Judgment R.K. Shukla, J. 1. CRIMINAL Appeal No. 3027 of 1985 filed by Shyam Lal and his son Raj Karan appellants and 'CRIMINAL Reference No. 6 of 1985 arises out of the same Judgment and order dated 24-10-85 passed by the learned Additional Sessions Judge Fatehpur whereby he has convicted both the appellants u/Sec. 302/34 IPC for committing murders of Uma Shanker, Smt. Siyakanti and Pappu and sentenced Shyam Lal appellant to death on each of three counts and Raj Karan appellant to imprisonment for life on each count. 2. BOTH the appellants have been further convicted u/Sec. 307/34 IPC for attempting to commit the murder of Km. Suman Lata Misra PW 2 and each of them is sentenced to undergo R. 1. for 10 years. The sentences of Raj Karan appellant were ordered to run concurrently. The aforesaid reference was made by the Additional Sessions Judge, Fatehpur to this court u/Sec. 366 CrPC for confirmation of the death sentence on each counts passed against Shyam Lal, appellant. Both the appellants and three deceased, namely, Uma Shanker, his wife Smt. Siya Kanti, his son Pappu, aged about 3 years and his injured daughter, Km. Suman Lata PW 2 belonged to one Brahmin family of Qasba and P. S. Dhata, District Fatehpur. The details of their relationship is clear from the following pedigree : (Pedigree Omitted-Editor) Complainant Sarju Prasad PW 1 is the brother-in-law :(wife's brother) of Uma Shanker (deceased). He is also a resident of the same Qasba Dhata, 3. BRIEF facts of the prosecution case are that Shyam Lal appellant and his younger brother Uma Shanker (deceased) had their adjoining houses and agricultural land in village Dhata which though they were cultivating separately since long, but their Khata was joint. Shyam Lai appellant, his wife Smt Siya Kanti and his son Raj Karan appellant were residing in Qasba Dhata while Uma Shanker (deceased) was employed as X-ray Technician in Railway at Jhansi. During the time of occurrence Uma Shanker along with his family had come to his village. It is alleged that Shyam Lal appellant had sold his share to one Amber and Chaumba and had mortgaged some of the properties to various persons and as such he had nothing in his possession. During the time of occurrence Uma Shanker along with his family had come to his village. It is alleged that Shyam Lal appellant had sold his share to one Amber and Chaumba and had mortgaged some of the properties to various persons and as such he had nothing in his possession. Uma Shanker apprehended that his elder brother Shyam Lal may mortgage or sell his shere also, therefore Uma Shanker filed a suit for partition of his share on 16-5-84 at Fatehpur. A copy of the plaint Ex. Ka 39 is on record. Hearing the institution of the said suit for partition by Uma Shanker, Shyam Lal appellant and his family members were very much annoyed and they wanted to teach a lesson to Uma Shanker by finishing his entire family so that there may not be any claimant of his share, which according to inheritance could have devolved on him. 4. ON the night between 16/17 May 1984 Uma Shanker and his family members were sleeping on two cots on a Chabutra in their Sahan. Uma Shanker was to go to JhansI.O.n 17-5-84 to join his duties. His brother-in-law Sarju Prasad complainant who is also resident of the said Qasba Dhata along with one Banwari Lal had gone to the house of Uma Shanker in the evening of 16-5-84 as they also wanted to go to Jhansi along with Uma Shanker and his family. Sarju Prasad and Banwari were sleeping on the roof of the house of Uma Shanker. Uma Shanker was sleeping on one cot and his wife Smt. Siyakanti was sleeping with her two children Pappu and Km. Suman on another cot in their Sahan. At about 12.30 in the night, Sarju Prasad and Banwari Lal awoke on the sounds of shrieks and cry. They saw in the full moon light, appellants Shyam Lal and Raj Karan beating Uma Shanker, his wife Smt. Siakanti and their children with Gandasas while Smt. Soniya wife of Shyam Lal was instigating them to beat so that they may taste the fruit of partition. ON the challenge of Sarju Prasad and Banwari Lal the aforesaid two accused ran away towards north. When Sarju Prasad and Banwari came down they found Uma Shanker, Smt. Siakanti and Pappu injured and dead on the cot while Km. Suman was also lying there with injuries on her face and other parts of her body. ON the challenge of Sarju Prasad and Banwari Lal the aforesaid two accused ran away towards north. When Sarju Prasad and Banwari came down they found Uma Shanker, Smt. Siakanti and Pappu injured and dead on the cot while Km. Suman was also lying there with injuries on her face and other parts of her body. Sarju Prasad wrote a report Ex. Ka 1 and lodged it at police station Dhata situate in the same Qasba at a distance of about three furlongs at about 1.30 A. M. ON the basis of that report a case was registered against Shyam Lal, his wife Smt. Soniya and his son Raj Karan u/Sec. 302/307 IPC. The matter was entrusted to Sri Rajendra Singh PW 5 for investigation who immediately proceeded on the spot and reached at the place of occurrence at about 1.45 A. M. After recording the statement of Sarju Prasad, he seized the three aforesaid dead bodies and prepared Panchayat nama Exts. Ka 7, 14 and 21. After completing formalities he sent the three dead bodies for post mortem examination to Headquarter through constable Sonpal Singh and Tirloki Singh. He collected the blood stained earth and plain earth vide Ext. Ka 28 and also collected one Gadda and one Chaddar from the bed of Uma Shanker and one Gadda and one Chaddar from the bed of Smt. Siakanti vide Fard Ext. Ka 29. He inspected the spot, prepared site plan Ext. Ka 30 and recorded the statements of the witnesses and sent all the recovered articles through constable Ram Chandra to the police station. A search for the accused persons was mads but they were not found in their house. On 18-5-84 while the I. O. was returning back along with constable to the police station he came to know that the accused of this case were coming from the side of village Padhri through the canal patri and were to go to their relations in village Alwara. Receiving this information he called Niranjan Nath PW 4 and Rati Ram and reached on the culvert of canal which is situate on Dhata Kotwali Road and concealed themselves there. After 10 or 15 minutes, Shyam Lal and Raj Karan were seen coming out of the said canal and on pointing out by the informer they were over powered suddenly and arrested at about IP. After 10 or 15 minutes, Shyam Lal and Raj Karan were seen coming out of the said canal and on pointing out by the informer they were over powered suddenly and arrested at about IP. M. On being questioned it is alleged that after making confession of their guilt both the appellants promised to give the Gandasas which they used in commission of the crime and also to hand over the garments which they had put on at that time. Both the appellants tools: the police party and the witnesses in the Har in their tube-well and by opening (he room, they took out two Gandasas Exts. 7 and 8 from the room. They also took out two Kurta and one Lungi Exts. Ka 10 and 11 respectively und handed over the same to the I. O. After sealing the same he prepared recovery memo Ext. Ka 5. The I. O. also prepared site plan of the place of recovery Ext. 31 and recorded the statements of Niranjan Nath, Ratiram and others. 5. KM. Suman was also taken to police station immediately at the time when the report was lodged. She was sent to Hospital for medical examination from where she was referred to Medical College Allahabad. 6. DR. R. B. "'Shukla, Emergency Medical Officer Swaroop Rani Nehru Hospital, Allahabad examined Km. Suman on 17-5-84 at 8.40 A. M. The Doctor found five incised wounds on her body vide report Ext. Ka 35. 1. Incised wound measuring 4 " 1-1/2 " x bone deep (involving transverse out of the left ear) on the left side of the face extending from 1 " below and lacerated left eye to 1/2 " back of the left ear. Fresh bleeding was present 2. Incised wound measuring 3 " x 1/2 " x muscle deep 1/2 " below the injury no. 1. 3. Incised wound measuring 3 " x 1/2 " x muscle deep just below injury no. 2. 4. Chopped of the left thumb at the junction of nail bed. Fresh bleeding was present. 5. Incised wound measuring 3 " x 2 " at the lateral aspect of the left arm just above the left wrist joint. Fresh bleeding present. 1. 3. Incised wound measuring 3 " x 1/2 " x muscle deep just below injury no. 2. 4. Chopped of the left thumb at the junction of nail bed. Fresh bleeding was present. 5. Incised wound measuring 3 " x 2 " at the lateral aspect of the left arm just above the left wrist joint. Fresh bleeding present. There was also another injury on her body which was incised wound measuring 1/2 " x 1/2 " on the lateral aspect of the left index finger at the injunction measuring 1/2 " x 1/2." x bone deep. Fresh bleeding was present. In the opinion of the Doctor all the six injuries were fresh in nature and caused by sharp object. Injury no. 1 was grievous and rest were kept under observation. She was admitted in the aforesaid Hospital at Allahabad. 7. THE post-mortem examination on the dead body of Uma Shanker, Smt. Siakanti and Pappu was conducted by Dr. R. J. Khare PW 3, Medical Officer, P.A.C. Batn. XII Fatehpur on 13-5-84 at about 8. 40 A. M. 8. THE aforesaid Doctor Khare examined Pappu aged about 3 years on 18-5-84 and found the following ante-mortem injuries on his dead body : 1. Incised wound 7 " x 1 " x bone deep placed horizontally on right side of face extending from right ear to nose. Margins are clear cut and incised. 2. Incised wound 3 " x 1/2 " x muscle deep about 1/2 below injury no. 1 Margins are clean cut incised and regular. 3. Incised wound 3 " x 1/2 " x bone deep with fracture right elbow joint. Margins are clean cut incised and regular. 4. Incised wound 2 " x 1 " bone deep on right wrist joint. Margins are clean cut regular and incised. On internal examination he found that about 1/2 " brain was liquified. Right and left lungs were congested. Heart was empty. Stomach, small intestine and large intestine and gall bladder were empty. On the dead body of Smt. Siakauti, the post mortem was conducted by the same Doctor Khare on the same day and following ante-mortem injuries were found :- 1. Incised wound 7 " x 1 " x bone deep a joining the left ear. Margins are clean cut incised and regular. 2. On the dead body of Smt. Siakauti, the post mortem was conducted by the same Doctor Khare on the same day and following ante-mortem injuries were found :- 1. Incised wound 7 " x 1 " x bone deep a joining the left ear. Margins are clean cut incised and regular. 2. Incised wound 8 " x 1 " x bone deep about 1 " below injury no. 1 cutting the left juglar bone. Trachea, larynx and oesophagus are all cut off. Margins are clean cut, incised and regular. 3. Incised wound 4 " x 1 " x muscle deep on right upper arm. Margins are clean cut regular incised. Fracture of right] humerus bone middle part. 4. Incised wound 2-1/2 " x 1/2 " x muscle deep about 1 " below injury no. 3. Margins are clean cut regular and incised. 5. Incised wound 4 " x 1-1/2 " x muscle deep about 1 " below injury no. 4. Margins are clean cut, incised and regular. 9. ON the internal examination, the; Doctor found that the brain was partially liquified. Third survical vertebra, larynx and trachea were cut off. Right and left lungs were congested. Heart, stomach, uterus, bladder small and large intestines were all empty. 10. THE post-mortem examination of Uma Shanker was performed by Dr. Khare on the same day. THE Doctor found the following ante-mortem injuries on his dead body :- 1. Incised wound 6" x 1" x bone deep placed obliquely on right side face cutting upper and lower jaws exposing the teeth. Margins are clean cut incised and regular. Upper and lower jaws were fractured. 2. Incised wound 2-1/2 " x 1" bone deep about 1" below injury no. 1. 3. Incised wound 8 " x 1-1/2 " x bone deep on the right side of neck extending backward and upward. THE back part of the neck is cut off. Margins are clean cut, incised and regular. Larynx, trachea and oesophagus were all cut off. On internal examination it was found that the brain was partially liquified. Back part of lower portion of skull was cut off. Trachea, larynx were cut off. Right and left lungs were congested. Heart, stomach, small and large intestines and bladder were all empty. Kidney was congested. Post mortem reports Ext. Ka. 2, Ext. Ka 3 and Ext. On internal examination it was found that the brain was partially liquified. Back part of lower portion of skull was cut off. Trachea, larynx were cut off. Right and left lungs were congested. Heart, stomach, small and large intestines and bladder were all empty. Kidney was congested. Post mortem reports Ext. Ka. 2, Ext. Ka 3 and Ext. Ka 4 of the aforesaid three deceased are on the record,, All the three deceased had died on account of shock and haemorrhage due to ante-mortem injuries found on their bodies and all of them might have died on 17-5-84 at about 12 O' clock in the night. The Doctor was also of the view that all the injuries could have been caused by some sharp edged weapon like Gandasa and Kulhari. The aforesaid injuries were sufficient in ordinary course of nature to cause their deaths. 11. AFTER completing the investigation charge-sheet Ext Ka 32 was submitted against both the appellants and Smt. Soniya, wife of Shyam Lal, appellant. The case was committed to the Sessions court far trial. 12. PROSECUTION examined five witnesses in support of its case out of whom PW 1 Sarju Prasad complainant and Km. Suman Lata Misra PW 2 an injured witness are the eye witnesses of the occurrence. Rest of the witnesses are aforesaid Dr. R. K. Khan, PW 3, Rajendra Singh I. O. PW 5 and Niranjan Nath PW 4. Affidavit of constable Sonpal Singh Ext. Ka 34 and some ither documents also have been filed on behalf of the prosecution. All the accused persons pleaded not guilty to the charges and have stated that they have been falsely implicated on account of enmity. Shyam Lal, appellant has filed written statement under Section 313 Cr. P.C. wherein it has been stated that there was no dispute regarding land or any other property between him and his brother Uma Shanker (deceased). It is further stated that there was a dispute between his brother Uma Shanker and one Ambar Pasi who had cultivated the land of Uma Shanker on batai and an altercation had taken place between them three or four days before the occurrence. Sarju Prasad complainant has named him in the first information report to take possession of his entire share as well as Uma Shanker's share in agricultural land. He has also tutored Km. Suman Lata Misra for giving false evidence. Sarju Prasad complainant has named him in the first information report to take possession of his entire share as well as Uma Shanker's share in agricultural land. He has also tutored Km. Suman Lata Misra for giving false evidence. It is also stated that in fact this incident took place at 8 or 9 P. M. in the way between tube-well and the house while Uma Shanker was returning home with his children after attending to call of nature and taking bath at tube-well and no body had scene the occurrence. Shyam Lal has also denied the recovery of Gandasa and clothes etc. as alleged by the prosecution and has stated that he was arrested from his Khalihan and directly sent to police station and that Sarju Prasad was not at all present at the time of incident. Raj Karan and Smt. Soniya adopted Shyam Lal's statement. 13. AFTER considering the entire evidence on record the learned Sessions Judge has given benefit of doubt to Smt. Soniya, wife of Shyam Lal, appellant and acquitted her. Both the appellants have been convicted and sentenced as aforesaid, hence this appeal and reference are before us for decision. 14. THE aforesaid prosecution story has been fully supported by two eye witnesses, namely, Sarju Prasad complainant PW 1 and Km. Suman Lata Misra PW 2. Sarju Pd. complainant had lodged the report on the night of occurrence at 1.30 a. m. at police station Dhata. He also wanted to go to Jhansi for a trip along with his brother-in-law and sister early in the morning of 17-5 84. THErefore, he and one Banwari Lal, who was also to go to Jhansi in search of a job, were sleeping on the roof (Chhat) of the house of his brother-in-law, Uma Shanker. On hearing the sound of shriek and cry of the victims, they woke up and saw, in the full moon light, appellants Shyam Lal and Raj Karan beating Uma Shanker, his wife Smt. Siyakanti and their children with Gandasas. While Smt. Sonia wife of Shyam Lal was instigating, them to beat so that they may taste the fruit of partition. On the challenge of Sarju Prasad PW 1 and Banwari Lal, the appellants ran away towards north. When they came down, they found Uma Shanker, Smt. Siyakanti and Pappu lying dead on the cot while Km. While Smt. Sonia wife of Shyam Lal was instigating, them to beat so that they may taste the fruit of partition. On the challenge of Sarju Prasad PW 1 and Banwari Lal, the appellants ran away towards north. When they came down, they found Uma Shanker, Smt. Siyakanti and Pappu lying dead on the cot while Km. Suman was lying there with injuries on her face and other parts of her body. Sarju Pd. wrote report, Ex. Ka 1 and lodged it at the police station Dhata at 1.30 a. m, Sri Rajendra Singh, I. O. PW 5 reached) the spot at 1.45 a. m. within fifteen minutes after the aforesaid report. THE presence of this witness in the house of the deceased at the time of the occurrence has been proved by Km. Sumanlata PW 2. His presence at the time of the; occurrence has been accepted by the learned Sessions Judge giving good reasons. We find no good reasons to differ with his finding on this point. THE presence of PW 2, Km. Sumanlata injured cannot be doubted because she had received injuries in that very incident. The age of Km. Suman Lata PW 2 has been noted down by the learned Sessions Judge as six years at the; time of her evidence, which was recorded on 8-2-1985. Thus her age on the date of occurrence comes to a few months more than five years. Therefore, there is no doubt that she is a child witness. It is well settled by now in India that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not ordinarily act on the uncorroborated evidence of a child witness whether sworn or unsworn. This was so held by their Lordships of the Privy Council in Mohammad Sugal Esam Rer Alalah v. The King, AIR 1946 PC 3. The same view was taken by our Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 . Their Lordships have pointed out the nature and extent of the corroboration which should be required. In England as a matter of rule corroboration of the evidence of a child witness is necessary for conviction; but in India it is not so. It is only prudence which requires some corroboration. Their Lordships have pointed out the nature and extent of the corroboration which should be required. In England as a matter of rule corroboration of the evidence of a child witness is necessary for conviction; but in India it is not so. It is only prudence which requires some corroboration. It is impossible to formulate the kind of evidence which should, or, would be regarded as corroboration because its nature and extent must necessarily differ with the circumstances of each case and also according to the particular circumstances of the offence charged. Nonetheless, some principles have been enunciated by our courts for such corroboration. There is no rule of law in India that the evidence of a child witness cannot under any circumstances be acted upon without corroboration. The necessity of corroboration is as a matter of prudence. The tender years of the child, coupled with other circumstances appearing in the case, such for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. In Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661 our Supreme Court has held that there is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. The type of corroboration must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged-See Madhoram v. State of U. P., AIR 1973 SC 469 . In the case of Suresh v. State of U. P., AIR 1981 SC 1122 , relied on by the learned AGA the Supreme Court has maintained the conviction of Suresh appellant on the sole evidence of a child witness of five years when their Lordships were satisfied from the facts and circumstances of that case that the child witness was a witness of truth and not a witness of imagination. 15. HAVING the aforesaid propositions of law in mind, we have carefully scrutinized the evidence of Km. Suman Lata Misra PW 2. The learned Sessions Judge himself has held that the presence of Km. Suman Lata cannot be denied. She had received injuries on the -said night. 15. HAVING the aforesaid propositions of law in mind, we have carefully scrutinized the evidence of Km. Suman Lata Misra PW 2. The learned Sessions Judge himself has held that the presence of Km. Suman Lata cannot be denied. She had received injuries on the -said night. He has further held in paragraph 30 of his judgment that she had no doubt made the statement in a natural way by using the rural dilect, which she is using in the house and village. About the use of words by this child the learned Sessions Judge has held in paragraph 31 of his judgment that a child cannot lose the identity and on account of that instinct she had acted in a natural way and used these words. She also could not be said to have felt her heart with full animus on account of the murders against the accused persons and this is why she is addressing them (appellants) 'Bhaiya', 'Dada' and 'Badi Amma' as she was using before, but in any case her statement that Sarju Prasad was present in the house and all slept on cots, cannot be rejected, because she could have remembered that much fact, which corroborates the statement of Sarju Prasad PW 1. He has further held that in any case whatever had taken place before the murders, she had seen the same and is to be relied on. But curiously enough (the learned Sessions Judge has held that a child of four years cannot be expected to see as to what had happened when she was immediately awakened on receiving injuries; such a large number of injuries on her face would not have allowed her to see as to what had happened later on by opening the eyes she would not have been able to see clearly suddenly. In the end the learned Sessions Judge has concluded that whatever she is stating after receiving the injuries, is only an imagination or tutored version. 16. WE are unable to uphold the finding of the learned Sessions Judge regarding this child witness that whatever she is stating after receiving the injuries is only an imagination or tutored version; such a large number of injuries would not have allowed her to see as to what had happened later on and she would not have been able to see clearly suddenly by opening her eyes. It is very well known that human eyes are like a camera. It takes very little time to see and grasp whatever comes before it. She has clearly stated that her mother and father cried when they were attacked. Their cots were separate. The night was full moon-lit night. She was on the cot of her mother along with her younger brother, Pappu (deceased). She: saw her Dada, Shyam Lal assaulting her mother, her brother Pappu and herself. She also saw her cousin, Raj Karan appellant assaulting her father Uma Shanker by Gandasa. She also heard her Badi-Amma saying, "Mar dalo dahijaron ko, batwara ka maja chakha do." She has further stated that on being challenged 'by her maternal uncle, Sarju Prasad PW 1 and Banwari, her Dada, Shyam Lal appellant and brother Raj Karan and her Badi Amma went away. She has emphatically stated that she was conscious. There is a long searching cross-examination of this witness and she has stood well. WE find nothing in her cross-examination, which can create any iota of doubt that she could not see and could not remember the greatest tragedy of her life, which occurred before her eyes. This has been brought out in her cross-examination that she woke up after receiving an injury on her face; she was not unconscious. She showed the Judge six injuries on her face and three injuries on her left hand. She has emphatically denied the defence suggestion that she became unconscious and we find it difficult to believe that even after receiving the first injury she will not wakes up and could not see and recognise the assailants. She was taken to Allahabad, where she was examined by the E. M. O., S. R. N. Hospital and her injuries were noted down vide her injury report, Ex. Ka-15. She was admitted in S. R. N. Hospital, Allahabad for her treatment. The injury report, Ex. Ka-15 has not been disputed on behalf of the defence under section 294 CrPC. There is no mention of this fact in the said report that she was unconscious. If she had been unconscious, this fact must have been noted down in the aforesaid report. She was examined by the I. O. later on under section 161 CrPC. Therefore, mention of unconsciousness by the I. O., who examined her much later, appears to be imaginary. In her cross-examination, Km. If she had been unconscious, this fact must have been noted down in the aforesaid report. She was examined by the I. O. later on under section 161 CrPC. Therefore, mention of unconsciousness by the I. O., who examined her much later, appears to be imaginary. In her cross-examination, Km. Suman Lata PW 2 has counted the numbers from 1 to 100/- but could not say what number comes before 7'. Therefore, the learned Sessions Judge has held that she was tutored. The Court itself asked the question as to when these numbers were learnt by her. She has clearly stated that these numbers 1 to 100 were taught to her by her younger maternal uncle, Jeewan before the murder of her parents. If the learned Sessions Judge had taken the trouble to ask her to count again numbers 1 to 7, she could have easily answered the question as to what number comes before 'V. On this basis she cannot be said to be a tutored witness of imagination. Imagination comes where the witness has not seen the occurrence. Such a brutal act happened before her eyes, which she can not forget for the rest of her life. It is clear from her medical report, Ex. Ka-15 that her eye sight was not injured at all. Therefore, after receiving an injury she could very well see the assailants and recognise them particularly when they belonged to her own family. We are also not prepared to accept that she wall falsely implicate the appellants whom she has addressed in her statement as "Dada" and "Bhaiya", if they were not the real assailants, Sarju Prasad PW 1 has also no enmity with the appellants. Therefore, he could not also tutor her to falsely implicate the appellants. The learned Sessions Judge himself has held that she bore no animosity against the appellants. Under these circumstances;, we find that the learned Sessions Judge has committed a grave error in rejecting the statement of Km. Suman Lata PW 2 on flimsy grounds on the main point of occurrence. We find her statement flawless. No significance can be attached to minor discrepancies as held by the Supreme Court in the case of Site Ram v. State of M. P., 1975 SCC (Cr.) 464. Even then it would be prudent to seek corroboration of the evidence of Km. Suman Lata PW 2. 17. We find her statement flawless. No significance can be attached to minor discrepancies as held by the Supreme Court in the case of Site Ram v. State of M. P., 1975 SCC (Cr.) 464. Even then it would be prudent to seek corroboration of the evidence of Km. Suman Lata PW 2. 17. THE statement of the aforesaid child witness finds full corroboration in this case from the statement of her maternal uncle, Sarju Prasad PW 1, whose presence at the time of occurrence has been accepted by the learned Sessions Judge relying on the evidence of Km. Suman Lata PW 2. Sarju Prasad PW 1 lodged the report promptly in which all the details are given. Sri Rajendra Singh, I. O. PW 5 reached the spot at 1.45 a. m. within fifteen minutes after lodging of the FIR and found the injured and dead persons on their cots. He took in his possession the Gaddas, and Bed Sheets of those beds, which were later on found soaked with human blood of 'A' 'B' group. THE presence of Sarju Prasad has been rightly believed by the learned Sessions Judge giving good reasons. We find nothing wrong in those reasons. It is not necessary to repeat them in detail here. THEre is no doubt that he was a Primary School teacher at Saurai situated at a distance of 25 Kilo meters from Dhata. His School was closed after 16-5-1984 for one day, i. e. for 17-5-1984 as it was Shub-E-Rat and he had left an application for leave for 18th and 19th May, 1984 with the Head Master. 20th May was Sunday and thereafter the School was to be closed for the summer vacations. He was also to go to Jhansi along with his brother-in-law for a trip. It is true that on the last day the result of class V students of Primary School was to be announced. THEre is no evidence on record to show that this witness was a class teacher of class V of the said School and as such he had no business to be present at the School on the last working day in connection with the announcement of the result. It has also come in his evidence that he was not permanently staying at Saurai School but used to come and go daily from his village. It has also come in his evidence that he was not permanently staying at Saurai School but used to come and go daily from his village. THE learned Sessions Judge has rightly held that it is also a matter of common experience that primary school teachers some times even do not attend school at all, yet they show their presence in school registers. THE Primary School at Saurai appears to be situated in some remote village and the possibility that higher authorities were inspecting appears to be nil. If Sarju Prasad was not present at the time and place of occurrence, he could not have lodged the FIR so promptly giving such details. 18. THE place where Sarju Prasad PW 1 was present on the roof, is also quite near and as such he could have very wall seen the assailants. There was full moon light, which was sufficient for the witnesses to recognise the known assailants. So far as the use of weapons is concerned, Sarju Prasad PW 1 has clearly stated that both the appellants, namely, Shyam Lal and Raj Karan were armed with Gandasas and they were beating and cutting Uma Shanker, Smt. Siyakanti and Pappu He has also stated that Shyam Lal belaboured his sister and her children with Gandasa while Raj Karan cut bis brother-in-law Uma Shanker. So far as the motive for this crime is concerned, Sarju Prasad PW 1 has clearly stated that his brother-in-law, Uma Shanker (deceased) and his elder brother Shyam Lal appellant were residing separately for the last 10-12 years. The fields were also mutually partitioned; but Khata was joint. Shyam Lal had sold and mortgaged his share and on account of that there was apprehension in the mind of Uma Shanker that Shyam Lal appellant may sell his (Uma Shanker's) share also, which was jointly recorded in the revenue records. Therefore, Uma Shanker had asked for partition, which was not liked by Shyam Lal. Uma Shanker (deceased) filed a suit for partition and declaration of his share under section 176 of the UP ZA and LR Act, claiming half share in the property in question on 16-5-1984 at Fatehpur immediately before he was done to death. There is no basis to say that this suit was collusive with the consent of Shyam Lal appellant. On the other hand paragraph 6 of the plaint (Ex. There is no basis to say that this suit was collusive with the consent of Shyam Lal appellant. On the other hand paragraph 6 of the plaint (Ex. Ka-39) of the aforesaid suit clearly shows that Uma Shanker (deceased) had alleged therein that a dispute had taken place at the time of sowing of Rabi crop which gave a cause of action for partition, This allegation also shows that Uma Shanker (deceased) was apprehending some foul play and that is why he wanted to get his share separated and recorded his name separately in the revenue records. This annoyed his elder brother, Shyam Lal and provided immediate motive for the appellants to finish the family of Uma Shanker (deceased). This motive finds further support from the statement of Km. Suman Lata PW 2, who has stated, "Badi amma ne kaha mardalo dahijaron ko, batwara ka maja chakha do." 19. THE factum of murders of Uma Shanker, Smt. Siyakanti and Pappu and receiving injuries by Km. Suman Lata are not disputed before us. THE presence of Sarju Prasad PW 1 in the village Dhata on that date is also not seriously challenged before us. Mr. C. S. Saran, learned counsel for the appellants seriously challenged the statement of Sarju Prasad PW 1 on the ground that he had no occasion to be in the house of his brother-in-law at the time of the occurrence and his statement is against the medical evidence. On a careful scrutiny of the evidence of Sarju Prasad as well as the medical evidence, we find no force in this argument. Sarju Prasad PW 1 has clearly stated that he wanted to go to Jhansi along with his brother-in-law and sister, who were going to leave their house for Jhansi early in the morning of 17-5-1984. Therefore, he went to their house in the evening of 16th May at about 8 p. m. after taking meal at his house in Dakhin Tola of Qasba Dhata, which is a big town. We find nothing unusual in such situations. Much emphasis is laid on the words "after taking meal all of them slept" mentioned in the FIR and omission of mentioning the fact to the I.O. by Sarju Prasad that he had taken meal at his house. We find nothing unusual in such situations. Much emphasis is laid on the words "after taking meal all of them slept" mentioned in the FIR and omission of mentioning the fact to the I.O. by Sarju Prasad that he had taken meal at his house. THE FIR and the statement of Sarju Prasad were recorded just after these three brutal murders of the close relations of Sarju Prasad complainant. Therefore, the use of the aforesaid words in the FIR and the aforesaid omission in the statement of Sarju Prasad under section 161 Cr. P.C. had no importance in itself. THE importance has been attached to it because Dr. R. J. Khare PW 3 has noted down in the post mortem examination report of the three deceased that their stomach and intestines were found empty. A careful scrutiny of the evidence of Dr. Khare reveals that he has not noted this fact correctly. He has stated in his cross-examination, "Tino mritak mrityu se 16-26 ghante poorva bhojan kiya hoga." He has further stated that there may be 6 or 8 hours difference regarding the time of their deaths, which occurred at 12.30 a. m. on 17-5-1984. It comes to this that none of the deceased, even the three years old child Pappu, had taken anything since the morning of 16-5-1984, which appears to be absurd. In any case their stomachs and intestines could not be found empty as noted down by Dr. Khare. This clearly shows his ignorance in this respect. It appears that it was one of his first post mortem examinations and he had wrongly noted down the condition of the stomach and intestines on the dictation of the sweepers, who generally do this job at the time of the post mortem. Thus we find no force in this argument. 20. THE statements of Km. Suman Lata PW 2 and Sarju Prasad PW 1 find further corroboration from the medical Evidence on the record. THE aforesaid injuries of three deceased, Uma Shanker, Smt. Siya Kanti and Pappu and Km Suman Lata PW 2 injured clearly indicate that those injuries were caused by sharp edged weapons like Gandasas as alleged by the prosecution. Dr. Khare has also stated that the aforesaid injuries could be caused at the time alleged by the prosecution. THE aforesaid injuries of three deceased, Uma Shanker, Smt. Siya Kanti and Pappu and Km Suman Lata PW 2 injured clearly indicate that those injuries were caused by sharp edged weapons like Gandasas as alleged by the prosecution. Dr. Khare has also stated that the aforesaid injuries could be caused at the time alleged by the prosecution. He has further stated that all the deceased could have died at about 12.30 a.m. in the night of 16/17-3-1984. There is nothing substantial in the cross-examination of Dr. Khare, which can create any doubt regarding the manner and time of murders as alleged by the prosecution. The statements of the aforesaid two eye-witnesses find further corroboration from the FIR, statement of the 10, Sri Rajendra Singh PW 5, and recovery of blood stained Gaddas and bed sheets, which have been found soaked with human blood of A-B group vide Serologist's report, Ex Ka 36. Rajendra Singh 10 PW 5 reached the sport at 1.45 a.m. within fifteen minutes after the lodging of the FIR. He found all the deceased and injured lying on their beds. Blood was also found on the spot. Chemical Examiner's report Ex Ka 38 also fully supported the prosecution case. 21. THERE is also an evidence of discovery of two Gandasas and the garments put on by the appellants at the time of commission of the murders. The Gandasas and the garments had been sent to Chemical Examiner, who found human blood on these articles vide his report Ex Ka 38. Rajendra Singh 10 PW 5 and Niranjan Nath PW 4 are the witnesses of these discoveries made under Section 27 of the Evidence Act on the information given by the appellants. 22. MR. .C. S. Saran, learned counsel for the appellants relying on Pulukure Kottaya v. Emperor, AIR 1947 PC 67.', Babu v. State, 1972 AWR 105, Mohd. Rajendra Singh 10 PW 5 and Niranjan Nath PW 4 are the witnesses of these discoveries made under Section 27 of the Evidence Act on the information given by the appellants. 22. MR. .C. S. Saran, learned counsel for the appellants relying on Pulukure Kottaya v. Emperor, AIR 1947 PC 67.', Babu v. State, 1972 AWR 105, Mohd. Abdul Hafeez v. State of Andhra Pradash, AIR 1983 SC 367 , Ram Kishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104 , Karunakaran v. State of Tamil Nadu, AIR 1976 SC 383 and Prabhoo v. State of U. P., AIR 1963 SC 1113 vehemently challenged the story of the aforesaid discovery under section 27 of the Evidence Act on the ground that at the time of the arrest of the appellants, no statements of the witnesses ware recorded by the 10, rather the entire statements were recorded at the time of the discovery in the shape of recovery memo, Ex Ka 5 and it is not known as to which of the appellants had disclosed about the burial of the Gandasas and the clothes nor it is known as to who had given the aforesaid articles to the I.O. from the tubewell. Therefore, according to him, this discovery is inadmissible in evidence. On the other hand Sri Jitendra Kumar the learned Additional Government Advocate and MR. R. N. Misra counsel for the complainant relying on Nathu v. State, AIR 1958 Allahabad 467 and Moti Lal v. State, AIR 1959 Patna 59 vehemently contended that the aforesaid discoveries are admissible in evidence against the appellants, who are father and son. In the alternative they also urged that even if the discoveries of the aforesaid articles are not admissible under section 27 of the Evidence Act, the statement of the I.O. regarding their discoveries is admissible u/sec. 8 of the aforesaid Act. When Shyam Lal and his son Raj Karan appellants were arrested, they were interrogated separately and gave information to the police, which led to the discovery of the weapons of assault (two Gandasas) and clothes of the appellant which they were wearing at the time of committing the murders. 8 of the aforesaid Act. When Shyam Lal and his son Raj Karan appellants were arrested, they were interrogated separately and gave information to the police, which led to the discovery of the weapons of assault (two Gandasas) and clothes of the appellant which they were wearing at the time of committing the murders. This information is to be found in the recovery memo, Ex Ka 5i as under : "Dono muljimano se alag alag samaksh gawahan hala katal tatha un kapadon ke babat pucha gaya jinhe pahan kar katal kiye gaye to dono muljimano ne mafi mangte huye kaha ki sarkar ham logon ne bahut badi galti ki hai. Ab aap kuchh bhi kar sakte ho. Ham log jhuth nahin bolenge. Ham dono apko hala katal gandase wa kapdon ko chal kar de sakte hain, jahan par hamne unhe chipaya hai. Lihaja is par mujh S. O. ne muljiman ke farari ka khyal rakhte huye dono muljimano ko age age chalne ko kaha aur ham log unke pichhe ho liye. Dono muljimano ne age age chal kar apne chak me lage injan ke kamre par aaye aur kothari ki kundi khol kar kothari ke uttari-pashchimi ke kone me gaddhe me se do adad Gandasa jinka. huliya niche darz kiya gaya, se lakar mujh S. O. ko diye tatha usi kothari me pashchim kone me mamuli mitti se dhake huye do kurte wa ek lungi nikal kar diye, jinka bhi huliya niche darz hai. Dono Gandason ko wa kapado ko alag alag samaksh gawahan kabje police me lekar sarva mohar kiya gaya." Sri Rajendra Singh IO PW 5 and Niranjan Nath PW 4 are the witnesses of this discovery. PW 4, Niranjan Nath has stated : "Shyam Lal ne us kothari me se uttari-pashchami kone se mitti khodkar do Gandase nikale aur kaha ki yah wahi Gandase hain jisse katal kiya. Un dono Gandason par khoon laga tba. Usko Shyam Lal ne daroga ko diya. PW 4, Niranjan Nath has stated : "Shyam Lal ne us kothari me se uttari-pashchami kone se mitti khodkar do Gandase nikale aur kaha ki yah wahi Gandase hain jisse katal kiya. Un dono Gandason par khoon laga tba. Usko Shyam Lal ne daroga ko diya. Raj Karan ne bhi pashchimi-dakshini kone se mitti khodkar do kurte wa ek lungi jin par khoon ke dhabbe pade the nikal kar daroga ji ko diya aur kaha ki in hi kapadon ko pahne the jab katal kiya." Sri Rajendra Singh 10 P W 5 has stated : "Dauran janch bad giraphtari puchhtachh karne par dono muljiman ne bad karne iqbal jurm katal me prayog kiye gaye hathiyar we katal ke samay pahne huye kapadon ke bare me bataya aur kaha ki use chal kar de sakte hain......Dono muljiman tubewell ke uttari kothari ki taraf gaye wahan dono muljiman ne mitti hata kar do gandase nikal kar diya jo khoon allooda the...... Prapt Gandase, Ex 7 and Ex 8 hain...Phir dono muljiman ham sab ko lekar dakshini kone me gaye aur wahan se mitti khod kar do kurte wa ek lungi nikal kar di aur bataya ki kurta khanddar Ex 9 ko Shyam Lal pahne tha, kurta saphed, Ex 10 use Raj Karan pahne tha. Lungi Ex 11 ko Raj Karan ko pahne bawakta ghatna bataya tha". 23. AFTER the decision in Kottaya's case (supra) followed by our Supreme Court in Parsadi's case, AIR 1957 SC 211 , it is well established now that provisions of section 27 of the Evidence Act are by way of exceptions to the rule of inadmissibility of confessional statement of an accused in custody of a police officer as provided in sections 25 and 26 of the Act. It is also well established that section 27 should be strictly construed and the prosecution has to bring the statements of the accused leading to the discovery strictly within four corners of the section. Further only so much of the evidence of the accused is admissible as leads to the discovery and not to the past account or the past history. 24. THERE are conflicting decisions of this courts as well as other High Courts on the point of admissibility of statements or actions, which led to the discoveries of facts, if they are made jointly, simultaneously or one after the other before the discoveries are made. 24. THERE are conflicting decisions of this courts as well as other High Courts on the point of admissibility of statements or actions, which led to the discoveries of facts, if they are made jointly, simultaneously or one after the other before the discoveries are made. In Laxman Singh v. State, AIR 1952 SC 167 a doubt was cast on some decisions on the point, which were cited before their Lordships of the Supreme Court, in the following language : "It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons in order to create evidence against all of them, the case undoubtedly demands a most cautious approach. But, as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in section 27, Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of section 27, and it may be that on a suitable occassion in future those cases may have to be reviewed". In Ram Kishan Mithan Lal Sharma v. State of Bombay (supra) it was observed by the Supreme Court referring to a Bombay decision as under : "The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused 1 and 2 in that case was admissible without specifying what statement was made by a particular accused which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by section 27 and the evidence of Mistry, the Police Officer, in that behalf should therefore have been excluded." It is important to note that the; aforesaid observation of the Supreme Court by Hon'ble Fazal Ali, J. in Laxmam Singh's case (supra) was perhaps not brought before the Supreme Court in Ram Kishan's case. Thus both the observations of the Supreme Court hold the field. Thus both the observations of the Supreme Court hold the field. But the later decision is of a Bench consisting of three Judges and the earlier one is of two Judges Thus the decision of the larger Bench is binding on us. Following the observations of the Supreme Court decision in Ram Kishan's case (supra) a Division Bench of this Court in the case of Babu v. State (supra) has held that the ruling in Nahtu's case (supra) proceeded on the basis, inter alia, that the words "a person" in Sec. 27 included "persons" can however no longer be regarded as good law in view of the pronouncement of the Supreme Court in Ram Kishan's case. 25. THERE is no doubt that in Moti Lal v. State (supra), N. Untawalia, Judge of the Patna High Court as he then was relying on Queen Empress v. Babu Lal, ILR 6 Alld. 509 FB has taken a different: view. Commenting on the judgment of Hon'ble Jackson, J. in the case of Queen v. Ram Churan Chung, 24 Suth. WR 36 Crl. he held as under : "With utmost respect, I find myself to agree with the proposition laid down in this Weekly Reporter case. As stated above, I do not find any sufficient reason to hold that a fact cannot be said to be discovered in consequences of the information of more than one person accused of any offence. The information may be by one or by several persons but, if the information precedes the fact of discovery, the discovery must be attributed to the joint and several information by all and so mush of the information as leads distinctly to the fact thereby discovered must be admitted in evidence under Sec. 27 of (the Act against all such persons who gave that information." Straight J., pointed out in ILR 6 AH. 509 : "It seems to me that the evidence of Hafizullah, the constable, who deposed to these so called confessions, has been most carelessly taken by the sessions Judge, and contrary to all recognised rules as to the mode in which the testimony of witnesses should be recorded. 509 : "It seems to me that the evidence of Hafizullah, the constable, who deposed to these so called confessions, has been most carelessly taken by the sessions Judge, and contrary to all recognised rules as to the mode in which the testimony of witnesses should be recorded. I have more than once pointed out that it is not a proper course, where two persons are being tried, to allow a witness to state ' they said this ', or ' they said that ', or ' the prisoner then said.' It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used. And, I may add, where a statement is......... Being detailed by a constable as having been made by an accused, in consequences of which he discovered a certain fact or certain facts, the strictest precision should be enjoined on the witness, so that there may be no room for mistake or misunderstanding ." With respect I am in agreement with the rule of caution and prudence, if I may say so, laid down in the above Allahabad case by the learned Officiating Chief Justice. " 26. AFTER referring Nathu's case (supra) and two aforesaid decisions of the Supreme Court, Hon'ble N. Untawalia, J. has concluded in Babu Lal's case as under :- "Giving my most careful consideration to the point raised in this revision and, in spite of my having taken the view that statements of more than one accused, if properly deposed to, leading to the discovery of a fact are admissible under Sec. 27 of the Evidence Act, yet I find it difficult to hold in this particular case that the statement which is jointly attributed to Moti Lal and Lakhan Lal as having told the Assistant Sub-Inspector that they had kept the utensils in a sota is admissible against either of them for the simple reason that it suffers from vagueness and is not definite on the question as to what Moti Lal said and what Lakhan Lal said. If the statement would have been deposed to clearly and definitely, it would have been admissible against both. If the statement would have been deposed to clearly and definitely, it would have been admissible against both. I would, therefore, following the observations of the Supreme Court in AIR 1955 SC ]J04, hold that the statement attributed to Moti Lal that he told the Assistant Sub-Inspector as having kept the utensils in the sota is inadmissible against him. The argument of Mr. Verma, learned Additional Standing Counsel, that it must be presumed that the statements in the exact language were simultaneously made by both the accused or that they were made one after the other in the sequence recorded in the deposition is not acceptable to me, for the simple reason that I cannot read into the evidence which is not there." In view of the above, we are of the opinion that in the instant case the joint statements attributed to the appellants on the basis of which Gandasas and clothes of the appellants were discovred, even if not admissible in evidence under Sec. 27 of the Evidence Act, it should not be taken to mean that the factum of recovery of Gandasas and clothes is not admissible ever under Sec. 8 of the Evidence Act. In Ram Kishan's case (supra) the Supreme Court itself has held as under :- "The evidence of the police officer would no doubt go to show that the accused knew of the existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite inconcuous and evidence could certainly be given of that circumstance without, attracting the operation of Section 27." Following the ratio of Ram Kishan and Babu's case (supra) recovery of the Gandasas and the clothes in this case will be covered within the ambit of Sec. 8 of the Evidence Act, inasmuch it is indicative of the subsequent conduct of the appellants, who are charged with the offence. But this fact can utmost justify the conclusion that the appellants had knowledge of the fact where the aforesaid Gandasas and clothes were burried and not that they themselves concealed them. The two inferences are distinct and cannot, be placed on the same footing. But this fact can utmost justify the conclusion that the appellants had knowledge of the fact where the aforesaid Gandasas and clothes were burried and not that they themselves concealed them. The two inferences are distinct and cannot, be placed on the same footing. This recovery will, therefore, be quite inconcuous and evidence could certainly be given of that circumstance without attracting operation of Sec. 27. It would not go beyond the inference that accused persons had knowledge of the place where the aforesaid articles were concealed. Its intrinsic probative value for connecting the appellants with the murders is almost inconsiderable. But whatever . value it has, it also supports the prosecution case. 27. WE find no force in the defence suggestion that there was enmity between Ambar Pasi and Uma Shanker (deceased) on account of Batai and this incident occurred at about 8 or 9 p. m. in the darkness while Uma Shanker and his family were coming after easing and taking bath at the tube-well, no body saw the occurrence and the appellants have been falsely implicated due to enmity and lust for the property. No witness of the village Dhata, which has a population of ten thousand people has come forward to support the aforesaid defence theory that the occurrence took place at about 8 or 9 p. m. Even Smt. Shiv Rani, the mother of Shyam Lal appellant and the deceased, who went to stop even Sarju Prasad PW 1 from giving evidence in this case to save the family, because the family of one brother (Uma Shanker) had already finished, has not come forward to support this defence theory. If the incident had taken place at about 8 or 9 p. m. in the way as alleged by Shyam Lal appellant in his statement under Sec 313 Cr. P.C., there should have been somebody to say who brought the bodies all the three deceased and Km. Suman Lata injured to their house. There is no evidence to this effect. Even the appellants have not said that they or somebody else brought bodies to their house. 28. A futile attempt was also made on behalf of the appellants to probabilise their defence on the basis of the word ' kach-kach ' used by Km. Suman Lata injured to their house. There is no evidence to this effect. Even the appellants have not said that they or somebody else brought bodies to their house. 28. A futile attempt was also made on behalf of the appellants to probabilise their defence on the basis of the word ' kach-kach ' used by Km. Suman Lata PW 2 in her statement regarding Ambar Pasi and his brother in different context, which reads as under :- "Mere pita ne uske hissa ka galla banli kar de diya tha ki turn le jao. Ambar kah rahe the ki hame aur de do. Mere Papa ne kaha ki bas yahi le jao, is par Ambar aur uske bhiya ' kach-kach ' lagays the." After a careful scrutiny of the evidence of Km. Suman Lata PW 2, we find no force in this argument. On the other hand the prosecution case has been fully proved from the evidence of the aforesaid two eye witnesses including Km. Suman Lata PW 2, and the I. O. Sri Rajendra Singh PW 5, who found all the deceased on their beds, which were blood soaked. Blood was also found on the ground. The Serologist's report, Ex. Ka 36 clearly shows (that human blood of A-B group was found on all the articles Nos. 1 to 11. This completely negatives the defence theory that the occurrence took place else where at about 8 or 9 p. m. Thus we find no force in the defence case and consequently we reject it. In view of the above discussions, we are fully satisfied that the statements of both the eye witnesses, namely, Sarju Prasad PW 1 and Km. Suman Lata PW 2 are fully reliable. They are witnesses of truth and not of imagination. They are closely related to the appellants, therefore, if the appellants were not the real assailants, they would not have deposed against them. Their statements find sufficient corroboration from the medical evidence and recoveries as well as other facts and circumstances of the case. Therefore, convictions of the appellants against all the charges levelled against them are fully justified and need no interference by this Court. 29. NOW we are left with the only question as to what sentence should be awarded to Shyam Lal appellant. Mr. Therefore, convictions of the appellants against all the charges levelled against them are fully justified and need no interference by this Court. 29. NOW we are left with the only question as to what sentence should be awarded to Shyam Lal appellant. Mr. C. S. Saran learned counsel for Shyam Lal appellant has urged to mitigating circumstances ; (i) concept and sentiment of a joint Hindu family was going to be violated by Uma Shanker (deceased), who filed a suit for partition and declaration on the same day, i. e. 16-5-1984 at Fatehpur and (ii) constant provocation of Smt Soniya wife of Shyam Lal appellant to kill the victims to teach a lesson for partition. Coupled with these considerations referring to Suresh's case (supra) relied upon on behalf of the State, learned counsel for the appellant further urged that the basic evidence in this case is also of a child of five years. Therefore, following the ratio of Supreme Court decision in the case of Suresh's case (supra) extreme penalty of death to Shyam Lal appellant is not justified in this case. 30. SECTION 302 IPC prescribes death or life imprisonment as the penalty for murder. While so, the Code of Criminal Procedure instructs the Court as to its application. They changes which the Code has undergone in the last 30 years clearly indicate that Indian Parliament is taking note of contemporary criminoligical thought and human-right movement. Prior to IJ955 Sec. 367 (5) of the Cr. P.C.; 1898, insisted upon the court stating its reasons if death sentence was not imposed in a case of murder. In 1955 Sub-section (5) of SECTION 367 was deleted and the deletion was interpreted by some courts to mean that the sentence of life imprisonment was the normal sentence for murder and the sentence of death could be imposed only if there were aggrevating circumstances. Thereafter the new Code of Criminal Procedure, 1973 brought a further swing towards life imprisonment. SECTION 354 (3) of the new Code now provides that in the case of sentence of death the special reasons for such sentence have; to be given by the courts. It has narrowed the discretion of the court. Death sentence is ordinarily ruled out and can only be imposed for "special reasons". SECTION 354 (3) of the new Code now provides that in the case of sentence of death the special reasons for such sentence have; to be given by the courts. It has narrowed the discretion of the court. Death sentence is ordinarily ruled out and can only be imposed for "special reasons". Judges are left with task of discovering "special reasons " Mere use of adjective like "Cruel and brutal" does not supply the "special reasons" contemplated by SECTION 354 (3) of the new Code", was declared by the Supreme Court in the case of Vishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964 at page 971. There are conflicting opinions of Judges, Jurists, Sociologists and Humanists on the question of death sentence all over the world. Protagnists of the "an eye for an eye" Philosophy demand "death for death". The Humanists on the other hand press for the other extreme viz., "death in no case". A synthesis has emerged in India in Bachan Singh v. State of Punjab, AIR 1980 SC 898 wherein the "rarest-of-rare-cases" formula for imposing death sentence in a murder case has been evolved by our Supreme Court. Identification of the guide lines spelled out in Bachan Singh's case (supra) in order to determine whether or not death sentence should be imposed was one of the problems of the High Courts and subordinate courts in India to which their Lordships of the Supreme Court have addressed themselves in Machhi Singh v. State of Punjab, AIR 1983 SC 957 . Hon'ble Sri M. P. Thakkar, J. speaking for the Court laid down certain guide lines in para 32 of the aforesaid report, under five heads, namely, (I) manner of commission of murder, (II) motive for commission of murder, (III) anti social or socially abhorent nature of the crime, (IV) magnitude of crime, and (V) personality of victim of murder. In this back ground in paras 33 to 35 of the same report his Lordship has further culled out the guide lines indicated in Bachan Singh's case for decision of that case. 31. THE learned Sessions Judge relying on the illustrations given in clause (II), (IV) and (V) of Machhi Singh's case (supra) has sentenced Shyam Lal appellant to death on all the three counts. 31. THE learned Sessions Judge relying on the illustrations given in clause (II), (IV) and (V) of Machhi Singh's case (supra) has sentenced Shyam Lal appellant to death on all the three counts. There is no doubt that cold blooded murders of three persons are committed in the instant case with a deliberate design in order to inherit property or to gain control over the property of his; younger brother, Uma Shanker (deceased). THE victims were helpless and undefended. And what was their fault, except that they belonged to the family of Shyam Lal appellant and they had joint Khata of the agricultural property with: the appellant and Uma Shanker (deceased) filed a suit for partition and declaration just before the occurrence. Uma Shanker and his family were living separately for the last 10-12 years and he was employed in Railways at Jhansi. All the three deceased and injured, Km. Suman Lata had offered no offence to' appellants Shyam Lal and his son Raj Karan. Therefore, the offence committed, was of an exceptionally depraved and heinous character. THE manner of its execution and its design would put it at the level of extreme atrocity and cruelty. 32. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between aggravating and mitigating circumstances before the option is exercised. In this case Shyam Lal appellant, his wife Smt. Soniya and their son Raj Karan appellant were charged u/Sec. 302/34 IPC on three counts and they were further charged u/Sec. 307/34 IPC for causing injury to Km. Suman Lata PW 2. Smt. Soniya has been given benefit of doubt and acquitted by the trial court. Raj Karan appellant has been sentenced to life imprisonment u/Sec. 302/34 IPC. On each counts both the appellants have been sentenced to ten years' R. I. u/Sec. 307/34 IPC for causing injuries to Km. Suman Lata PW 2. Shyam Lal appellant alone has been sentenced to death on each of the three counts. There is no doubt that Shyam Lal appellant was aged about 45 years when the occurrence took place ; but he has no past criminal history at his credit, Nor there is any evidence of previous enmity between him and his younger brother Uma Shanker (deceased) and his family. There is no doubt that Shyam Lal appellant was aged about 45 years when the occurrence took place ; but he has no past criminal history at his credit, Nor there is any evidence of previous enmity between him and his younger brother Uma Shanker (deceased) and his family. It appears that he committed this heinous act for the greed of property due to provocation of his wife, Smt. Soniya, who is said to have been saying at the time of the occurrence, "Mar dalo dahijaron ko batware ka maja chakha do". Under these circumstances, after a careful scrutiny of the evidence and 'Circumstances, we are of the opinion that the fasts and circumstances of this case are mere akin to Suresh's case (supra) on which, the learned Additional Government Advocate relied upon in connection with the reliability of the evidence of child witness, Km. Suman Lata PW 2 than Machhi Singh's case (supra), in which seventeen persons lost their lives and three sustained injuries on which the learned Sessions Judge has placed reliance in deciding in the question of sentence of death against Shyam Lal appellant. Therefore, following the ratio of the Supreme Court decision in Suresh v. State of U. P. (supra), we are of the view that extreme penalty of death to Shyam Lal is not justified on any count in the circumstances of the present case. Therefore, we confirm the order of convictions of both the appellants against all the charges levelled against each of them ; but convert the death sentence awarded to Shyam Lal appellant to life imprisonment on each count. His sentence u/Sec. 307/34 IPC for ten years R. I. is also maintained. The sentences awarded to Raj Karan appellant against all counts are maintained. 33. IN the result Reference No. 6 of 1985 is rejected and the appeal of both the appellants is dismissed with the modification that the sentence of death awarded to Shyam Lal appellant is converted to life imprisonment on each count. All the sentences of both the appellants shall nun concurrently. The appellants are already in jail. They shall remain there to serve out their sentence according to law. Appeal dismissed.