C. P. SEN, J. ( 1 ) BY this judgment, Criminal Reference No. 4/86 for confirmation of death sentence against appellant Deokinandan and also Criminal Appeal No. 881 of 1986 Anantram and others v. State; of M. P. are also disposed of as all these matters arise out of Sessions Trial No. 118/85 decided on 15-5-1986 by the Additional Sessions Judge, Umaria, district Shahdol. Appellant Deokinandan has been convicted under S. 302 IPC for committing murders of Ramphal and Gomti while the appellants in the connected appeal i. e. Anantram, Satanand, Ramprasad, Moolchand and Munish have been convicted under S. 302 with the aid of S. 149 IPC for these double murders, while Deokinandan has been sentenced to death, the rest have been sentenced to imprisonment for life. ( 2 ) DECEASED Ramphal and Gomti were brothers and they were living in village Dithori, police station Umaria. The village is located in a dense forest, its habitation being of 10 to 12 houses. Appellants Anantram and Satanand are also brothers and cousins of the deceased. Their another brother Baikunth was married to sister of appellant Deokinandan. They were the only two Bramhin families living in the village. Appellants Moolchand and Munish are also brothers while appellant Ramprasad is their relation. Yashodabai alias Annu (P. W. 2) aged about 13 to 14 years came to live with the deceased as the wife and children of Gomti had gone to her parents' place and Ramphal was a widower. She is their sister's daughter and she was brought for looking after cooking and household job. On the night of 7-7-1985 deceased Gomti had called villagers and was reading Ramayan up to 10 p. m. After they left, the two brothers and Yashoda took theirmeals and went to sleep in the open Parchhi. The prosecution case is that the Parchhi used to be lighted throughout the night and deceased Ramphal used to sleep on a cot and Yashoda used to sleep on another cot by its side while deceased Gomti used to sleep on the floor. There was also a light on the electric pole, on the street. On the morning of 8-7-1985 Ramphal and Gomti were found dead with, bleeding injuries on their neck. Yashoda informed her neighbour Kashiprasad (P. W. 4) that some unknown assailants have killed her two maternal uncles. He, in turn, called other villagers. There was also a light on the electric pole, on the street. On the morning of 8-7-1985 Ramphal and Gomti were found dead with, bleeding injuries on their neck. Yashoda informed her neighbour Kashiprasad (P. W. 4) that some unknown assailants have killed her two maternal uncles. He, in turn, called other villagers. Ramkumar (P. W. 1) then went and lodged a report Ex. P. 1 in police station Umariya, 40 Kms. away at 12. 15 in the noon mentioning that the two brothers have been murdered by some, unknown assailants. A. S. I, Mishra, (P. W. 12) took up the investigation and proceeded to the spot. He held inquest over the dead bodies and prepared panchnama Exs. P. 2 and P. 17 and also seized bloodstained earth and the bloodstained beddings from the spot. The dead bodies were sent for post mortem examination. He also prepared spot map Ex. P. 3. Dr. T. N. Chaturvedi (P. W. 11) did the autopsy and found one incised wound 6" x 2" X 1" on the left neck of deceased Ramphal and muscles were cut, one incised wound 5'' X 2'' x 1'' on the right neck of deceased gomti and the muscles were cut. Since there was putrefaction of both the dead bodies, it could not be said whether the injuries were post-mortem or ante-mortem, but if the injuries were ante-mortem, as likely to be because the incised injuries were spindle shaped showing they were caused before the death, the injuries were sufficient in the ordinary course of nature to cause death as per his post-mortem report Exs. P. 25 and P. 27. ( 3 ) ON the next day, Yashoda gave a list of stolen articles Ex. D. 3 from the house i. e. one wristwatch, one radio, Batuwiutensil one peti, one Dibba of Ghee, one Matka of curd and other Matka containing medicines. At some distance from the house of the deceased and on the road, A. S. I. Mishra seized one knife as per seizure memo Ex. P. 6. Thereafter Yashoda's statement Ex. D. 1 was recorded mentioning that in the night of the incident, she woke up after hearing groaning noise and saw appellent Anantram holding the legs and appellant Satanand holding the head of deceased Gomti and appellant Deokinandan cutting his neck with a knife. P. 6. Thereafter Yashoda's statement Ex. D. 1 was recorded mentioning that in the night of the incident, she woke up after hearing groaning noise and saw appellent Anantram holding the legs and appellant Satanand holding the head of deceased Gomti and appellant Deokinandan cutting his neck with a knife. She also saw appellants Ramprasad and Munish similarly holding head and legs of deceased Ramphal and then Deokinandan cut his neck with knife. He then threatened Yashoda with the bloodstained knife that she would meet the same fate if she discloses this fact to anyone. Deokinandan then took the key of the room from her and removed the watch, radio, Batuwi, Peti and other articles and then left the place. She was so much frightened and scared that she had no courage of inform anyone about the murders in the night. In the morning also, she told Kashi Prasad about the murders of her maternal uncles by unknown assailants as she was afraid to disclose the names of the appellants as they were also residing in the same village. A. S. I. Mishra then took the appellants into custody. Deokinandan gave a memorandum Ex. P. 8 and recovered bloodstained knife which was seized as per seizure memo Ex. P. 12. He also seized bloodstained Dhoti from him vide seizure memo Ex. P. 16. Appellant Ramprasad gave memorandum Ex. P. 9 and then recovered Batuwe which was seized as per seizure memo Ex. P. 15. Appellant Satanand gave memorandum Ex. P. 10 and recovered Peti which was seized as per seizure memo Ex. P. 14 Appellant Anantram gave memorandum Ex. P. 11 and recovered Radio which was seized as per seizure memo. Ex. P. 13. The seized articles were duly identified by Yashoda in the identification Parade held by Naib Tahsildar Prajapat (P. W. 10) held on 3-8-1985 as per identification memo Ex. P. 23. The incriminating articles were sent to the Chemical examiner and Serologist. Vide Ex. P. 35 the Chemical Examiner found presence of blood on the Dhoti and knife seized from appellant Deokinandan and the Serologist vide report Ex. P. 37 confirmed presence of human blood on the knife. On completing the investigation, these six appellants were charge-sheeted for the murders. The incriminating articles were sent to the Chemical examiner and Serologist. Vide Ex. P. 35 the Chemical Examiner found presence of blood on the Dhoti and knife seized from appellant Deokinandan and the Serologist vide report Ex. P. 37 confirmed presence of human blood on the knife. On completing the investigation, these six appellants were charge-sheeted for the murders. It was alleged that the motive for the crime was non-payment of balance amount of consideration of the sale-deed executed by appellants Anantram, Satanand and their deceased brother Beikunth of their 9 acres of land to deceased Ramphal and Gomti. They had only paid Rs. 1300/- out of the consideration of Rs. 2700/- and did not pay the balance amount. Baikunth's wife had developed illicit relationship with deceased Gomti, so Deokinandan had set fire to the Khaliyan of the deceased and then Deokinandan left the village and therefore there was strained relations between the parties. ( 4 ) THE defence is of denial and false implication. According to the appellants, some unknown assailants had assaulted the two brothers and subsequently they have been falsely implicated. Yashoda was pressurised and forced by the police to turn into an eyewitness two days after the murders. On the next day morning of the murders, she had expressed her ignorance about the assailants. The story of theft of certain articles was also introduced in order to concoct a case against these appellants by showing false recoveries and so Yashoda was asked to give a list of articles Ex. D. 3, In this list also, there is no mention of the names of the assailants. Yashoda was confined in the house of one Kamla for 2 days and she was made to give a statement Ex. D. 1 implicating the appellants as the assailants. To prove this fact, Raghunath Prasad, Raghubans Pratap Singh, Mansukh and Jagan (D. Ws. 1 to 4) were examined, the last being son of Kamla. These witnesses stated that Yashoda was not aware as to who had killed her two maternal uncles but she was wrongfully confined by the police in the house of Kamla and was forced to give a statement as they threatened to burn her. ( 5 ) THE learned Addl. Sessions Judge found that the prosecution has not proved the motive for the murders. ( 5 ) THE learned Addl. Sessions Judge found that the prosecution has not proved the motive for the murders. It has not been shown that there were strained relations between the parties due to non-payment of balance amount of consideration of the sale deed by the deceased or that deceased Gomti had illicit relationship with the wife of Baikunth. It has also not been proved that Deokinandan had set fire to the Khaliyan of the deceased and had left the village. The trial Judge also did not accept the story of recovery of the stolen Batuwi from appellant Ramprasad, Peti from Satanand and Radio from Anantram as the statement of ASI Mishra (P. W. 12) has not been corroborated by two panchas Jagdish Prasad (P. W. 3) and Chhakodi (P. W. 5 ). There is no reason to disbelieve the two panchas and Raghubans Pratap Singh (D. W. 2), who was sarpanch of the village, that no memorandums were given by these 3 appellants nor any recoveries have been made. The trial Judge was of the view that Dr. T. N. Chaturvedi (P. W. 11)had given evidence in an irresponsible manner and has contradicted himself. While at one stage, he has opined that he could not give the reasons for the cause of death as he could not ascertain whether the injuries were ante-mortem or post-mortem, at another place he admitted that injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. It has come in the evidence of Ramkumar Yashoda, Jagdish Prasad, Kashiprasad, Chhakodi, A. S. I. Mishra (P. Ws. 1 to 5 and 12) and the two defence witnesses Raghunath Prasad and Raghubans Pratap Singh (D. Ws. 1 and 2) that on the morning of 8-7-1985 they saw the dead bodies of Ramphal and Gomti with bleeding injuries on their neck about 6'' in length, their clothes and beddings were bloodstained and there can be no manner of doubt that these two persons were murdered by some sharp-edged weapon. The trial Judge found the sole eyewitness Yashoda, though a minor gift aged about 13 to 14 years, to be a natural, truthful and reliable witness. Her presence in the house at the time of murders is not disputed even by the defence. There was a electric light in the Parchi. The trial Judge found the sole eyewitness Yashoda, though a minor gift aged about 13 to 14 years, to be a natural, truthful and reliable witness. Her presence in the house at the time of murders is not disputed even by the defence. There was a electric light in the Parchi. The trial Judge was impressed by the manner in which Yashoda gave evidence in Court with full confidence and was not shaken in the cross-examination. Though she was a minor girl, but she was managing the household work all-right. The deceased and the 3 of the appellants are her relations while the appellants are relations inter se. There is no reason why she would falsely implicate her relations in such brutal and ghastly murders. Seeing her maternal uncles being killed one after another and after she was threatened with the knife, she acted in a sensible way in not raising alarm. She was so much frightened and scared that she did not disclose the names of the assailants for about 1 days, but when one of her maternal uncles Ramsharan was called from Bilaspur and assured her that her parents will be called, she felt assured to give out the truth. Even if the police had forced her to speak out the truth, that does not create any doubt about the prosecution story. Her evidence stands corroborated from the recovery of bloodstained knife and Dhoti from appellant Deokinandan. He has no explanation to offer. The defence withnesses are of no help to the appellants. Accordingly, the appellants have been convicted and sentenced. ( 6 ) SHRI Hirasingh Chouhan learned counsel for the appellants contended that (i) the trial Judge committed error in relying on the sole testimony of the child witness Yashoda (P. W. 2) which suffers from serious infirmities inasmuch as she did not disclose the names of the assailants for two days and only gave out the story after being confined and threatened by the police, (ii) no definite opinion has been given by the Doctor in order to prove that murders were committed. The possibility of, the deceased having died due to some unknown causes, as for example, being mauled by wild animal as their house was in a dense forest, cannot be ruled out, (iii) having disbelieved the story of theft falsely introduced by the police, the improvements in the statement of Yashoda should not have been accepted implicating the appellants, (iv) Two knives were recovered, one from the road and another said to be from appellant deokinandan. It has not been shown out of these two, which knife was sent to the Chemical Examiner and serologist, (v) the trial Judge has wrongly drawn corroboration to the evidence of Yashoda from her statement recorded u/s 164 Cr. P. C. when that statement was not put to her in evidence and (vi) the motive for the alleged crime having not been proved, the entire prosecution story should have been thrown overboard as being unreliable and worthy of no credence. Shri S. P. Singh learned Addl. Government Advocate on the other hand submitted that the trial Judge has rightly assessed the evidence of the sole eye-witness from all its aspects and he having the advantage of seeing the witness by recording her evidence, his opinion has to be valued. She was dumb-founded after seeing that two of her maternal uncles killed one after another and she was also threatened with a knife. Therefore, it was but natural for her not to disclose the names of the assailants till she was fully assured that no harm will be caused to her if she comes out with the truth. ( 7 ) THE Supreme Court in Masalti v. State of U. P. , AIR 1965 SC 202 has held as under : -"it is perfectly true that in a murder trial when an accused person stands charged with the commission of an offence punishable under S. 302, he stands the risk of being subjected to the highest penalty prescribed by the IPC; and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful. In dealing with such appeals or reference proceedings where the question of confirming a death sentence is involved, the High Court has to deal with the matter carefully and to examine all relevant and material circumstances before upholding and confirming the sentence of death. In dealing with such appeals or reference proceedings where the question of confirming a death sentence is involved, the High Court has to deal with the matter carefully and to examine all relevant and material circumstances before upholding and confirming the sentence of death. All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered before a final conclusion is reached". The Supreme Court in Kashmira Singh v. State of M. P. , AIR 1952 SC 159 1 (1952 Cri LJ 839) has held that where the murder committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. Again the Supreme Court in Sarwan Singh v. State of Punjab, AIR 1957 SC 637 1 (1957 Cri LJ 1014) has held that it is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. ( 8 ) THE Supreme Court while considering evidence of a child witness in similar circumstances in State of Bihar v. Kapil Singh, AIR 1969 SC 53 held as under : -"m, a female child aged about 11 years, the niece of the deceased, who it is alleged was sleeping close to the cot of the deceased on another cot at the time of murder stated that she saw her aunt being killed and that there was a threat to her life as well when one of the assailants suggested that she should also be killed while the other pleaded that she being a child be spared. According to her statement she all along kept pretending that she was sleeping. She did not disclose the names of the assailants who were known to her when she informed one B in the morning that her aunt had been killed. According to her statement she all along kept pretending that she was sleeping. She did not disclose the names of the assailants who were known to her when she informed one B in the morning that her aunt had been killed. She disclosed the names of the assailants 4 days after the incident after she was interrogated by the police at the police station for two days. Her statement did not also corroborate certain recoveries made by the police. Held, a child witness aged about 11 years, who is alleged to be an eye-witness of an occurrence of murder can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by person who may have influence on her. In this case there are a number of circumstances which show that her evidence is not reliable it does not seem likely that a girl when her aunt was being killed and her own life was threatened could have continued to pretend that she was asleep. She did not name the assailants at the earliest opportunity, but named them 4 days after the incident and when she remained confined in the police station for two days. Her statement was also not corroborated by certain recoveries made. The witness cannot therefore be held to be reliable. "the Supreme Court in Shivaji v. State of Maharashtra, AIR 1973 SC 2622 has held that our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need, to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. Further the Supreme Court in Kali Ram v. State of M. P. AIR 1973 SC 2773 held as under : -"the rule regarding the benefit of doubt alsodoes not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, AIR 1973 SC 2407 a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, AIR 1973 SC 2407 a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. " ( 9 ) THE Supreme Court in Vemireddy Satyanarayan v. Hyd. State, AIR 1956 SC 379 held as follows : -"indeed, there can be no doubt that the evidence of such a man remaining silent for 2/3 days should be scanned with much caution and the Court must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though he was not an accomplice, the Court would still want corroboration on material particulars as he is the only witness to the crime and as it would be unsafe to hang the accused (four in this case) on his sole testimony unless the Court feels convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence; What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness. Such corroboration need not, however, be on the question of the actual commission of the offence; What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness. "the Supreme Court in State of Orissa v. Brahmananda, AIR 1976 SC 2488 held that where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eyewitness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. The Supreme Court in G. B. Patel v. State of Maharashtra, AIR 1979 SC 135 held that delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately making time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Thus under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. ( 10 ) THE sole eye-witness Yashoda alias Annu (P. W. 2) was a girl aged about 13-14 years on the date of the occurrence. She was especially brought by her maternal uncles from her, village Chandwar 15 days back to their house for cooking and household management as the wife of deceased Gomti had gone to her parental place and deceased Ramphal was a widower. Such a village girl managing household affairs cannot be regarded as a child witness. The learned trial Judge had administered oath to her after finding her to be intelligent, capable of understanding and full of confidence. Such a village girl managing household affairs cannot be regarded as a child witness. The learned trial Judge had administered oath to her after finding her to be intelligent, capable of understanding and full of confidence. Still it cannot be overlooked that there is always danger in accepting theevidence of such a witness because under the influence she might have been coached to give out a version of a eye-witness, she might not have actually witnessed the ghastly murders although she was present in the house but was sleeping when her two maternal uncles were murdered. The fact remains that she kept quiet for 1 days and did not disclose the names of the assailants till her case diary statement Ex. D. 1 was recorded in the noon of 9-7-1985. So in any case she is an infirm witness and requires a very close scrutiny and corroboration from independent sources about the material part of the story connecting the appellants which need not be about the actual commission of the murders. It has come in the evidence that in the morning of 8-7-1985 she told her next-door neighbour Kashi Prasad (P. W. 4) and the villagers who collected there that some unknown assailants have murdered her two maternal uncles while they were asleep. This is corroborated by Ramkumar (P. W. 1), Yashoda (P. W. 2) Jagdish Prasad (P. W. 3), Chhakodi (P. W. 5) and the FIR Ex. P. 1 lodged immediately after the incident. But Haridorshansingh (P. W. 6) admitted that Yashoda had also told them that when in the morning she went with a lota of milk to wake up her uncles, she found both of them done to death. This is also the statement of Raghunath (D. W. 1), and Raghuvensh Pratapsingh, Sarpanch (D. W. 2) who is also witness to the seizures. She had also given out the story of theft of articles from the house on the next day of occurrence. It is not understood even if she was very much scared due to threats given to her at the time of the murders by appellant Deokinandan, as to why she would not have disclosed the theft of articles from the house at least as the same were removed in her presence, without disclosing the names of the assailants. It is not understood even if she was very much scared due to threats given to her at the time of the murders by appellant Deokinandan, as to why she would not have disclosed the theft of articles from the house at least as the same were removed in her presence, without disclosing the names of the assailants. But there is no reason as to why she would have failed to name the assailants to villagers who gathered there. A. S. I. Mishra (P. W. 12) along with the Circle Inspector and 10/12 police constables reached the spot on the evening of 8-7-1985 and the police had no clue of the murders. Even then she did not disclose the names of the assailants. So next day the police got a list of stolen articles Ex. D. 3 from Yashoda. In this application, she again did not name the assailants. The story of recovery of the stolen articles immediately on the memorandums of appellants Anantram, Satanand and Ramprasad has not been accepted by the trial Judge and recoveries are not free from doubt. Panch Jagdish Prasad (P. W. 3) has denied the memorandums and seizures and the other panch Chhakodi (P. W. 5) has given contrary version in respect of memorandums and seizures from Satanand and has not supported the case against Ramprasad. The third panch Raghuvansh Pratap Singh (D. W. 2) has also denied the recoveries. So possibility of padding in the prosecution story cannot be overlooked. Therefore, this creates further doubt about her subsequently coming out as an eyewitness, after the recoveries of stolen articles were made. ( 11 ) INVESTIGATING Officer A. S. I. Mishra (P. W. 12) admitted that after the police party including himself, Circle Inspector and 10/12 constables had reached the village on the evening of 8-7-1985, he had questioned Yashoda but she was very much frightened. She was then taken to the house of Kamla Mehre, where the police party was camping. On the next day at noon she submitted the list Ex. D. 3 of the stolen articles and gave her statement Ex. D. 1 after being assured by her another maternal uncle Ramsarover who came from Bilaspur to call her parents. The said Ramsarovar has neither been cited nor examined as a witness, though similar statement is of Yashoda also. However, A. S. I. admitted that when she gave the list Ex. D. 1 after being assured by her another maternal uncle Ramsarover who came from Bilaspur to call her parents. The said Ramsarovar has neither been cited nor examined as a witness, though similar statement is of Yashoda also. However, A. S. I. admitted that when she gave the list Ex. D. 3, there was no fear left in her. It is clear that after recoveries were made, she was asked to submit the list Ex. D. 3. Surprisingly, there is no mention of the names of the assailants. It appears from the evidence of A. S. I. that her statement Ex. D. I was simultaneously recorded but it is not explained how suddenly she turned to be an eye-witness naming the assailants. It may be mentioned that by that time the police had made the recoveries from some of the appellants, which shown that the list of stolen articles was taken after the recoveries. According to the defence witnesses Raghuvan (s) Pratap Singh, Mansukh and Jagan (D. Ws. 2 to 4), Yashoda was kept in the house of Kamla and interrogated. She was saying that she has not seen the assailants but on the next day on being threatened, she was made to name the appellants as the assailants. Admittedly, Jagan is son of Kamla and Mansukh was preparing meals for the police party in the house of Kamla where the police party was camping. ( 12 ) YASHODA has deposed that on hearing groaning noise, she woke up and saw appellants Anantram holding the legs and appellant Satanand holding the head of deceased Gomti and then appellant Deokinandan cut his neck with the knife. Then similarly appellants Ramprasad and Munish held deceased Ramphal and again Deokinandan cut his neck with his knife. This went on for half an hour and she had got up, while sitting on the cot she witnessed the entire incident. She did not raise any alarm but quietly witnessed the entire thing. Thereafter Deokinandan threatened her with the bloodstained knife not to disclose the incident to anyone otherwise she would meet the same fate. Her narration of cutting the necks with the knife by Deokinandan was like cutting a bread. Under the circumstances, it is impossible that the two victims would not have woken up as soon as were pinned down and the knife was applied on their necks. Her narration of cutting the necks with the knife by Deokinandan was like cutting a bread. Under the circumstances, it is impossible that the two victims would not have woken up as soon as were pinned down and the knife was applied on their necks. In any case, she would have woken up deceased Ramphal when the appellants were cutting the neck of deceased Gomti. The nature of injuries shows that the necks were cut by some heavy cutting weapon like axe by giving sudden blows on the necks and that is why victims had no chance of seeing or resisting as they were fast asleep. In the FIR and in other documents, it has been mentioned that necks were cut with Kulhadi. There is no doubt that the two victims died due to homicidal deaths and most probably Yashoda had not seen the assailants as she was fast asleep. ( 13 ) TRIAL Judge has drawn corroboration to the evidence of Yashoda firstly from her S. 164 Cr. P. C. statement and secondly from the recovery of the knife on the memorandum of Deokinandan, presence of human blood on it has been affirmed by the Serologist, S. 164 statement was not put to her nor exhibited. In fact, in that statement she had stated that some of the appellants and their wives had entreated to her not to disclose the names of the assailants on the next day and for this purpose they had taken her to their house for lunch. This belies that she was so much scared and frightened so as to keep quiet for 1 days. The police had seized two blood-stained knives, one 10" long with 6" blade from the road near the house of the deceased and another 8'' in length with 3'' blade on the memorandum of Deokinandan. 6'' and 5'' long incised injuries probably could have been caused by the bigger knife and not the smaller one with 3" blade. Evidence of A. S. I. and memo Ex. P. 34 does not clarify which knife was sent to Dr. Chaturvedi, he has only opined after seeing the knife that neck injuries could be caused by a knife and the knife in question can cause death. It is true that one of the knives sent to the Chemical Examiner and Serologist has been found to be stained with human blood. Chaturvedi, he has only opined after seeing the knife that neck injuries could be caused by a knife and the knife in question can cause death. It is true that one of the knives sent to the Chemical Examiner and Serologist has been found to be stained with human blood. It it not clear that the knife seized from Deokinandan was, in fact sent to the Chemical analyser though the report Ex. P. 35 mentions the knife to be one seized from Deokinandan. Again it is not clear from the evidence of A. S. I. that this very knife was sent. The forwarding memo Ex. P. 32 is about sending of two visceras of the deceased and not of knife. Neither the forwarding letter sending the knife nor the constable who carried the knife to the Chemical Examiner has been examined. The Supreme Court in Piara Singh v. State of Punjab, AIR 1980 SC 1315 has held that when samples change hands before reaching Public Analyst - Various person in custody of samples not examined - conviction not warranted prosecution cannot be allowed to correct lacuna at revisional or appellate stage. Presence of human blood in the knife is not clinching unless the blood-group is shown to be that of the deceased (Yeshwant v. State of Maharashtra, AIR 1973 SC 337 As there is no substantive evidence worth the name, the recovery of Katarna on the information given by the accused would hardly advance theprosecution case against the accused (Babboo v. State of M. P. , AIR 1979 SC 1042 Regarding motive, the prosecution has suggested that there was enmity because the two deceased had purchased 9 acres of land from Ananatram and Satanand and out of the consideration of Rs. 2700/-, Rs. 1400/- was not paid, but it has come in the prosecution evidence itself that the amount was withheld for payment to the society for the dues on the land. According to Kashi Prasad (P. W. 4), Rs. 1400/- was kept by the two deceased with him for clearing the dues of the society and after paying Rs. 1300/-, the balance amount of Rs. 100/was returned to Anantram and Satanand. Therefore, there was no enmity on this count and this could not have been the motive for committing the murders. Of course, the prosecution subsequently wanted to suggest that the motive was committing theft of the articles. 1300/-, the balance amount of Rs. 100/was returned to Anantram and Satanand. Therefore, there was no enmity on this count and this could not have been the motive for committing the murders. Of course, the prosecution subsequently wanted to suggest that the motive was committing theft of the articles. The story has not been accepted by the trial Judge. It is unlikely that double murders would have been committed by their own relations for committing theft of a watch which was not in working order, a radio valued at Rs. 200/- and some petty articles. It appears that the recovery of articles was made to impress upon Yashoda that these appellants after committing murders had stolen these articles and the same have been recovered from them. So we do not find any reason as to why these appellants should have committed murders. ( 14 ) WITH the result, Criminal Appeals Nos. 625 and 881 of 1986 of the appellants Deokinandan, Anantram, Satanand, Ramprasad. Mulchand and Munish are allowed and they are acquitted of the charge of murders by giving them benefit of doubt. Their convictions and sentences are set aside and they be set at liberty forthwith unless they are required to be detained in connection with some other case. Consequently, the reference made by the Addl. Sessions Judge for confirmation of the death sentence is rejected. Order accordingly. .