B.K. Sharma, J. - (1.) These are two connected appeals against the judgement and order dated 1.3.1995 passed by Sri U.P.S. Kushwaha, 3rd Additional Sessions Judge, Etah in Session Trial No. 167 of 1991, State v. Ganga Singh and two others under Sections 302/34 Indian Penal code, Police Station Jalesar, District Etah, whereby he convicted all the three accused-appellants of the offence under Section 302/34 Indian Penal Code and sentenced Ganga Singh and Arjun-accused-appellants to death and sentenced Karua alias Kali Charan accused-appellant to imprisonment for life. While giving capital sentence as aforesaid the Sessions Judge made reference to this court for the confirmation of the death sentence. The accused-appellants have preferred two appeals which have been consolidated and are being disposed of by this judgement.
(2.) Karua alias Kali Charan and Arjun accused-appellants are sons of Ganga Singh accused-appellant. There are two deceased in this case namely Suraj Pal and Km. Guddi. Suraj Pal deceased was aged about 18 years and Km. Guddi was aged about 17 years. Km. Guddi deceased was the daughter of Ganga Singh accused-appellant and consequently, the real sister of Karua @ Kali Charan and Arjun accused-appellant. Suraj Pal deceased was son of Bhoo Deo. Rameshwar, the informant and P.W. 1 of this case was son of Kashi Ram P.W.2, younger brother of Bhoo Deo, in other words Suraj Pal deceased was the son of elder paternal uncle of the informant Rameshwar. Bhoo Deo lived at Fatehpur Sikri and worked as a stone-cutter. Suraj Pal deceased lived with Rameshwar and kashi Ram P.Ws. 1 and 2 in village Bareni, Police Station Jalesar, District Etah. The accused-appellants also lived in the same village. The house of the accused appellant opened towards east on a Kharanja and an electric pole was situated near its door. The Kharanja turned towards east and went to the house of the informant Rameshwar and his father Kashi Ram situated in the vicinity. There were houses on either side of the Kharanja. The prosecution story was that a love-affair was going on between the two deceased Suraj Pal and Guddi for sometime, that Suraj Pal deceased used to visit the house of the accused-appellants, that the accused persons did not relish his affair with Guddi deceased. That the occurrence had taken place on 10.1.1991 at 8.45 P.M., that all the three accused-appellants detected the two deceased committing sexual intercourse with each other and, therefore, caught hold of them and brought them to the Kharanja in front of their (accused-appellants) house and tied both of them with the pole by means of a rope, that Rameshwar informant andhis father Kashi Ram P.Ws. 1 and 2 both heard alarm of Suraj Pal deceased coming to their house "BACHAO BACHAO". Thereupon, Rameshwar informant, his father Kashi Ram P.W. 2 and informant's brother Indrapal ran and reached the spot, that Amber Singh also came there, that all of them saw the accused-appellants tying both the deceased to the electric pole, that when they tried to stop them from doing so they (accused-appellants) threatened to brun them (if they interfered), that the accused persons threw Karab and poured Kerosene oil over both the deceased and lighted fire by match stick. When the fire started burning the deceased, the informant and others cried and wept, whereupon many villagers collected but in the meantime both the deceased had been burnt to death. The written first information report of the occurrence Ex-Ka-1 was lodged at the police station by the informant Rameshwar by 11.45 P.M. on which basis a chick report Ex-Ka-2 was prepared by the clerk constable and a case was registered and the investigation was started. The investigation Officer visited the spot and found the naked burnt dead-bodies of both the deceased at the spot. He took panchayat-nama proceedings and interrogated the witnesses. He took into custody burnt ashes and pieces of burnt rope and prepared Ex.Ka-16 about it. The Investigation was later on completed by Station House Officer Karmvir Singh. The charge-sheet was submitted by him against the accused persons. The post mortem on the dead-body of Surajpal deceased was made by Dr. P.K. Jain, Medical Officer, District Hospital, Etah, on 12.1.1991 at 1.45 P.M. His material observations are as follows:- Probable age : about 18 years Probable time since death : about 1, 3/4th days. External Examination : Average built with mascolare, Rigor Mortis absent in upper limbs while present in lower limbs. No sign of decomposition present. Body in piquest posture. Eye-brow and eye lashes burnt. Ante-mortem Injuries - Superficial to deep burn all over the body, scalp, hair, eye-brow, eye-lashes and public hair are also burnt. Internal Examination : Membranes and brain - congested Larynux, trachea bronchi : Black soot present in trachea. Right lung and Left lung both - congested Stomach - Empty NAD. Small intestine - contains digested food. Large intestine - contains faecal matter. Liver and gall bladder - congested. In his opinion death was due to shock as a result of ante-mortem injuries. The post-mortem on the dead-body of Km. Guddi deceased was made by Dr. P.K. Jain, Medical Officer, District Hospital, Etah, on 12.1.1991 at 1.00 P.M. His material observations are as follows: Probable age : about 17 years. Probable time since death : About 1, 3/4th days. External Examination - Average built with normal musculare Rigor Mortis absent in upper limbs while present in lower limbs. No signs of decomposition. Body is piquest posture. Eye brow and eye lashes burnt.Ante-Mortem Injury Superficial to deep burn all over the body, scalp hair, Eye-brow and eye lashed and public hair also burnt. Internal Examination - Head and Neck - Membranes - congested. Brain-congested. Thorax - Larnynx, trachea, bronchi. Black soot - present in trachea. Right lung and left lung - congested. Abdomen - Stomach and its contents : Empty. Small intestine and its contents : Contains digested food. Large intestine and its contents : contains faecal matter. Organs of generation : Non-gravit with normal F.T. Opinion about death : Death due to shock as a result of a ante-mortem injuries.
(3.) Now it is established from the medical evidence that the death of the deceased had taken place due to burn injuries received by them. The date, time and place of occurrence set out by the prosecution was 8.45 P.M. on 10.1.1991. There is ocular testimony on that point and the post-mortem evidence also corroborates the same. The defence has also not challenged the date, time and place of occurrence at the trial. The Autopsy Surgeon Dr. P.K. Jain, P.W.4 has stated that the ante-mortem injuries of both the accused were sufficient to case death in the ordinary course of nature. It is obvious that the death of the deceased would have been instant on receiving the burn injuries.;