JUDGMENT 1. - D. B. Criminal Murder Reference No. 2 of 1980 and D. B. Criminal (Jail) Appeal No. 752/80 both arise out of the judgment passed by the learned Additional Session Judge, Nohar dated November 14, 1980 whereby accused-appellant Mehar Chand was convicted for the offences under sections 302, 450 and 380 Indian Penal Code and sentenced to death and a fine of Rs. 1000/-, in default to undergo one year's simple imprisonment for the first count; to five years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo six months simple imprisonment for the second count and two years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo six months simple imprisonment for the third count. 2. Briefly stated the facts of the case giving rise to the trial of the appellant and to the reference and the appeal are as under:- 3. On July 2, 1978 at 3.00 a.m. Thaker Singh (P.W. 3) resident of village 'Bambalwas', went to Police Station Bhirani and lodged the report before the Station House Officer. Ram Dayal (P. W. 12). The facts disclosed by him were that in village 'Bauibalwas' there was one Ram Karan Jat who had three sons viz. Mehar Chand, Chet Ram and Hari Singh. Ram Karan expired eight or nine years back. Hari Singh also expired five or six years back. Chet Rain and Mehar Chand were not on good terms. Their mother Mst. Mamo used to live with Chet Ram She had expired about five and a half years ago. There was dispute regarding the property between the three brothers and informant Thaker Singh (P.W. 3) and one Sher Singh (P.W. 7) distributed the property in the mouth of 'Chaitra' preceding the year of the incident. Mehar Chard was not satisfied with the petition. After the death of Mst. Mamo, one she-buffalo belonging to her remained with the deceased Chet Ram, Mehar Chand wanted the share in that also which Chet Ram was reluctant to give on the ground that lie had incurred expenses for the mother. Thus the relations between the two brothers i. e. the appellant Mehar Chand and deceased Chet Ram were strained for a pretty long time. Mehar Chand also levelled allegation against Chet Ram for demolishing his crop by reploughing the fields. Thus the relations between the two brothers i. e. the appellant Mehar Chand and deceased Chet Ram were strained for a pretty long time. Mehar Chand also levelled allegation against Chet Ram for demolishing his crop by reploughing the fields. to the intervening night of July 1st and 2nd, 1978 while the informant Thaker Singh (P.W. 3), Ganpat (P.W. 1) and Nathu (P.W. 2) were sitting at the house of Shri Chand because of his mother not feeling well. they heard shrieks of a woman from the side of the house of Chet Ram at about 11.00 or 11.30 p.m. All the three rushed to the house of Chet Ram but found the door of the house bolted from inside. They thin went to the adjacent house of Mehar Chand, where his wife was standing stunned. All the three persons viz. Ganpat (P.W. 1), Nathu (P.W.2) and Thakur Singh (P.W. 3) ascended the roof of the kitchen of Mehar Chand and saw him in the 'Bakhal' (the open space outside the court-yard) of Chet Ram inflicting 'Gandasi' blow to Smt. Savitri wife of Chet Ram. Smt. Savitri fell down. The three witnesses gave a 'lalkar' to Mehar Chand at which latter threatened them to death in caste they went near him. Mehar Chand then went lit the 'angan' (court-yard) and lifted a child sleeping there and threw it on the cot in the 'Bakhal' on which two other children were sleeping. Mehar Chand inflicted 6-7 'Gandasi' blows in quick succession to those three children. On beating the noise Ami Lal Jat (P.W. 6), Nathu Singh Rajput (P.W. 13), Prithvi Jat (P.W. 14), Lichman Khati, jug Lal Kumhar etc reached there. A lantern lying in the house of Mehar Chand was lit and in its light it was noted that Chet Ram, his wife Savitri and his three children viz. Subhash, Pato and Pappu have succumbed to the injuries sustained by them. Meanwhile Mehar Chand had come out of house of Chet Ram and was babbling. Tile persons assembled three succeeded in apprehending him and Thaker Singh (P.W. 3) took him to the police Station in the Jeep driven by Nathu Sitigli Rajput (P. W. 13). 4. The Station House Officer reduced the oral information furnished by Thaker Singh (P. W. 3). into writing which is Ex. P. 1. On the basis of that information case against the appellant was registered. 4. The Station House Officer reduced the oral information furnished by Thaker Singh (P. W. 3). into writing which is Ex. P. 1. On the basis of that information case against the appellant was registered. He was arrested vide memo Ex. P. 2. The blood stained 'dhoti', he was wearing, was taken in possession. One pair of golden Bujli (ornament for the cars) was also found in possession of the appellant at the time of his arrest which was taken in possession by the Station House Officer. The 'dhoti' and the pair of the Bujli' were sealed then and there. 5. In the same night at about 4. 00 a. m. during the course of investigation, the appellant under arrest furnished information to the Station House Officer Rani Daval for getting recovered the blood stained 'Gandasi' placed by him outside the 'Kotha' of Chet Ram and the dead bodies of' his brother Chet Ram. his wife Savitri and his three children viz. Subhash, Pato and Pappu lying in the 'Bakhal'. The information reduced in writing is Ex. P. 40 The Station House Officer reached the house of Chet Rain and in pursuance of the information furnished by the appellant recovered the 'Gandasi' lying outside the 'Kotha' of Chet Rani vide memo Ex. P. 3 and scaled it. He also recovered the dead bodies of Chet Ram, Smt. Savitri, Subhash, Pato and Pappu at the instance of the appellant vide memo Ex p. 12. The Suction House Officer inspected the site and prepared the site plan Ex. p. 13 and the site inspection memo Ex. P. 41. He also prepared the inquest memos of the dead bodies and took in possession the blood stained clothes of the deceased and the blood stained bodies and sealed them. He also took in possession the blood sacked earth and the control soil from the site A golden 'T I ' (nose pin), and broken pieces of bangles of Sin Savitri were also taken in possession from the site. 6. On,July 2, 1978 Dr. Sahi Ram, Medical Officer, Incharge Government Hospital. Bhadra (P. W. 4) conducted the postmortem examination of the five dead bodies. 6. On,July 2, 1978 Dr. Sahi Ram, Medical Officer, Incharge Government Hospital. Bhadra (P. W. 4) conducted the postmortem examination of the five dead bodies. The Doctor noted six incised wounds on the dead body of Chet Ram seven incised wounds on the dead body of Smt. Savitri, twenty-three incised wounds on the dead body of Subhash, four incised wounds on the dead body of Pato and six incised wounds on dead body of Pappu. The Doctor prepared the postmortem examination reports Exs 3, 4, 5, 6 and 7 of Chet Ram. Smt. Savitri, Subhash, Pato and Pappu respectively. According to the Doctor all the injuries noted by him on the various dead bodies were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The nine packets of the blood stained articles seized during the course of investigation were sent for chemical examination to Jaipur through Constable Harji Ram (P.W. 11) who deposited those articles at the office of the Chemical Analyst, Jaipur on July 19, 1978. The report of the Serologist and Chemical Examiner, Government of India, Calcutta is Ex. P. 42. The articles were found to be stained with human blood. 7. After completion of necessary investigation, chargesheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Bhadra. The learned Magistrate finding a case exclusively triable by the Court of Sessions committed the appellant to stand his trial in the Court of Additional Sessions ,Judge No. 1, Hanumangarh where-from the case was transferred to the Court of Additional Sessions Judge. No. 2, Hanumangarh. The case was again transferred to the Court of Additional Sessions Judge, Nohar. 8. The learned trial judge charge sheeted the appellant for the offence as stated above and recorded his plea. He denied the indictments and claimed to be tried. To substantiate its case prosecution examined fifteen witnesses in all. The accused appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him and stated that they were three brothers out of whom Hari Singh, the youngest, had expired. That Nathu (P. W. 2). Ganpat (P.W. 1), and Thaker Singh (P.W. 3) wanted the land to be mutated in the name of Hari Singh's widow and wanted her to contact 'nata' with Chet Ram but the latter was not agreeable. That Nathu (P. W. 2). Ganpat (P.W. 1), and Thaker Singh (P.W. 3) wanted the land to be mutated in the name of Hari Singh's widow and wanted her to contact 'nata' with Chet Ram but the latter was not agreeable. That, he (Mehar Chand) was at his field at the time of the alleged incident and when he returned home, his wife was crying which attracted the residents of the village. He then lit the lamp and saw the dead bodies. That on seeing the dead bodies he became unconscious and what happened thereafter he could not know. He regained consciousness after three days. He further stated that on the previous day of his statement in the Court when he was going to attend the hearing and Sheo Chand was going to the field, Nathu (P.W. 2), Thaker Singh (P.W. 3), and Ganpat (P.W. 1) were telling his wife (wife of the accused) that Chet Ram had created obstacle and so he and his family had been done to death. Now, when her husband will be finished, they would give her wherever they liked and would make money out of her. That, nine or ten thousand rupees belonging to Chet Ram as well as his Gram, Cotton and Gawar worth rupees sixteen thousand in all have been distributed by these three persons amongst themselves and they had taken all the articles of the Chet Ram. No witness was examined from the defence side. 9. The learned trial judge placed reliance on the prosecution evidence and pa.-ed the judgment of conviction and sentenced the appellant for the various offences as stated earlier. As the sentence of death was awarded under section 302 Indian Penal Code to the appellant, the learned trial Judge has submitted the proceedings to this Court for confirmation of the sentence of death as required under section 366 of the Code of Criminal Procedure. 10. Being aggrieved by his conviction and sentence the accused Mehar Chand has preferred this appeal in this Court through the Superintendent, Central fail, jaipur, Mr. B. Advani, Advocate, was appointed by this Court as Amicus-curiae to represent the appellant in his appeal as well as the reference. 11. We heard Mr. N. S. Acharya, learned Public Prosecutor for the State and Mr. B. Advani, learned Amicus Curiae and carefully examined the record of-the case. 12. B. Advani, Advocate, was appointed by this Court as Amicus-curiae to represent the appellant in his appeal as well as the reference. 11. We heard Mr. N. S. Acharya, learned Public Prosecutor for the State and Mr. B. Advani, learned Amicus Curiae and carefully examined the record of-the case. 12. Prosecution has led direct as well as circumstantial evidence against the appellant to connect him with the commission of the murder of Chet Ram. Smt. Savitri, Subhash, Pato and Pappu. The direct evidence is that of Ganpat (P. W. 1), Nathu (P. W. 2), and Thakersingh (P. W. 3). The circumstances set forth to establish the complicity of the appellant in the crime are (1) the appellant Mehar Chand being apprehended immediately after the occurrence outside the house of Chet Rain by the inhabitants of the vicinity, (2) the extra-judicial confession made by the appellant in the presence of eye witnesses and other persons. (3) the recovery of the blood stained dhoti' from the person of the appellant at the time of his arrest, (4) the recovery of the pair of 'Bujli' belonging to deceased Smt. Savitri from the possession of the appellant at the time of his arrest. (5) the recovery of blood stained 'Gandasi' from the 'angan' of Chet Ram in pursuance of the information furnished by the appellant, (6) the recovery of the dead bodies lying in the 'Bakhal' in pursuance of the information furnished by the appellant and (7) the dispute between the appellant and the deceased Chet Ram regarding the land and property motivating the appellant to commit the crime. 13. Ganpat (P. W. 1), Nathu P.W. 2) and Thaker Singh (P.W. 3) have stated that on the fateful night they had gone to the house of Shri Chand at about 9.00 p.m. because his mother was suffering from the pain in her stomach and Shri Chand, a teacher at Gandhi', had not returned from that place that night, Ganpat (P.W. 1) has stated that Shrichand's mother was his maternal aunt and as Shrichand was not there that day his niece had gone to call Ganpat (P.W. 1) on account of Shrichand mother's not feeling well. House of this witness and those of Nathu (P.W. 2) and Thaker Singh (P. W. 3) being adjacent to each other Ganpat (P.W. 1) took those two persons also with him to he house of Shrichand. House of this witness and those of Nathu (P.W. 2) and Thaker Singh (P. W. 3) being adjacent to each other Ganpat (P.W. 1) took those two persons also with him to he house of Shrichand. While they were sitting at the house of Shrichand they heard the shrieks of the wife of Chet Ram coming from towards her house at 11.60 or 11.30 p in. All the three persons immediately rushed to the house of Chet Ram but found the door bolted from inside. They then went to the house of Mehar Chand adjacent to the house of Chet Rain, and found the wife of Mehar Chand standing. stunned there. There was a kitchen six feet in height over-looking the house of Chet Ram. Attached to the wall of the kitchen there was a three feet high wall. The three witnesses via that three feet high wall ascended the roof of' the kitchen and saw '.Behar Chand inflicting too 'Gandasi' blows to Smt. Savitri in the 'Bakhal' of her house. The witnesses have also stated about the appellant lifting a child sleeping in the 'angau' and throwing it on the cot in the Bakhal' on which other two children were already sleeping and then causing 6-7 -Gandasi' blows to the three children. The witnesses got down from the roof and lit the lamp and again ascended the roof. The appellant came out of the house of Chet Ram. According to the witnesses a number of persons of the vicinity have; also assembled there on hearing the uproar. In the light of the lantern. the witnesses and others saw that all the five persons had succumbed to the injuries sustained by them and were bleeding. These three witnesses rushed out of the house of Mehar Chand and they with the help of others apprehended the appellant. These witnesses have stated about the accused making an extra judicial confession that he had killed his brother and his family and now the house and the land all belonged to him (the accused). It was Thaker Singh (P.W. 3) who has taken the appellant to the Police Station in the jeep driven by Nathu Singh Rajput (P.W. 13) and lodged the information. So far as the details of the occurrence are concerned, these three eye witnesses have given uniform versions. 14. It was Thaker Singh (P.W. 3) who has taken the appellant to the Police Station in the jeep driven by Nathu Singh Rajput (P.W. 13) and lodged the information. So far as the details of the occurrence are concerned, these three eye witnesses have given uniform versions. 14. The learned Amicus-curiae has challenged the truthfulness of the statements of these there witnesses on a number of grounds. 15. His first contention is that these witnesses could not have reached the house of Mehar Chand in such a short time after hearing the shrieks of the lady so as to see the accused committing the order of all the five persons. Ganpat ( P.W. 1) has stated that there is only a thirty five feet wide lane in-between the house of Shri Chand and the 'Bakhal' of Chet Rain. House of Mehar Chand is adjacent to the house of Chet Ram. On hearing the shrieks of the lady, if three persons rushed up from a distance of thirty five feet only, they would not have taken much time to reach the place of the incident. Next argument is that Gapat (P.W. 1) has deposed in his police statement about he and the other witnesses going running towards the house of Chet Ram, but he did not stick to that version and has stated that they had not gone running. If it was so the witnesses could not have reached so early so as to see the actual occurrence. The argument is not of any help because the distance. as we have observed above, is not much. Apart from it the witnesses have not professed to have seen any injury being caused to Chet Ram. rather have stated about his lying injured and the appellant causing injuries to Smt. Savitri at the time they reached. 16. It has been vehemently stressed by Mr. Advani that it was absolutely impossible for the witnesses to identify the assailant from a height of about fifteen feet. According to him the wall used as stair was three feet high then there was the six feet height of the roof. To it may be added the height of the witnesses which may be taken to be about six feet each. 17. The calculation is not correct. According to him the wall used as stair was three feet high then there was the six feet height of the roof. To it may be added the height of the witnesses which may be taken to be about six feet each. 17. The calculation is not correct. The witnesses are unanimous on the paint that the total height of the roof of the kitchen of Mehar Chand was six feet and there was three feet high wall adjacent to the wall of the kitchen. It cannot be said in what posture the witnesses remained at the time. Hence the point for determination is whether in the dark night it could be possible for the witnesses to have recognised Mehar Chand and also to see what he was doing. The witnesses have of course stated that is was dark night but their contention is that they could see Mehar Chand causing 'Gandasi' blows to Smt. Savitri and then to the three children. Nathu (P. W. 2) has denied the suggestion that night of the incident was cloudy and stormy. 18. From what distance a person can actually identify the assailant in a dark night depends upon the power of vision. If it is pitch dark then it may not be possible for a person to recognise the assailant even in a close range. But even in the dark night if the sky is clear it is quite possible to recognise a person at a distance of a few feet. The witnesses have stated the distance of the roof of the kitchen from the place of the incident to be about seven feet. 19. The learned amicus-Curiae has referred to the cases of Bhagtu v. Emperor (AIR 1928 Lahore 925) , and Nga Aung Kin v. Emperor (AIR 1937 Rangoon 407) , to substantiate his contention Chit it could not have been possible fur the witnesses to see that was taken place in the 'Bakhal' of Chet Ram and who the assailant was. 20. In the Lahore case, the eve witnesses had claimed to have identified the appellant and two others by their voices while he was running away. 20. In the Lahore case, the eve witnesses had claimed to have identified the appellant and two others by their voices while he was running away. Their Lordships in view of the circumstances of the case observed that, ''it is very difficult to identify a person in a pitch dark night merely by the modulations of his voice and it is risky to convict a person merely on such identification. 21. The Rangoon case related to a robbery and the identification was by voice. It was therefore, held that it is never safe to rely on the identification of a person by his voice, as one is always liable to make a mistake." 22. In the case before us, as observed above, there is no evidence about there being pitch dark and the witness only identifying the assailant by modulation of voice. It is not a case where the witnesses had only a glimpse of the assailant rather they had sufficient time to recognise him. The assailant was their nieghbour, and therefore, the perception was on account of acquaintance. They had sal can occasion to hear the assailant when he gave threatening to them. In such circumstances when the accused was not a stranger to the witnesses and they had ample time to recognise him, there arises no question of the witnesses committing a mistake in correctly identifying the assailant. It is also noteworthy that the villagers not accustomed to the blazing electric light have a better power of vision, even in dark, so as to enable them to identify the persons, specially those who are not strangers to them. We are, therefore, inclined to hold that in the given circumstances it was quite possible for the witnesses on the roof of the adjacent house to see who the assailant was and what he was doing in the house of Chet Ram. 23. The truthfulness of the narration by the three eye witnesses is also attacked on the ground that there is a conflict in their deposition and the medical evidence. 24. It has been strenuously contended by Mr. Advani that all the three witnesses have stated about the assailant inflicting two 'Gandasi' blows to Smt. Savitri and 6-7 blows to the three children and their statements stand falsified by the medical evidence. Dr. 24. It has been strenuously contended by Mr. Advani that all the three witnesses have stated about the assailant inflicting two 'Gandasi' blows to Smt. Savitri and 6-7 blows to the three children and their statements stand falsified by the medical evidence. Dr. Sahi Ram (P.W. 4) has noted six injuries on the dead body of Chet Ram, seven injuries on the dead body of Smt. Savitri, twenty three on the dead body of Subhay, four on the (lead body of Pato and six on the dead body of Pappu. It is relevapt to note that the witnesses have not professed to be near the site of occurrence since the start of the affair. They have not claimed to have seen any injury being caused to Chet Ram in their presence and naturally because even if Smt. Savitri would have raised the cry at the initial blow still the witnesses must have taken a few minutes to reach the place wherefrom the incident was visible to them. When the witnesses had reached the roof of Mehar Chand, they had seen the assailant inflicting wo 'Gandasi' blows to Smt. Savitri. That does not negative the possibility of his having inflicted certain blows to her prior to the witnesses reaching there. So far as the injuries of the three children are concerned, suffice it to say that two children were already there on the cot and the third was my a to lie and the blows were inflicted in quick succession to all of them. It is evident from the occular evidence that the assailant had inflicted 'Gandasi' blows on the children lying on the cot from almost all the directions of the cot. It cannot be possible for a person to count the blows when they are inflicted in quick succession. 25. The argument of the learned Public Prosecutor that the semi circular blade of the 'Gandasi' was one foot and three inches in length and therefore, every blow causing more than one injuries to one child or causing injuries to more than one of them was quite possible. The argument is not devoid of force, while describing the injuries on the dead bodies Thaker Singh (P,W. 3) had deposed that he could not tell how many injuries the children had sustained as they were cut to pieces. He had used the term" BACHON KI TO KUTAR KUTAR KAR RAKHI THI". The argument is not devoid of force, while describing the injuries on the dead bodies Thaker Singh (P,W. 3) had deposed that he could not tell how many injuries the children had sustained as they were cut to pieces. He had used the term" BACHON KI TO KUTAR KUTAR KAR RAKHI THI". 26. The three authorities cited by the learned amicus-curiae on the point do not help the accused because the conflict between medical evidence and occular evidence appearing in those cases cut at the root of the matter. 27. In the case of Mohinder Singh S/o Inder Singh v. The State (AIR 1963 SC 415) , it was doubtful whether the injuries were caused by a gun or by a rifle and it seemed more likely that they were caused by a rifle than by a gun and yet the case of the prosecution was that the appellant was armed with a gun and in his examination, it was definitely put to him that he was armed with the gun recovered in the case. In view of these circumstances, their Lordships were pleased to propound the following principle : "In a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or atleast possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been accused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case." 28. The above referred principle was further reiterated in the case of Ram Narain v. The State of Punjab ( AIR 1953 SC 413 ) . In that case the story emitting from the eye witnesses was that there was one gun fire. The medical evidence denoted two injuries, one on the chest and the other on the arm. Coming to know about two injuries in the medical evidence there was a clear improvement in the statements of the prosecution witnesses that the deceased had put his right arm on his chest. The medical evidence denoted two injuries, one on the chest and the other on the arm. Coming to know about two injuries in the medical evidence there was a clear improvement in the statements of the prosecution witnesses that the deceased had put his right arm on his chest. It was held to be undoubtedly a belated idea because if it had been a fact, there was no reason that the eye witnesses should not have deposed to it in their statements before the police or before the committing Court. The ballistic expert on a question by Court had deposed that in case it was a straight fire and the right arm was kept just in front of the chest then it was possible that those injuries could be caused by one single fire. Their Lordships were of the opinion that the eye witnesses had to introduce the theory of the deceased having put his right arm on his chest to bring the occurrence in tune and in consonance with the evidence of the Doctor. The evidence of the eye witnesses was therefore, considered to be an after-thought and was not accepted. 29. In the case of State of Rajasthan v. Het Ram & others ( AIR 1975 SC 1727 ) , according to the eye witnesses the assailants were at a higher level and had placed their gun and rifles on the parapet wall and the victim was a lower level. The medical evidence was that the gun fired from the higher level to lower level cannot have upward trend. In view of the conflict between medical evidence and the evidence of the eye witnesses, the former was believed. 30. None of these three authorities is on the point so far as the present case is concerned. The three eye witnesses have categorically stated that the weapon used by the assailant was 'Gandasi'. As we have observed above, the witnesses have given approximate idea of the number of the blows. There is the specific evidence of Dr. Sahi Ram (P. W. 4) that the injuries noted by him on the various dead bodies could be caused by 'Gandasi' Ex.1 shown to him in the Court. Thus there is neither any conflict regarding the weapon used nor the way in which the injuries were caused. There is the specific evidence of Dr. Sahi Ram (P. W. 4) that the injuries noted by him on the various dead bodies could be caused by 'Gandasi' Ex.1 shown to him in the Court. Thus there is neither any conflict regarding the weapon used nor the way in which the injuries were caused. In this view of the matter, the mere failure on the part of the eye witnesses to state the exact number of the blows or the injuries sustained bring more in number than the number of blows stated by their will not diminish the value of their testimony. 31. While criticising the credibility of the eye witnesses, Mr. Advani invited our attention to the discrepancies and contradictions in their depositions at the trial and their previous statements. The submission of the learned Public prosecutor is that they do not relate to material points. 32. We have careful:y examined the statements of the three eye witnesses. The omissions and contradictions noted in the statements of Ganpat (P.W. 1) and Nathu (P.W. 2) are in fact on petty matters, such as, whether they went walking or running towards the house of Chet Ram on hearing the shrieks of the lady: the height of the wall; the posture in which Chet Ram was lying etc. They ae not sufficient to brand the deponents as false witnesses. 33. So fir as Thaker Singh (P.W. 3) is concerned. our attention was drawn to the F.I.R. in connection with omission of the extra-judicial confession of the accused; the assailant giving a threatening to him and others while they were on the roof and the contradiction regarding the time of the assailant going out after the commission of the crime. 34. As regards the extra judicial confession the learned Public Prosecutor has submitted that though the detailed narration of the exact words uttered by the accused does not find place in the first information report but it is mentioned there that the accused was found babbling outside, when the witnesses came out, and, therefore, the version of Thaker Singh (P.W. 3) at the trial in this regard cannot be said to be an after-thought. Regarding other omissions the argument is that they are hot on material points affecting the case. Regarding other omissions the argument is that they are hot on material points affecting the case. Be as it may, the presence of this witness at the time has been duly established and his evidence at the trial has been corroborated by the other two eye witnesses. We are, there fore, not inclined to discard the evidence of this witness in toto. 35. Even if on account of certain omissions in the first information report, fine evidence of Thaker Singh (P. W. 3) may be taken to be weak, still there is no reason to disbelieve the evidence of the other two eye witnesses viz. Ganpat (P.W. 1) and Nathu (P.W. 2) who are witnesses of sterling worth. Small variations in the statements of even truthful witness are bound to occur on account of lapse of time. 36. In order to challenge the veracity of the eye witnesses, learned amicus-curiae has placed reliance of the case of Salveraj v. The State of Tamil Nadu ( AIR 1976 SC 1970 ) . The case stood on altogether different footing, as there were inherent improbabilities in the story put forward by the alleged eve witnesses. Their testimony was not corroborated. Other corroborative evidence regarding the recovery of the knife from the accused was found to be unreliable and, therefore, the conviction was field to be unsustainable. In the present case there are no such inherent improbabilities in the testimony of the rye witnesses. We may also observe that the witnesses had no enmity with the assailant so as to suppress the truth or concoct a false case by any emblishment of facts which are not true, in order to implicate him in the case. 37. We are, therefore, of opinion that implicit reliance can be placed on the testimony of the eye witnesses, especially that of Ganpat (P. W. 1) and Nathu (P. W. 2), and the learned trial judge has rightly considered them witnesses of credence. 38. The first circumstance stressed against the appellant is his being apprehended after the incident outside the house of Chet Ram with his 'dhoti' and feet stained with blood. 39. The learned Amicus-Curiae has tried to assail these circumstances on two grounds. Firstly, the appellant might have gone inside the house and that might have caused stains of blood on his -dhoti' and feet. 39. The learned Amicus-Curiae has tried to assail these circumstances on two grounds. Firstly, the appellant might have gone inside the house and that might have caused stains of blood on his -dhoti' and feet. Secondly, it cannot be believed that the first information report was promptly lodged and the appellant was produced before the police, because the first information report was not sent immediately to the concerned Magistrate and, therefore, there was non-compliance of the mandatory provisions of section 157 of the Code of Criminal Procedure. 40. All these arguments are devoid of force. There is ample evidence on record that the appellant was apprehended when he came out of the house of Chet Ram It has not been suggested to any of the witnesses that after the people had assembled there, the appellant had gone inside the house to find out what had happend, and that might have caused blood stains on his feet and 'dhoti'. So far as the question of prompt lodging of the first information report is concerned the matter is absolutely clear. The first information report was reduced into writing at 3. 00 a. m. immediately after the witnesses Thaker Singh (P. W. 3) and Nathu Singh (P. W. 13) producing the appellant before the Station House Officer. The only reason to doubt this promptness in filing the first information report indicated by the learned Amicus-Curiae is that the Magistrate had received the the first information report on July 3, 1978 at 9. 00 a. m. and it not being the court time he must have been at his house and therefore, how could he have appended the seal on the first information report at that time. We are not impressed by this argument because that the seal might be available at the residence even. 41. This is correct that promptness in filing the first information report in itself is no guarantee for the truth of the prosecution case but in the present case the first information report reached the Magistrate concerned in the morning on July 3, 1978. Besides that the appellant was arrested at the Police Station immediately after the lodging of the information and implicating articles i.e. his blood stained 'dhoti' and the pair of 'Bujli' were recovered from his possession at the time of his arrest. Besides that the appellant was arrested at the Police Station immediately after the lodging of the information and implicating articles i.e. his blood stained 'dhoti' and the pair of 'Bujli' were recovered from his possession at the time of his arrest. This being the position it can safely be said that prosecution has duly established that immediately after the occurrence, the appellant was apprehended by the inhabitants of the locality when he Came out from the house of Chet Ram and was immediately produced before the Police. 42. Another important circumstance connecting the accused with the commission of the crime is his extra judicial confession made immediately after the occurrence outside the house of Chet Rant. The witnesses stating about the extra judicial confession are Ganpat (P. W. I). Nathu (P.W. 2). Taker Singh (P. W. 3). Nathu Singh (P. W. 13) and Prithvi (P. W. 14). All of them have categorically deposal that after coming out from the house of Chet Ram the appellant cried that he had done away with his brother and his whole family and now the whole land and the house were his. 43. The learned Amicus-curiae has criticised this part of-the prosecution story on the ground that in the first information report Thaker Singh (P. W. 3) has only stated that on coming out the appellant babbled and the details of what he uttered are missing therein. The explanation of Thaker Singh ( P. W. 3) for this omission in the first information report is that he had so stated but the Sub- Inspector might not have written so. The learned Public Prosecutor met this argument by submitting that it has been stated by Thaker Singh (P. W. 3) in the first information report that when he and his companions come out of the house of Mehar Chand after seeing the occurrence they found Mehar Chand babbling outside and, therefore, Mr Acharya urged, it cannot be laid that the fact of the appellant saying something just after the incident has been totally omitted by the witness while lodging the first information report. Be it as it may, it may be observed that besides Thaker Singh (P. W. 3) there are other witnesses also who have stated about the extra judicial confession of the appellant. Be it as it may, it may be observed that besides Thaker Singh (P. W. 3) there are other witnesses also who have stated about the extra judicial confession of the appellant. All are unanimous on the point that the utterence by the appellant was that he had killed his brother and his whole family and now he was the owner of the land and the house. 44. We are alive of the principle that the evidence about an extra judicial confession is in its very nature a weak piece of evidence and it should not be made the basis of conviction if it lacks in probability. It is also noteworthy that if it is spelt from the record that a deliberate attempt has been made to introduce a false story of extra-judicial confession then that part of the prosecution case deserves to be rejected out-right. We also agree with the argument of the learned amicus-curiae, substantiated by reference to the case of Annoppa and others v. The State of Karnataka (1978 Cr. L. J. 462) , that extra-judicial confession should be proved in the same way as the other admissions or statements by the evidence of persons to whom they are made. They should be proved by evidence of thee most reliable character. 45. With the above principle in mind when we turn to the evidence regarding the extra-judicial confession in the present case, we find no infirmity in it. All the witnesses concerning this fact have reproduced the words uttered by the appellant. The witnesses have stood well in cross examination and can well be said to be witnesses of truth. Hence the circumstance of extra-judicial confession by the appellant has been correctly pressed into service by the learned trial judge against the appellant. 46. Next comes the recovery of the blood stained 'dhoti' from the person of the appellant at the time of his arrest. The Station House Officer Ram Dayal has proved this fact and deposed that the 'dhoti' which the accused was wearing at the time of his arrest had stains of blood and, therefore, was taken in possession and sealed then and there This recovery of 'dhoti' has been supported by Thaker Singh (P.W. 3) and Nathu Singh (P.W. 13), the persons who had taken the appellant to the Police Station. The report of the Serologiot is that the stains on the 'dhoti' were of human blood. Placing reliance on the case of Dhanji v. The State of Rajasthan 1980 )Cr. L. R. 87) Mr. Advani urged that the report of the Chemical Examiner and the Serologist is perfunctory, because neither the number of blood stains found on the dhoti' were indicated nor their dimensions given. Whether failure of the Chemical Examiner and the Serologist to give these details diminishes the value of the recovery and the report, depends on the circumstance of each case. In the case law just referred to above, the recovery of the clothes was from the house of the appellant at his instance after about tell days of the deceased having been seen last with him. In the present case immediately after the incident, the appellant was found wearing this 'dhoti' and blood stains were noted on it and it was taken in possession just after his arrest. 47. Another argument advanced by the learned Amicus Curiae in this regard is that if the stairs of blood on the 'dhoti' were on account of the appellant committing the murders then there should have been blood also on the shirt he was wearing at the time. The argument is not appealing, because according to the Station House Officer when he inspected the site, he had noted blood on the wall up to the height of about two feet. This leads to the inference that the blood sprinkling from the injured might not have oozed with force and only 'dhoti' and the feet might have been stained with blood and the upper part of the body and the clothes thereupon remained unaffected. This recovery is, therefore. a strong incriminating circumstance against the appellant. 48. Next circumstance on which reliance has been placed by the prosecution is the recovery of the pair of golden 'Bujli' from the possession of the appellant at the time of his arrest. The Station House Officer Ram Dayal (P.W. 12), Thaker Singh (P.W. 3) and Nathu Singh (P.W. 13) are the witnesses to substantiate this recovery. They have stated that 'Bujlis' were scaled then and there. Mahavir Singh (P.W. 15), Tehsildar and Executive Magistrate has conducted the identification parade of this pair of 'Bujli' on July 10, 1978. Prithvi (P.W. 14) has correctly identified this ornament. They have stated that 'Bujlis' were scaled then and there. Mahavir Singh (P.W. 15), Tehsildar and Executive Magistrate has conducted the identification parade of this pair of 'Bujli' on July 10, 1978. Prithvi (P.W. 14) has correctly identified this ornament. The statement of Magistrate shows that he had taken the necessary precautions at the time of the parade. Prithvi (P.W. 14), the identifying witness has stated that Chet Ram was his uncle and he had seen Smt. Savitri wearing these 'Bujlis'. This circumstance thus stands duly established against the appellant. 49. Yet another circumstance on which the prosecution has led much stress is the recovery of the blood stained 'Gandasi' from the court-yard of Chet Ram in pursuance of ill;- information furnished by the appellant while in custody. The Station House Officer Ram Dayal (P. W. 12) has proved this information Ex. 41 and the recovery- memo Ex. P. 3. (This recover, memo and post martem examination of Chet Ram both have been marked as Ex. P. 3.) 'Gandasi' was smaled then and there and was sent for Chemical Examination and Serological test. It was found to be stained with human blood. 50. Mr. Advani emphatically argued that no witness has supported the Investigating Officer so far as this recovery is concerned. He also contended that there is no evidence that the appellant had placed 'Gandasi' in the court-yard after the commission of the crime and therefore. the possibility of implantation of 'Gandasi' in the court-yard and showing the recovery in pursuance of the information of the appellant cannot be ruled out. This is correct that two witnesses to the recovery viz. Amilal (P. W. 6) and Gulzar (P.W. 10) have not supported the prosecution case that Mohar Chand got the 'Gandasi' recovered. This is also correct that Thaker Singh (P. W. 3) has given the place of recovery to he 'Kotha' while according to the Investigating Officer, it was outside the -Kotha' near the wall. 51. The 'Gandasi is stated to be the weapon of effluence by the eye witnesses Though they have not stated that they had seen the assailant throwing the 'Gandasi' but it has come from their evidence that when the appellant came out from the house of Chet Ram, he was not having the 'Gandasi' with him. 51. The 'Gandasi is stated to be the weapon of effluence by the eye witnesses Though they have not stated that they had seen the assailant throwing the 'Gandasi' but it has come from their evidence that when the appellant came out from the house of Chet Ram, he was not having the 'Gandasi' with him. The legitimate inference, therefore, according to the learned Public Prosecutor would be that after committing the crime, the appellant threw the 'Gandasi' inside and came out. Mr. Advani also challenged this circumstance on the ground that Thaker Singh (P. W. 3) has stated at the trial that there was not cloth on the blade. The Station House Officer has stated about the weapon being Sealed then and there. Harji Ram (P. W. 11) has stated that the packets in sraled condition were entrusted to him and the seals remained in tact till he deposited the packets at ,Jaipur laboratory. Taking the over all view of the matter, we have no reason to disbelieve the evidence of the Station House Officer regarding the recovery of 'Gandasi'. 52. So far as the recovery of the dead bodies lying in the 'Bakhal' in pur- suance of the information of the appellant is concerned, it does not carry any importance for the reason that information furnished by Taker Singh (P. W. 3) disclosed that the dead bodies were there in the 'Bakhal' and the information of' the appellant, even if any, would not have given a better clue to the Investigating Officer for finding out the dead bodies. 53. The prosecution case regarding the motive of the appellant in committing the murder of his brother and his whole family as disclosed in the first information report has been narrated by us while dealing with the facts of the case. That is not a substantial piece of evidence. The witnesses have not stated about any partition or the strained relations between the two brothers. However, the intention of the appellant to do away with his brother and his family in order to grab the property, is writ large in the extra-Judicial confession made by him after the occurrence. That is not a substantial piece of evidence. The witnesses have not stated about any partition or the strained relations between the two brothers. However, the intention of the appellant to do away with his brother and his family in order to grab the property, is writ large in the extra-Judicial confession made by him after the occurrence. While dealing with the evidence regarding the extra- judicial confession of the appellant we have noted that all the witnesses are unanimous on the point that the accused had made an extra-Judicial confession immediately after the occurrence Their statements are also almost uniform regarding the exact words uttered by the appellant. From his utterance, that he had finished off his brother and his whole family and has thereby become the owner of the whole land and the home, it is deducible that motivated by the lust for the land and property, the appellant trespassed the house of Chat Ram and committed the gastly crime of five murders and also the theft of the pair of' golden 'Bujli' of Smt. Savitri. 54. From the above discussion, we are inclined to hold that prosecution has successfully established beyond any shadow of doubt the guilt of the accused regarding all the three charges. 55. We are, therefore, of opinion that there is full justification in the conviction of the appellant for the offences under sections 450, 380 and 302 Indian Penal Code. The sentences awarded for the offences under sections 450 and 380 Indian Penal Code are quite adequate in view of the facts and the circumstance of the case and nature of the offences. For the offence of committing the five murders, the learned Additional Sessions judge has awarded the extreme penalty of death to the appellant and has submitted the proceedings to this Court for confirmation of the death sentence. 56. The learned Public Prosecutor has vehemently emphasised that the appellant, motivated by selfish desire to have the land and property, has committed five murders in a most shocking manner and, therefore, deserves the sentence of death. 57. The only circumstance pointed out by the learned Amicus-Curiae for interference by this Court in the sentence awarded to the appellant is that he is an old man of about 65 years of age and therefore, a lenient view is warranted. 58. 57. The only circumstance pointed out by the learned Amicus-Curiae for interference by this Court in the sentence awarded to the appellant is that he is an old man of about 65 years of age and therefore, a lenient view is warranted. 58. The learned Additional Sessions Judge has heard the learned counsel for the appellant arid the learned Assistant Public Prosecutor on the question of sentence and also mentioned in the judgment that none of the parties adduced documentary evidence or prayed for time to do so, to substantiate their respective contentions, regarding the sentence. 59. The learned trial Judge while exercising the sentencing discretion kept in view the wide lines laid down by their Lordships of the Supreme Court in the case of Bachan Singh v. State of Punjab( AIR 1980 SC 898 ) , he has observed that the age of the accused according to him was 65 years while the court's estimate was 55-60 years and on that count alone, the lesser penalty was not called for. 60. All murders are repelling. Most of them are horrifying. But courts are not to be moved by humanitarian consideration that life of a person has been brought to an end through the merciless act of the culprit rather should go into the depth of the crime and the way in which it was committed. The sentence of death is not to be invariably awarded in all cases of shocking murders. The trend of legislation now is that this punishment ought to be very sparingly inflicted. This trend found its expression in the provisions of Section 354(3) of the Code of Criminal Procedure, 1973. 61. The term "special reasons" appearing in this section had been the subject- matter of discussion in a number of cases before the Supreme Court. In the case of Bachan Singh (supra) their Lordships of the Supreme Court have been pleased to observe as under:- "Section 354 (3) of the Code of Criminal Procedure 1973, makes a significant shift in the legislative policy underlying the Code of 1898, as in force immediately before April 1, 1974, according to which both the alternative provided for murder and for certain other capital offence under the Penal Code, were normal sentences. Now according to this changed legislative policy which is patent on the face of section 354 (3), the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life (or imprisonment for a terms of years) and death penalty is an exception",. 62. The principles enunciated in all the iniportant cases on the point, decided by the Supreme Court were discussed in the case of Bachan Singh (supra). The majority view (of 2 :1)in the case of 10) Rajendra Prasad v. State of U.P. (A.I.R. 1979 S C. 916) that the -special reasons' necessary for imposing death penalty most relate not to crime as such but to the criminal", was not approved in the case of Bachan Singh (supra) and their Lordships were pleased to lay does in the following propositions. "As we read Sections 351 (3) and 235 (2) and other related provisions of the Code of 1973, it is quite clear to its that for making the choice of punishment or for ascertaining the existence or absence of' special reasons" in that context, the Court must pay date regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case. More often than not, there two aspects are so intertwined that it is difficult to give a separate treatment to each of therm. This is s because 'style is the man'. In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In it sense, to kill is to be cruel and therefore, all murders are cruel. But such cruelty stay vary in its decree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that 'special reasons' can legitimately be said to exist".. 63. Their Lordships were also pleased to notice sonic of the aggravating circumstances which, in the absence of any mitigating circumstances, have been regarded as in indication for imposition of extreme penalty and held that preplanned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. 64. 63. Their Lordships were also pleased to notice sonic of the aggravating circumstances which, in the absence of any mitigating circumstances, have been regarded as in indication for imposition of extreme penalty and held that preplanned, calculated, cold blooded murder has always been regarded as one of an aggravated kind. 64. Keeping these guidelines in view, we carefully examined the entire evidence and assessed the circumstances of the case to ascertain whether it is a case where extreme penalty is called for and whether the learned Additional Sessions Judge has exercised the sentencing discretion judiciously. 65. The appellant engrossed by reckless selfishness to have the fields and the property has barbarously murdered fie person Propensity to commit the crime is patent because he was not contented with doing away with his brother alone, rather quenched his bloody thirst by killing the lady and butchering three innocent children of the tender age of four years, two years, and four months, so that no hurdle may remain in his free enjoyment of the property. 66. The five brutal murders by the accused are so shocking and regrettable that the mere ground of his advanced age, and that too when he is not too old to appeal to the clemency of penal justice, cannot be said to be a mitigating circumstance to lead to a conclusion different from the one arrived at by the learned Additional Sessions Judge. We, therefore, hold that extreme penalty of death is the only adequate punishment for the offence of murder committed by accused Mehar Chand. 67. Consequently, the reference made by the learned Additional Sessions Judge is accepted. We, accordingly confirm the sentence of death awarded to the accused Mehar Chand. He shall be hanged by his neck till he dies. 68. For the reasons stated above, the appeal filed by the accused-appellant Mehar Chand fails and is hereby dismissed. *******