Idua Mian v. State Of Bihar — 1996 DIGILAW 95 (PAT)

Judgment Dharampal Sinha and R.K.Sarin JJ. 1. The death reference case and criminal appeal arise out of the same judgment and order dated 31-8-1994 and 1-9-1994 passed by Sri Om Prakash Sinha. Additional Sessions Judge, Pakur, in Session Trial No. 124 of 1993/36 of 1993, whereby the learned Additional "Sessions Judge has convicted the appellant, Idua Mian, of the offence punishable u/s. 302 of the Indian Penal Code and has sentenced him to death. He has made reference of the case for confirmation of the death sentence giving rise to Death Reference Case No.5 of 1994 and the appellant has preferred the appeal No. 486 of 1994 assailing his-conviction and by this judgment we are disposing off both the death reference and the criminal appeal. The appellant was also charged of the offence punishable u/s. 393 of the Indian Penal Code but the trial Court has acquitted him of that charge. 2. The occurrence is said to have taken place in the evening hour on 4-91992 at the house of one Gaurango Dey situated at village Bagan Para, which is 2 Kilometres south-east of the police station of Pakur in the district of Sahibganj. The case was instituted on the basis of the Fardbeyan (Ext.4) recorded by the Sub-Inspector of Police, Pakur on the statement of Tarun Dutta (PW-5) and the prosecution, as disclosed from the same, may briefly be stated as follows: On that day at about 6.30 p.m. the informant (Tarun Dutta) went to the house of Gaurango Dey (PW4) who was his friend and he found Gaurango Dey and his wife Kavita sitting in the courtyard, Gaurango Dey asked his wife to prepare tea and his wife then informed that milk was not available, and Gaurango, therefore, went to the market to bring milk. In the meantime when the informant went into the bathroom for a bath, he heard a cry of Kavita and he came out on hearing the cry, and saw that Kavita had caught hold of a person was asking, addressing to that person, Idua, why he (Idua) and his son had caught hold of her. The informant threw a chair on the appellant but in the meantime the appellant pierced a big chhura (dagger) into the lower portion of back of Kavita. The informant threw a chair on the appellant but in the meantime the appellant pierced a big chhura (dagger) into the lower portion of back of Kavita. The informant also caught hold of that person and raised alarm with Kavita (referred to as Bhabhi in the Fardbeyan) and the informant also was given a blow with dagger causing injury on his head. The appellant, who had been accompanied by some others fled away. On hearing the alarm several persons of the neighbourhood came and saw the culprit running away. It was also said that some neighbours and some police officers happened to reach there and after chase they caught hold of the appellant, Idua and lungi of the Idua Mian was also found with fresh blood stains. The victim Kavita was taken away to the hospital where the informant also went and there Kavita died. On the basis of the Fardbeyan (Ext. 1-) which was recorded at 8.30 p.m. by a Police Officer (PW-11) Mahaveer Mochi, a formal first information report was drawn up and the case was instituted. The investigation of the case was taken up by PW-11 (Mahaveer Mochi) and later PW-12 (Sita Ram Rai) took up charge of the investigation and submitted the charge-sheet. The appellant was then put on trial. The defence of the appellant was complete denial that he had committed the offence alleged. 3. A perusal of the record of the lower court would show that during the course of the trial the prosecution examined in all 12 witnesses. Out of them PW-l (Dr. Krishan Kumar) is a witness, who stated to have done post-mortem examination on the dead body of the deceased Kavita on 5.09.1992 and PW-2 is another doctor, Bindu Bhushan, who is said to have examined the informant and 1?tated about his injuries PW~3 (Om Prakash Bhagat) is a witness, who had been present at the time of holding of the inquest and seizure of some articles by the Police Officer PW-4 (Gaurango Dey) is the husband of the deceased and he figured as a witness, who claim to have learnt about the occurrence after he returned from the market and he saw his wife lying in pool of blood. PW-5 (Tarun Dutta) is the solitary eye-witness of the occurrence. PW-5 (Tarun Dutta) is the solitary eye-witness of the occurrence. PW-6 (Devendra Kumar Mandal) is another witness of seizure PW- 7 (Jyotish Kumar Pandey) is a witness, who claimed to have reached the place of occurrence soon after the occurrence and claimed to have seen the accused fleeing away, PW-8 (Nimal Chandra Das) is another witness of inquest and seizure. One witness Subhas Kumar Gupta (P-9) was tendered and PW- 10 (Jagarnath Prasad Yadav) is a Havildar who claimed to have chased the appellant after the occurrence. The rest two witnesses PW-11 and PW-12 are the police officers who had investigated into the case. 4. The learned trial court has accepted the evidence of PW-5 supported by other evidence and has found the appellant guilty of the offence punish able u/s. 302, IPC and has sentenced him to death. 5. Learned counsel for the appellant has strongly assailed the finding of the learned trial court and he has contended that the evidence of the informant (PW-5) is absolutely unreliable. In the first place he has submitted that the evidence of PW-5 before the trial court is different in many respects from what he had stated in his statement, that was recorded in the Fardbeyan. His second contention is that the evidence of PW-5 is wholly inconsistent with the evidence of the two doctors (PW -1 and PW-2) and so it cannot be relied upon. He further pointed out that there is no consistency in the evidence as to the time of occurrence and about the arrest of the appellant and there are several other infirmities in the evidence of the informant does not claim to have disclosed the name of assailant, even to the witnesses, who claimed to have reached to the place of occurrence immediately after the occurrence. The evidence of the informant according to his further submission also does not fit in with what the investigating officer had found at the place occurrence on its inspection at about 9 p.m. on the very date of occurrence. 6. On the other hand learned Additional Public Prosecutor has submitted, that if the evidence of the informant is considered in broader aspects, the same would appear to be reliable evidence, despite some inconsistencies and discrepancies on some points, and the prosecution, case as a whole cannot be thrown away as unreliable. 7. 6. On the other hand learned Additional Public Prosecutor has submitted, that if the evidence of the informant is considered in broader aspects, the same would appear to be reliable evidence, despite some inconsistencies and discrepancies on some points, and the prosecution, case as a whole cannot be thrown away as unreliable. 7. The only point that arises for decision in this appeal is whether the finding of the trial Court holding the appellant guilty of the offence punishable u/s. 302 of the Indian Penal Code is proper and justified on the evidence on the record? 8. A brief reference of the evidence that has been brought on the record may be made here in order to appreciate the contentions raised. The evidence of PW -1 would show that he posted at Pakur Hospital and on 5-9-1992 at 7.15 a.m. he had done post-mortem examination -of the dead body of Kavita and had found the following ante-mortem injuries on her person. 1. A sharp cut punctured wound chest cavity deep 2" x 1/2" chest cavity deep over 4th intercoastal space extending from just lateral of 4th paravert boalthoractic area on the left side. On dissection of this injury No.1 sharp cut punctured wound over right ventricle of heart of the same size as injury No.1. 2. A sharp cut punctured wound chest cavity deep 2" x 1/2" chest cavity deep situated two cms. below left inferior angle of scapula over back of chest on the left side. On dissection of this injury No.2 a sharp cut punctured wound over left lower lobe lung extending to left lobe and right lobe of liver." His evidence and the post-mortem report (Ext. 1) prepared by him would show that the cause of death was due to massive haemorrhage and vital organ injuries Nos. 1 and 2 which had been caused by sharp cutting and pointed weapon, which could be a dagger. Time elapsed since death, according to him, was within 12 hours. His cross-examination shows that the injuries could have been caused by a double-edged weapon and the victim could not have survived and talked even for half an hour. 9 The evidence of PW-2 and the injury report (Ext. Time elapsed since death, according to him, was within 12 hours. His cross-examination shows that the injuries could have been caused by a double-edged weapon and the victim could not have survived and talked even for half an hour. 9 The evidence of PW-2 and the injury report (Ext. 2) prepared by him would go to indicate that he had examined Tarun Datta at 9 p.m. on 4-9-1992 (the date of occurrence) and found on his person one lacerated injury 1-1/2" x 1/2" x skin deep on the left side of the scalp just above the forehead. According to him it had been caused by hard blunt substance and was simple in nature and the age of the injury was within three hours. 10. The evidence of PW-3 shows that the wife of his friend, Kavita, had been murdered on 4-9-1992 at 6.30 hours in course of robbery (LOOTPAT). According to him the police caught Idua Mian (the appellant) and was brought to the police station, where SUQ-Inspector of Police seized his lungi which was blood stained. This witness has stated about preparation of seizure list and putting his signature on it (Ext. 3) and according to him Nirmal (PW-8) had also put his signature on it. His further evidence is that the Sub- Inspector of Police had gone to the place of occurrence in that very night and had seized one blood stained Gupti, the handle of which had been broken, and one sabbal and one towel also seized. According to this witness, Sub-Inspector of Police had prepared another seizure list, on which this witness as well as PW-8 and another had signed (signatures had been marked as Ext. 3 series). This witness had also said about inquest and according to him the Police Officer prepared paper relating to the dead body of the deceased on the next day. His cross-examination shows that lungi had been seized at the police station when the appellant had been brought there. 11. PW-4 is the husband of the victim. According, to him when he alongwith his wife and a daughter named Jeeta were in the house at about 7.30 hours in the evening of 4-9- 1992, Tarun Dutta alias Bhola (PW-5) came and then this witness asked his wife to prepare tea. 11. PW-4 is the husband of the victim. According, to him when he alongwith his wife and a daughter named Jeeta were in the house at about 7.30 hours in the evening of 4-9- 1992, Tarun Dutta alias Bhola (PW-5) came and then this witness asked his wife to prepare tea. His wife, according to his evidence, requested him to bring one packet of milk from the market, as there was no milk in the house and then his friend (reference is to Tarun) said that he would be coming after taking in the bath room. PW-4 further stated that he went away to market to fetch milk and when he was coming he heard hulla of Chor-Chor in the way, and when he came running to his house, he found his wife in pool of blood lying at the door, and blood was also oozing out from the head of his friend, Tarun Dutta. He stated that he took his wife to Pakur Hospital on a rickshaw and Tarun, the informant, also went there. According to this witness while in the way he enquired about the occurrence from Tarun and Tarun had stated about the occurrence. But this part of the story given by this witness is hear say as Tarun himself did not state to have disclosed the name of anyone or narrated about the occurrence to PW-4. According to further evidence of PW-4 the doctor examined Kavita and declared her dead. His cross-examination shows that the appellants house is in the same village Bagan Para, and he knew this appellant for a long time. 12. PW-5, the informant, is the most crucial witness in this case. His evidence shows that he deals in stone materials at Pakur and at about 7.30 or 8.00 hours in the evening on 4-9-1962, he went to the residence of Gaurango Dey after finishing his job at Rajgram stone mines. According to him after knocking the door he went, inside and found Gaurango Dey, his wife and his daughter were present in the house and Gaurango asked his wife to prepare tea. His wife then said that there was no milk in the house and so, she told her husband to bring milk. This witness further stated that Gaurango asked this witness to stay and he himself went to the market to bring milk. His wife then said that there was no milk in the house and so, she told her husband to bring milk. This witness further stated that Gaurango asked this witness to stay and he himself went to the market to bring milk. We further find in his evidence that when this witness after bath was wiping his body, he heard the alarm of Kavita asking for help (Bachao, Bachao). According to him Kavita was saying addressing to Idua as to why he and his son entered into her house and were holding her. This witness further said that when he came out from the bath room, he saw that Kavita had caught hold of Idua and then Idua gave a chhura blow in the left side of the back of Kavita. This witness further stated that he threw in the meantime, a chair upon Idua. Thereafter the son of Idua gave a chhura blow on the head of this witness. Further according to him there were three persons with Idua and all of them fled away. He raised alarm and people chased the culprits while Kavita had fallen down near the gate after getting injury on her person. His further evidence shows that Gaurango reached there after some time and till then Kavita was breathing and blood oozing out and Gaurang carried her to hospital. 13. This witness (PW-5) has further stated that the persons, who were chasing caught, hold of the Idua Mian and brought him to the place of occurrence and at that time his lungi was stained with blood. This witness has said that he went to the hospital at Pakur, where he was treated, and gave statement, which was recorded by Sub Inspector of Police, and read over and he put his signature on it. His crossexamination shows that Gaurango was not his relative but and. This witness could name several other persons of that locality. His evidence also shows that he knew the appellant for 6-7 years. Paragraph 9 of his cross-examination shows that he and Gaurango had talked for about 5-10 minutes before Gaurango had gone to the market to fetch milk and he entered into the bath room after departure of Gaurango, and he took 5-6 minutes in taking bath. His evidence also shows that he knew the appellant for 6-7 years. Paragraph 9 of his cross-examination shows that he and Gaurango had talked for about 5-10 minutes before Gaurango had gone to the market to fetch milk and he entered into the bath room after departure of Gaurango, and he took 5-6 minutes in taking bath. Paragraph-II of his evidence shows that he had thrown the chair, which hit hard and it was directed against that person whom Kavita had caught. Paragraph-12 of his evidence shows that the person who inflicted injury on this witness was different from that, who had caused injury to Kavita. Paragraph-15 of his evidence shows that he was treated in the hospital at 9 Oclock and thereafter the police took his statement. Paragraph-16 of his evidence shows that between the time of occurrence and the time when the Police had recorded his statement he had talked only with the doctor. 14. PW-6 had deposed about the preparation of inquest report, on which he put his signature Ext. 3/6. PW-7 has stated that he was in the house (at Bagan Para) at about 8 Oclock in the night when he heard hulla of chor-chor being raised towards the house of Gaurango. This witness has also claimed to have- raised hulla and then he saw Idua Mian and his son fleeing away in the lane when he switched on a torch. According to him the lungi, which Idua had put on was blood stained. He further deposed that after some time he learnt that Idua Mian had been caught. Paragraph 3 of his cross-examination further shows that his house is situated about 125-150 yards away from the house of Gaur an go, which was the place of occurrence. According to- him there are houses of several other persons in between his house and the house of the Gaurango. He has also named some of those persons. 15. PW-8, as already indicated above, is the witness of seizure of blood stained lungi from the person of Idua Mian and this was done according to him at the police station. According to- him there are houses of several other persons in between his house and the house of the Gaurango. He has also named some of those persons. 15. PW-8, as already indicated above, is the witness of seizure of blood stained lungi from the person of Idua Mian and this was done according to him at the police station. Paragraph-2 of his evidence shows that he had gone to the place of occurrence alongwith Sub-Inspector of Police and Sub-Inspector of Police seized a Gupti, a towel, a rod and blood stained earth from the place of occurrence and he prepared a document (seizure list) on which this witness and others put their signatures. 16. PW -10 is a Havildar and his evidence shows that he alongwith another Havildar were giving round (Gasti) at above 6.30 Oclock in the evening, they heard coming from direction of Baganpara and then they reached there. According to him, officer-in-charge of the Pakur police station also reached there with Armed Force. This witness has further deposed that they saw a woman lying in pool of blood and a large crowd had assembled there, and some persons are raising hulla that Idua had killed. The officerin- charge and the people ran in the direction, in which Idua was fleeing and they caught hold of him and brought him to the police station. The lungi of the Idua at that time, according to this witness, had spot, like that of blood. Paragraph-2 of his evidence shows that he and other police officers were at a different road near Railway crossing when hulla was heard and according to him it took about 5-7 minutes in going to the place of occurrence from the place where they had heard hulla. Paragraph-3 of his evidence shows that the officer-in-charge had reached there 5-6 minutes after this witness alongwith another- Havildar had reached on the place of occurrence and the officer-in-charge had enquired about the people for about ten minutes had thereafter this witness, and others including officer-in-charge the accused and Idua was caught after chase for about 45 minutes. According to him Idua was caught in a field situated in the eastern side of Baganpara. 17. According to him Idua was caught in a field situated in the eastern side of Baganpara. 17. The evidence of PW -11 shows that he was officer-in-charge of the Pakur police station on 4-9-1992 and on that day he came to Pakur Hospital at about 8.30 p.m. where he recorded the statement of Tarun Dutta, who put his signature after being read. This witness identified his writing and signature on the Fardbeyan, (which is marked Ext. 4). This witness referred the informant to the doctor for treatment and deputed one guard near the dead body of the deceased. Paragraph 4 of his evidence shows that on the same day at about 9 Oclock he went to the place of occurrence and reached there at 9.15 p.m. and in the night he inspected the place of occurrence, which is the southern portion of the house of the Gaurango. According to him blood- stains had been found on the earth and there was also iron Gupti and one towel, besides three chairs and one small table. According to his evidence vide Paragraph-5, the sharp portion of the Gupti was found at one place and the handle portion of the Gupti was lying I yard west to the chair. This would indicate that the Gupti had been found in two places at the place of occurrence. He had given boundary, which shows that there are houses of other persons and also there was a Gurudwara at the distance of 50 yards west of the place of occurrence. He stated about seizure of blood stained earth, Gupti and iron rod etc. from the place of occurrence and also about the seizure of blood stained lungi from the person of Idua Mian at the police station and the seizure list had been marked Exts. 5 and 5/1 containing signature of this witness. This witness has also formally proved the formal first information report (Ext. 5). According to him, on the next day he had held inquest on the dead body at the hospital and Inquest Report is Ext. 7. This evidence further shows that he arrested Idua (the appellant) from his house at about 10.30 Oclock in the night and he has categorically stated (vide Paragraphs 28 and 32) this witness had met Idua for the first time in the house where he arrested. 18. 7. This evidence further shows that he arrested Idua (the appellant) from his house at about 10.30 Oclock in the night and he has categorically stated (vide Paragraphs 28 and 32) this witness had met Idua for the first time in the house where he arrested. 18. The evidence of PW-12 only indicates that he took charge of investigation at a latter stage and submitted charge-sheet. He stated to have sent the seized blood stained articles for examination to the Forensic Laboratory. 19. It appears that the prosecution besides relying on the evidence of the witnesses also brought on the recorded dossier (Ext, B) to show about the previous cases against the appellant. As regard this dossier, we may notice at the very out set that the evidence is absolutely inadmissible and appears to have brought on the record against the provision-of sec. 54 of the Evidence Act. When the issue in this case was whether the appellant had committed the offence for which he had been charged, the fact of previous cases was not relevant and perhaps the prosecution by bringing this dossier wanted to show that the appellant was a person of bad character; but sec. 54 of the Evidence Act makes such evidence inadmissible. This should not have been allowed by the trial court. The trial court in our opinion has committed error of law in allowing such evidence to be brought on the record, which might have a tendency to create bias/prejudice against the appellant in appreciation of the evidence that was brought on the record for proving the charge framed against him. 20. After carefully considering the submissions and the evidences that has been brought on the record as already noticed above, we find great force and substance in the submission of the learned counsel for the appellants. In the first place we find that there are several deviation made by the informant (PW-5) while giving evidence before the court from what he had stated in his Fardbeyan (Ext. 4). First as regards time it appears that in the Fardbeyan he stated that at about 6.30 p.m. he had reached at the residence of his friend (PW-4) but his evidence before the court was that it was in between 7.30 and 8.00 p.m. The evidence of Gaurango (PW-4) also indicates that it was at about 7.30 p.m. (when Tarun reached). First as regards time it appears that in the Fardbeyan he stated that at about 6.30 p.m. he had reached at the residence of his friend (PW-4) but his evidence before the court was that it was in between 7.30 and 8.00 p.m. The evidence of Gaurango (PW-4) also indicates that it was at about 7.30 p.m. (when Tarun reached). This appears to be inconsistent with the initial version as given in the Fardbeyan. We may notice that the learned A.P.P. has tried to convince us that such discrepancy about the time is not material and witnesses can do mistake about the exact time. We do not think that the argument can be accepted in the facts and circumstances of the case. These two witnesses PW-4 and PW-5 are not rustic witnesses. One of them, PW-4 runs a hotel and the other PW-5, is dealer in stone materials and claimed to have reached at the house of his friend after finishing the work of his business. We may also notice that there is no evidence of any light being there and if the occurrence had taken place at 7.30 p.m. or thereafter as is indicated from the evidence of both PW-4 as well as PW-5 (and the time mentioned in the Fardbeyan, which is not the substantive piece of evidence cannot be taken to be the time of occurrence the question which would call for consideration is whether there was any light or not, which could provide the means of identification. There is no evidence about any light being there. 21. The deviation about the time of occurrence is not the only inconsistency in the statement of PW-6 in Ext. 4 and his statement before the trial Court. The Fardbeyan indicates that the same person, who had inflicted injury on Kavita had also inflicted injury to this witness (PW-5), but before the trial court he said that the person, who had inflicted injury on person was different one. His evidence that he had been struck with chhura by one-of the culprits is also believed by the evidence of PW-2, the doctor, who found only lacerated injury on the person of this witness (PW-5) and such injury was not possible with chhura. His evidence that he had been struck with chhura by one-of the culprits is also believed by the evidence of PW-2, the doctor, who found only lacerated injury on the person of this witness (PW-5) and such injury was not possible with chhura. The evidence of the informant is further belied by the evidence of the doctor (PW-l) who stated to have found on the dead body to Kavita not only one injury as stated by PW-5 but two injuries. So, the evidence of the informant does not fit, in with the medical evidence. The evidence of PW-5 further suffers from the infirmity that he did not state or disclose the name of the appellant to any of the witnesses, who had assembled at the place of occurrence and/ or even to Gaurango. The informant did not state that he told to anyone the name of the assault, which under the alleged circumstances was natural and probable. The evidence of the informant about Idua having been caught on chase and the evidence of Havildar (P.W.10) to the same effect is also completely belied by the evidence of the Officer-in-charge (PW-11), who definitely and categorically stated that he had arrested the appellant from his house at 10.30 p.m. According to the informants evidence before the court as also according to his statement in the Fardbeyan, Idua half already been brought at the place of occurrence before this witness had left for hospital; but this is unbelievable in view of the statement of PW-11, and also probability, because if Idua had been caught soon after the occurrence and after chase in which neighbours and some Police Officers could have participated, there could be no reason why Idua would not be produced soon after the occurrence at the Police Station. We may also notice that PW-5 had been confronted with his previous statement before the police and Paragraph 39 of the evidence of PW-11 would show that this informant had not stated before Investigating Officer that he came out of the bath room or that his Bhabhi had caught hold of Idua. This witness has also not stated before him Idua had dagger in his hand and he had also not stated that Idua hit with this dagger on his head. 22. This witness has also not stated before him Idua had dagger in his hand and he had also not stated that Idua hit with this dagger on his head. 22. The fact that the Investigating Officer had found at the place of occurrence, which he inspected at 9.45 p.m. on the very date of occurrence, a Gupti, which was in two places, the handle portion lying at a short distance from to blade portion and also a rod appears to indicate a circumstance that there was some scuffle for Gupti during the time of occurrence and this fact of Gupti being there in two pieces does not fit in with the evidence of the informant. The informant had sustained injury possibly by iron rod which was also found by PW-11 and the doctor found to be a lacerated wound and the evidence of seizure list witnesses also indicates that Sabbal/Iron Rod was also found at the place of occurrence. All these articles found at the spot themselves indicate a different manner of occurrence than what has been stated by the informant (PW-5). According to the evidence of the informant before the lower court the number of culprits in all was four but his Fardbeyan indicates that there were only two persons, who participated in the occurrence: It is also significant that though the evidence shows that there are houses of other people near the place of occurrence; but none of the neighbours has been examined and the witnesses who deposed about Idua having caught in the chase do riot claim to have got their houses near the place of occurrence, and their evidence about Idua having been caught on chase soon after the occurrence is belied by the evidence of. PW-11 as already noticed above. 23. Considering the aforementioned features, which the learned trial court appears to have failed to appreciate we are definitely of the opinion that the evidence of PW-5 is wholly unreliable and the prosecution has failed to establish the charge of the offence punishable u/s. 302 of the Indian Penal Code. We accordingly, decide in this appeal the point for decisions by holding that finding of trial court holding the appellant guilty for the offence punishable u/s. 302 of the Indian Penal Code is improper and unjustified on the evidence of the record. 24. We accordingly, decide in this appeal the point for decisions by holding that finding of trial court holding the appellant guilty for the offence punishable u/s. 302 of the Indian Penal Code is improper and unjustified on the evidence of the record. 24. Although with regard to sentences no argument has been advanced by either side, we think it proper to observe that awarding of death sentence in a case that this even if the appellant were to be held guilty was not at all proper and justified. Even according to the prosecutions claim and evidence of the informant one Chhura blow had been inflicted only when the appellant had been caught by Kavita and a chair was also thrown by PW-5 as he claims. In such a situation if one dagger blow was given as is the prosecution case resulting in death, there could be no justification for awarding death sentence perhaps the learned trial court appears to have been influenced by the fact of previous cases as indicated by the dossier (Ext. 8) about which evidence should not have allowed to be adduced, as it was not permissible under the law. We need not say anything more on this point except that learned Additional Sessions Judge should exercise in future more care both in matter of appreciation of evidence and in awarding death sentence. 25. In view of our findings on the point for decision we set aside the conviction and sentence passed by the impugned judgment against the appellant and direct that the appellant be acquitted of the offence punishable u/s. 302 of the Indian Penal Code. Reference for confirmation of death sentence is rejected and the appeal is allowed. The appellant Idua Mian shall be released forthwith, if not required in any other case(s).