KASHI NATH PANDEY,J. - (1.) THESE appeals have been filed by K.P. Singh alias Manoj Yadav son of Ram Surat Yadav resi­dent of village Tandwa, P.S. Gagha, District Gorakhpur and Moti Chand Yadav son of late Jagdev Yadav, resident of Mohallah Shivapur, P.S. Pipari Renukoot, Disirict Sonbhadra against judgement and order dated 25.3.2009 passed by Additional Ses­sions Judge (F.T.C), Sonbhadra, Sri A.K. Dwivedi. By order dated 25.3.2009 Moti Yadav and K.P. Singh alias Monoj Yadav have been found guilty under section 302 IPC and sentenced to death and also im­posed fine of Rs. 5000/- each, in default of payment of fine they have to undergo ad­ditional sentence of six months. They have also been convicted under section 342, IPC and sentenced to simple imprisonment for six months each. Both of them have been acquitted under section 3(2)(v) of Sched­uled Castes and Scheduled Tribes Preven­tion of Atrocities Act. For confirmation of Death Sentence Reference has been submit­ted under section 366, Cr. P.C.
(2.) ACCORDING to the prosecution case as alleged by informant, Santosh Kumar, his younger cousin brother Pintoo son of Vijay Kumar aged 15 years was working as Cook of K.P. Singh. It was alleged that 15-20 days ago Pintoo ran away after taking some money of K.P. Singh. On the date of occurrence Pintoo was in Renukoot colony. Moti Yadav son of Jagdev Yadav and above K.P. Singh apprehended Pintoo. He was badly beaten. In spite of request of the informant and his father he was not for­given and both have taken Pintoo in the teen shed quarter which was under the ownership of Moti Yadav and in possession of K.P. Singh as its tenant. There Pintoo was burnt after sprinkling kerosene oil and it was locked out and both of them, Moti Yadav and K.P. Singh alias Manoj ran away. On hearing the cry the informant and his father and several other persons of adjoining locality reached there; the lock was broken. The victim was taken to Hin-dalco hospital but during treatment he suc­cumbed to death. The incident is dated 19.8.2006 at 5.30 p.m. The written report was submitted to police out post Renukoot of P.S. Pipari under sections 342, 302, IPC and section 3(2) (v) SC/ST Act. The case was registered at case crime No. 650 of 2004. The investigation was handed over to Sri Umesh Pratap Singh, S.O. Pipari. After investigation charge-sheet under sections 342, 302, IPC and section 3(2)(v) SC/ST Act was submitted by Sudhakar Yadav, C.O. Pipari. The case was committed by CJM Sonbhadra to the Sessions Court for their trial. Charges were framed under sections 342 and 302, IPC and section 3(2)(v) SC/ST Act. Accused pleaded not guilty and claimed to be tried. Written report is Exhibit ka-1 proved by P.W.I, Santosh Kumar; Exhibit ka-16 is chik FIR proved by P.W.IO consta­ble No. 60; Chunni Lal. Recovery memo of partly burnt cot at the place of occurrence is Exhibit ka-2 proved by P.W.2, Raj Ku­mar; Exhibit ka-4 is recovery memo of other household materials partly burnt at the place of occurrence which has been proved by P.W.7, Umesh Pratap Singh; Exhibit K-10 is recovery memo of two negatives of the dead body of Pintoo. The photo was taken by Yogendra Kumar Gupta, New Gita Photo Studio which is proved by P.W 8 Sudhakar Yadav. Exhibit ka-3 is post mortem report of the dead body of Pintoo which has been proved by P.W. 5, Dr. Umesh Prasad Pandey. Exhibit ka-5 is inquest report of the dead body of Pintoo which has been proved by P.W.7, Umesh Pratap Singh. Exhibit ka-6 is police form-13. Exhibit ka-7 is photo lash. Exhibit ka-8 is specimen seal. Exhibit ka-9 is letter to CMO which has been proved by P.W.7. Exhibits ka-12, 13, 14, 15, 16 and 17 are photographs of the dead body of Pintoo and the place of occurrence where he was burnt proved by P.W.9, Yogendra Kumar Gupta, P.W.ll Prem Kumar Gupta. Exhibit ka-17 is carbon copy of G.D out post Re­nukoot, report No. 30 serial No. 371 of 2004, sections 342, 302 dated 19.8.04, 22.30 and Exhibit ka-18 is carbon copy of G.D., report No. 4 dated 20.8.2004, 1.45 P.S. Pi­pari by which the case was registered at case crime No. 650 of 2004 under sections 302 and 342 IPC proved by P.W.IO. Exhibit ka-11 is charge sheet proved by P.W.8. Ex­hibit ka-3 is site plan of the place of occur­rence proved by P.W.7. It is to be noted that Exhibit ka-3 has also been marked on the post-mortem report proved by P.W.5 on 18.9.2007 whereas site plan has been proved by P.W.7 on 5.4.2008, therefore, site plan shall be read with as Exhibit ka-3a. In the same way, chick, report No. 30 out post Renukoot, report No. 4, P.S. Pipari be read as Exhibits 16-A, 17-A, 18-A.
(3.) WE have heard the learned Coun­sel for the appellant and learned AGA for the State. According to the appellants the judgement and order of'conviction is not in accordance with the evidence in record and against the principle of law. The Trial Court has not considered the material evi­dence available on the record. The capi sentence awarded to the appellant against the weight of evidence on recoi The conviction is disproportionate, order is not based on cogent findings. Trial Court has sentenced the appellant in routine way without appreciation of evi­dence which itself creates doubt in thi prosecution story. The impugned order illegal and bad in law. No offence und sections 302 and 342 IPC is made o against the appellants. There is nothing the record to prove the appellants as guilty for the alleged offence. The prosecution has totally failed to prove the case against the 1 appellants. Being it as rarest of the rare case I even then awarded the capital sentence.;