JUDGMENT H.C. Mittal, J. - Param Hans has preferred this appeal against his conviction and sentence under Sections 302 and 324 both read with Section 34, I.P.C. to life imprisonment and two years rigorous imprisonment each. He has further been convicted and sentenced under Section 323, I.P.C. to six months rigorous imprisonment. 2. The prosecution case in brief is that about 13-14 years prior to the occurrence of this case Harbansh brother of this appellant had been murdered and for that murder deceased Rajdhari along with two others was convicted and sentenced to life imprisonment. Deceased Rajdhari after undergoing that sentence returned to his village Kund Bawari, P. S. Barhalganj, District Gorakhpur. However, the appellant and his other brothers Ram Shanker and Harbansh were out to take revenge. It is alleged that on 14-8-1977 at about 7 p. m. in the evening when the deceased was in his house and talking to one Ram Naresh, his wife Smt. Mewati (P.W. 1), daughter Smt. Israwati (deceased) and P. W. 2 Km. Rambhawati were also there, appellant Param Hans armed with an axe along with two other unknown persons armed with country-made pistols reached there and attacked the deceased Rajdhari. In the melee when Smt. Israwati, Ram Naresh and Smt. Mewati who had intervened also received injuries, the appellant along with his companion there after made good his escape. Rajdhari and his daughter Smt. Israwati both died on the spot in the house One Ram Naresh Dubey on hearing gun shots had informed at Police Station Barhalganj at 9-10 p. m. about the hearing of the gun shots in the village, on the basis of which an entry was made in the G. D. and the Investigating Officer left for the village. Thereafter written report (Ex. Ka-1) of the occurrence dictated on behalf of Smt. Mewati was tendered at the police station at 10-15 p. m., on the basis of which case was registered and papers for investigation were sent to the S. O., S. P. Dharni, who had already left earlier on receipt of information at 9.10 p.m The Investigating officer prepared inquest report of the deceased Rajdhari and Smt. Israwati and sent the dead-bodies for postmortem and also sent the injured Smt. Mewati, Ram Naresh and Km. Rambhawati for their medical examination. P. W. 4 Dr. Rambhawati for their medical examination. P. W. 4 Dr. P. S. Agrawal had examined their injuries on 15-8-77 and noted as follows : Injuries of Ram Naresh, vide injury report Ex Ka-4 : 1. Multiple gun shot injury on the left arm in the area of 6 cm above the elbow joint and 2 cm below the elbow joint about 15 in number, rounded in shape with blackening of margins. 2. Multiple shot injury on the left lateral side of abdomen at the level of T12, LI, L2, L4 vertebrae in the area of 8 cm. 6 cm. round in shape. No blackening seen. 3. Abrasion on the right leg anteriorily about 6 cm x 3 cm x skin deep 10 cm below the knee joint. Injuries of Smt. Mewati, vide injury report Ex. Ka-5 : 1. Lacerated wound on the left breast on the lower part about 1 cm x 5 cm x 5 cm. 2. Multiple gun shot injuries on the right fore-arm in an area of 4 cm x 4 cm with rounded margins. 3. incised wound on the scalp on left side 10 cm above and 5 cm lateral to left eye-brow about 5 cm x 1 cm x bone deep. 4. Abrasion on the forehead right side 3 cm above the right eyebrow about 2 cm x 5 cm x skin deep. Injuries of Km. Rambhawati, vide injury report Ex. Ka-6 : 1. Complained of pain in the right side of face. No visible injury seen. 2. Contused swelling on the right side of neck about 10 cm x 5 cm. in the opinion of Dr. Agrawal all the injuries could be caused on 14-8-1977 at about 7 p. m. 3. P. W. 3 Dr. I. P. Singh had done the autopsy on the dead-body of Rajdhari and Smt. Israwati on 16-8-77 on 4 p. m. and noted as follows . Post-mortem report of Rajdhari : Deceased was about 65 years of age, rigor months have passed off from the extremities. Foul smell was coming out. Ante-mortem Injuries 1. Lacerated wound 4 cm x 2 cm x cavity deep on the right head 8 cm above the right ear with brain matter coming out. 2. Incised wound 6 cm x .4 cm x muscle deep on the top of left shoulder joint. 3. Foul smell was coming out. Ante-mortem Injuries 1. Lacerated wound 4 cm x 2 cm x cavity deep on the right head 8 cm above the right ear with brain matter coming out. 2. Incised wound 6 cm x .4 cm x muscle deep on the top of left shoulder joint. 3. Incised wound 4 cm x 1 cm x bone deep on the forehead just above the right eye brow. 4. One gun shot wound 1 cm x 1 cm x muscle deep on the chest 12 cm above the right nipple cock wadding coming out from it. 5. Five gun shot wounds in an area of 6 cm x 3 cm of dimension 1 cm x 1 cm x muscle deep on the chest just above the injury No. 4. 6. Four gun shot wounds 1 cm x cm x muscle deep on the back of right shoulder joint with cock wadding coming from one of the wounds. 7. Incised wound 3 cm x 2 cm x muscle deep on the outer aspect of left arm middle. 8. Incised wound 4 cm x 3 cm x muscle deep on the left arm 5 cm below and outer to injury No. 7. 9. Incised wound 3 cm x 1 cm x muscle deep on the back of left thumb and index finger. 10. Incised wound 2 cm x cm x cartridge deep on the pinny of the left ear. 11. Three incised wounds 6 cm x 1 cm x bone deep 3 cm x cm x bone deep and 1 cm x cm x bone deep on the head 8 cm above the left ear. On internal examination there were fracture of frontal and right parietal bone under injury No. 1. Brain was fractured and lacerated. Right lung was lacerated. Eight ounces digested food material was present in the stomach. Postmortem report of Smt. Israwati (Ex. Ka-3) The deceased was about 25 years of age. Tongue was protruding. Rigor mortis passed off. Decomposition started skin had started pealing off. Blisters were present. Ante-mortem Injuries : 1. Gun shot wound cm x cm x cavity deep on the chest 3 cm inner to left breast. 2. 5 gun shot wounds cm x cm x cavity deep on the left lower axilla 8 cm outer to left breast. On internal examination sternum was fractured. Lower part of left lung was lacerated. Blisters were present. Ante-mortem Injuries : 1. Gun shot wound cm x cm x cavity deep on the chest 3 cm inner to left breast. 2. 5 gun shot wounds cm x cm x cavity deep on the left lower axilla 8 cm outer to left breast. On internal examination sternum was fractured. Lower part of left lung was lacerated. Pericardium and heart were punctured. 3. In the opinion of Dr. Singh injuries of both would have been caused at about 7 p. m. on 14-8-77 and on account of injuries on their person which were sufficient in the ordinary course of nature to cause their death. 4. After completion of the investigation the appellant alone was charge-sheeted as his other two companions could not be apprehended. At the trial, to prove its case the prosecution examined the above named witnesses, namely, P.W. 1 Smt. Mewati, P.W. 2 Km. Rambhawati, the two eye-witnesses of the occurrence. Ram Naresh the other eye-witness could not be examined as he had left the village and his whereabouts were not known and an application on that behalf was moved by the prosecution and the same was allowed by the trial Judge. P. W. 3 Dr. I. P. Singh proved the postmortem report. P. W. 4 Dr. P. S. Agrawal proved the injury reports. P.W. 5 Ramji Dubey had taken the F.I.R. (Ex. Kai) at the police station. P.W. 6 constable K. K. Pandey had taken the deadbodies for postmortem. P.W. 8 Rajendra Prasad Pandey was clerk constable at P.S. Barhalganj and has first noted in the G. D. at 9-10 p. m. about the Oral report that firing had taken place in the village and thereafter prepared the chick report and registered the case at 10-15 p. m., on the basis of the written report and proved the same. P. W. 9 Inspector S. P. Dhani conducted the investigation and the steps taken by him and before submission of the charge sheet he was transferred. Thereafter investigation was taken up by S. I. Rama Shanker Rai, who after completion of the same submitted charge-sheet. 5. The version of the appellant was of total denial. In defence he did not adduce any evidence. The learned Sessions Judge believed the prosecution evidence, hence convicted and sentenced the appellant as stated above. Thereafter investigation was taken up by S. I. Rama Shanker Rai, who after completion of the same submitted charge-sheet. 5. The version of the appellant was of total denial. In defence he did not adduce any evidence. The learned Sessions Judge believed the prosecution evidence, hence convicted and sentenced the appellant as stated above. On being aggrieved this appeal has been preferred and the conviction and sentence have been challenged and Sri Mulla, learned counsel firstly urged that the occurrence had not taken place at about 7 p. m. as alleged, but appears to have taken place late in the night and that the assailants could not be identified and that the F. I. R. was ante-timed; that even though P. W. 1 Smt. Mewati and P. W. 2 Km. Rambhawati who were inmates of the house and had also received injuries, still their testimony who was wholly unreliable and they could not have seen and recognised the appellant as the assailant. 6. Learned counsel, firstly, pointed out that the occurrence is alleged to have taken place at 7 p. m. and still the report of the occurrence was lodged at 10-15 p. m., i.e. after three hours, while the distance of the police station was only four miles. The written F. I. R. (Ex. Ka-1 was taken to the police station by one Premi, father-in-law of Smt. Israwati, but he was not examined. On behalf of the prosecution an application was moved in the Court below on 23-9-78; that P. W. Premi wanted that Smt. Mewati should marry her younger daughter Km. Rambhawati to his son with whom Smt. Israwati (deceased) was married with a view to get the entire property of the deceased, but the same was not acceptable to pmt. Mewati and, therefore, Premi turned hostile to the prosecution and was not prepared to give evidence, on that ground Premi was sought to be discharged. The learned Sessions Judge allowed the application. Prima facie the ground for discharging Premi to be examined as witness was sufficient and it explains why the prosecution could not examine Premi. Under the circumstances of the case as Smt. Mewati herself had received several injuries besides her husband and daughter was lying to death and her other daughter Km. The learned Sessions Judge allowed the application. Prima facie the ground for discharging Premi to be examined as witness was sufficient and it explains why the prosecution could not examine Premi. Under the circumstances of the case as Smt. Mewati herself had received several injuries besides her husband and daughter was lying to death and her other daughter Km. Rambhawati was also injured it was quite natural on her part not to have herself gone to the police station with a written report, but had sent the same through her relation Premi. 7. P. W. 8 clerk constable Rajendra Prasad Pandey has specifically deposed that he had received a written report at 10-15 p. m.. on the basis of which he had prepared the chick report. He has also deposed that on that day an oral report was received from one Ram Naresh at 9-10 p. m. about the firing at 7 p. m. in the village and about which entry in the G. D. was made and he proved and filed Ex. Ka-10, copy of that report. The only suggestion given to him by the defence was that this report was ante-timed and was subsequently written after deliberations. 8. Learned counsel for the appellant also pointed out the fact that in the chick report the distance from the police station to the scene of occurrence was given as four miles, while in the inquest report the distance was given as five miles which indicated that the copy of the chick F.I.R. had not reached the hands of the Investigating officer till he had prepared the inquest report in the morning on 15-8-1977 P. W. 9 Inspector S. P. Dharni has specifically deposed that after receipt of oral report at the police station at 9-15 p.m. that firing had taken place in the village he had left for the village and he received copy of the report and other papers from the police station through constable Kaushal Kishore. P. W. 6 constable Kaushal Kishore was no doubt examined, but was not asked anything about this fact. P. W. 6 constable Kaushal Kishore was no doubt examined, but was not asked anything about this fact. However, in the cross-examination of Inspector S. P. Dharni it was not suggested at all that he had not received any such report from the police station nor he had left at 9.10 p. m. for the scene of occurrence after receipt of the oral report about the firing in the village at 7 p. m. , but it was only suggested that after consultation with him this report was prepared. If the report had been prepared after his consultation then the discrepancy in the distance of the police station as mentioned above would also not have been there. There appears to be some slip and it is not such a material discrepancy which may negative the fact that the report of the occurrence had actually reached the police station at 10-15 p. m. That apart, besides the testimony of P. W. 1 Smt. Mewati and P. W 2 Km. Rambhawati both the inmates of the house and both injured persons in the same occurrence even P. W. 5 Ramji Dubey who is said to have reached the scene of occurrence on hearing the alarm who turned hostile and did not say that he saw the assailants running, has admitted that it was evening time though it had become a little dark and that further corroborates the fact that the occurrence had taken place at about 7 p. m., because on 14-8-77 the sun sets at 6-30 p. m. and, therefore, the prosecution evidence that the occurrence had taken place when there was some light, but after sun set is wholly corroborated. In his cross-examination he has admitted that he was an old man and could walk slowly and, therefore, when he reached the house of Rajdhari it had become dark. He further specifically denied the suggestion that he had heard the alarm in the night, but stated that it was becoming dark when he had heard the alarm. He is wholly an independent witness and, therefore, did not say that he had also seen the appellant running when he reached the house of Rajdhari. 9. He further specifically denied the suggestion that he had heard the alarm in the night, but stated that it was becoming dark when he had heard the alarm. He is wholly an independent witness and, therefore, did not say that he had also seen the appellant running when he reached the house of Rajdhari. 9. On behalf of the appellant it was also pointed out that in the post-mortem about eight ounces of digested food material was found in the stomach of both the deceased which indicated that the occurrence might have taken place after mid-night. Dr. I. P. Singh (P. W. 3) has no doubt stated in his cross-examination that both the deceased must have taken their meals at least 4 hours before their death and at the most before 6 and 7 hours of their death, that means if the deceased had taken their meals at about 2 p. m. and the occurrence had taken place at about 7 p. m. presence of digested food was quite natural. On behalf of defence no effort was made to elicit from any of the prosecution witness, namely Smt. Mewati (P. W. 1) or P. W. 2 Km. Rambhawati as to when they had taken their meals. Thus, this circumstance also does not indicate that the occurrence would have taken place at afore mid-night. 10. Admittedly the appellant Param Hans is also a resident of the same village and for the murder of his own brother deceased Rajdhari was prosecuted, convicted and sentenced to life imprisonment. He was, therefore, well-known to the witnesses and even if the visibility was somewhat poor due to some darkness, the witnesses could still easily recognise the appellant. 11. It was next contended that according to P.W. 1 Smt. Mewati and Km. Rambhawati the injuries with Kulhari to the deceased were caused while he was lying outside on the cot and if that was believed, the deceased could not run inside the house and the injuries of axe must have incapacitated him to get up and run inside the house for safety where he was again attacked and killed. Rambhawati the injuries with Kulhari to the deceased were caused while he was lying outside on the cot and if that was believed, the deceased could not run inside the house and the injuries of axe must have incapacitated him to get up and run inside the house for safety where he was again attacked and killed. It is no doubt correct that P. W. 1 Smt. Mewati has stated that her husband was lying on the cot, Ram Naresh was sitting nearby and she was pressing the legs of her husband Rajdhari while her daughters were in the Sehan dealing with the cattle grass, the appellant along with two others arrived there. The appellant had an axe while his companions had country made pistols and the appellant pointing out towards her husband shouted `YAHI MERA DUSHMAN HAI' and then he attacked her husband with the axe; that when she herself and her daughters intervened, her husband got an opportunity, got up and went inside the house, then the appellant shouted his companions to shoot then his companions shot at her husband and then all the three assailants went inside the house, attacked her husband and killed him; that in that melee she herself and her daughters Israwati and Rambhawati had received injuries; that Israwati had received fire-arm injuries when she tried to close the door to block the entrance while the appellant Param Hans had administered a slap to Rambhawati. P.W. 2 Km. Rambhawati has also stated accordingly that when she along with her sister was dealing with the cattle grass her father was lying on the cot, her mother was pressing his legs and Ram Naresh was also there when appellant along with two other persons arrived there and the appellant started wielding Kulhari on his father, then her mother and her sister intervened, but they were pushed away, then her father got up and went inside the house. The appellant and his companions chased him and killed him: that she had caught the kurta of Param Hans thereupon he had hit her and she had fallen drwn. 12. Smt. Mewati (P. W. 1) who had lost her husband and grown up daughter aged 20 years in her very presence and Km. The appellant and his companions chased him and killed him: that she had caught the kurta of Param Hans thereupon he had hit her and she had fallen drwn. 12. Smt. Mewati (P. W. 1) who had lost her husband and grown up daughter aged 20 years in her very presence and Km. Rambhawati (P. W. 2 a young girl of about 10/11 years could not give a better description of the occurrence It would have been too much to expect the exact narration of the manner in which each and every injury to both the deceased was caused. The fact that they were present cannot be doubted on account of the injuries found on their person which undoubtedly were received in the same occurrence. They are also inmates of the house. The occurrence had taken place before their eyes. Learned counsel, for the appellant drew my attention to the statement of P. W. 3 Dr. I. P. Singh that after receipt of all the incised injuries at the same time the deceased could not have run. The deceased had received one lacerated wound cavity deep which could also be axe on the head from which brain matter was also coming out. The deceased had in all received the following seven incised injuries : - 2. Incised wound 6 cm x 4 cm x muscle deep on the top of left shoulder joint. 3. incised wound 4 cm x 1 cm x bone deep on the fore-head just above the right eye-brow. 4. Incised wound 3 cm x 2 cm x muscle deep on the outer aspect of the left arm middle. 5. Incised wound 4 cm x 3 cm x muscle deep on the left arm cm below and outer to injury No. 7. 6. Incised wound 3 cm x 1cm x muscle deep on the back of left thumb and index finger. 7. Incised wound 2 cm x l cm x cartridge deep on the pinna of the left ear. 8. Three incised wounds 6 cm x cm x bone deep 3 cm x cm x bone deep and 1 cm x cm x bone deep on the head 8 cm above the left ear. The injuries Nos. 7. Incised wound 2 cm x l cm x cartridge deep on the pinna of the left ear. 8. Three incised wounds 6 cm x cm x bone deep 3 cm x cm x bone deep and 1 cm x cm x bone deep on the head 8 cm above the left ear. The injuries Nos. 7, 8 and 9 clearly indicate that the same would have been recovered by the deceased while warding off the blows of the axe, i.e. those injuries must have been caused to him before the serious injuries when he was in a position to ward off those injuries. After receipt of injury No. 1 on the head he probably could not have been in a position to ward off those injuries, but the fact that he received injuries on the hands, thumb and finger clearly establish that he had warded off the blows which indicate clinchingly that injuries Nos. 7, 8 and 9 were caused earlier. The Investigating officer did not find blood on the cot or below it outside where Rajdhari was lying though Smt. Mewati had stated that some blood had fallen down on the cot also, but the Investigating officer did not take it. It was not put to him that in fact there was also blood outside or the cot was also blood stained or the same was inside the house stained with blood where the blood inside the house was recovered. Under the circumstances mere slip of statement of Smt. Mewati that the injuries with the axe were caused outside the house before he had run inside house where he was attacked with fire arms only cannot be taken to be in any manner militating with the veracity of her testimony that in her presence the appellant and his two companions had attacked her husband and daughter. No doubt the injuries on the hand and the injury on the elbow might have been caused outside, but the other axe injuries which completely incapacitated him must have been caused at the place where the deadbody was found and this cannot be said to be any discrepancy worthy of rendering incredible the eye witness account of P. W. 1 Smt. Mewati and Km. Rambhawati that in their presence this appellant and his companions attacked and killed Rajdhari and caused injuries to them also. 13. Rambhawati that in their presence this appellant and his companions attacked and killed Rajdhari and caused injuries to them also. 13. There is a ring of truth in the evidence of both P. W. 1 Smt. Mewati and P. W. 2 Km. Rambhawati. The Investigating officer has not at all done any padding in evidence. He was even very casual in his conduct as he did not bother to send the blood-stained earth etc. for test to the Chemical Examiner and Serologist. Even the dead-bodies were not despatched with promptitude for post-mortem. This negligence of the Investigating officer also does not help toe defence as it is not alleged that the occurrence had taken place after sun rise on 15-8-1977. 14. The conclusion, therefore, is that from the eye witness account of P. W. 1 Smt. Mewati and P. W. 2 Km. Rambhawati who have deposed in a very natural manner without any effort to conceal anything or add anything, the medical evidence and other circumstances on record guilt has been brought home to the appellant beyond reasonable boubt and there is no samblance of truth in the defence contention that the occurrence would have taken place at mid-night when all were sleeping and assailants could not be seen and recognised. Hence the appeal is dismissed, conviction and sentences of the appellant under Sections 302/34; 324/34 and 323, I.P.C. are confirmed. He should surrender and serve out his sentences. 15. The copy of the judgment be sent to the Court below for immediate compliance.