incised wound. The death had occurred as a result of ante-mortem injuries. Km. Chandni daughter of Mahesh Chandra Gupta was aged about 5 years and post-mortem over her dead body was conducted on 8-11-1994 at 3.15 P.M. She had sustained two lacerated wounds with fracture of left parietal bone and five other injuries in the form of abrasions and contusions.;