HARI SHANKAR PRASAD, J. - (1.) DEATH Reference No. 1 of 2004 arise out of the judgment of conviction and sentence dated 28th October, 2004 passed in Sessions Trial No. 184 of 1998 whereby and where under Shri Subodh Kumar, learned Additional Sessions Judge, (Fast Track Court), Palamau at Daltonganj has convicted all the appellants, namely, Dasrath Sao, Lalan Sao, Ramjit Sao, Butter Sao, Suresh Sao and Kailash Sao guilty under Secs. 147, 148, 449 and 302 of the Indian Penal Code read with Sec.149 of the Indian Penal Code for committing murder of Nepuri Devi, Mano Devi, Malti Kumari, Lalti Kumari, Kuldeep Sao and Dilip Sao.
(2.) AFTER hearing on the quantum of sentence, all the appellants were sentenced to be hanged by neck till death. Being aggrieved and dissatisfied by the said judgment and order of conviction and sentence, the appellants have preferred this appeal, whereas learned Additional Sessions Judge, Palamau by his letter being No. 242, dated 3.11.2004 has referred death sentence awarded to the appellants for confirmation under Section 366(A) of the Code of Criminal Procedure.
(3.) THE case of the prosecution, which is based on the basis of fardbeyan of the informant, namely, Bishawambhar Sao (PW 13) recorded by S.I. S.P. Singh (PW 16) at the place of occurrence on 20.9.1997 at about 1.00 a.m. in presence of witnesses Nankeshwar Sao (PW 2) and Amrit Sao, is that daughter -in -law of the informant 'suncle as well as wife of appellant No. 2, Lalan Sao, was blessed with a female child and as she was ill from before, she died on 19.9.1997 at Aurangabad hospital in which many persons attended her funeral ceremony. It is alleged that on the same day at about 11.30 p.m., Mohar Sao approached the house of the informant and asked his mother Nepuri Devi to open the door, on which she and Mano Devi @ Adarmania Devi opened the door and all of a sudden, Mohar Sao (since deceased) caught hold of the tuft of Mano Devi and dragged her to the courtyard of the informant. Similarly, Dasrath Sao, Butter Sao, Ramjit Sao and Lalan Sao armed with tangi, basula and garasha followed Mohar Sao to the courtyard. It is further alleged that Suresh Sao, Bilash Sao (since deceased) and Kailash Sao joined hands with Mohar Sao (since deceased) and the other aforesaid appellants. It is also alleged that informant and his mother Nepuri Devi raised cries, but in the meantime Dasrath Sao gave blow by basula on the neck and cheek of Nepuri Devi and cut her due to which, she fell down. Similarly, Butter Sao, Ramjit Sao, Lalan Sao, Bilash Sao and Kailash Sao also entered into the room of the deceased persons and took out and dragged Malti Kumari, Lalti Kumari, Kuldip Sao and Dilip Sao to their courtyard and gave tangi and garasha blow on Mano Devi and committed her murder. It is further alleged that Butter Sao and Ramjit Sao committed murder of Malti Kumari by giving tangi blow, Lalan Sao and Bilash Sao also participate in the murder of Malti Kumari by giving tangi blow, Kailash Sao is alleged to have committed murder of Dilip Sao with tangi, whereas Lalan Sao is alleged to have committed murder of Kuldip Sao with tangi. It is mentioned in the FIR that at the time of occurrence, besides there being moonlit night, dhibri was burning. According to the informant, he had seen the occurrence and had also seen the accused persons committing murder of the aforesaid deceased in his courtyard in the light of dhibri which was burning and also in the moonlit night. It is there in the FIR that on the alarm raised by the informant and the deceased, his uncle Nankeshwar Sao (PW 2) and cousin Amrit Sao (PW 1) came in the courtyard and saw the occurrence and identified the accused -appellants and these two persons namely Nankeshwar Sao and Amrit Sao have put their LTI on his fardbeyan. On the basis of fardbeyan (Ext. 2) which was recorded by I.O. S.P. Singh on the same day at. Chhatarpur Police Station and as per endorsement thereon, it was registered Chhatarpur P.S. Case No. 75 of 1977 dated 20.9.1977 (Ext. 5) on the same day at 10.00 a.m. While investigation was going on, out of eight (8) named accused persons, two accused namely Bilash Sao and Mohar Sao died during the course of investigation and accordingly charge sheet was submitted after investigation against six persons only.;