KASHI NATH PANDEY,J. - (1.) THIS criminal appeal has been filed against judgement and order dated 17.10.2008 passed by Sri Mool Chand Shukla, Addi­tional Sessions Judge. Court No-2, Saharanpur in session trial No. 803 of 2006 un­der sections 302 and 307 IPC, P.S. Sarsawa whereby the appellant has been convicted and sentenced to hang till death under sec­tion 302 IPC and imprisonment for life un­der section 307 IPC and fine of Rs. 5000/- in default of payment of fine for a term of three months additional imprisonment. Under section 366 Cr.P.C. reference has also been submitted for confirmation of the death sentence.
(2.) ACCORDING to the first information report as lodged by Kunwarpal son of Phool Singh resident of village Pilkhani, P.S. Sarsawa, District Saharanpur on 27.6.2006 Satish Kumar son of Atar Singh was sleeping on the roof of informant's brother, Shyam lal house with his wife and five children. The informant was also sleeping on the adjoining roof of his house, at about 4.30 a.m. In the morning he heard the cry of children, he rushed to the roof where Satish and his children were sleep­ing and saw that Satish was armed with Kulhari in his hand and was assaulting on his wife and children, hearing the cry Beerbal and Telu Ram sons of Simran of the adjoining house and several other co-villagers came to the spot. With the help of all of them the informant apprehended Satish with his axe. Smt. Sanjo, the wife of Satish Kumar died on the spot and his chil­dren Amit, Sumit, Sunil, Deepak and Payal who were injured were taken to hospital by co-villagers. Satish was caught on the spot. Several co-villagers were there. The infor­mation is being given for necessary action. The case was registered at crime No. 147 of 2006 under sections 307 and 302 IPC against Satish Kumar son of Atar Singh on 27.6.2006 at 6.15 a.m. The distance of place of occurrence is at 7 kilometer from the police station. FIR is exhibit Ka-1. Chik FIR is exhibit Ka-10. According to the re­covery memo, exhibit Ka-2 on 27.6.2006 in presence of witnesses Sri Prakash Chandra son of Sri Layak and Sri Om Prakash son of Sri Ranjeet Singh residents of village Pilk­hani, P.S. Sarsawa, District Saharanpur an axe blood stained used in crime No. 147 of 2006, sections 307 and 302 IPC was taken into possession by the police and covering its edges by cotton kept it in a sealed cover specimen seal was prepared. Recovery memo was written and after reading over it to witnesses, their signatures were ob­tained. Exhibit Ka-3 is recovery memo of blood stained and simple soil, Kankrit, ce­ment from the place of occurrence of case crime No. 147 of 2006. It were kept in dibba which was kept in seal cover. Specimen seal was prepared. Recovery memo was prepared, read over to witnesses and their signatures were obtained.
(3.) AFTER going through the materials laid before the Court, after hearing Counsel for the State and defence. Charges under section 302 I.P.C. for the murder of Smt. Sanjo his wife and son Deepak as well as attempt to commit murder of his sons Amit, Sumit, Sunil and daughter Deepali under section 307 I.P.C. were framed against the accused Satish Kumar which was read over and explained to him in Hindi. He pleaded not guilty and claimed to be tried.;