JUDGMENT 1. This is a triple murder case in which Babu Singh, his wife Mst. Bachan Kaur and their son Jagar Singh are alleged to have been done to death by gun-shots in the course of the same transaction by the accused-appellant Karam Singh, who has been sentenced by the learned Sessions Judge, Sri Ganganagar, to death under Section 302, IPC. 2. The accused has filed appeal from the conviction and sentence, whereas the learned Sessions Judge has made a reference to this Court for confirmation "'of the sentence of death. 3. The prosecution case is that the accused Karam Singh is the cousin of the deceased Babu Singh. Karam Singh was not married, but he eloped a woman of some other community. She too had died about a year before the occurrence. After her death, ' Karam Singh used to take his food at the deceased Babu Singh's house. It is alleged that about a month before the occurrence, the deceased Babu Singh and his wife Bachan Kaur discovered that the accused was indulging in debauchery. They had three unmarried daughters in their house, namely Mst. Jaito PW/2, aged about 19 years, Gurdeo. Kaur PW/3, aged about. 18 years and PW/12 Prakash Kaur, aged about 17 years, and therefore, they, thought that it was not in their interest to allow Karam Singh to frequently visit their family. Consequently, they stopped giving food to the accused. This was the cause of annoyance of the accused. It has been suggested in the course of evidence led by the prosecution that the accused had an evil eye on the young unmarried daughters of the deceased. 4. The prosecution story proceeds thus : on the night between 19th and 20th March, 1973, the "dulhandi day" succeeding Holi, Nazar Singh PW/1, son of the deceased Babu Singh went to see the dance arranged in the village on the occasion of Holi, and was returning to his house in village Dhaba, at about 12 in the night. Karam Singh accused followed him with a double barrel gun, and started showering abuses upon him. Karam Singh accused followed him with a double barrel gun, and started showering abuses upon him. Apprehending danger to his life, Nazar Singh came with quick pace to his house, and when he was in the lane leading to his house, his brother Jagar Singh, who has been woken up by the brawl between Nazar Singh and the accused, came out to the house, and asked the accused to behave and to go to bed. Karam Singh thereupon cried out that he would finish both of them namely, Jagar Singh and Nazar Singh, and saying so he fired at Jagar Singh who after walking a few paces fell dead. Nazar Sing ran into his house and chained the door from inside. Having heard the sound of gun-shot, deceased Mst. Bachan Kaur, wife of Babu Singh and other inmates of the house, namely the daughters Mst. Jaito and Prakash Kaur and the third son of Babu Singh, namely Gurdeep also woke up. The accused entered the house of the neighbour Mai Singh, and after scalling over the wall between the house of Mai Singh and Babu Singh, he came into the house of Babu Singh. Nazar Singh ran out of the house for his life, and his two sister Mst. Jaito and Mst. Prakash Kaur went on the roof of a room nearby. To save Nazar Singh's life Mst. Bachan Kaur closed the door, and entreated to the accused not to kill Nazar Singh. While she was standing against the closed door to prevent the accused from getting out of the house so as to kill Nazar Singh, the accused shot at Mst. Bachan Kaur, who died instantaneously. Nazar Singh went into the house of another neighbour Khayali and narrated the incident to him. He heard Karam Singh saying that he had finished Jagar Singh and Bachan Kaur, and that he would not leave Babu Singh alive. Thereafter, the accused went out by the same way through Mai Singhs' house, and Nazar Singh went to his house by scaling over the walls of Khayali and Maniram's houses. He saw his mother lying dead near the door of their house, He left his two sisters and brother Gurdeep at Dr. Thereafter, the accused went out by the same way through Mai Singhs' house, and Nazar Singh went to his house by scaling over the walls of Khayali and Maniram's houses. He saw his mother lying dead near the door of their house, He left his two sisters and brother Gurdeep at Dr. Prithvi's house, who is another neighbour of Babu Singh, and started for the field situate at a distance of about a mile and a half, where, his father Babu Singh, and his third sister Mst. Gurdeo had slept that night. When he reached near his hut in the field, he heard Karam Singh giving foul abuses, and also found of two gun fires, and thereupon, he turned back towards the village Dhaba, and after taking Mithu Singh with him went to the Police Outpost at Dhaba and made a verbal report of the occurrence to Mahendra Singh, Head Constable, Incharge of the Outpost, Dhaba at 3.30 a. m. Mahendra Singh reduced the verbal report to writing and lodged the same at Police Station, Sangariya, which is 9 miles from the village Dhaba, at 6.30 a.m. The report recorded by Mahendra Singh has been produced and marked Ex. P/I. PW/8 Gorudan. SHO, Sangariya registered a case under section 302, IPC. Thereafter, Gorudan left for the site alongwith PW/7 Mahendra Singh, H.C., Pritam Singh, ASI and Dr. Swadesh Mitra Sani PW/11. He recovered the dead body of Jagar Singh lying outside his house, and also the dead body of Mst. Bachan Kaur lying inside the house near the door of the house. He also conducted the necessary investigation at the spot. Two pieces of wads and cork, 7 pieces of wool and three pellets were recovered from near the dead body of Jagar Singh, vide recovery memo Ex. P/12, He also recovered three pieces of wads and corks, 21 ordinary pellets and two big pellets from near the dead body of Mst. Bachan Kaur vide recovery memo Ex. P/16. There after, the SHO sent the Head Constable Mahendra Singh to the hut of Babu Singh in the field to bring Mst. Gurdeo Kaur alias Gebi. When Gurdeo Kaur was brought at the house of Babu Singh in the village, the SHO noticed an injury on her person, and thereafter he himself went to the hut, and there saw Babu Singh lying dead inside the hut. Gurdeo Kaur alias Gebi. When Gurdeo Kaur was brought at the house of Babu Singh in the village, the SHO noticed an injury on her person, and thereafter he himself went to the hut, and there saw Babu Singh lying dead inside the hut. He took the dead body in his possession, recovery memo Ex. P/19. In the course of investigation at the hut, the SHO also took in his possession a torch Art. 5. He also found 27 small pellets, one cork lying on a cot inside the hut which he recovered vide recovery memo Ex. P/23. Dr. Sani performed the post-mortem examination of all the three dead bodies. Besides the statements of other witnesses, the SHO interrogated PW/3 Mst. Gurdeo Kaur at 9.30 a. m. From the interrogation of PW/3 Gurdeo Kaur alias Gebi, it was revealed that the accused had gone to the hut that night, and had killed Babu Singh by gun-shot. Thereafter, the SHO searched for the accused in village, but he was not found there. He went to the neighbouring villages, and also went to Punjab to trace out the accused. He also obtained warrant under Section 75, Cr. P.C. from the Court of Munsiff-Magistrate, Hanumangarh. A copy of the warrant has been produced and. is marked Ex. P/31. The warrant was handed over to Mahendra Singh who made a search of the accused, but in vain ; and consequently, an application was made to the Magistrate for attaching the property of the accused. Mem while, PW/3 Gorudan was transferred from the Police Station, Sangariya and consequently, the rest of the investigation was handed over to Bheem Singh PW/10, who presented the challan under Section 512, Cr.P.C. on 16-5-1974. Bheem Singh PW/10 succeeded in arresting the accused. The arrest memo is Ex. P/35. On 29.6.1974, the accused gave information to Bheem Singh that he had borrowed the weapon of offence, namely a 12 bore gun from one Budh Ram Jat, and had returned the same to him. The information was reduced to writing and marked Ex. P/36. Budh Ram produced a 12-bore double barrel gun, which was taken possession of by Bheem Singh vide recovery memo Ex. P/5. 5. At this stage, it may not be out of place to narrate the prosecution version regarding the murder of Babu Singh. This version we get from PW/3 Gurdeo Kaur. P/36. Budh Ram produced a 12-bore double barrel gun, which was taken possession of by Bheem Singh vide recovery memo Ex. P/5. 5. At this stage, it may not be out of place to narrate the prosecution version regarding the murder of Babu Singh. This version we get from PW/3 Gurdeo Kaur. She and her father Babu Singh had slept that night in the hut in the field. At about 9 p. m. she felt somebody tugging her quality by putting his hand through a hole in the wall of the hut, and thereupon, she came out of the hut, and her father Babu Singh followed her. They saw the accused Karam Singh standing outside the hut near the hole. The father and the daughter then raised a hue and cry, and the accused ran towards the wheat crop of Mal Singh nearby. However, on hearting their cries PW/4 Karnail Singh and his two sons Gurmal Singh and Naxatra Singh (who was given up by the prosecution, and examined as defence witness No. 2), came there and Babu Singh narrated the incident to them. Karnail Singh and Naxatra Singh asked the father and the daughter to go to their house for safety, but Babu Singh preferred to stay on in his hut, and both the father and the daughter slept on their respective cots. At about 2 a. m. Karam Singh again came, and flashed a torch fight. Babu Singh get up and so also Gurdeo Kaur. The accused fired at Babu Singh while he was sitting on the cot. The pellets struck at Babu Singh's arm and so he stood up, and ran outside the hut. The accused, however, followed him and fired a second shot at him, as a result of which Babu Singh fell dead outside the hut. The accused also struck Gurdeo Kaur at her neck by the barrel of the gun. Gurdeo Kaur raised hue and cry, but Karam Singh accused run away. Hearing her cries, Karnail Singh, Naxatra Singh and Gurmal Singh came to the spot. Mst. Gurdeo narrated the whole incident to them. Till then Babu Singh had not expired, and was conscious. He is said to have made a dying declaration before the aforesaid persons and then breathed his last. Mst. Hearing her cries, Karnail Singh, Naxatra Singh and Gurmal Singh came to the spot. Mst. Gurdeo narrated the whole incident to them. Till then Babu Singh had not expired, and was conscious. He is said to have made a dying declaration before the aforesaid persons and then breathed his last. Mst. Gurdeo Kaur was' taken by Karnail Singh to his hut, from where, as stated above, she was taken by Mahendra Singh to her house in the village, the next morning, and produced before the SHO Gorudan to whom she narrated what had transpired in the hut. 6. From what has been stated above, it would be clear that the murders of Jagar Singh and Mst. Bachan Kaur took place in the village at their house, whereas Babu Singh was killed in his field. That these three persons were killed by gun-shots is a matter beyond dispute. It is further clear from the evidence of PW/11 Swanesh Mitra Sini that these three persons were killed by gun-shots. This position is unassailable and has not been challenged before us, and, in our opinion, rightly. The point for decision is, who was the perpetrator of these gruesome murders. 7. The first incident which took place in the village at the house of the deceased Babu Singh in the coarse of which Jagar Singh and Mst. Bachan Kaur were killed, is sought to be proved by the evidence of PW/1 Nazar Singh, PW/2 Mst. Jaito and. PW/12 Prakash Kaur. The second incident which resulted in the death of Babu Singh is sought to be proved by the statements of PW/3 Gurdeo Kaur alias Gebi and PW/4 Karnail Singh. The prosecution examined, in all. 12 witnesses, out of whom, apart from the main witnesses named above, PW/7 Mahendra Singh, PW/8 Gorudan and PW/10 Bheem Singh are the investigating officers. PW/9 Gopal Singh is the constable, who took the sealed articles for chemical examination. PW/12 Dr. Swadesh Mitra Sini performed autopay on the dead bodies, and also examined the injuries of PW/3 Gurdeo Kaur. PW/4 Karnail Singh, whom the prosecution produced to furnish corroborative evidence of the statement of PW/3 Gurdeo Kaur, was declared hostile and permitted to be cross-examined by the prosecution. So the case with PW/5 Khayali Ram who was produced in connection with the first incident. He too was permitted to be cross-examined by the Public Prosecutor. PW/4 Karnail Singh, whom the prosecution produced to furnish corroborative evidence of the statement of PW/3 Gurdeo Kaur, was declared hostile and permitted to be cross-examined by the prosecution. So the case with PW/5 Khayali Ram who was produced in connection with the first incident. He too was permitted to be cross-examined by the Public Prosecutor. PW/6 Budha Ram is the person from whom the accused is alleged to have borrowed the gun, the weapon of offence. He too turned hostile. Among the witnesses mentioned in the First Information Report about the first incident Purnsingh, Mithusingh, and Vichitra Singh, whom the prosecution wanted to produce initially, were ultimately given up by the prosecution, and were examined by the defence as DW/4, DW/5 and DW/2 respectively. The defence of the accused is one of alibi. 8. The learned Sessions Judge found that the prosecution had succeeded in proving the motive of the crime, in as much as the accused was annoyed with the deceased Babu Singh and the members of his family as they had refused to feed him. He also held that the accused had absconded after commission of the crime. He appears to have believed the prosecution story as a whole, though he has not discussed the merits and demerits of the individual witness. He convicted the accused under Section 302, IPC, as well as section 27 of the Arms Act and sentenced the accused, as stated above, to death, but no sentence was passed under Section 27 of the Arms Act. 9. We shall first deal with the first incident which took place in the village during which Jagar Singh and Mst, Bachan Kaur were killed. We do not think it necessary to reproduce the summary of the evidence of the eye-witnesses over again, as the same is contained in the narrative given by us above. The evidence of Nazar Singh is that Jagar Singh came out from the house on hearing the noise produced by the quarrel between Nazarsingh and the accused, and the accused fired at Jagarsingh. The other person, who, according to Nazar Singh, saw the incident, was Purnsingh who after seeing the incident immediately ran into the house and closed the door on account of fear. I/earned counsel has criticised the evidence of Nazarsingh on a number of grounds. The other person, who, according to Nazar Singh, saw the incident, was Purnsingh who after seeing the incident immediately ran into the house and closed the door on account of fear. I/earned counsel has criticised the evidence of Nazarsingh on a number of grounds. It is urged that the prosecution has not examined Purnsingh to support his testimony, and that the conduct of the witness is most unnatural in as much as after his brother and mother had been killed, he did not call any of his neighbours, nor did he immediately run to the police Out-post situate in the same village ; but instead of that, left for the hut in his field, it is also argued that the information was given by him at the police out-post after a considerable delay. It is contended that the witness has contradicted himself on a very important point namely that in his statement in the committing Court Ex. D/1 the witness stated that he took his mother to the house of Dr. Prithvi, whereas in his statement in the trial Court-, he stated that his mother had died instantaneously, and therefore, there was no question of taking her to Dr. Prithvi's house. Another discrepancy pointed out by the learned counsel in his statement is that in his statement before the committing Court, he had said that he went to his field, and informed his father. Whereas, in the trial Court, he stated that he did not go inside the hut at all. Then, it is urged that according to his witness, the incident at his house took place at about 12 in the night, and it must have taken 5 to 10 minutes, and then, he states to have left for the field of his father, where he reached at 1 a. m. It is pointed out that the distance between the house and the field being about a raise and a half, he should not have taken so much time. In this connection, it is also urged that if this witness were there and the incident had taken place in the manner narrated by him, then he would have been the first target of the accused. 10. As regards the murder of Mst, Bachan Kaur, the direct evidence is of PW/2 Jaito and PW/12 Prakash Kaur. In this connection, it is also urged that if this witness were there and the incident had taken place in the manner narrated by him, then he would have been the first target of the accused. 10. As regards the murder of Mst, Bachan Kaur, the direct evidence is of PW/2 Jaito and PW/12 Prakash Kaur. Their evidence has been criticised mainly on the ground that they may not have identified the appellant at all as the occurrence took place at a time when the night was considerably advanced, and these two witnesses must have been in deep slumber. It is also urged that if they were in the house, they would have been feared away as soon as the first fire was made outside the house of Jagar Singh. 11. Besides the aforesaid criticism of these witnesses, the learned counsel for the appellant has vehemently argued that the medical evidence and the nature of the injuries completely contradict the evidence of these eye-witnesses, and, therefore, the eye-witnesses should not be believed. The statement of PW/3 Gurdeo Kaur has also been criticised on the ground that her conduct is very unnatural. It is submitted that her's is the solitary statement regarding the fire at Babu Singh in as much as she is riot corroborated by the other witnesses who are alleged to have arrived at the spot soon after the occurrence in the hut. It has also been pointed out that Gurdeo Kaur speaks of dying declaration having been made by her father in the presence of Karnail Singh and others ; but she has not been supported in this respect by the other witness and the medical evidence also shows that Babu Singh must have died instantaneously on account of the shots fired at him. 12. Now, it may be noticed that the night on which the occurrence took place was a night between Chait Vadi 1 and 2 when the moon rises after an hour and a half, or so after sun-set, with the result that there was brilliant moon light at midnight when the occurrence took place. In a moon-lit night there is a good visibility upto a distance of 30* to 40'. The recurrence at the house of Babu Singh took place at about mid-night. In a moon-lit night there is a good visibility upto a distance of 30* to 40'. The recurrence at the house of Babu Singh took place at about mid-night. This is clear from not only what the witness has stated but also from the medical evidence, in as much as Dr. Sani PW/11 has stated that the death of Jagar Singh took place about 12 hours prior to the post-mortem examination of the dead body carried out by him on 19-2-1973 at 11-30 a.m. There is also little doubt that Mst. Jaito and Prakash Kaur must have been in the house along with their mother, the deceased Mst. Bachan Kaur. It was the second day of Holi, and there is nothing unnatural of Nazar Singh had gone out that night to watch the dance in the village. The fact that the dance had been arranged in the night in the village is admitted even by the defence witnesses DW/1 Dhyan Singh, DW/5 Mithu Singh and DW/6 Nahar Singh. It is also the defence case, as revealed by the defence witnesses, that there were in all four gun fires in two instalments, two at a time at the house of Babu Singh (vide statement of DW/1 Dhyan Singh). But the defence version is that two unknown persons had made those fires, and their faces were muffled. The time of the occurrence is also pointed out by the defence witnesses as 12 in the night when the dance is said to have been over and the spectators had dispersed from the scene of dance. DW/5 Mithu Singh has admitted the presence of Nazar Singh at the time the occurrence took place. DW/6 Nahar Singh has also admitted the presence of Nazar Singh, though, he states that he arrived at the spot 10 to 15 minutes after the occurrence. The version given by the defence witnesses, however, is that Jagar Singh was present at the site of the dance, and when he left the place he was followed fay two strangers, and as he reached near his house, there was exchange of hot words and abuses between Jagar Singh and his mother on the one hand, and those two strangers od the other, and then they heard the sound of four gun-fires, and the two strangers who were the assailants, ran away. Thus, there is little doubt about the presence of Nazar Singh, at the time of the occurrence. 13. The defence witnesses have come forward with a theory of firing having been made by two strangers. They are DW/1 Dhyan Singh and DW/4 Purn Singh besides a few others. It may be relevant here to point out that Dhyan Singh, Purn Singh and Mithu Singh were cited as prosecution witnesses. Purnsingh and Mithu Singh were present in the trial Court on 6-12-1974, but their evidence could not be record ed as the Presiding Officer of the Court was on leave. On 4-2-1975, Gurdeo Kaur, daughter of the deceased Babu Singh and Bachan Kaur made an application in the trial Court that these witnesses had been won over by the accused, and, therefore they may not be examined on behalf of the prosecution, and consequently, the Public Prosecutor gave them up, and this is how they came to be examined as defence witnesses. The evidence of these defence witnesses is, therefore, tainted. 14. After having carefully scrutinised the statements of Nazar Singh, Prakash Kumar and Jaito, we are satisfied that these witnesses were present at the time when the occurrence took place at the house of Babu Singh. The question then is, whether the evidence of these witnesses as to the identify of the assailant can be relied upon. As already stated above, it was moon-lit night, and according to the witnesses the visibility was good. If that be so, we fail to see any reason why these witnesses should have left out the real culprit or culprits, and implicated the accused falsely. According to Nazar Singh, he had been closely followed by the accused from the place of dance and was also abused, Hearing the abuses and the hue and cry, Jagar Singh, according to this witness, came out of the house. The version of the defence witnesses, referred to above, is that Jagar Singh was also returning from the place of dance. We are not prepared to accept this version given by the defence witnesses, and are inclined to hold that Jagar Singh came out of the house on hearing the noise of brawl between Nazar Singh and the accused. It is stated by DW/6 Nahar Singh that when the neighbours had collected at the house of Babu Singh after the murders of Jagar Singh and Mst. It is stated by DW/6 Nahar Singh that when the neighbours had collected at the house of Babu Singh after the murders of Jagar Singh and Mst. Bachan Kaur, Nazar Singh was asked to go and make the First Information Report, and then Nazar Singh started for the Police Out-post. It is significant that in the report made by Nazar Singh at the Police Outpost to Mahendra Singh, while giving the narration in detail of the first incident, he has mentioned that at the time the accused fired at Jagar Singh, Purnsingh came out of his house. It is also significant to note that no details of the second incident which took place in the hut of Babu Singh at the field have been mentioned. There is even no mention of the gun-fire at Babu Singh in the hut. In these circumstances, we are not prepared to believe that Nazar Singh cooked up a false and imaginary story while making the report at the Police Out-post, Dhaba. It is true that in the committing Court, he stated that he had taken his mother to Dr. Prithvi, where as, in the trial Court he deposed that he had not taken his mother to the house of Dr. Prithvi as she was already dead. This contradiction is there, but in our opinion, it is not material, and we are inclined to think that he may have stated in the committing Court about taking his mother to Dr. Prithvi's house by mistake or misunderstanding. Be that as it may, this is not a material contradiction, and does not affect the merits of the case either way. We have examined the other contradictions also pointed out in his statement, namely, that in the committing Court he had stated that he had gone to the field and informed his father, whereas in the trial Court he stated that he remained one murbba away from the hut. We have looked into the relevant portions of the committing Court statement Ex. D/1. In our opinion, the relevant portion of his statement does not appear to have been faithfully recorded by the committing Court, in so far as it is mentioned "itiila dee", The next sentence where these words occur shows that he never met his father in the field. D/1. In our opinion, the relevant portion of his statement does not appear to have been faithfully recorded by the committing Court, in so far as it is mentioned "itiila dee", The next sentence where these words occur shows that he never met his father in the field. Probably, what the witness wanted to say was that he went to the field to inform his father (itiila dane gaya'), and this has been mentioned as "itiila dee'' because, in the very next sentence, he has said that when he heard the sound of gun-fire and abuses he returned from the field from some distance. This is the version given by the witness even in the first information report, wherein he has said that he left for the field to inform his father, and when he was a "murbba" away from the hut in the field, he heard Karam Singh abusing, and also sound of two fires, and thereupon he turned back towards the house. In our opinion there is no contradiction regarding this version, in the statement of this witness in the committing Court and the trial Court, and on this ground we are not prepared to reject the testimony of this witness. We also do not see any unnaturalness in his conduct. While committing the murders of Jagar Singh and Mst. Bachan Kaur the accused had declared that he would kill Babu Singh who was in the field. There is nothing improbable in these circumstances if Nazar Singh went to the field to inform his father what had happened in the house, and also to warn him to save himself, instead of going straight to the Police Outpost. We also do not see any merit in the argument that the neighbours were not called and they have not been produced. It is clear even from the statements of DW/5 Mithu Singh and DW/6 Nahar Singh that a number of persons had gathered at the house of Babu Singh soon after the gun fires were heard. Some of them were interrogated by the police, -and were sought to be examined by the prosecution. It appears that they were won over by the accused and were actually examined by the defence. It is true that Dr. Prithvi and Mai Singh have not been examined by the prosecution. So far as. Dr. Some of them were interrogated by the police, -and were sought to be examined by the prosecution. It appears that they were won over by the accused and were actually examined by the defence. It is true that Dr. Prithvi and Mai Singh have not been examined by the prosecution. So far as. Dr. Prithvi is concerned, it is no-body's case that he had arrived at the spot after the incident. Further it appears that the villagers and the neighbours were terror-stricken and they were not prepared to depose against the accused. This is writ large on the record, in as much as not only some of the neighbours, who were to be examined by the prosecution. went on the side of the defence, and were examined as defence witnesses, but a few who were examined by the prosecution also turned hostile, and were permitted to be cross-examined. They are PW/4 Karnail Singh, PW/5 Khayali Ram and PW/6 Budha Ram. Not only that, even the family of Babu Singh dare not live in the village after the incident, and they migrated to another village Budharwali. 15. So far as Mst. Jaito Kaur and Mst. Prakash Kaur are concerned, as already pointed out above, there cannot be the least doubt that they were in the house. The version given by these two witnesses as to how Mst. Bachan Kaur was fired at when she stood against the main door of the house after Nazar Singh had gone out to save himself from the attack by the accused, is corroborated by the fact that the dead body of Mst. Bachan Kaur was found lying near the door on which several pellets had struck. Learned counsel has pointed out that the conduct of these witnesses is unnatural in as much as Jaito has slated that after the accused had come in their house, and said that he would kill them also, yet, they did not run away from their lives. It may be noted that the witness has stated in the course of examination-in-chief that when Karam Singh got down in their house from Mai Singh's well she, Prakash Kaur and Gurdeo Singh went on the terrace of their house. They could not have gone any where else at the dead of the night. We do not see anything unnatural in the conduct of these two girls. 16. They could not have gone any where else at the dead of the night. We do not see anything unnatural in the conduct of these two girls. 16. We now come to the most important part of the learned counsel's argument regarding the contradiction between the medical evidence and the direct evidence. PW/1 Dr. Swadesh Mitra Sani, who performed the postmortem examination on the dead bodies found the following injuries :Jagar Singh 1. A wound of entry tatooing present 2 x 11/2" on left fore-arm, posterio- medially lower third, (both bones fractured). 2. A wound of exit 3"x2" on left fore-arm antero-laterally. Muscles of fore-arm badly damaged and hanging out of exit wound. 3. A wound of entry tatooing present 31/4"x 21/2 "on left side of chest just below the nipple. The wound started on left and of it them it saved into a deep wound on right and side. Left 5th, 6th and 7th ribs, both costosternal junctions and lower and of sternal fractured. Heart, right lung lower lobe, liver upper part lacerated. 4. 12 small wounds of entry on left arm antero laterally slight tatooing present 0.1"x 0.l" very superficial. Mst. Bachan Kaur 1. A wound of entry 21/2 x2" on left lumber region posteriorly. Left iliac bonp fractured, small intestines, sigmoia colon lacerated left kidney lacerated, the track made by pellets and skin around the entry wound tatooed, 11 (eleven) small pellets, one big pellet, 1 piece of big pellet and two cork pieces recovered from the injured parts. 2. A wound of exit 5" x 5" on left iliac and lumber region extending beyond mid line, lecerated intestings have come out of the wound. 17. In the course of cross-examination, Dr. Sani has stated that injuries No. 1, 2, and 3 on Jagar Singh were caused by one gun-fire, and injury No. 4 by another fire. Injury No, 4 may have been caused from a distance, of 6 ft. and injury No. 3 from about 3 ft. 18. As regards Mst. Bachan Kaur, his statement is that injury No. 1 on Mst. Bachan Kaur was caused by two different cartridges, but it may have been caused by one cartridge if it contained pellets of different sizes. 19. Learned counsel has argued that no evidence has been lod by the prosecution on the ballistic aspects that the injuries to the deceased Jagar Singh and Mst. Bachan Kaur was caused by two different cartridges, but it may have been caused by one cartridge if it contained pellets of different sizes. 19. Learned counsel has argued that no evidence has been lod by the prosecution on the ballistic aspects that the injuries to the deceased Jagar Singh and Mst. Bachan Kaur could not have been caused by two simultaneous or successive fires by the same fire arm. His contention is that two fire arms must have been used. He has also argued in this connection that if four fires had been made in all at the house of Babu Singh, then some empties would have been found at the spot, particularly when it is not the prosecution case that any empty had been taken away by the accused. Our attention has also been drawn to some passages in Taylor's Medical Jurisprudence as well as Gerald Burraud's Identification of Firearms and Forsnsic Ballistice. 20. It is true that no ballistic expert has been examined. But in our view, failure to lead evidence on ballistic aspects in the present case is not of any consequence. There is no definite evidence as to what kind of gun was used for the commission of the crime. A 12-bore gun was, no doubt, recovered from Budha Ram PW/6 on-the information given by the accused, but that was done as late as 29th June, 1974, that is, more than a year and a half of the occurrence. There is ho evidence that this gun was used in the commission of the crime. Consequently, the Court is not in a position to know as to the type of weapon which was used. No doubt, some prosecution witnesses have Said that it was a 12-bore double barrel gun. No empty has admittedly been recovered, and whosoever, had fired must have, therefore, removed the empties himself. What has been recovered is only pellets and corks from the spot, as well as from the dead body. In these circumstances, we fail to see how the'evidence of ballistic expert may have thrown light on the case so as to determine the complicity of the accused in the crime. It is, thus, not a case in which we can say that an adverse inference should be drawn against the prosecution for not leading evidence on the ballistic aspects. 21. It is, thus, not a case in which we can say that an adverse inference should be drawn against the prosecution for not leading evidence on the ballistic aspects. 21. Now, as to the nature of the injuries, two fires are said to have been made at Jagar Singh. Injury No. 1 is the entry wound, and the corresponding exit wound is injury No. 2 If the left arm were in a raised position then the same shot may have resulted in injury No. 3 on left side of the chest just below the ribs. But tatooing is present in injury No. 3, and as such, nothing can be said definitely whether injury No. 3 was the result of the same shot which caused injury No. 2, though, the Doctor has opined that injuries No. 1, 2 and 3 were the result of one fire. No further cross-examination has been direct to this witness to challenge the correctness of his statement that injuries No. 1, 2 and 3 were caused by one fire. In such circumstances, we are not in a position to say with any definiteness as to whether injury No. 3 was the result of the same fire which caused injuries No. 1 and 2, or was the result of an independent fire. Injury No. 4 consists of small wounds of entry on left arm. These wounds are very superficial. May be, that injuries No. 3 and 4 may have been caused by the same shot. There is, however, no basis on the record on which the argument of the learned counsel that there must have been three fires at Jagar Singh, can be accepted, and we cannot rule out the possibility that the four injuries found on the person of Jagar Singh were caused by two fires, and that is the defence case also, in as much as the defence witnesses have also stated that two fires were heard twice. This naturally means that the first two fires resulted in the death of Jagar Singh and the second two fires caused the death of Mst. Bachan Kaur. We are unable to accept the contention of the learned counsel that injuries caused to Jagar Singh were the result of three fires. 22. As regards Mst. Bachan Kaur, injury No. 1 is a wound of entry and injury No. 2 is the corresponding wound of exit. Bachan Kaur. We are unable to accept the contention of the learned counsel that injuries caused to Jagar Singh were the result of three fires. 22. As regards Mst. Bachan Kaur, injury No. 1 is a wound of entry and injury No. 2 is the corresponding wound of exit. Learned counsel's contention is that these injuries could not have been the result of two. fires. He has submitted that the evidence of the Doctor as well as of the eye-witnesses that there were two fires is incorrect. The Doctor's statement on the point, we are constrained to observe, is rather vague. He has not specifically said whether these injuries are the result of one fire or two fires. On the other hand, he has said that injury No. 1 may have been caused by two different cartridges, and then he modified his statement, and says that it may have been caused by one cartridge if pellets contained in it are of different sizes. In our opinion, the evidence of the Doctor on this point is not very helpful. However, from the nature of the injuries, it appears that they were the result of one fire. The Doctor, we cannot help observing, has not supplied full data on the point. He has not stated whether the margins of the two wounds were inverted or averted, and unfortunately, there has not been satisfactory cross-examination either. Since, he has described one wound as wound of entry, and the other as wound of exit, both must be the result of one fire. The eye-witnesses Jaito Kaur and Prakash Kaur have, stated that two fires were made on her by a double barrel gun. It is in the evidence of the investigating officer PW/8 Gorudan that there were marks of pellets on the door of Babu Singh's house, and certain pieces of wads were scattered at the site. It is, therefore, likely that the other shot fired at Bachan Kaur might not have struck any part of the body of Bachan Kaur, but may have struck the shutters. The possibility also cannot be ruled out that the fire from the other barrel may not have been effective, and may not have hurt Mst. Bachan Kaur. In any case, we are not prepared to reject the testimony of these two girls on this ground. The possibility also cannot be ruled out that the fire from the other barrel may not have been effective, and may not have hurt Mst. Bachan Kaur. In any case, we are not prepared to reject the testimony of these two girls on this ground. The shots are alleged to have been fired from a very close range, and hence tatooing was present on the wounds. Our conclusion, therefore, is that it is established beyond reasonable doubt that Jagar Singh and Mst. Bachan Kaur were killed by the accused by gun-shots. 23. Coming to the incident at the hut which resulted in the death of Babu Singh, it is true that we have solitary statement of Mst. Gurdeo, alias Gebi. We have fully scrutinised her statement, and are satisfied that she was in the hut with Babu Singh on that fateful night. When the investigating officer PW/8 Gorudan reached ' the house of Babu Singh on receiving the first information report, she was there. PW/8 Gorudan stated that after he had reached the house of Babu Singh and had carried out some investigation, he sent Head Constable Mahendra Singh to Babu Singh's hut to fetch Gurdeo Kaur. Gurdeo Kaur has also stated that she was brought by the police from Karnail Singh's hut to her house in the village at 9 a. m. This fact, in our opinion, supports her presence in the hut at night. PW/4 Karnail Singh has turned hostile, and consequently his evidence cannot carry any weight, but he too has supported this part of the prosecution case that Gurdeo Kaur was present in the hut, and was brought by him to his hut after the incident. She was medically examined by the Doctor on 19-3-1973, that is the very next day at 4.30 p.m. The injury report is Ex. P/40. A bruise with tenderness 3"xU" on the right side of her neck was found. DW/11 Dr. Sani has stated that the duration of the injury was about 12 hours. Gurdeo Kaur's statement is that this injury was caused to her with the barrel of the gun by the accused. The presence of this injury on her person is also a corroborative circumstance. 24. Learned counsel for the appellant has, however, argued that the witness has told alike that Babu Singh had made a dying declaration before Karnail Singh that he had been shot by the accused. The presence of this injury on her person is also a corroborative circumstance. 24. Learned counsel for the appellant has, however, argued that the witness has told alike that Babu Singh had made a dying declaration before Karnail Singh that he had been shot by the accused. It is submitted that Karnail Singh has not supported her, and the Doctor's evidence is that on receiving the gun-shot injuries Babu Singh must have died instantaneously. So far as Karnail Singh is concerned, he has been, declared hostile, and is consequently a discredited witness. The Doctor has, no doubt, stated that all the three deceased must have died instantaneously after receiving these injuries. He has not furnished any data in support of his opinion. May be, that Babu Singh may have been in a position to speak after the injuries had been inflicted on him, and this is also likely that he may not have been able to speak at all. But from the record as it stands, it cannot be said with absolute certainty that Babu Singh could not have spoken a word after the second fire had been made on him, and even if for argument's sake, learned counsel's contention is accepted, it comes to this that Gurdeo Kaur's evidence regarding that dying declaration should not be accepted. But for that reason, we are not prepared to brendish Gurdeo Kaur as complete liar and reject her statement altogether, particularly, when we have found that she was present with her father in the hut that night, and had full opportunity to see the assailant. Learned counsel has assailed her testimony also on the ground that it is not probable that after Bab.u Singh had received the first gun-shot in the hut while sitting on the cot, and thereafter run out of the hut, she would have followed him. We do not see anything unnatural in this conduct of the girl. When her father was injured, her natural reaction must have been to follow her father when he got out of the hut. The accused had not threatened to kill her, and even if he did so, the girl would not have been safe inside the hut. We do not see anything unnatural in this conduct of the girl. When her father was injured, her natural reaction must have been to follow her father when he got out of the hut. The accused had not threatened to kill her, and even if he did so, the girl would not have been safe inside the hut. At this stage, we may also mention that it is in the evidence of all the three witnesses about the first incident that while leaving the house of Babu Singh, the accused had declared that he would finish Babu Singh. 25. PW/3 Gurdeo Kaur has also stated that at about 9 that night, the accused had gone to their hut, and had tugged her quilt while she was sleeping on the dot by putting his hand through a hole, but that incident has so much bearing on the main incident which took place in the hut later on, and which resulted in the murder of Babu Singh. However, we fail to see any reason why this incident of 9 p. m. should have been put forward unless it were correct, because it does not go to serve the interest of the prosecution in any manner. As already stated above, if the prosecution had cooked up a false case against the accused, then it was not at ail difficult for Nazar Singh to have included the second incident also in the report verbally lodged by him at the police out-post Dhaba before Mahendra Singh. Omission of this incident in the First Information Report leads us to think that no effort has been made by the prosecution to bolster up a false case against the accused. 26. Another point pressed upon us in connection with the second incident is that neither PW/3 Gurdeo Kaur, nor Karnail Singh, who is said to have gone to the spot after the occurrence, went to the Police Outpost to report the incident. In the first place,' no question has been put to Mst. Gurdeo Kaur PW/3 on this point in the course of cross-examination. But apart from that, it must be remembered that is was past mid-night. Gurdeo Kaur was a young girl of about 16 years at that time. She must have been completely upset and out of order and must have accepted the shelter provided to her by Karnail Singh. Gurdeo Kaur PW/3 on this point in the course of cross-examination. But apart from that, it must be remembered that is was past mid-night. Gurdeo Kaur was a young girl of about 16 years at that time. She must have been completely upset and out of order and must have accepted the shelter provided to her by Karnail Singh. In any case, when we are satisfied that she was present at the relevant time, and had seen the occurrence, omission on her part to run at once to the Police Outpost, for whatever reasons, which have not been brought out, cannot persuade us to reject her testimony. We are, therefore, satisfied that the accused after having committed the murders of Jagar Singh and Mst. Bachan Kaur at their house in the village, went to the hut at Babu Singh in the field, and murdered Babu Singh also. 27. Out belief in the guilt of the accused is further confirmed by the fact that he absconded from the village after the occurrence and was arrested on 16-6-1974 in village Kalayat. 28. We are then faced with the question of sentence. Learned counsel for the accused has urged, in the last resort, that it was a day of "Holi", and the accused may have drunk in a mood of revelry and merry-making, and may have caused these murders under the influence of liquor. There is, however, not an iota of evidence that the accused was drunk at the relevant time. But even if for argument's sake, it is accepted that he was drunk, we are unable to consider it as a mitigating or extenuating circumstance in favour of the accused. His act was most inhuman and cruel, and the murders most dastardly and pathetic. We are alive to the modern trend for abolition of capital punishment. We are also alive to the circular issued by the State Government that capital punishment may not be imposed during this year of 2500th Nirvan Year of Bhagwan Mahaveer. But, in our view, that can have no effect on the question of appropriate sentence to be passed in a given case. In our opinion, it is a fit case in which the accused should be meted out the extreme penal of law, and it is for the appropriate Government to grant clemency or not, as and when an application is made to it. 29. In our opinion, it is a fit case in which the accused should be meted out the extreme penal of law, and it is for the appropriate Government to grant clemency or not, as and when an application is made to it. 29. In the result, we dismiss the appeal, allow the reference and confirm the sentence of death. The accused is sentenced to death under Section 302, IPC for causing the murders of Jagar Singh, his mother Mst. Bachan Kaur and his father Babu Singh. He small be hanged by neck till he is dead. The sentence will be executed in accordance with the relevant provisions of law. 30. Learned counsel prays for leave to appeal to the Supreme Court. The decision of the case has turned on pure appreciation of evidence. We are, therefore, unable to certify the case as a fit one for appeal to the Supreme Court. 31. Learned counsel also submits that the accused intends to present a petition to the Supreme Court for grant of special leave to appeal under Act, 136 of the Constitution, and therefore, the execution of the sentence be postponed. We allow this prayer under Section 415 (8) of the Code of Criminal Procedure, 1973, and hereby direct that the execution of the sentence be postponed for a period of four weeks from today to enable the accused to present the petition. *******