JUDGMENT : S. L. KOCHAR, J. 1. This Judgment shall also govern the disposal of Criminal Appeal No. 1221/2006 filed by the appellants/accused through Legal Aid against the impugned judgment and order of conviction and sentence. 2. The learned II Addl. Sessions Judge, Ujjain/trial Court submitted the Criminal Death Reference No. 2/2006 for confirmation of death sentence passed by the impugned judgment and order in Sessions Trial No. 318/2004 decided on 26-9-2006 whereby the learned Judge has convicted Padamnath s/o Dhannanath, Guddunath s/o Bejnath and Dharmendra s/o Heeranath under section 396 of the Indian Penal Code and sentenced to death. The learned Judge had also convicted all the seven appellants under section 395 read with sections 397, 398 of the Indian Penal Code, sentenced to RI for life with fine of Rs. 1,000/-. All the appellants were further convicted under section 460 of the Indian Penal Code, sentenced to RI for 10 years and fine of Rs. 1,000/-. In default of payment of fine every appellant shall undergo six months RI under each count. However the substantive jail sentences were directed to run concurrently. Appellants/accused persons have also filed Criminal Appeal No. 1221/2006 aggrieved with the judgment and order of conviction and sentence as mentioned hereinabove. 3. The necessary facts as per prosecution case, for deciding the Criminal Death Reference and Criminal Appeal are as follows :- 4. The occurrence leading to death of Hemendragiri and Narayangiri, had taken place in the intervening night of 18th and 19th May, 2004. The complainant Tejgiri was residing along with his family consisting of his father, mother, son, daughter and daughter-in-laws near Ankaleshwar Temple, Abhilasha Colony, Ujjain. On the date of the incident i.e. intervening night of 18th and 19th May, 2004 complainant Tejgiri was sleeping outside his house along with his father, wife, son Sanjay and grand-daughter Lalita. Inside the house, the son of complainant Hemendra, his wife Lata, Kiran, wife of Sanjay etc were also sleeping. Around 3-3.15 a.m in the night, on account of beating given by unknown miscreants, complainant Tejgiri woke up and saw that he was surrounded by 3-4 miscreants. All of them had covered their faces with clothes and wearing lungi, baniyan and underwear. Among the miscreants, one person threatened Tejgiri with knife not to howl else he would be done to death, thereafter they snatched his automatic watch as also Rs. All of them had covered their faces with clothes and wearing lungi, baniyan and underwear. Among the miscreants, one person threatened Tejgiri with knife not to howl else he would be done to death, thereafter they snatched his automatic watch as also Rs. 200/- and beaten him as well as father Narayan, wife Madhukanta and son Sanjay by lathi due to which all suffered injuries on their faces, legs, ear and other parts of the body. Thereafter all of them were tied with the cot by rope and got opened the door of the house by forcing grand-daughter of complainant named Lalita to call the persons inside. All the miscreants entered inside the house and inflicted blow on the head of Hemendragiri by blunt side of axe, resulting into his fall on the ground and he became unconscious. The assailants also beaten Lata; wife of Hemendragiri, daughter-in-law Kiran and looted silver paijabs, mangalsutra, ring etc. from the box in which they were kept. After looting the ornaments, they locked all the inhabitants inside the room and fled away. Son of complainant named Sanjay somehow or the other untied his rope and got freed the other persons of the family. Complainant and his daughter-in-law Kiran went to the house of journalist Jaiswal who was residing in Abhilasha Colony and from there made telephone call to P.S. Narwar and informed about the occurrence, upon which SHO and other police personnels reached on the spot, prepared dehati nalishi and sent the injured persons to the hospital. Hemendragiri was declared dead on the same day and on the next day injured Narayangiri also succumbed to the injuries. 5. On the basis of Dehati Nalishi (Ex.P.7), FIR (Ex.P.37) vide Crime No. 160/2004 was registered. On the basis of mukbir information and on suspicion, the appellants/accused were arrested and interrogated by the police. As per memorandum statement (Ex.P.38 to P.50), accused got recovered the looted properties from their house. Property of dacoity which was sold were also got recovered on information given by accused persons from the possession of other accused persons. Seizure memos are from Ex.P.51 to P.70. Test Identification parade (for short "T. I. Parade") was conducted and after due investigation, charge-sheet was filed. 6. The appellants/accused were charged under sections 395 read with 397, 398 as also under sections 396, 460 and under section 412 of the Indian Penal Code. Seizure memos are from Ex.P.51 to P.70. Test Identification parade (for short "T. I. Parade") was conducted and after due investigation, charge-sheet was filed. 6. The appellants/accused were charged under sections 395 read with 397, 398 as also under sections 396, 460 and under section 412 of the Indian Penal Code. All the accused persons denied the charges and pleaded innocence. Appellant Surajnath has examined Sabir Hussain (DW.1) in his defence. 7. To prove the offending act of dacoity and murder, the prosecution has examined 25 witnesses and adduced 112 documents whereas appellant Surajnath has examined Sabir Hussain (DW. 1) in defence. The learned trial Court, after hearing both the parties, while acquitting six accused persons, convicted and sentenced the remaining appellants as mentioned hereinabove. 8. It is pertinent to mention here that in this case, in all 17 accused persons were prosecuted out of whom three accused were absconding, one accused is facing prosecution before Juvenile Court and 13 were tried by the Court below. 9. We have heard the learned counsel for parties and also perused the entire record. The record reflects that conviction of the appellants is based on evidence of three category; number one identification of the appellants by the eye witnesses; number two- report of finger print expert, and number three- recovery of the looted property and its identification by the witnesses. 10. The homicidal death, of two persons Hemendragiri and Narayangiri, has not been disputed by the learned counsel for appellants. Even otherwise, it is fully proved from the evidence of Dr. Rajendra Bansal (PW.1) who conducted post-mortem of deceased Hemendragiri and proved post-mortem report (Ex.P.1). He found one lacerated wound 5x3 cm upto bone deep on skull. On internal examination, there was fracture of occipital bone and haematoma present inside the skull as well as in brain membrane. In his opinion, deceased died due to shock and haemorrhage because of head injury within six to twenty four hours from the date and time of post-mortem examination i.e 19-5-2004 at. 10.30 a.m. Dr. O. P. Gupta (PW.9) performed post-mortem of deceased Narayangiri and noted lacerated wound in the area of left ear, catrilege bones were damaged. There was blood clotting and infection, swelling on the left jaw and left tempero occipital region, abrasion on left shoulder 5 cm x 4 cm, red in colour. 10.30 a.m. Dr. O. P. Gupta (PW.9) performed post-mortem of deceased Narayangiri and noted lacerated wound in the area of left ear, catrilege bones were damaged. There was blood clotting and infection, swelling on the left jaw and left tempero occipital region, abrasion on left shoulder 5 cm x 4 cm, red in colour. On internal examination, he found fracture of left tempero occipital region, clotted blood underneath the skin of left tempero occipital region. Blood clot was also present on brain membrane which were also swollen along with brain, fracture of left mandible bone and swelling on both the lungs. In his opinion, injuries could be caused by hard and blunt object. The mode of death was coma due to head injury. Deceased died within 24 hours from the date and time of post-mortem examination i.e on 20-5-2004 at 2.30 p.m. He proved post-mortem report (Ex.P.22). 11. In the instant case, incident was witnessed by Lalita (PW.3), a child witness, Tejgiri (PW.4), Sanjay (PW.10), Madhukanta (PW.11) and Kiran (PW.15). The appellants were arrested on 2-7-2004 except appellant Dharmendra who was arrested on 8-7-2004 and T.I. Parade was conducted by Naib Tehsildar Ekta Jaiswal (PW.21). 12. Dehati Nalishi/FIR (Ex.P.7) was recorded by Town Inspector Priya Lingwal (PW. 17) at the instance of Tejgiri (PW.4). This witness (PW.4) has deposed that on 19-5-2004 in the night between 2-2.30 pm they were sleeping along with their family members at their house situated near Shiv Mandir, Abhilasha Colony. At that juncture, 5-7 persons having stick, knife and axe reached near them. 4-5 persons came to him and 2-3 persons reached near his father Narayangiri. The miscreants were having black, fair and wheatish complexion wearing lungi, T-shirt, underwear, baniyan etc. They started beating him, his wife and Sanjay and on the other side his father was being also assaulted. They threatened her grand-daughter Lalita and directed her to get the door of the house open and his granddaughter made call and got opened the door, thereafter miscreants entered inside the house after tying hands and legs of those who were outside the house. Inside the house they had beaten his son Hemendragiri by axe who died because of head injury. After beating, they took out rupees 200 and rupees five thousand from his purse and some rupees from his daughter-in-law. Inside the house they had beaten his son Hemendragiri by axe who died because of head injury. After beating, they took out rupees 200 and rupees five thousand from his purse and some rupees from his daughter-in-law. They had taken away all the ornaments of her daughter-in-law which were kept inside the house. Those ornaments were three pair big paijabs, three pair of small paijab (PAIR PATH) of daily use, two kandhore, two ear-rings, paijabs of Malita. his automatic wrist watch, one pair ear-ring of fish shape. The further say of this witness is that 4-5 miscreants were committing loot inside the house, 2-3 miscreants were near him and 3-4 were near his father. After committing loot all went towards village Badli from the side of temple. He accepted lodging of Dehati Nalishi (Ex.P.7) to police as well as giving of Ex.P. 13, list of looted property to SHO, P.S. Narvar. He also accepted identification of property and his signature at "A to A" portion of T.I. memo (Ex.P.17 and P.16). He also accepted his participation in T.I. Parade of accused persons and signature on T.I memo (Ex.P.6 and P.15). (In para seven of deposition of this witness Ex.P. 17 is described as T.I. memo of accused persons whereas it is Ex.P.15 according to the Exhibit mentioned on the document. Ex.P. 17 is the identification memo of property). In first identification parade, he identified 4-5 persons and one person in second identification parade. In Court, he identified accused Bhanwarnath, Padamnath, Sakkunath, Pappunath, Guddunath and Surajnath. 13. In cross-examination, para 13, the say of Tejgiri (PW.4) is that he and his father, Sanjay and his wife were sleeping outside the house in open place. The miscreants immediately after arrival, started beating them and they could not get up from their cot and their cots were situated at the distance of 1½ ft and at the distance of 15 ft from the door of their house. The three miscreants remained present near his father, three near him and 4-5 entered inside the house. In para 16, he admitted that he had cash memo/bill of purchase of ornaments but he did not give the same to police and also did not tell from where ornaments were purchased. He did not witness the incident occurred inside the house. The three miscreants remained present near his father, three near him and 4-5 entered inside the house. In para 16, he admitted that he had cash memo/bill of purchase of ornaments but he did not give the same to police and also did not tell from where ornaments were purchased. He did not witness the incident occurred inside the house. In para 17, he admitted that the miscreants had covered their faces by clothes but deposed voluntarily that during the course of beating, the clothes fell down or displaced from their faces. 14. In Court Tejgiri (PW.4) deposed that he identified four or five persons in first identification parade and one person in second identification parade. In Court he identified specifically appellants Bhanwarnath, Padamnath, Sakkunath, Pappunath, Guddunath and Surajnath as persons present and committed incident (See para eight). After examination of Tejgiri on 4-3-2005 the application was filed by accused Pappunath @ Jitendra before the trial Court along with school transfer certificate that he was below 18 years of age on the date of incident and the application was allowed by the trial Court by order dated 29-3-2005 and prosecution was directed to produce Pappunath before the learned Juvenile Court. In examination-in-chief para two this witness deposed that 4-5 miscreants committed loot inside, 2-3 were present near him and 3-4 miscreants were present near his father. They all had gone via temple towards Badli village. This witness in Test Identification parade identified only four miscreants named Padamnath, Guddunath, Bhanwarnath and Surajnath @ Suresh. Miscreants/ accused Pappunath (Juvenile) was identified by him in identification parade held on 4-9-2004 vide Ex.P.15. The Test Identification parade was conducted by Naib Tehsildar Smt. Ekta Jaiswal (P.W.21). 15. The third eye witness Sanjaygiri Goswami (PW.10) son of complainant Tejgiri (PW.4) has stated in examination-in-chief that in the night of incident he, his father Tejgiri (PW.4), mother Madhukanta (PW.l 1), niece Lalita (PW.3) and his grandfather were sleeping outside the house whereas his brother deceased Hemendragiri, sister-in-law Lata (not examined) and wife Kiran (PW.15) were sleeping inside the house. All of a sudden 4-5 miscreants reached over there and started tying them. Miscreants were wearing underwear and banyan having knife, axe and lathi and covering their faces by cloth. They started beating his mother and father because of which he woke up. One miscreant came to him who tried to tie him by Nivar. All of a sudden 4-5 miscreants reached over there and started tying them. Miscreants were wearing underwear and banyan having knife, axe and lathi and covering their faces by cloth. They started beating his mother and father because of which he woke up. One miscreant came to him who tried to tie him by Nivar. He had scuffle with him and during the scuffle, he caught his hair, some hair broken and remained in his hand. Miscreants assaulted him by knife on his cheek and face. His mother sustained injury on ear and his father on the chest and shoulder. Miscreants tied him, his father and mother and thereafter his niece Lalita (PW.3) was awakened by them and they asked her to get the door of the house opened for drinking water. They put knife on the person of Lalita. The door was opened by sister-in-law Lata and she was slapped by one miscreant, resulting into her fall at one side. Thereafter 4-5 miscreants entered inside the house. Inside the house they assaulted his brother Hemendragiri who fell unconscious and looted three pair big paijabs, two kandoras, bichia, one mangalsutra and Rupees five thousand cash. The miscreants chained the door from outside and ran away from backside of the house. His wife and sister-in-law were yelling inside for opening the door. The further say of this witness is that he freed himself by opening the knot through his teeth, thereafter got freed his father, mother and grand-father. There he fell down and his father (Tejgiri) opened the door of the house. His wife and father went to Abhilasha Colony for help and sent telephonic message to Narvar Police Station. Police party reached within 15-20 minutes at their house. They all were taken in police van to the hospital where they remained hospitalised for 12-13 days. According to this witness he was called at Bherugarh jail for identification of the accused persons. He proved his signature on test identification as per memo (Ex.P.6). In Court, this witness identified appellant Dharmendra whose hair was caught by him and some remained in his palm as well as appellants Ganianath, Bhanwarnath and Surajnath. He also proved his signature on Test Identification vide memo of the ornaments (Ex.P.19). In examination-in-chief he has not given specific detail of the ornaments identified by him in Test Identification parade. 16. In Court, this witness identified appellant Dharmendra whose hair was caught by him and some remained in his palm as well as appellants Ganianath, Bhanwarnath and Surajnath. He also proved his signature on Test Identification vide memo of the ornaments (Ex.P.19). In examination-in-chief he has not given specific detail of the ornaments identified by him in Test Identification parade. 16. In cross-examination by counsel for co-accused Purushottam Soni, this witness Sanjay Giri Goswami (PW.10) has stated that he identified three pair paijabs, two pair kandoras, three pair bichia and one mangalsutra. He admitted that they did not submit any cash memo of these ornaments. The looted ornaments as stated by this witness were not produced in the Court and prosecution did not get their identification at the time of examination of this witness as well as Tejgiri (PW.4) which could be the substantive evidence for establishing the property of dacoity, said to have been seized at the instance of the appellants. In cross-examination, he admitted that they were in sleep and he woke up because of barking of their dog and saw the miscreants and he did not get down from the cot. He saw only 4-5 miscreants and his brother and sister-in-law were inside the house. They did not wake up and they were not called by them because miscreants had issued threat that if they will cry, they would be killed. 17. This witness (PW.10) was confronted with his case diary statement (Ex.P.2) wherein arrival of 4-5 miscreants wearing chaddi and banyan, is not mentioned and he failed to assign any reason for this omission. According to him, in his police statement, the fact of arrival of 3-4 miscreants was incorrectly written and he disclosed to police about 4-5 miscreants. This is the major contradiction in his statement with police statement (Ex.D.2). He also denied the non mention of fact of arrival of miscreants having knife, axe and lathi in their hands. This witness failed to explain the material omission in his case diary statement regarding beating of his mother and father, tying him by one miscreant by Nivar, assaulting by knife on his both check, his father sustained injury on chest and shoulder, mother sustained injury on her ear, knife was put on the person of his niece and one miscreant slapped his sister-in-law, resulting into her fall. He denied about seeing the photos of miscreant in newspaper. 18. In para 16, the say of Sanjay Giri Goswami (PW.10) is that in jail he identified three accused and during the course of test identification parade one accused was brought with other three persons and they were asked to identify. Inside the jail in total 10-12 groups of four persons each were separately called and asked for identification and he identified four persons in the Court because one person was not present at the time of test identification parade. In para 18 he denied the presence of fourth accused in test identification parade. According to the test identification memo (Ex.P.6) he identified absconding accused Ganesh @ Ganianath, Bhanwarnath and Surajnath. He did not identify Dharamnath in test identification parade with whom he had scuffle, caught his hair and had some hair in his grip and his this statement that he was not present at the time of test identification parade is falsified by identification memo (Ex.P.6) wherein name of Dharmendra is mentioned at serial number eight and he proved his signature at "C to C" part. This shows that the statement of this witness is not correct regarding scuffle with appellant Dharmendra, catching hold of his hair and having some hair in his grip. 19. The next eye witness Madhukanata (PW.11) has testified that on the date of incident in the night between 1.30 and 2.00 a.m she, her husband, son Sanjay (PW.10) and niece Lalita (PW.3) were sleeping outside the house whereas her daughter-in-laws Kiran (PW.15) and Lata (not examined) and son Hemendra were sleeping inside the house. Her father-in-law was sleeping at some distance. At that moment, four miscreants came in front of them, three were standing at some distance and two-three were standing outside. In all they were 10-12 in number. They were having lathi, axe and knife and immediately after arrival, started beating her husband Tejgiri (PW.4). She and her son Sanjay were also beaten. She sustained injuries on ear and she requested them with folded hand not to assault them and take whatever they wanted. One miscreant remained present near her having knife and threatened her to kill if she would cry. The miscreants tied her hand and legs and snatched her mangalsutra and paijab, thereafter they asked Lalita to get the door of the house opened. One miscreant remained present near her having knife and threatened her to kill if she would cry. The miscreants tied her hand and legs and snatched her mangalsutra and paijab, thereafter they asked Lalita to get the door of the house opened. The door was opened by daughter-in-law Lata who was attacked by the miscreants, resulting into her fall on the ground, her son Hemendra tried to lilt her, but miscreants assaulted him by axe on backside of his head. One miscreant threatened, by showing knife to her daughter-in-law, not to cry and looted all the ornaments and cash amount available inside the house. They had taken Rs. 5,000/- cash, three pair paijab, 3-4 silver fish pair, two kandora (waist patti), mangalsutra, one small paijab and jhumka. The miscreants dragged Hemendra inside and chained the door from outside. Daughter-in-laws were crying inside the house, thereafter Sanjay (PW.10) some how or the other untied the rope, released him and opened the door. Her husband and younger daughter went to Abhilasha Colony and sent telephonic message to Narvar police station. Police party took all of them to Civil Hospital. She was admitted in the hospital for 11-12 days. Her son Hemendra and father-in-law Narayangiri died because of injuries. On information given by police she went to identify the ornaments and identified the same. She admitted her signature on identification memo (Ex.P. 19). She also identified all the accused persons present in the Court saying that they had committed the incident. 20. In cross-examination, para 12, she (Madhukanta -PW. 11) deposed that when her husband was beaten and because of his outcry she woke up, she saw that her husband was being beaten by 3-4 miscreants, thereafter she and Sanjay were beaten. They all were sleeping at the distance of one cubic. After her being beaten, Sanjay was beaten and Sanjay was witnessing their beating while lying on the cot. The miscreants did not allow him to get up. Near him, one miscreant was standing and beating continued for about half an hour. One miscreant was standing near her and she was not allowed to go when her husband was beaten. There was scuffle between Sanjay and one miscreant when he tried to get up from the cot. The miscreants did not allow him to get up. Near him, one miscreant was standing and beating continued for about half an hour. One miscreant was standing near her and she was not allowed to go when her husband was beaten. There was scuffle between Sanjay and one miscreant when he tried to get up from the cot. The further say of this witness in cross-examination para 13 that the door of the house was at the distance of 5-7 feet from the place Where they were sleeping and her son and daughter-in-law could not come out because they were threatened and not allowed to cry. Four miscreants entered inside the house and from outside they were able to see, and watch the beating going on, inside the house, which was visible. The miscreants took about half to one hour inside the house to search the looted property. The faces of miscreants were covered by cloth, but during the course of incident and because of scuffle cloth had displaced or fell down from their faces. 21. This witness (Madhukanta-PW.11) was confronted with her case diary statement (Ex.D.3) wherein number of 10-12 miscreants, snatching of golden mangalsutra, dragging of Hemendra inside the room are not mentioned and according to her because of death of her son she was mentally disturbed and might have not disclosed all these facts to police. She denied the defence suggestion about showing of ornaments in the police station and stated specifically that identification of ornaments was held by sarpanch and 1-2 persons of the village. In cross-examination, para 18, she has also stated that she was assaulted by the accused persons present in the Court. She denied the defence suggestion that she identified the accused persons in Court because they were facing the prosecution regarding incident and as told to her by the police. She also specifically denied suggestion that she failed to identify the miscreants because their faces were covered. She deposed voluntarily that during the course of scuffle their clothes were displaced from their face. 22. It is pertinent to mention here that there is no omission or contradiction in the statement of this witness (Madhukanta-PW. 11) regarding displacement or falling of cloth from the faces of the miscreants and in cross-examination she has stated that the total incident took about one hour. 22. It is pertinent to mention here that there is no omission or contradiction in the statement of this witness (Madhukanta-PW. 11) regarding displacement or falling of cloth from the faces of the miscreants and in cross-examination she has stated that the total incident took about one hour. She sustained injury on her left ear i.e. lacerated wound 3x2 cm x cartilage deep caused by hard and blunt object. Her MLC (Ex.P.3) has been proved by Dr. Harish Rathore (PW.2). It is also evident from her statement that she was not called to identify the miscreants in test identification parade. This witness has given proper and full narration of the incident regarding identification of the appellants, proper opportunity of seeing them for a long period at her house as well as identification of looted property. Her statement regarding sustaining of injury on ear caused by hard and blunt object by lathi is fully corroborated by medical evidence and there is no substantial material in her statement to corrode her testimony. She had ample opportunity and time to see the appellants and feed her memory about their personality. Even if she was not called by the investigating agency to identify the miscreants in test identification parade, her identifying of the appellants in Court can be relied upon looking to her whole statement. Supreme Court in case of Amitsingh vs. State of Maharashtra, 2007 AIR SCW 286 has discussed the law regarding identification of the accused in Court on the basis of almost all earlier judgments on this point and held that the evidence of identification of the accused in test identification parade is not a substantive piece of evidence. The substantive evidence is the statement of the witness given in Court and document of test identification can be used to confront the witness and corroborate the testimony in Court. The statement of the witness regarding dock identification can be acted upon in the facts and circumstances of individual case especially when witness/witnesses had sufficient time and opportunity to see the miscreants and imprint their personality and features in his/in their mind. The statement of the witness regarding dock identification can be acted upon in the facts and circumstances of individual case especially when witness/witnesses had sufficient time and opportunity to see the miscreants and imprint their personality and features in his/in their mind. In the ease of Malkhansingh and others vs. State of MP, 2003 (5) SCC 746 , the identification of the accused in Court by the victim has been relied upon without any test identification parade on the ground that victim was having sufficient time and opportunity to see the accused, therefore, not holding of the test identification parade would not cause any doubt on the evidence of identification of the witness in Court. 23. The fifth witness of the incident Kiran (PW.15), wife of Sanjay (PW.10) has testified that on the date of incident in the night she was sleeping in the last room of her house and in front room her brother-in-law Hemendra and sister-in-law Lata were sleeping. Rest of the family members i.e father-in-law Tcjgiri (PW.4), mother-in-law Madhukanta (PW. 11), her husband Sanjay (PW.10), her grand-father-in-law Narayangiri and niece Lalita were sleeping outside the house. At that moment niece Lalita knocked at the door and asked for water. The door was opened by her sister-in-law, thereafter 3-4 miscreants entered inside the room. She came near her sister-in-law and miscreants made to sit both of them in one side of the room. They snatched her anklet, and mangalsutra of her sister-in-law. Her brother-in-law (Jeth) woke up and was assaulted by axe. The miscreants asked them about money and started searching inside the house. The miscreants, went away after confining them in a room and the door was opened by her husband Sanjaygiri (PW.10), thereafter she and her father-in-law Tejgiri (PW.4) went to Abhilasha Colony and telephoned to police station. Within 10-15 minutes police reached at their house and took all of them to hospital. The further say of this witness is that her mother-in-law Madhukanta (PW.11) sustained injury at her ear, her father-in-law, husband and grand-father-in-law also sustained injuries in the incident. Her brother-in-law died on the same day whereas grand-father-in-law died in the hospital. This witness identified appellants Bhanwarnath, Dharmendranath, Sakkunath, Fundanath and Suraj in the Court and she also stated about identification of these five appellants in test identification parade vide Ex.P.6. Her brother-in-law died on the same day whereas grand-father-in-law died in the hospital. This witness identified appellants Bhanwarnath, Dharmendranath, Sakkunath, Fundanath and Suraj in the Court and she also stated about identification of these five appellants in test identification parade vide Ex.P.6. She also stated about identification of looted ornaments in test identification parade vide Ex.P.19, identifying the ornaments mangalsutra, anklet, kandhora, silver fish pair, paijabs etc. 24. In cross-examination, she (Kiran-PW. 15) has admitted that they came to know about miscreants when they entered inside the house and faces of the miscreants were covered by cloth. They did not come out of the house and also did not witness the incident occurred outside. The miscreants took about half an hour time inside the house for committing loot and she could not say how much time they took in the incident occurred outside the house. She denied the defence suggestion of seeing the photograph of the accused persons in police station and identified all the above mentioned five accused persons/appellants in Court as well as in test identification parade. In cross examination, para nine she described the test identification of looted ornaments and according to her the looted ornaments were mixed up with other ornaments out of them she picked up her ornaments. The ornaments were not having any specific mark of identification, but she identified the same because she was using them. There is no omission, contradiction or improvement in her statement and she stood firm in the cross-examination about witnessing the incident, identification of five appellants in test identification as well as in Court and identification of looted property/ornaments. There is absolutely nothing to fragile her statement regarding incident. 25. The identification of the appellants on the basis of the statements of above mentioned witnesses Tejgiri (PW.4), Sanjay Giri Goswami (PW.10), Madhukanta (PW.11) and Kiran (PW.15) is fully established and it is held beyond reasonable doubt that appellants were the persons committed dacoity at the house of complainant Tejgiri (PW.4). Learned counsel for the appellants has argued that in view of publication of photo and news in daily newspaper Nai Dunia (D.4), the identification is not acceptable. Learned counsel for the appellants has argued that in view of publication of photo and news in daily newspaper Nai Dunia (D.4), the identification is not acceptable. The identification of the accused persons by these witnesses could not be affected because of presence of photograph of appellants Dharmendra and Guddunath in Nai Dunia daily newspaper (Ex.D.4) dated 14-7-2004 because this document was not shown to the aforesaid eye witnesses in Court and witnesses have denied seeing of their photographs in daily Newspaper. The appellants have not examined any witness regarding publication of photographs in daily Newspaper, what was the basis of publication of photograph by the Owner or Editor of the daily Newspaper and at whose instance photographs were published and how they got or collected photographs. The possibility of publication of photographs by the close relatives of the accused Dharmendra and Guddunath could not be ruled out and simply filing of newspaper without leading evidence in this regard is not sufficient to admit the same in evidence. The Supreme Court in case of Laxmiraj Sethi and another vs. State of Tamil Nadu, 1988 (3) SCC 319 has held as under- "Court cannot take judicial notice of the facts stated in a news item published in a newspaper. A newspaper is not one of the documents referred to in section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuineness attached under section 81 of the Act to a newspaper report cannot treated as proved of the facts reported therein. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence unless proved by evidence aliunde by the maker of the statement appearing in court and deposing to have perceived the fact reported". 26. Also see Borgaram vs. Premodhar, 2004 (2) SCC 227 , Ramswaroop Bagari vs. State of Rajasthan, AIR 2002 (Raj) 27 , para 2 and S. N. Balakrishnan vs. Fernandez, AIR 1969 SC 1201 , para 47. 27. The participation in the incident by the appellants is fully proved from the statements of eye witnesses. Tejgiri (PW.4) has identified appellants Bhanwarnath, Padamnath, Sakkunath, Guddunath and Surajnath in Court and his identification in Court is duly corroborated by the evidence of test identification memo (Ex.P.6) for appellants Padamnath, Guddunath, Bhanwarnath and Surajnath. In Test identification parade he did not identify Sakkunath. Tejgiri (PW.4) has identified appellants Bhanwarnath, Padamnath, Sakkunath, Guddunath and Surajnath in Court and his identification in Court is duly corroborated by the evidence of test identification memo (Ex.P.6) for appellants Padamnath, Guddunath, Bhanwarnath and Surajnath. In Test identification parade he did not identify Sakkunath. This witness had also identified Pappunath in Court as well as in test identification parade vide identification memo (Ex.P. 15) but, thereafter Pappunath was sent for trial before the Juvenile Court. Therefore, the identification of four appellants by this witness is fully established. 28. Eye witness Lalita (PW.3) has identified in Court appellants Bhanwarnath, Sakkunath, Dharmendra, Padamnath and Guddunath as participants in the incident of dacoity at her house. Though, she did not identify any appellant in test identification parade, but same would not corrode her testimony regarding identification of these appellants in Court because she has given reasonable and plausible explanation that at the time of test identification parade in Bherugarh jail, all the persons had covered their body upto neck by blanket and she alone was taken to identify the accused persons among them, but she was frightened after seeing all those persons and did not identify anybody. Dock identification of these appellants by this child witness aged nine years inspires confidence because she had witnessed the whole episode. The miscreant asked her to get the door opened for water and she acted as per their direction for opening the door and door was opened by sister-in-law, (Jethani) named Lata, of Kiran (PW.15). The version of this witness Lalita is fully corroborated by Kiran and other witnesses. This witness has also given specific overtact of appellant Dharmendra regarding causing injury by axe to her maternal uncle Hemendragiri who succumbed to the injuries. She had sufficient time and opportunity to see the personality and figure of the appellants, therefore, identification in Court by her in the facts and circumstances of the present case is fully reliable. 29. Sanjaygiri Goswami (PW.10) has identified appellants Dharmendra, Ganianath, Bhanwarnath and Surajnath in Court and also described specific overtact against Dharmendra regarding scuffle and grappling with him and he had caught hair of Dharmendra in his fist. He had also identified in Bherugarh Jail accused Ganesh @ Ganianath, Bhanwarnath and Surajnath. Out of these accused persons Ganesh @ Ganianath absconded before passing of impugned judgment by the trial Court. He had also identified in Bherugarh Jail accused Ganesh @ Ganianath, Bhanwarnath and Surajnath. Out of these accused persons Ganesh @ Ganianath absconded before passing of impugned judgment by the trial Court. Though, this witness did not identify appellant Dharmendra in test identification parade and that could be because of shock due to death of his father and brother and he himself was injured in the incident, but in Court he gave specific overtact of Dharmendra and scuffle with him, therefore, the identification of these four appellants by this witness is fully reliable. For the sake of argument if his testimony is excluded against Dharmendra, even then there is sufficient evidence regarding presence of Dharmendra and participation in the incident of dacoity. 30. Madhukanta (PW.11) identified all the appellants in Court and as discussed hereinabove the dock identification by this witness is fully reliable. She sustained injuries and had sufficient time and opportunity to watch the appellants. Kiran (PW. 15) identified the appellants Bhanwarnath, Dharmendra, Sakkunath, Fundanath and Surajnath and also identified all these appellants in test identification parade. Her version is fully corroborated by test identification memo (Ex.P.6). The statement of eye witness Tejgiri (PW.4) is also corroborated by Dehati Nalishi (Ex.P.7). 31. There is absolutely no evidence on record to say that these witnesses had axe to grind against these appellants because of previous ill-will or enmity. The appellants were completely foreigner to them. According to all these eye witnesses, the incident took time of more than one hour. The identification parade was conducted by Executive Magistrate Ekta Jaiswal (PW.21) and she proved identification memo (Ex.P.6). There is nothing in her cross-examination to attach vulnerability to her testimony. Her evidence is also corroborating the statements of eye witnesses regarding identification of the appellants. 32. The learned trial Court relied upon the second set of evidence i.e the presence of finger prints, on Articles 5, 6 and 7, one glass and two Shringardaan of appellants Padamnath, Guddunath and Dharmendra tallying with the thumb impression of appellants Padamnath, Guddunath and Dharmendra with their specimen thumb impression. Inspector Laxminarayan Sagore (PW.25) collected the finger print on the above mentioned articles from the spot and tallied with specimen finger print of these three appellants. lie has proved his report Ex.P.94 to this effect. 33. Inspector Laxminarayan Sagore (PW.25) collected the finger print on the above mentioned articles from the spot and tallied with specimen finger print of these three appellants. lie has proved his report Ex.P.94 to this effect. 33. This Court by order dated 10-8-2007, after hearing both the parties, directed the trial Court to record the additional evidence of Sub Inspector Anil Singh Chouhan (PW.23) and Head Constable Kunwarpalsingh (PW.'26) who had taken the specimen fingerprints (thumb impression) of the appellants but during the course of trial, this part of the evidence was not got proved by the Prosecutor and learned trial Court had also did not take care of this fact. After recording of statements of both these witnesses as per provision under section 391 of the Criminal Procedure Code, we have heard the learned counsel for parties. 34. Sub Inspector Anil Singh Chouhan (PW. 23) has deposed that on his direction and in his presence specimen finger prints (thumb impression) of the appellants were taken by Head Constable Kunwarpalsingh (PW.26) vide Ex.P.94 to P.111. These specimen fingerprints were taken by him as per order passed by learned JMFC vide Ex.P.112 in Bherugarh Jail, Ujjain. Head Constable Kunwarpalsingh (PW.26) has also stated taking of fingerprints (thumb impression) of the appellants vide Ex.P.94 to P. 111 under the direction and presence of Sub Inspector Shri Chouhan. 35. In cross-examination of both these witnesses, nothing has come to cause any dent to prosecution about taking of specimen fingerprints of the appellants. These specimen fingerprints were tallied with fingerprints (thumb impression) found on articles 5, 6 and 7 i.e. one glass and two shingaardaan and same were tallied with the specimen fingerprints (thumb impression) of appellants Padamnath, Guddunath and Dharmendra. 36. Inspector Laxminarayan Sagore(PW.25), a fingerprint expert has proved his report (Ex.P.94) and deposed that question fingerprints/thumb impression (Article-A) was tallying with specimen fingerprint/thumb impression as Article S-l/1 of appellant Padamnath. The question fingerprint (Article-B) tallied with specimen fingerprint/thumb impression Article S-3/1 of appellant Guddunath and question fingerprint (Article-C) tallied with specimen fingerprint/thumb impression Article S-2/1 of appellant Dharmendra. In cross-examination, he has stated specifically that questioned finger prints were taken on spot by him when he reached after receiving information and call from the concerned police station, in the house of dacoity. We have no reason to disbelieve the testimony of these witnesses. In cross-examination, he has stated specifically that questioned finger prints were taken on spot by him when he reached after receiving information and call from the concerned police station, in the house of dacoity. We have no reason to disbelieve the testimony of these witnesses. The presence of thumb impression of the appellants Padamnath, Guddunath and Dharmendra is also establishing their presence on the spot and the statement of fingerprint expert is corroborating to the testimony of eye witnesses as discussed hereinabove. 37. The third category of evidence of recovery of property of dacoity is not useful to the prosecution, because the property was not produced in Court and got identified by the concerned witnesses. Prosecution has failed to establish the identity of the property with memorandum statements and seizure memo of the appellants. The substantive piece of evidence would be the identification in Court which is not available in the instant case since the property was not produced. 38. The appellant No. 6 Surajnath has examined defence witness Sabir Hussain (DW.l) who has deposed that he was knowing him since last 10-12 years and working in brick factory. He has also stated that since last 10-12 years, he was meeting every day in the morning and evening with appellant Suraj and he was having good moral character. This statement of Sabir Hussain is not in any way helpful to the appellant Surajnath regarding his innocence in the instant case. 39. In view of the aforesaid evidence, we do not find any merit in the appeal of the appellants and we affirm the conviction of the appellants as passed by the trial Court. 40. We have heard the learned counsel for parties on the question of sentence and also perused the reasons assigned by the learned trial Court for awarding death sentence to appellants Padamnath, Guddunath and Dharmendra as discussed in paragraphs 63 to 75 of the impugned judgment. It is clear from paragraphs 66 and 71 that the learned trial Court was influenced by the arguments advanced by the learned Additional Public Prosecutor that appellants were facing prosecution in number of criminal cases of dacoity and were also convicted in some cases for dacoity and murder, but learned trial Court has failed to consider provision under section 298 of the Criminal Procedure Code regarding proof of previous conviction, which reads as under :- 298. In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force, - (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered, together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted. 41. In the instant case, prosecution has not filed any extract certified copy issued by Officer having the custody of the record regarding conviction or sentence or order passed against the appellants. The prosecution could file either extract of certified copy, showing the conviction of the appellants or certificate signed by the Officer in-charge of the jail showing undergoing sentence by the appellants. No admissible documentary evidence has been filed by the prosecution to establish previous conviction of the appellants and for facing and pendency of number of criminal cases by the appellants. In our considered view, in absence of any documentary evidence, previous conviction of the appellants or their prosecution in number of criminal cases, cannot be taken into consideration for imposition of sentence. 42. Deceased Hemendragiri suffered only one lacerated wound on his head which resulted into his death and deceased Narayangiri sustained one lacerated wound on left ear and skull, swelling over left jaw and one abrasion on left shoulder. He also died because of head injury. The facts and circumstances of this case are indicating that main intention of the appellants was to commit dacoity and during the course of commission of dacoity they caused injuries to both the deceased to incapacitate them from putting obstruction. He also died because of head injury. The facts and circumstances of this case are indicating that main intention of the appellants was to commit dacoity and during the course of commission of dacoity they caused injuries to both the deceased to incapacitate them from putting obstruction. In these circumstances, having considered the Supreme Court pronouncement in case of Jagmohansingh vs. State of U. P., AIR 1973 SC 947 and Bachhansingh vs. State of Punjab, (1980) 2 SCC 684 the instant case does not fall within category of rarest in rare case for imposing death sentence upon appellants Padamnath, Guddunath and Dharmendra. Death sentence of all these three appellants is converted into life imprisonment. We maintain rest of the conviction and sentence as passed by the trial Court against all the appellants. 43. The Death Reference is answered as aforesaid. The Criminal Appeal filed by the appellants stand allowed in part, in terms indicated hereinabove. 44. Original Judgment is kept in Criminal Death Reference No. 2/2006 and a copy whereof be placed in the record of connected Criminal Appeal No. 1221/2006. Office is directed to send a copy of this judgment along with the record to the trial Court for information and immediate compliance.