| SooperKanoon Citation | sooperkanoon.com/904266 |
| Court | Mumbai Nagpur High Court |
| Decided On | Oct-01-2010 |
| Case Number | Criminal Appeal Nos.130, 343,, 403 of 2004 |
| Judge | A.H. JOSHI; P.B. VARALE,JJ. |
| Appellant | Dinesh Son of Ramraj Yadav, Aged About 19 Years, and ors. |
| Respondent | The State of Maharashtra, Through P.S.O. and ors. |
| Appellant Advocate | Mr. R.M. Daga, Adv. |
| Respondent Advocate | Mr. V.A. Thakre, Adv. |
2. Ajay and Dinesh are Accused Nos.1 and respectively. The Accused No.1 Ajay alias Rajesh was charged for the murder of Rakesh Dattaji Chavan. Both the accused were further charged for intentionally destroying the evidence of murder committed by accused no.1 by disposing of the corpse of Rakesh after cutting it into pieces, shoving those into the gunny bag and the suitcase, and throwing the same in the public place.
3. It is alleged that Accused No.1 murdered Rakesh Dattaji Chavan, aged 30 years, by assaulting him by a wooden rafter, knife and Sattoor etc., and in order to screen the evidence, cut the head from body, cut the body into pieces, shoved those into polythene bags and into a gunny bag and disposed of the bags by throwing near Zansi Rani Square, and destroyed or otherwise disposed of some of the body parts, which could never be traced.
4. Prosecution has examined in all 23 witnesses.
5. PW 7 Sau. Pushpabai Mahadeorao Bilulkar is cited as eye-witness.
6. Classification of other witnesses is as follows:-
[a] PW 1 Dattaji Ajabrao Chavan and PW 2 Ashabai Dattaji Chavan are the father and mother of deceased respectively. PW 2 Ashabai Chavan has lodged the complaint. They are examined to prove that deceased had disappeared from a particular date.
[b] PW 3 Warulu Wadku Kosare is examined to prove that he has sharpened Sattoor and delivered to police Sattoor which was brought back to him by the accused.
[c] PW 4 Megha Chandrabhanji Shende, PW 5 Vinod Krushnaji Kangale and PW 6 Amol Rameshrao Umare are examined to prove the circumstance of their having seen the accused in the company of deceased immediately prior to disappearance of the deceased.
[d] PW 8 Mahesh Rasumal Lakhani and PW 9 Ajay Vijayrao Chakradhare are the shopkeepers who have sold polythene bag and gunny bags respectively to the accused.
[e] PW 10 Jayant Vasantrao Raich has witnessed a quarrel between the accused and the deceased.
[f] PW 12 Premchand Suryadeo Chaudhari is the auto rickshaw driver who took the gunny bag from the residence of the accused to the place where it was thrown for disposal.
[g] PW 13 Raju Sampat Patel, PW 18 Abdul Rashid Mohd. Sujan Sheikh and PW 22 Madhao Vithobaji Kale are Panch witnesses of Spot Panchanama, Seizure Memorandum, Inquest etc.
[h] PW 14 Ajabrao Shriram Fulzele has registered the missing report.
[i] PW 15 Dr. Suresh Shyamrao Dhakate is the Radiologist who has given an opinion about the age of the deceased.
[j] PW 23 Gulabrao Shriram Mahalle is the Investigating Officer.
[k] PW 16 Dr. Rajratna Tryambak Waghmare and PW 17 Dr. Pradeep Gangadhar Dixit collected sample of DNA and conducted Post-mortem respectively.
7. Other witnesses are not significant.
8. In the background of evidence of all this, the learned Trial Judge found Accused No.1 Ajay alias Rajesh S. Sakhare guilty for offence punishable under Section :-
[a] 302 of Indian Penal Code, and convicted and sentenced him to undergo imprisonment for life and a fine of Rs.1000/-, in default, rigorous imprisonment for one year; and,
[b] 201 read with Section 34 of Indian Penal Code, and convicted and sentenced to undergo Rigorous Imprisonment for five years and a fine of Rs.500/-, in default, Rigorous Imprisonment for six months. As far as Accused No.2 Dinesh Ramraj Yadav is concerned, the learned Trial Court held him guilty for offence punishable under Section 201 read with Section 34 of Indian Penal Code, and convicted and sentenced him to suffer Rigorous Imprisonment for three years and to pay a fine Rs.500/-, in default, Rigorous Imprisonment for six months.
9. Heard learned Adv. Mr. R.M. Daga, Amicus Curiae, for the appellants and learned APP Mr. V.A. Thakre for the State.
10. Learned Adv. Mr. Daga has advanced submissions, stating that the evidence has to be separated into that of eye-witnesses and circumstantial evidence.
11. Criticizing the eye-witness, the learned Adv., has assailed the testimony of eye-witness PW 7 Pushpabai Bilulkar [Exh.31] on following grounds:-
(a) PW 7 Pushpabai is not an eye-witness to act of assault resulting into taking away the life of Rakesh Chavan, who is said to have been murdered.
(b) She does not identify the person assaulted and killed to be Rakesh.
(c) Assault and killing is not proved.
(d) PW 7 Pushpabai claims that what she said is sound of Khat-Khat - cutting or beating.
(e) She saw that a human body was being cut into pieces.
(f) PW 7 Pushpabai claims that she has called her husband who too saw the incident. 8
(g) She claims that she saw on the next day morning that the accused was washing the floor of his room.
(h) In the background that PW 7 Pushpabai, who claims to have seen Accused No.1 cutting the body of a human being, she or her husband have not shown the natural and startling reaction.
(i) PW 7 Pushpabai and her husband did not discuss about what they have seen with any other person in the background that they admit that there were ten to eleven persons residing nearby and the houses are located close by.
(j) It is also admitted by the witness that the house/room of accused and that of PW 7 Pushpabai is common. The behaviour is not natural.
(k) Admittedly, the room where accused resides does not have electricity, and the PW 7 Pushpabai does not say how was the room illuminated and how was the incident visible.
(l) PW 7 Pushpabai, who is an eye-witness, was actually examined by the Investigating Officer in the process of investigation after fifteen days of incident, which creates a doubt about her being a witness of incident.
(m) It is not proved that PW 7 Pushpabai has identified that one, who was being assaulted, was deceased Rakesh.
(n) Failure to examine husband of PW 7, who has also witnessed the incident, brings the very fact of PW 7 Pushpabai and her husband being witnesses under a grave suspicion.
12. In so far as circumstantial evidence is concerned, learned Adv. Mr. Daga has raised following points:-
[a] All witnesses are stating that they have seen the accused in the company of deceased Rakesh at various other places, however, there is no witness who claims that he had seen the accused in the company of the deceased at the place of residence or at any place proximate to the place of residence of the accused no. 1.
[b] Assuming that one and all circumstances relied upon by the prosecution as circumstantial evidence to connect the link between the offence and the accused to be worthy and to have been proved, and proof having remained unshattered, even then, no live link between commission of offence and the accused is established.
[c] Considering that the clothes, which the deceased was wearing, which were alleged to have been identified , it is not clear as to whether the human body, which was being cut, was naked, in the background that the clothes are not having any cut marks, and prosecution has failed to prove this aspect by exploring or eliciting any material in this regard in the Examination-in-Chief of this witness. Moreover, the defence had no reason to ask questions on this point.
[d] In absence of proof of fact that Rakesh himself was killed, the accused cannot be convicted of the charge framed against him.
[e] Even if it is proved that the accused person had killed some other human being, there is no charge framed by the prosecution against accused Ajay for assaulting an unidentified person as a primary charge or as an alternate charge and, therefore, it is not open to base conviction on a charge of specific nature for murder of a person for which there is no charge.
[f] Even murder of unidentified person is not proved.
[g] As there is no direct evidence, in order to complete the chain of events by circumstantial evidence, it would have been necessary for the prosecution to prove the motive. However, motive has not been proved or even suggested.
[h] Though the blood samples reportedly drawn from corpse were sent for DNA test, the report of DNA test is not proved.
[i] No effort is made to prove by evidence, whatsoever, that the corpse belonged to deceased Rakesh and that Rakesh was murdered by Accused no.1.
[j] The charge pertains to assault and murder of Rakesh son of Dattaji Chavan, whose age is shown to be thirty years.
[k] Radiological opinion cannot be a conclusive proof of age, particularly in the light of ambiguity in the statements of witnesses.
[l] There is no direct or indirect evidence of involvement of Accused No.2 in any of the acts which results in screening the evidence of the offence.
[m] The case falls in the category of no evidence whatsoever as regards Accused No.2.
13. To substantiate his arguments, learned Adv. Mr. R.M. Daga placed reliance on following judgments:-
[a] Kochu Maitheen Kannu Salim v. State of Kerala [1998 Cri. L.J. 2277]. Proposition :
When the eye-witness does not inform till next day evening that the victim had disappeared, despite the fact that he had seen that the victim was accompanying the accused, and claims to have witnessed the assault, this conduct being unnatural, raises a serious doubt that the witness has really seen the incident.
[b] Kailas Tukaram Patil & another v. State of Maharashtra [2006 ALL MR (Cri) 86]. Proposition :
In absence of proof of fact that the blood sample was drawn from the corpse, the matching of the blood group found on the clothes of the deceased with blood group of the deceased, does not prove the fact that the said blood really was the blood of the deceased.
[c] State of Maharashtra v. Bittu @ Gurumitsingh son of Sardar Singh Makan & ors. [2006 ALL MR (Cri) 1058]. Proposition :
Finding of human blood does not constitute an incriminating circumstance to convict the accused, unless it is proved that the blood so found matches with the blood group of the deceased,
[d] Shankarlal Gyarasilal Dixit v. State of Maharashtra [AIR 1981 SC 765]. Proposition :
In a case based on circumstantial evidence, due to cumulative effect of the circumstances, the guilt of the accused is to be established beyond a shadow of doubt in contrast with direct evidence where the doubt has to be reasonable.
14. Learned APP has argued that the dead body, which was constructed after arranging the parts in sequence, was a beheaded corpse. Considering the evidence in the form of clothes, and chain of other evidence which constitutes circumstantial evidence read together with testimony of PW 7 Pushpabai, it is a case where the offence charged has been proved. The age of the corpse matches with the age of the deceased Rakesh and, therefore, prosecution has proved the charge which was framed against accused. It is not necessary that in every case the corpse must be proved in its integrity.
15. Learned Addl. Public Prosecutor Mr. Thakre has tried to support the judgment and appealed for enhancement of the sentence, urging that :-
[1] The offnece is heinous.
[2] It is proved by eye-witness.
[3] The commission of offence is brutal that the person has been killed and cut into pieces.
[4] The act of cutting into pieces the dead body is not only brutal, but is aimed at destroying the evidence.
16. Learned APP, therefore, urged for enhancement of the punishment from that of life imprisonment to capital punishment.
17. To support his submissions, learned APP placed reliance on following judgments:-
[a] Annareddy Sambasiva Reddy & ors. v. State of Andhra Pradesh [(2009) 12 SCC 546], Proposition :
Any defect in charge could not vitiate the sentence if ingredients of the Section under which the accused is charged are obvious and implicit.
[b] Ram Gulam Chaudhary & ors. v. State of Bihar [(2001) 8 SCC 311], Proposition :
Even if corpus deliciti is not found, and if there is direct or circumstantial evidence conclusively showing that the accused had committed murder and the victim had died, the accused can be convicted.
[c] Nathuni Yadav & ors. v. State of Bihar & another [(1998) 9 SCC 238]. Proposition :
Proof of motive cannot be expected in every criminal case, since as to how mind of the accused has worked in a particular situation may not be capable of proof by direct evidence, and drawing an inference in that regard is permissible.
[d] Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560]. Proposition :
If the circumstantial evidence relied upon by the prosecution is cogent and it firmly establishes the charge and the same does unerringly point towards the guilt of the accused, and if the circumstances taken cumulatively and form a chain of complete events, a conclusion with human probabilities can be reached that the accused had committed offence. Thus, if the accused is well connected with the commission of offence by entire sequence of evidence forming circumstantial evidence, it would be legal to base conviction solely on circumstantial evidence.
[e] Ranbir & others v. State of Punjab [(1973) 2 SCC 444]. Proposition :
Delay in examination of a witness, unless put to Investigating Officer, and he is offered an opportunity to explain, should not adversely affect the prosecution case as to its credibility, though it would indicate some unfairness in regard to mode of investigation. Such delayed examination would not by itself lead to a conclusion that the witness, subject- matter, is a got up witness.
[f] State of Maharashtra v. Shankar Krisanrao Khade [2009 Cri. L.J. 73]; AND,
[g] State of Maharashtra v. Rajendra Pralhadrao Wasnik [2009 ALL MR (Cri) 1403]. Proposition :
As in present case, when the accused has committed offence of murder by cutting the neck, and then brutally cut the body into pieces and attempted to commit murder, collective effect thereof results in showing that the accused has no regard, whatsoever, for human values, and has shown brutality, and in the result, conviction ought to follow capital sentence, and the accused deserves no leniency.
18. Now, this Court has to proceed to assess and re- appreciate the evidence relied upon by the prosecution in the light of law cited by both sides which this Court has perused.
19. If the case stands well on testimony of eye- witness, the circumstantial evidence will assume lesser significance, though discussion thereof would be necessary.
20. The witness, who can be said to have last seen the accused persons with the deceased, as well has seen the act of accused of commission of offence, is practically PW 7 Pushpabai. Her husband is also an eye-witness of commission of offence, since prior to PW 7 Pushpabai saw the incident, he has seen it.
21. Upon going through testimonies of other witnesses, it is seen that no witnesses are identified who could prove that they had seen the accused and the deceased together immediately prior to the time and place of offence, or at any point of time proximate to the date and time of offence.
22. PW 1 Dattaji Ajabrao Chavan and PW 2 Ashabai Dattaji Chavan are not relevant for the proof of charge, as they do not prove any connection between the crime and the accused.
23. Husband of PW 7 Pushpabai was neither examined by Police at the time of investigation, nor even before the Court.
24. Therefore, this Court has to discuss the testimony of PW 7 Pushpabai, sole eye-witness of the incident.
25. It would be useful to quote relevant statements of PW 7 Pushpabai in her Examination-in-Chief and cross- examination ad verbatim, and appreciate its effect. Relevant text reads as follows:-
2. ...................................... ..........On the day of incident, deceased Rakesh came at the room of accused Ajay, at about 8.00 a.m. I saw him. Thereafter I left my house for my usual work. I returned to my home in the evening at about 7.00 p.m. When I returned to my house, I saw that deceased Rakesh and accused Ajay both were sitting in front of the door of their room. Thereafter, I saw that deceased Rakesh and Ajay both were proceeding towards the lodging house, perhaps to take their meals, but exactly where they went I am not aware of it but they went in my presence. Thereafter we also took our meals and after observing the T.V. Programme for few times, we went asleep. In the night at about 10.30 p.m. I heard certain sound as Khat, Khat i.e., of beating or cutting something. The sound was coming from the room of accused Ajay. Because of the said sound, my husband also woke up and he went outside the house to see of what the sound was. Then my husband again came back in the house and from some portion of the window which is fixed in the wall in between my room and the room of accused Ajay. My husband saw that accused no.1 was cutting a human body. There was a sattur in the hands of accused Ajay and with that sattur he was cutting the human body. Thereafter from the same window I also peeped into the room of accused Ajay and saw that accused Ajay was cutting one human body with the aid of Sattoor. Thereafter we went to sleep. In the morning we saw that accused Ajay was washing the floor of his room. Thereafter, at about 9.00 a.m., I went to my work. Usually, I returned from my work in the evening. When I came back I saw that accused Ajay and accused Dinesh were standing in front of their room. They were having one gunny bag filled with some substance, and one suitcase. Thereafter they hired one auto. They kept the gunny bag and their suitcase in the auto and by sitting in the said auto both the accused went away.
Though I and my husband had seen the accused cutting human body in his room, we did not make any report of it or did not inform it regarding it to anybody as we were afraid of its consequences and we were afraid of the accused. .....
3. ...................................... ..........It is true that there was no electric connection in the room of accused Ajay. It is not true to say that there are no electric connection even in the adjacent houses. It is not true to say that on the day of incident I did not see deceased Rakesh with accused Ajay. It is true that the window in the wall in between my room and room of accused Ajay used to be always closed. I was on talking terms with all 10 to 12 persons who residing around my house. It is true that though we heard the beating and cutting sound from the room of accused Ajay we did not inform regarding it to the persons residing in the adjacent houses. It is not true to say that on the day of incident even I did not see accused Ajay. It is further not true to say that at that time, accused had gone to his work. I am unable to tell as to how many persons were there at the room of accused Ajay at the time of incident. Ajay and two others total 3 persons were residing in the room of accused Ajay. ....................................................It is true that when I used to reach at my home, there used to be dark. It is true that as there was no electric connection in the room of accused Ajay, there was dark in front of room of accused Ajay. It is true that as there was dark in front of room of accused Ajay it was not clearly visible what was going on in front of door. On the next day of the incident, one another boy was accompanying accused Ajay but I was not knowing his name.
While police had recorded my statement, I did not give description of the said boy to the police. I am also unable to tell which clothes the said boy was wearing. It is not true to say that on the second day except Ajay I have not seen any other person with him and hence I am unable to tell his description. I cannot tell who was the autowala. I even cannot give his description. At that time, empty vacant auto- rickshaw was brought by the accused persons. Nobody was occupying the said auto when it was brought by the accused. I am not aware of the name of accused no.2. ........................................... .........On the second day, one person was accompanying accused Ajay when he went in auto- rickshaw with gunny bag and suitcase but who he was I am not aware of it. It is not true to say that no such incident took place on second day. After 15 days of the incident, the police recorded my statement. ......
[Sub-paragraphing is done for convenience of reading. Relevant and important portions are underlined to highlight the same. Quoted from page nos. 85 to 90 of the appeal paper-book].
26. The summary of testimony of PW 7 Pushpabai Bilulkar can be referred, in nutshell, as follows:-
On the day of incident, she saw the accused and deceased together in the morning, and again in the evening. Thereafter, her husband saw in the room of accused that the accused persons were cutting a human body. PW 7 Pushpabai too saw the same thing. She did not disclose to anybody whatever she had seen. On the next day morning, she saw accused carrying one gunny bag filled with some material, in an auto-rickshaw. Substance of the cross-examination of PW 7 Pushpabai is:-
There was no electricity supply, and she also tells about the details of neighbouring occupants etc.
27. It would be useful to analyze the testimony of PW7 Pushpabai, which is quoted by marking sub-paragraphs, and is summarized in foregoing paras. This analysis would help to know whether she proves the involvement of accused persons.
28. PW 7 Pushpabai admits the following:-
[a] Relevant time was 10.30 p.m.
[b] It was dark.
[c] Her husband heard the sound of Khat- Khat . Soon thereafter, her husband went outside the room. He came back and saw through some space of the window between the room occupied by them and the room where accused no.1 was residing. Her husband saw that the accused was cutting a human body.
[d] Either PW 7 Pushpabai or her husband do not identify the person being cut to be live or dead, and it to be the body of the deceased.
[e] PW 7 Pushpabai cannot tell how many persons were there in the room when the accused was cutting the body into pieces.
[f] PW 7 Pushpabai and her husband peacefully went to sleep.
[g] They did not disclose the incident to anybody either on that day, or the next day morning.
[h] PW 7 Pushpabai cannot identify the auto- rickshaw driver, in whose vehicle the 23 gunny bag etc., were taken away by the accused.
[i] She does not identify the accused no.2.
[j] She claims that her statement was recorded after fifteen days.
[k] It is seen that the statement of PW 7 Pushpabai was actually recorded after one-and-half month from the date of incident.
29. Analysis of testimonies of various witnesses, who are examined to prove chain of circumstances to prove that the accused must have committed the offence, which is referred to by this Court in foregoing para 6, can be done as follows:-
[a] PW 3 Warlu Wadku Kosare a witness from whom Ajay got the Sattoor sharpened. Anyalysis and observation of this Court :-
In absence of proof of fact, by direct or circumstantial evidence, that accused is the assailant, testimony of this witness is insignificant.
[b] PW 4 Megha Shende, a witness of last seen two days prior to the incident. Anyalysis and observation of this Court :-
The fact if this witness has seen the accused in company of deceased two days before the incident carries no significance when PW 7 Pushpabai has seen the accused in the morning of incident in company of the deceased.
[c] PW 5 Vinod Kangale witness of quarrel between accused and deceased five days prior to the incident, and the accused persons carrying a gunny bag with something in it in the auto-rickshaw. Anyalysis and observation of this Court :-
Fact if this witness has seen the accused in company of deceased five days before the incident carries no significance when PW 7 Pushpabai has seen the accused in the morning of incident with deceased. Until Court is persuaded to believe that the accused had packed the parts of dead body in the gunny bag, testimony of this witness barely proves that the accused had carried said gunny bag in the said auto-rickshaw.
[d] PW 6 Amol Umare witness of having seen the accused with a gunny bag in the auto-rickshaw. Anyalysis and observation of this Court :-
Until Court is persuaded to believe that the accused had packed the parts of dead body in the gunny bag, testimony of this witness barely proves that the accused had carried said gunny bag in the said auto-rickshaw.
[e] PW 8 Mahesh Lakhani and PW 9 Ajay Chakradhare - witnesses of having sold to the accused polythene bags and a gunny bag respectively. Anyalysis and observation of this Court :-
In absence of proof of fact, by direct or circumstantial evidence, that accused is the assailant, testimonies of these witnesses are insignificant.
[f] PW 10 Jayant Raich witness of having seen the accused and deceased together at his shop and that the accused persons uttered that it is better that he [PW 10] would meet Rakesh, as he may not be available henceforth. Anyalysis and observation of this Court :-
In absence of proof of fact, by direct or circumstantial evidence, that accused is the assailant, testimony of this witness is insignificant.
[g] PW 12 Premchand Chaudhari, Auto- rickshaw driver, who claims that he has seen both accused persons with a gunny bag disposing the same at Rani Zansi Square. Anyalysis and observation of this Court :-
This witness can be useful if he is identified to be the auto-rickshaw driver who was called by accused and he had identified the accused and also if it is proved that accused no.1 is the assailant by primary or circumstantial evidence. Moreover, he admits in cross- examination at page 135 of the appeal paper-book that there was dark and it was not possible for him to have a close look of the passengers travelling in his vehicle.
[h] Other witnesses are panch witnesses, Police witnesses etc., Anyalysis and observation of this Court :-
In absence of proof of fact that accused is the assailant by direct or circumstantial evidence, testimonies of these witnesses are insignificant, as in themselves or in isolation, these witnesses do not prove commission of offence.
30. Admittedly, any Test Identification Parade has not been conducted.
31. It is also seen that the prosecution has failed to prove that the blood group of the corpse is not proved and, therefore, the prosecution is not able to prove that the blood group found on the alleged weapon of assault belongs to blood group of the deceased. Moreover, DNA test is not proved and the blood group is not proved to be that of the deceased.
32. It is not explained as to why the statement of husband of PW 7 Pushpabai who had witnessed the incident, was not recorded.
33. Pertinently enough, statement of even anyone amongst the neighbours was not either recorded or anyone from them has come forward.
34. PW 23 Gulabrao Shriram Mahalle admits that statement of PW 7 Pushpabai was recorded on 27th August, 2001 after the accused gave a statement.
35. Therefore, this Court has to record a finding that:-
[a] (i) The solitary eye-witness - PW 7 Pushpabai fails to prove that she is a truthful eye-witness to prove charge that corpse of person seen by her being cut into pieces was of Rakesh. Considering totality of her version, her conduct of keeping silence even on seeing a brutal act of cutting a human body into pieces is unnatural. Her conduct is unnatural all the more when her husband first saw it, later she saw it, but in a thickly populated locality, they do not disclose it to anyone and peacefully sleep and go for work on the next day, and keep quiet for one-and- half-month till police come forward.
(ii) She has not proved that Accused No.2 was accompanying the Accused No.1 during whatever she had witnessed. PW 7 Pushpabai is, therefore, not an eye- witness, nor is a worthy witness. Facets of her testimony noted in Paragraph No. 28 render her status as an eye-witness totally doubtful.
(iii) In the result, the charge is not proved by the eye-witness.
[b] Now, this Court has to decide as regards the weight of circumstantial evidence, as the primary evidence in the form of eye-witness gets shreded.
(i) Circumstantial evidence does not, in any manner, establish the link between the accused and the crime with consistent series of events, much less even with any staggered or interrupted series of events.
(ii) All these pieces of evidence are broken link which do not match one another in sequence, whatsoever, and connect the accused with homicidal death of the victim Rakesh in the manner whatsoever.
36. In the result, appeal of the accused-convicts succeeds and of the State fails. Appellants are acquitted of the charge. Accused be dealt with as to their liberty according to law, since they are already in appeal before this Court against capital punishment, depending on the Judgment as may be delivered in due course in Confirmation Case No. 2 of 2009 with Criminal Appeal Nos. 58 and 275 both of 2010.