B. K. Sharma, J. - (1.) THIS capital appeal has been preferred by Phool Chand accused-appellant from jail against the judgment and order dated 31st March, 1997 passed by Sri Y. R. Tripathi, Sessions Judge, Mau in S. T. No. 55 of 1991, State v. Phool Chand, Police Station Kotwali, District Mau, whereby he convicted Phool Chand, accused-appellant under Section 302, I.P.C. and under Section 201, I.P.C. and sentenced him to capital sentence for the offence of murder. He did not, however, awarded a separate sentence for the offence under Section 201, I.P.C.
(2.) WHILE sentencing the accused-appellant to the capital sentence, the learned Sessions Judge made a reference to this Court for confirmation of the sentence of death, which has been registered as Reference No. 19 of 1997 and has been connected with this capital appeal for hearing. It is a double murder case. There are two deceased Bindesh alias Pappoo, aged about 6 months and Ram Saran, aged about 8 years, both sons of Lal Chand. The informant in the present case is Shivraj alias Shiv Nath (P.W. 1). Lal Chand (P.W. 2) father of both the deceased, and Phool Chand accused-appellant are real brothers inter se and son of the informant. Smt. Surati (P.W. 3) is the wife of Lal Chand (P.W. 2). Smt. Radhika Devi (D.W. 1) is the wife of Phool Chand accused-appellant. Ram Autar (D.W. 2) is the father-in-law of Phool Chand accused-appellant. The prosecution story was that in village Dasai Phokhra in one house, the informant's son Lal Chand (P.W. 2) lived in the northern Kotha, while the other son Phool Chand accused-appellant lived separately in the southern Khotha ; that the informant himself lived in an Ahata, which was 4-5 bigha away from the said house ; that the accused-appellant had a suspicion that Lal Chand (P.W. 2) had illicit relations with his wife : that on 3.6.91 Lal Chand (P.W. 2) and his wife Smt. Surati (P.W. 3) left their house in the early hours in the morning leaving the two victims asleep on a cot beneath the Mahuwa tree in the Sahan of the house and leaving accused-appellant Phool Chand and his wife Radhika Devi (D.W. 1) at their own Kotha (i.e., the southern Kotha of the house), that Balmik (P.W. 5) while going from his house to Salahabad for his maternal uncle's house at about 6 to 7 a.m. saw the accused-appellant picking one of the two deceased from the cot and taking him into his Kotha, that after some time Smt. Surati (P.W. 3) returned back home and found the two deceased missing, that she enquired the whereabouts of the two deceased from Radhika Devi (D.W. 1) who pointed out that the deceased had gone towards the Ahata (of the informant), whereupon Smt. Surati went to the Ahata and searched for the two deceased but did not find them there, that she (Smt. Surati) enquired from the informant (her father-in-law) at about 8 a.m. about the whereabouts of the two deceased but the informant expressed his ignorance, that on this Smt. Surati developed suspicion and made search of the two deceased here and there, that when she could not find their (deceased's) trace she, informed her husband Lal Chand (P.W. 2) at 11 a.m. and thereafter a search was made of the two deceased in the vicinity and announcements were also made on loudspeaker about the missing children (the two deceased) but all in vain, that thereupon Lal Chand (P.W. 2) gave a written report at the police station about the disappearance of the two deceased in respect of which an entry was made in the G.D. at Serial No. 32 at 5.45 p.m., that subsequently at about 8-9 p.m. Smt. Radhika Devi (D.W. 1) (wife of the accused-appellant) while making search of a wrapper in her Kotha noticed a portion of the accused-appellant's Lungi peeping from the chaff which was lying in the Kotha, that she tried to pull that Lungi out of chaff but found it weighty, whereupon she raised an alarm attracting thereby Lal Chand (P.W. 2), Smt. Surati (P.W. 3) and some others, who took out that Lungi from the chaff and found the dead bodies of the two infant deceased wrapped in Lungi and covered by Taat in the heap of chaff, that the accused-appellant had fled away from the house when the search was made, that on coming to know about the recovery of the dead-bodies the informant also reached the spot and then went to the police station, got an F.I.R. scribed from one Rajendra Prasad and lodged the same there at 10.30 p.m., that on its basis a chick report was prepared and a case was registered nominating the accused-appellant therein for the two murders.
(3.) THE investigation of the case was entrusted to S.I. Kamta Prasad Shukla (P.W. 10). He visited the spot and found a blood-stained Gandasa, Lungi, torch and blood there. He took blood-stained and simple earth from the spot and also took blood-stained Gandasa, Lungi, Torch etc. from there and prepared memos of the same. THE Panchayatnama proceedings were also taken and then the dead bodies of both the deceased were sent for post-mortem. During the investigation, the I.O. interrogated Rajendra Prasad P.W. 4 on 6.6.91 to whom the accused-appellant had made his extra-judicial confession. THE accused-appellant Phool Chand was arrested on 7.6.1991 by the police. On his arrest, he offered to confess, he was produced before the C.J.M. along with a report for recording his confession. THE C.J.M. fixed 10.6.91 for the recording of his statement before Sri Sukh Ram, Munsif Magistrate. On 10.6.91, the accused-appellant was summoned from jail and produced before Sri Sukh Ram who recorded his confession. The blood-stained articles were sent to the Forensic Laboratory, Lucknow for examination. The report of the forensic expert showed that these articles collected from the spot were stained with human blood.;