JUDGMENT R.N. Misra, J. - The accused appellant Lal Chand Misra has been convicted under Section 302 of Indian Penal Code and sentenced to death for having intentionally caused the death of Smt. Ishraji aged 50 years (his sister-in-law being the wife of his real brother Lalta Prasad), Akhlesh aged 17 years his nephew (being the son of Lalta Prasad) and Km. Mithlesh alias Mithoo aged about 12 years (his niece being the daughter of Lalta Prasad) in the early hours of 5th of June 1980 at about 5 A.M. in village Rampur Naddi, P.S. Mariya-hot, District Jaunpur. He has further been convicted under Section 307, 1 P.C. and sentenced to undergo S.I. for a period of three years for having made an attempt to commit the murder of Kailash Chandra (P.W. 4) another son of his brother Lalta Prasad in the aforesaid occurrence. 2. The prosecution story briefly stated is as follows :- The accused Lal Chandra Misra, and Lalta Prasad are real brothers (being the sons of Jokhan). Smt. Ishraji deceased was the wife of Lalta Prasad. Kailash Chandra (P.W. 4) and Akhlesh deceased are the sons of Lalta Prasad and Km. Mithlesh alias Mithoo is his daughter. Lal Chand accused has four sons Rajesh Chand, Rakesh Chandra, Rajendra Kumar and Bipin Kumar. Lalta Prasad is employed as Station Master in the Railway Department and was posted at Jukhoni Railway Station in Madhya Pradesh on the date of the occurrence. The accused Lal Chand is a well educated person and was employed as a permanent Lecturer in some institution of Diesel Locomotive Works at Varanasi. Jokhan, the father of Lal Chand and Lalta Prasad, executed first will on 16th March 1979 in favour of the sons and daughters of accused Lal Chand but subsequently after a Panchayat he executed another will Exh. Ka. 3 on 7.4.1979; but the execution of these wills created a wide gulf in the families of the two brothers and their relations became strained. A Kathal grove is owned and possessed by Jokhan. It is situated towards the north of village Abadi. The prosecution story shows that on 6th of June 80 at about 5 A.M. Lal Chand accused and Jokhan both went to the aforesaid grove for plucking Kathal fruits and all the three deceased followed them and asked them not to pluck the Kathal fruits. It is situated towards the north of village Abadi. The prosecution story shows that on 6th of June 80 at about 5 A.M. Lal Chand accused and Jokhan both went to the aforesaid grove for plucking Kathal fruits and all the three deceased followed them and asked them not to pluck the Kathal fruits. The accused Lal Chand left the place threatening that he would be just coming back. Kailash Chand (P.W. 4) was also there. He went away for spreading manure in the nearby plot. The accused Lal Chand returned along With his Gun Exh. 1 and Cartridge Balt Exh. 2 Kailash Chand (P.W. 4) was returning back from his plot after spreading manure there. Jokhan the father exhorted Lal Chand to kill, whereupon Lal Chand fired towards Akhlesh causing fatal injuries. He fell down. Smt. Ishraji his mother rushed for his help. Lal Chand fired the second round towards her and she died instantaneously on receiving the injury. Accused Lal Chand re-loaded his gun and fired the third towards Km. Mithlesh alias Mithoo. She also fell down on receiving the injury. The accused fired fourth round towards Kailash Chand (P.W. 4) but he escaped by lying down on the ground. Tapeshwar Nath Misra (P.W. 3) and Srinath (P.W. 8. witnessed the occurrence. Kailash Chand (P.W 4) raised alarm. Lal Chand and Jokhan ran away. They were chased and arrested by the villagers. Kailash Chand (P.W. 4) carried the injured Km. Mithlesh alias Mithoo and Akhlesh to the District Hospital leaving the dead body of Smt. Ishraji on the spot. Akhlesh Chand was declared dead in the Hospital. Km. Mithlesh alias Mithoo was admitted in the Hospital but she succumbed to the injuries there on the same day at 1 P.M. Kailash Chand (P.W. 4) submitted the written report Exh. Ka, 4 at the Police Station at 9.55 A.M. on the same day. Dalsingar Tiwari (P.W. 7) prepared the first information report Exh. Ka. 5 and registered the crime in General Diary vide Exh. Ka. 6. Sri Amar Nath Gupta (P.W. 9. the then Station Officer, Police Station Mariyahon was present at the Police Station when the first information report was lodged. He reached the scene of occurrence where the villagers handed over the accused in his custody along with the Gun Exh. 1 and the Cartridge Belt Exh. 2. The Belt contained 12 live cartridges Exhs. the then Station Officer, Police Station Mariyahon was present at the Police Station when the first information report was lodged. He reached the scene of occurrence where the villagers handed over the accused in his custody along with the Gun Exh. 1 and the Cartridge Belt Exh. 2. The Belt contained 12 live cartridges Exhs. 3 to 15. Two empty cartridges Exhs. 16 and 17 were recovered from the barrel of the Gun. He recovered two empty cartridges Exhs. 18 and 19 from the spot and prepared the Site Plan Exh. Ka. 12. He found blood on the spot. 3. The Investigating Officer sent the dead bodies for Postmortem examination after preparing the inquest reports and other connected papers. Dr. Jagdamba Prasad Singh (P.W. 10) conducted autopsy on the deaf bodies of Smt. Ishraji, Akhlesh Chandr Mishra and Km. Mithoo on 6.6.19 at 10 A.M., 11 A.M. and 12 noon and found the following Antemortem injuries on the dead body as enumerated in the Postmortem Examination reports Ka. 14, 16 and 19 : 1. Smt. Ishraji "Entry gun shot wound 5 cm. X 4 cm. X chest cavity deep front left side of chest situated 7 cm. below the medial end of left clavicle. Blackening present around the wound." Death was caused due to shock and internal Haemorrhage as a result of ante-mortem injury." 2. Sri Akhilesh Chandra "1. Entry gun shot wound 6 cm. X 4 cm. X abdomen cavity deep right side of front of abdomen situated 15 cm. below right nipple. 2. Entry gun shot wound 2 cm. X 4 cm. abdomen cavity deep right side of front of abdomen situated 3 cm. above injury No. 1. Blackening present around the wounds. 3. Exit gun shot wound 1 cm. x 4 cm. x abdomen cavity deep right side of back situated 16 cm. below lower angle of right scapula. 4. Exit gun shot wound 2 cm. X 3 cm. X abdomen cavity deep right side of back situated 4 cms. below the injury No. 3. 5. Exit gun shot wound 2 cm. X 1/4 cm. X abdomen cavity deep right side of back situated 1 cm. below the injury No. 4. 6. Exit gun shot wound 2 cm.X l cm. X abdomen cavity deep right side of back situated 5 cms. below the injury No. 3. 5. Exit gun shot wound 2 cm. X 1/4 cm. X abdomen cavity deep right side of back situated 1 cm. below the injury No. 4. 6. Exit gun shot wound 2 cm.X l cm. X abdomen cavity deep right side of back situated 5 cms. below and anterior to injury No. 3." In the opinion of the medical Expert the death was caused due to shock and internal haemorrhage as a result of antemortem injuries Nos. 1 and 2. 3. "Smt. Mithoo 1. Entry gun shot 1/2. cm. X 1/4 cm. X skull cavity deep, right side of skull situated 2 cm. above the root of right ear. 2. Entry gun shot wound 1/2 cm x 1/4 cm. X skull cavity deep right side of skull situated 2 cm. anterior to injury No. 1. 3. Entry gun shot wound 1 /2 cm. X 1/4 cm. x eye cavity deep situated over the front of outer side of right upper eyelid. Right eye ball is lacerated and blood is cozing out of right eye. 4. Entry gun shot wound 1/2 cm. x 1/4 cm. X muscle deep over right side of skull situated 3 cm. behind injury No. 1. 5. Entry gun shot wound 1/4 cm. x 1/4 cm. x muscle deep situated over middle of right side of neck. Muscles, vessels and nerves of right side of neck are lacerated. Blackening present around the wounds." In the opinion of the Medical Expert the death was caused due to shock and anoxia and head injury as a result of antemortem injuries Nos. 1 to 4. 4. The accused pleaded not guilty and stated that the deceased were committing theft by plucking Kathal fruits in the grove. The appellant Lal Chand along with Jokhan restrained them from doing so whereupon the deceased began to assault them Jokhan and Lal Chand) with lathis and Dandas and intended to kill them. The villagers and other family members reached there. Some one from the crowd fired towards the deceased. It has further been pleaded that the accused have also received injuries in this very occurrence. Their injuries have been examined by Dr. R.P. Singh D.W. 1 in the District Jail on 7.6.1980. Dr. Singh has found the following injuries on the person of the accused : 1. "Lal Chand : 1. It has further been pleaded that the accused have also received injuries in this very occurrence. Their injuries have been examined by Dr. R.P. Singh D.W. 1 in the District Jail on 7.6.1980. Dr. Singh has found the following injuries on the person of the accused : 1. "Lal Chand : 1. Lacerated wound 1" X 1/2" longtitudinally scalp deep on the right side of head 2" above right ear. 2. Lacerated wound 1/2" X 1/2" X scalp deep on the occupital region near hair left. 3. Bruise 2" x 1" longtitudinally on the anterior part of the right arm 3" below shoulder joint. 4. Bruise 1" X 3" the anterior part of the right leg 5" above ankle joint of chest back colour. 5. Bruise of bluest black colour 2" x 1/2" on the right side of back transversely over scapular region." 2. "Jokhan : 1. Lacerated wound 1' X 1/4" on the right side of head over occupital bone 3" behind above the right ear. 2. Lacerated wound 1" x 1/2" on the right-side of head on perietal bone 2" above the right ear deep up to scalp. 3. Lacerated wound 1/2" on the forehead middle just above to the root of nose deep upto skin. 4. Lacerated wound 1/4' X 1/4" X skin deep just above right eyes, 5. Bruise 3" x 1" obliquely of bluist black colour on the inner part of right leg 5" below knee. 6. Bruise 2" X 1'on the left scapular region of bluish black colour. 7. C/o Pain over the back." 5. The prosecution examined Akchaiber (P.W. 1), Lalta Prasad (P.W. 2), Tapeshwar Nath Misra (P.W. 3), Kailash Chand (P.W. 4), Bhoolan Misra (P.W. 5) and Sri Nath Misra (P.W. 8) as witnesses of fact but out of them four witnesses viz. Akchaibar (P.W. 1), Lalta Prasad (P.W. 2), Tapeshwar Nath Misra (P.W. 3) and Bhoolan Misra (P.W. 6) have refused to support the prosecution case. They have, therefore, been declared hostile and cross-examined by the prosecution. Kailash Chand Misra (P.W. 4) and Sri Nath Misra (P.W. 8) have fully supported the prosecution story and the learned Judge on a careful scrutiny of their evidence has found them perfectly reliable and on a consideration of the entire evidence arrived at the conclusion that the charges under section 302 and section 307, I.P.C. are proved beyond doubt against the accused Lal Chand. He has consequently convicted and sentenced him of the same. he has felt aggrieved and has come up in appeal. 6. The learned Judge has held that the charges are not proved beyond doubt against the accused Jokhan. He has consequently acquitted him of both the charges. The date, time and place of the occurrence as well as the weapons used in causing the death of the three victims as alleged by the prosecution has not been challenged before us and having gone through the evidence on the record we find these facts proved beyond doubt. Kailash Chandra Misra (P.W. 4) is the eldest son of deceased Ishraji. His evidence shows that there were 14 Kathal trees in the grove which was situated towards the north of his house at a distance of about 100 steps. According to him his father has half share in this grove and the remaining half belonged to Lal Chand. His evidence further shows that Jokhan the father of Lal Chand and Lalta Prasad executed two wills. The first will dated 16th March, 1979 was only in favour of the sons of Lal Chand but the second will dated 7th of April, 1979 was in favour of his both sons Lal Chand and Lalta Prasad. Both wills have been registered and copies thereof have been filed by the prosecution as Exhs. Ka. 2 and Ka. 3. It, therefore, leaves no room for doubt that the grove belonged to the family of Jokhan. Kailash Chand (P.W. 4) has denied the defence suggestion that the second will is fictitious. 7. Kailash Chandra (P.W. 4) is a witness of the occurrence and he has submitted a written report at the Police Station at 9.55 A.M. on the same date. As observed by the court below it was but natural for him to have first carried Mithlesh Kumari to the Hospital before proceeding to the Police Station. That satisfactorily explains the slight delay in submitting the written report. He has given good reason for his presence on the scene of the occurrence. He has gone in his field for spreading manure. The Investigating Officer has deposed to have found a Ghoor near the place of the occurrence but has not shown it in the site plan. His sworn testimony regarding this fact cannot be brushed aside simply because he has not shown the Ghoor in the site plan. He has gone in his field for spreading manure. The Investigating Officer has deposed to have found a Ghoor near the place of the occurrence but has not shown it in the site plan. His sworn testimony regarding this fact cannot be brushed aside simply because he has not shown the Ghoor in the site plan. The learned Judge who has the advantage of watching the demeanour of the witness has believed his presence on the scene of the occurrence and having gone through the entire evidence on the record we fully agree with his finding on this point. Thus the presence of Kailash Chandra (P.W. 4) on the scene of occurrence is proved beyond doubt. 8. Kailash Chandra Misra (P.W. 4) has deposed that Jokhan and Lal Chand went in the Kathal grove for plucking Kathal fruits. The victims followed them and found the accused plucking Kathal fruits from the trees which lay in the share of Lalta Prasad. The victim, therefore, restrained the accused from doing so whereupon Lal Chand left the place for his home threatening to give them befitting reply. Sri Nath Misra (P.W. 8) has fully corroborated the fact that a quarrel did take place between the parties in the grove. In his cross-examination he has admitted that Lal Chand was not armed with gun in the beginning. He has admitted that Kathal fruits were not being plucked at that time but he heard some quarrel between the parties. He could not actually know at that time as to what was the subject matter of the quarrel. He did not see any plucked Kathal fruit in the grove at that time. He thus fully corroborates Kailash Chandra that a quarrel did take place between the parties. It, therefore, leaves no room for doubt that a quarrel did take place between the accused and the deceased on the fateful morning of 5th of June, 1980. Lal Chand thereafter left for his home extending threats to the victims that he would give a befitting reply to them. 9. Kailash Chandra (P.W. 4) says that when Lal Chand left for his home he himself went to his field for spreading manure there. When he was returning from his field he found his uncle Lal Chand accused coming armed with the gun along with belt of cartridges which was hanging on his shoulder. 9. Kailash Chandra (P.W. 4) says that when Lal Chand left for his home he himself went to his field for spreading manure there. When he was returning from his field he found his uncle Lal Chand accused coming armed with the gun along with belt of cartridges which was hanging on his shoulder. He went in the grove and began to pluck Kathal fruits. Akhilesh deceased again restrained him from doing so whereupon Lal Chand fired at Akhilesh who fell down on receiving injury. Smt. Ishraji rushed for the help of her son Akhilesh. The accused Lal Chand fired at her and she also fell down on receiving the injury. The accused Lal Chand re-loaded his gun and fired at Mithlesh Knmari aged 12 years. The accused fired fourth round at Kailash Chandra but he managed to escape by lying down on the ground and raised an alarm. Thus according to Kailash Chandra Misra the accused fired four rounds causing injuries to the three victims but he could not cause any injury to Kailash Chandra in the fourth round. The accused Lal Chand was arrested by the Investigating Officer along with his licensed double barrel gun. He has recovered two empty cartridges on the spot and two empty in the chambers of the gun. Thus in all he has recovered four empty cartridges. This fully corroborates Kailash Chandra Misra that, the accused has fired four rounds from his gun. The ballistic expert has opined that these empty cartridges were fired from the licensed gun belonging to the accused and recovered from his possession. Sri Nath Misra (P.W. 8) has fully corroborated Kailash Chandra by deposing that the accused Lal Chand has fired four rounds from his gun. He caused injuries to the three victims in first three rounds. In the first round Akhilesh was injured. In the second round Ishraji received injuries and in the third Mithlesh Kumari suffered the injury. Kailash Chandra was the target of the fourth round but he managed to escape. Sri Nath (P.W. 8) thus fully corroborates the prosecution story that the accused fired four rounds from his gun Kailash Chandra Misra has explained the circumstances under which he has not received any injury in this occurrence though an attempt was made to kill him also. Kailash Chandra was the target of the fourth round but he managed to escape. Sri Nath (P.W. 8) thus fully corroborates the prosecution story that the accused fired four rounds from his gun Kailash Chandra Misra has explained the circumstances under which he has not received any injury in this occurrence though an attempt was made to kill him also. It is not, therefore, possible to doubt his presence on the scene or occurrence simply because he has not received any injury in this occurrence. The occurrence has undoubtedly taken place in the early hours after sun rise. The medical evidence fully corroborates the fact that the occurrence has taken place on 5th of June, 1980 at about 7 or 7.30 A.M. The defence version appears to be that the occurrence took place at about 5 A.M. on the same morning. The defence witness Dr. Dube (D.W. 1) says that the injury which he found on the person of the accused could have been caused at about 5 A.M. on 5th of June, 1980. There is no suggestion from the defence side that the occurrence has taken place in darkness and that the assailants could not be recognised. We are convinced from the evidence on the record that the occurrence took place at 7 or 7.30 A.M. on 5th of June, 1980 when there was sufficient light. It is difficult to believe that the real assailants have been left and innocent persons who happened to be very closely related to the deceased have been implicated. 10. Sri Nath Misra (P.W. 8) is a resident of the same village when the occurrence has taken place. He is an old man aged about 65 years. He says that at the time of the occurrence he has gone to attend to the call of nature towards the Kathal grove of the accused. The aforesaid grove was visible from the place where he was easing himself. He saw the accused Lal Chand and Jokhan along with Ishraji, Akhlesh and Mithlesh in the grove. They were quarrelling. He also saw the accused Lal Chand coming along with his gun and belt of cartridges and causing injuries to Akhlesh, Ishraji and Mithlesh Kumari one by one by firing towards them. He has further deposed that the accused Lal Chand did fire towards Kailash Chandra (P.W. 4) he could not cause any injury to him. They were quarrelling. He also saw the accused Lal Chand coming along with his gun and belt of cartridges and causing injuries to Akhlesh, Ishraji and Mithlesh Kumari one by one by firing towards them. He has further deposed that the accused Lal Chand did fire towards Kailash Chandra (P.W. 4) he could not cause any injury to him. He is named in the first information report as a witness and has given all minute details put to him in the cross-examination. He has frankly admitted that the niece of his daughter-in-law is married to Akhlesh deceased. Thus he is in a way related to the victims. But that is no ground in the least to doubt his testimony, rather it inspires confidence that he would state the truth and would not depose falsehood to implicate innocent persons in the crime. It is significant to bear in mind that Akhlesh is a nephew of accused Lal Chand and as mentioned above the niece of the daughter in law of this witness is married to him, so this witness is equally related to the accused Lal Chand. He has given convincing reason for his presence on the scene of occurrence. We are fully convinced from the evidence on record that he has witnessed the occurrence. He has fully supported the prosecution story as narrated by Kailash Chandra (P.W. 4). 11. The defence theory has for the first time been disclosed in detail by the accused Lal Chand in his statement before the trial court. It was not suggested to the prosecution witnesses of fact in cross-examination to afford the prosecution an opportunity of explaining and meeting the same. We would like to extract the defence theory as stated by Lal Chand accused in his statement before the trial court. It runs as follows : "The Katahal grove was in the possession of my father on the day of the occurrence. He has not made any partition thereof. Akhlesh, Mithlesh and Ishraji went in the Katahal grove for stealing Katahal fruits by plucking them from the trees in the grove. Thereafter I and my father went in the grove. My father restrained aforesaid persons from plucking the fruits. The aforesaid persons were armed with lathi, Danda etc. They began to assault my father. I tried to intervene and did intervene. The aforesaid persons began to assault me with lathi and Danda. Thereafter I and my father went in the grove. My father restrained aforesaid persons from plucking the fruits. The aforesaid persons were armed with lathi, Danda etc. They began to assault my father. I tried to intervene and did intervene. The aforesaid persons began to assault me with lathi and Danda. They assaulted me with intent to kill. Meanwhile villagers and my family members assembled. I cannot say whether someone amongst the villagers or some one of my family fired in cur defence to save us. I went to the Police Station along with my father. I and my father received grievous injuries 011 head and other part of the body. Our clothes were wet with blood. I narrated the entire incident to the Sub-Inspector at the Police Station. He asked us to sit there. In the evening he put us in the Hawalat. The Police brought my gun from my house and took our blood smeared clothes. We were not sent to Marishun Hospital for medical examination Pt. Sankatha Prasad Pandey resident of Varanasi is father in law of Kailash Chandra. His relation is a Police Officer. The Officials of Marishun Police Station knew him. So I have been made so accused in this case. The Jail Doctor has examined our injuries." 12. As we have mentioned above the detailed defence version as narrated by Lal Chand has not beed put and suggested to the prosecution witnesses of fact and so the prosecution has no opportunity to deny or explain the same. The deceased Ishraji is wife of Lalta Prasad. Akhlesh is his son and Mithlesh is daughter. Lalta Prasad is son of Jokhan and real brother of accused Lal Chand. The prosecution has placed on record both the wills executed by Jokhan. The first will was in favour of the sons and daughters of Lal Chand only. The second will is in favour of both the brothers Lal Chand and Lalta Prasad. We are inclined to believe that the relations between the families of the two brothers Lal Chand and Lalta Prasad must have been strained on-account of the fact that the first will was in favour of only one brother but the other was in favour of both the brothers. It is also obvious from the aforesaid two wills that Lal Chand and his family was interested in getting the entire property of Jokhan. It is also obvious from the aforesaid two wills that Lal Chand and his family was interested in getting the entire property of Jokhan. Lalta Prasad and his family must naturally have been interested in getting their due share in the property of their father. But by no stretch of imagination it is possible to believe that the old lady Smt. Ishraji aged about 50 years would carry his minor daughter aged 12 years and son aged about 17 years for committing a theft in the grove in which she claimed and believed to be having a share. Under these circumstances the accused cannot be said to have even a semblance of the right of defence of property. 13. Kailash Chandra (P.W. 4) and Sri Nath (P.W. 8) both have denied to have found any plucked Katahal fruit on the spot. The accused Lal Chand says that the three deceased has lathi, Danda etc. and began to assault Jokhan with these weapons when he restrained them from plucking the Katahal fruits. The statement is too vague to be believed. He says that the victims were armed with not only lathi and danda but some other weapon also which he has not clarified and left the court to guess by using the words waghairah etc. It is impossible to believe that even a minor girl aged about only 12 years would use lathi, danda or any other weapon for assaulting his grand-father and that too in the presence of his uncle. The accused Lal Chand further says that when the deceased began to assault his father then he not only made an attempt to intervene but sensually intervened. Thus according to his own statement he succeeded by the intervention meaning thereby that the mar pit was over. Then he says that the deceased began to assault him with lathi and danda with the intent to kill him. Meanwhile villagers and members of his own family assembled there. Some one from that assembly fired in his-defence. Gun is not a common weapon in courtryside and it is not possible to believe that all the villagers and family members of the accused who assembled there possessed guns and it is not possible for the accused to name the person who has actually fired. The defence theory thus does not appeal to reason and is devoid of any merit. The defence theory thus does not appeal to reason and is devoid of any merit. The accused says that he did go to the police Station and narrated the entire incident but there is no first information report to support him. It is difficult to believe that the accused has the support of the villagers and his family members and though one of them fired his gun in the defence of the accused yet he one of them took further interest in the matter to see that first information report on behalf of the accused is lodged or the higher authorities in the district administration are informed about it. It is again impossible to believe that one of the villagers or his family members killed three persons including minor girl aged about 12 years to save the accused. Even the Jail Doctor R.P. Singh (D.W. 1) has not been able to establish that the accused has any grievous injury on his person. He has found only simple injury on the person of the accused. To claim a right of private defence extending to voluntarily causing of death the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous injury would be caused to him. In the instant case the accused has manifestly failed to discharge this burden. He has not been able to establish that the three deceased including a minor girl aged about 12 years and old lady aged about 50 years made any assault on him thereby he could have any reasonable apprehension in his mind that such bodily assault could extend to death or grievous hurt would be caused to him if he or himself did not act in time and cause the death of as many as three persons including a minor girl and an aged any. On the other hand the testimony of Kailash Chandra (P.W. 4) and Sri Nath (P.W. 8) which do not suffer from any infirmity and has been rightly relied upon by the court prior also, clearly establishes that the accused was himself the aggressor and his mercilessly fired at the deceased causing fatal injuries to them. On the other hand the testimony of Kailash Chandra (P.W. 4) and Sri Nath (P.W. 8) which do not suffer from any infirmity and has been rightly relied upon by the court prior also, clearly establishes that the accused was himself the aggressor and his mercilessly fired at the deceased causing fatal injuries to them. The fact that even a minor girl aged about 12 years has been killed knocks the bottom out of the plea of right of private defence vainly tried to be advanced on behalf of the accused appellant. Under the prevailing circumstances the accused cannot be said to have any right of private defence. 14. Much stress has been laid by the learned counsel for the appellant on the fact that Dr. R.P. Singh (D.W. 1) Medical Officer District Jail, Jaunpur, has proved the fact that on 7th of June 1980 he examined the accused appellant Lal Chand and his father Jokhan who was co-accused and found as many as five injuries on the person of the appellant Lal Card and seven on the person of Jokhan but these injuries go unexplained by the prosecution. Hence the prosecution story shall be disbelieved. We have given our most thoughtful consideration to the aforesaid contention but find no force in it. We summoned Ramesh Chandra Misra, the Jailor of the District Jail Jaunpur and have examined him. His evidence before us above that the accused appellant Lal Chand and his father Jokhan Misra co-accused along with one Bramha Deo Singh were admitted in the District Jail on 6th of Tune 1980 and all three were examined by Dr. R.P. Singh (D.W. 1) on 7th of June 1980. It is further proved from his deposition before us that Dr. Singh noted the date as 6th June 1980 after recording the injuries of Bramha Deo Singh but, has subsequently made over-writing by substituting the date 7th in place of date 6th. Similarly there are over-writing in the injury Register where the accused Chauthi, Paras and Katwaree have been recorded. In the case of these three under-trials the date 5th has been substituted by the date 6th of June. The thumb impressions of Chauthi and Katwaree have been obtained m the Register after recording the injuries found on their presence and while attesting the thumb impressions the Medical Officer Dr. In the case of these three under-trials the date 5th has been substituted by the date 6th of June. The thumb impressions of Chauthi and Katwaree have been obtained m the Register after recording the injuries found on their presence and while attesting the thumb impressions the Medical Officer Dr. R.P. Singh has given the date as 5th of June 80 but there the date 5th has not been substituted by the date 6th of June. It has been urged on behalf of the prosecution that all these over-writings have been made to explain away the delay in examining and recording the injuries of accused appellant Lal Chand and his father Jokhan Shri Ramesh Chandra Misra District Jailor has admitted before us that according to Jail Manual an under trial is required to be examined by the Medical Officer of the Jail immediately after his admission in the Jail and this rule is followed in the District Jail of Jaunpur. He has further admitted that the injuries are examined and recorded in the injury Register on the same day when the under-trial is admitted in the Jail. There are exceptions only where there is no visible injury on the person of an under-trial. In that case lie is examined on the next day. He has clearly admitted that where there is a visible injury the under-trial is definitely examined by the Jail Doctor on the same day. In the instant case the accused Lal Chand according to Medical Expert Dr. Singh (D.W. 1) has one lacerated wound 1" x 15" on his head 2" above right ear. The second injury was on the top of head. The third injury was on outer side or right arm. The fourth was on leg and the 5th on his back. The nature and seat of injuries Nos. 1, 3, and 4 are such that they over-rule the possibility of at least these injuries not having been visible when he was admitted in the Jail. Dr. Singh (D.W. 1) says that injury Nos. 1 and 2 on the person of Jokhan co-accused were lacerated wounds on the head 3" and 2" above the right ear. Injuries 3 and 4 were also lacerated wounds just on the forehead and injury No. 6 was a confusion 2" X V just on the eye-brow. Dr. Singh (D.W. 1) says that injury Nos. 1 and 2 on the person of Jokhan co-accused were lacerated wounds on the head 3" and 2" above the right ear. Injuries 3 and 4 were also lacerated wounds just on the forehead and injury No. 6 was a confusion 2" X V just on the eye-brow. It is impossible to believe that even the injuries on the forehead and eyebrow were not visible when the accused was admitted in jail. The evidence of Sri Ramesh Chandra Misra over-rules the possibility of an under-trial having visible injuries on his person not having been examined 011 the very day of his admission in the Jail, in the instant case the accused appellant along with his father has not been examined on the day their admission in Jail though that has visible injuries in their persons. There are over writings on the dates of the examination of the under-trials as stated above the injury Register. All these circumstances make the testimony of Dr. Singh (D.W. 1) extremely-doubtful that he has actually found these injuries on the person of the accused appellant. Lal Chand and his father Jokhan on 7.6.1980 Under these circumstances the nature and number of the injuries alleged to have been found on the person of these two accused having been exagerated by the Doctor cannot be over-ruled. More as when according to the District Jailor Sri Misra the accused would certainly has been examined on the very day of their admission has they any visible injury on their persons: 15. According to the evidence on the record the accused were not only chased by the villagers but were actually apprehended by them and kept in custody till the arrival of the Investigating Officer. The accused may have received some injury either by a fall or in course of their arrest by the villagers. The witnesses of fact have admitted to have seen the accused Jokhan bleading by his head. These circumstances explain some minor injury caused to the accused but there is nothing on the record to show that the accused have received grievous injury or has reasonable apprehension that of so as to provide them a right of private defence extending to voluntarily causing of death. It is significant to note that even Dr. These circumstances explain some minor injury caused to the accused but there is nothing on the record to show that the accused have received grievous injury or has reasonable apprehension that of so as to provide them a right of private defence extending to voluntarily causing of death. It is significant to note that even Dr. Singh (D.W. I) does not say to have found any grievous injury on the persons of Jokhan and Lal Chand. 16. As we have observed above the defence theory has not been put to the prosecution witnesses of fact and as such they has no opportunity to explain the injuries which are alleged to have been found on the persons of Jokhan and Lal Chand. The only suggestion put to Kailash Chandra Misra (P.W. 4) is that Jokhan has transferred his property to Lal Chand and his sons but Kailash Chandra and others wanted to take the same by force of lathi. No suggestion has been put to Sri Nath Misra (P.W. 8) the other witness of fact in his cross-examination. Having considered the facts and circumstances bearing on the record we hold that the non-explanation by the prosecution of the injuries alleged to have been found on the persons of Jokhan and Lal Chand does not affect the prosecution case at all. In the result the prosecution has proved beyond any shasow of doubt that the accused Lal Chand has intentionally caused the death of Smt. Ishraji aged about 50 years, Akhlesh aged about 17 years and Km. Mithlesh aged about 12 years on 5th of June J980 at about 5 A.M. in village Rampur Naddi, P.S. Mariyahon, District Jaunpur, near a Katahal tree and made an attempt to commit the murder of Kailash Chandra Misra. All the four charges under Sections 302 and 307 I.P.C. are proved beyond doubt against him. He has been rightly convicted and sentenced of the same by the court below. 17. Now coming on the point of sentence the learned Judge has taken into consideration all the circumstances placed before him on the point of sentence and arrived at the conclusion that the accused deserves the capital sentence. The fact that he has a young wife of about 30 years of age with four children and is a well-educated person being Lecturer in. Intermediate College do not make out any ground for the lesser sentence. The fact that he has a young wife of about 30 years of age with four children and is a well-educated person being Lecturer in. Intermediate College do not make out any ground for the lesser sentence. The horrendous features of the crime, the helpless state of the victims do steal the heart of the law for a sterner sentence. In the instant case the conduct of the accused in using gun, against a young girl of 12 years age who was the daughter of his real brother; against an old lady of 50 years who was wife of his elder brother and against his own nephew aged about 17 years who were not at all armed with equally effective weapons rather according to the evidence, who were unarmed, justifies the capital sentence awarded to the accused. In the result we do not find any extenuating circumstance in favour of the accused to reduce the sentence. 18. The appeal shall, therefore, fail. The appeal is dismissed and the usual reference made by the learned Judge is accepted. The conviction and sentences passed against the accused appellant Lal Chand are confirmed. He is in jail. Let him be executed as directed by the learned Judge.